%;.^'f7W^^
IN TME CUSTODY OF TME
BOSTON PUBLIC LIBRARY.
SHELF N°
AOAMS
^;:^^'.^^^^'^^^^'^-
General Abridgment
O F
LAW and EQUITY
Alphabetically digefted under proper TITLES
WITH
NOTES and REFERENCES
to the WHOLE.
By CHARLES VINER, m
Favente Deo.
ALDERSHOT hi Hampfhlre fiear Farnham hi Surry.
PRINTED for the Author, by Agreement with the Laiz) Patentees^
and are to be Sold by George Strahim in CornhlU^ and by Johji and
Paid Kjiapton in Ludgate-fireet ; Or may be had of the Author at
his Houfe at ^SderJIoot as above, or at his Chambers IS*^. ^. in the
Kings Bench IFalks^ Inner-Temple \ Or, in his Abfence, of Thomas
Tork in Flower -de- Luce-Court in Fleet-Street, London. 1742.
O — -
.^
TO THE RIGHT HONOURABLE
PHILIP Lord HARDWICKE -
Baron of Hardwicke in the County of Gloucefter,
Lord High-Chancellor of Great Britain. ;
My LORD,
X Moft humbly ash Pardo/2 for this Pref&mption in
dedicating to Tour LordJJjip this Book ; But as the
fame is Bart of a General Abridgment of Law and
Equity J it cannot be fo properly Addrefd to a?y Ber-
fon as to Tour Lor dpi pj whofe Knowledge in both muft
he J and is allowed by all to be the moft Excellent^ and
has Jo Eminently diftinguifoed itfelf in thofe Refpec-
five Great Bofts^ fucceffively filed by Tour Lordpip
with fo much Reputation to Tourfelf and Advantage
to the Bublickj of Lord Chief "Juftice of England^ and
Lord High Chancellor of Great Britain.
Tour Lordpip has on all Occafions with tJje
greateft 'Judgment ^ Berfpicuity, and Impartiality qua-
lifed and moderated with Equity the Rigour of the
Common
.•^>
The DEDICATION.
Common Law without hazarding the Fundamentals
of it ; Nor can Tour LordJJjip he denied the moft Fa-*
in able Chara&er of an unhya^ed Diflributer of Legal
and Equitable 'Jujiice.
I jjjould think myjelf wanting ^ My Lord, in Duty
to my Country J (for which I have as ftrong ^^e£iions
as any Man living^ pould I not mofl fine ere ly wipy
that Your Lordjhip may long pre fide in that High
Court of Chancery, of which Tour Lordfiip is Jo great
an Ornament y and am with the great eft Veneration
and RefpeSi
My LORD
Tour Lordfhif
Moft Obedient and
Humble Servant,
Charles Viner,
THE
PREFACE.
TH E Crmmenccment of this Work was with the prefent Century, at which
Time I was admitted a Member of the Honourable Society of the Middle-
Temple, and attended, as a Studentjthe Courts of Weltminfter. After the
coming out ot the firlt Volume o^ Mr. Ddiroers's Abridgment^ (that molt curious and
exact Work) I began to llacken in proceeding with my Own, and being under fome
Apprehenlions of iiaving injured my Health by a very clofe Application, 1 retired
into the Countfy, and tor fome Years wholly laid allde prolecuting my Undertaking
without intermcdling with Bulincfs oi Law, unlcfs in preventing and compromiling
Differences among Neighbours, and others appl\ ing to me, at Ibme Expence to my
felf but none to them. Ki length I refoI\cd to revile what 1 had before gone thro'
v/ith, and Mr. Dan\ers's fecond Volume being then come Abroad, laid it down as
a Rule to examine, whatever came in my Way, with Mr. Danvers, fo tar as he had
gone, and to enter Nothing in my own which 1 found in him, intending my own only
asaSupplement to his, or his only asaSupplement to my ownCollefctions ; and in that
View, before I entered upon the ha\'ing my own Colle&ions tranicribed, I Itruck out
many I had betore made, and for that Realon only, that I tbund the fame under the like
Titles in him. The like Method I took afterwards with Mr. Nclfon on the coming ouc
of his Abridgment, thinking it then fufiicient for my private Satisfa£tion, if I might
have a ready refort to any Place, tor what Imightdelireto find; having never entertain-
ed any Thoughts of making Publick my own Colleftions, till after the coming out
of Mr. Nellbn's and the Title (Error) of Mr. Danvers 's. By this Method I obferved.
many Cafes in Mr. Nelfon not taken out with that Care and Exaftnefs which Mr.
Danvers had done, and theretbre either abridged the fame, or added in the Margin
fome Mark or Memorandum by way of Caution, that it was not to be depended upon,
or interlined what I thought was omitted, and made fome other Marks for what he
had added of his own, and which was not to be found in the Original Book cited
by him as his Authority. As for Mr. Shcphard's Abridgment I have fcarcely ever
looked into it, but having occafionally examined Mr Hughes's find him in a Manner
wholly tranfcribed by Mr. Nelfon, fometimes with little or no Variation, and if any
it is by way ot difguife only, fometimes exchanging one Error I'or another, fupply-
ing very few Imperfeftions, correcting as few Millakes tbund in his Original, and
fometimes, by miltaking Mr. Hughes, making fome Errors where none were before; fo
that a literal Tranlcribing had perhaps been better. Had Mr. Nelfon dulyconlider-
ed this before his Publication of his Lutwich^ he would have been more decent in his
Remarks on the Work of that great and valuable Perfon fo much his Superior, and
who had been dignified with the Honour of being a Judge.
My Lord Roll, whofe Abridgment is my Text, has fupplied the greateft Part
thereof out of the Tear Books, thofe rich Mines of the Law, and out of which
thofe other Great Men Lord Fitzherbert and Brooke drew fo much valuable Ore,
which afterwards Lord Coke, in his hifiitutes, melted into Ingots, and which, with
fome little refining and puritVing, have fince become the current and precious Coin
of
1 he F R E F A C E.
of the Common Law. While thole Books were the only Magazines, or Repoiito-
ries of the Law, the ProfcHion was in great Elleemi There was then no Ebb or Po- ■
verty of legal Knowledge, but the Tides of Law rolled High. The indultrious Stu-
dents reforted thither lor their Burthen, which both inriched themlelves, and
would, no doubt, have done the like by their Pollerity, had not they, like prodi-
gal and thoughtlcfs Heirs, neglecled or fquandcredavvay, what their Predecellors or
Anceftors had amaiied for them. The K'ame of Plc-joden ought to be reverenced
by every Profellbr of the Law, and after him Lord Coke merits their great Thanks. But
io unfortunate were tbcfc Great Men in the extraordinary Pains they took to ferve the
Profelfion, that their Labours may perhaps, by an unnatural Confequence and Accident,
have,in too many Inilances, occaiioned Ignorance inftead of Improvement. In this Re-
ipe£t Sciences may be compared to Bodies natural^ as that, v^hich by a right Ufe and
Application would not nouriih only, but ftrengthen, may, by an Abufe, be converted
into Poifon, and delfroy that which it was intended to prelerve. And thus Abridg-
ments^ according to their difterent Ufe, will necejfarily have very different and
contrary Effe^s and Operations, either of doing much Good or much Harin. The
Study of the Law is a very long Journey, and the Roads not the plainelt, in which
they may ferve as Polls and Mercuries to direii the Students in their Way, but ought
not by any Means to be confidered as their Journey's End, or Place of their laft Re-
folrt and Relidence.
In a Work of fo great Extent as that, of which this is a Part, it cjinnot be expeft-
ed, but that many Aiifiakes may be found, notwithllanding the utmoll Care j and a
great Part thereof having been feveral times tranfcribed by other Hands, the Tran-
icribers may well be fuppofed to have varied fometimes from the Original, and {o to
have made Errors where they found none ; whereas, on the other Hand, it is not to
be imagined, that any Original Errors, elpecially in the References to Books, out
of which any Cafe or Point is cited to be taken, Ihould be thereby correSled.
The Reader is defired to take Notice, that the Placita, cited out of Lord Brooke's
Abridgment, are Number'd as found in the largeft 'Edition vi Folio, there being fome-
times Variances between the Numbring or Figuring the Pleas in that and the other
Editions, whereas thofe other Editions vary but in Jtew Inftances from each other.
The Reader is^efired to take Notice, that where any Book is cited containing
fuch and fuch Re&ances, or where it it ''M, that the Book cites fo andfo, this Author
is not anfNVerable for the Truth of fucn Citations or References, he not bemg in
fuch Cafes any otherwife concerned than to mention them, as the Book does.
The remaining Part of the Work will be printed off by three Volumes in a Year
till the whole be publiflVd.
The Re.ider is dcfircd to correa the following ERRATA.
trOLIO 2. PI. 4. line 5. Me the Comma after Smith, and put it in before Smith.— Faits (QplJ- m
^ the Note, r. received, f. iS. in the Title, r. Fait,..-Ditto pi. 2. in the Note, 1. 5 /. Time.-—
Faits (H) pi. I . r. cannot f. 50. laft 1. dele Grant (R. 7 ) f- 54; aft 1. dele Habendum, dele (X)
. f J laft 1. dele fX)— f. io3. pi. I. 1. i. r.Leaic. — f. 106. 1. 2. dele full pomt, and make it a Comma
. -f. I2Z. pi. II. 1. I. r Tail. f. 147. pl S. 1. 5. r. executes. 1 154 CG)P»- 5- i' ^"^P'*'";
tiff had Tudgmcnt. Fences (B) at the End dele Improvement (E. 2) f. 25;: (M) pl. 2. Marg.
fliould be ±; and the fecond * following fhould be t — f- 292- pl- ^V }■ 9- r- fidtitious.— -f. 54°- U; b)
Marel i r. D. 254 f. ,56. (N. b) laft 1. but 2. after is ^e/c not.— f. 575, ST^- m the Title, rfirlt
Fruits and Tenths-f sS^.'cF) pl. I. 1. i. r. Entry. - f. 596. (U) pl.3. 1. 2. r. was not fa.d. - f 404.
pl 6 Marg r. Word.— f^ 4ii. (O) Marg. laft 1. but i. dele fon-fT 425. pL fl- J- ^.^Py^^- *•
Lo.pl. 4. laft 1. of the Note, r Order ought to be of every one.— £ 45^; (W) in the Divij.on, pg of
r but — f 4';8 pl. 4 1. 2. r. Ciiancery.. f. 486- at the end of the firft Note, tor 276. r. 976.— -brac-
tions V A) pl. 2 laft 1. r. Yarworth.-f 500. in the firft long 1. of the Note, at Yc^v^ dele thes. and in the
2d.l.f.«at V.as.-f 5.o.CC)pl. 3. 1. I. r. three, -f 543- ?!■ 9^1-8. in the Note r. Agreement^f 544-
pl. 3. laft 1. but 2. r. of. — f. 557in the Divifion,rfe/« the Apoftrophe at Creditor s. 1. 563.13ft 1. but i.
r. 342.
TABLE
OF THE
Several TITLES, with their .D-ivifions and Subdivlfions.
F^CCOH* See Bkckwell-Hall-
Faftors.
Who may be a Faftor, and how confidered. A
His Power. A. 2
Accounts and Traniaftions between him a«d
his Employer. B.
Where the Fadtor is guilty of Fraud. B. z
Difputes between Faftor or Employer and
Creditors of the other, where the Factor or
Employer dies or fails C
Joint -Faftors or Joint-Employers. D
Principal bound by Fadtor's Contracts in
what Gales. E
Liable to anfwer Damages in what Cafes in
General. E z
Kot oblcrving or afting without Orders. F
Kot giving >iotice of TranfaCtion. F. l
In Calc of Seifure or meddling with prohi-
bited Good!:. F. 5
Aftions, Pleadings, and Evidence. G
Oftenccsby Factor, and Punifliment thcreof.F. 4
if acuities. 25//. 8. 21. A
jraits or "Dtzm*
Made. By what Pcrlbns they may be. A
Bv wl.at >5ames, Mifnofmer. B
To what Perfons, C
Neceifiry, what Things and Words arc, to
make a Deed indented. E
To make a Deed. D
Sealing. How. H
Signing. Sec ( D. a) H. 2
Delivery. And w hat is good Delivery. I
How it may be. K
And what ihall be faid a Delivery. L
To deliver over. M
At what Time good. N
Neceflary in what Cafes. N. 2
As an Eicrow to deliver over., on Con-
ditions to be perform 'd. O
Relations of Efcrowes.
O.
Pleadings as to Efcrowes, &c. O. 2
Date. And wnat is fufScient. P
Mifrecitcd, as to
(See Gi-ants.) (Eftate per tot.)
Day. Q.
Place, and Pleadings. R
Conftrudtion thereof P. 2
Pleadings, as to Mifrecital P. 3
Amounts to. W' hat amounts to, or is a Deed, D. 2
or, an Agvecment only of Perfons fign-
ing. _ D. ;
Parcel, what is. Wrote in what Place. G
One or (cveral Deeds, what is,( See Grants) G. a. 3
Take bv it, or Bmind by it. Who
Parties, who, (^mQ'Je of 0?nyter-Party). F
Kot Parties, or not named iu the Prc-
mifl'es as a Party. (See Grant.) C. a
Kot nam'd in the Deed. C a. 2
in the PrcmilTcs. C. a. 3
Named in the PremiiTes. B. a. 2
Not Girninff it. D. a
By Agreement to the Grant, &c. D.a,2
Words of one Party only. D. a. 3
Void. See Ufury (M).
In Part where it avoids the whole. E. a
Or voidable only. See Void, &c. F. a
Voidable made good by fome after
Ad1:. F. a. 2
By whom, and when. E. a. 2
By what Adt, in Part or in all. R. 2. Y
Falie Reading. _ S
Rafure and Pleadings. T
Interlining and Altering.
Actions and Pleadings, as to falfe
Reading, Rafures and Interli-
neations. U
Sealc broke, &c. X
Cancelled Deeds.
Elfcdt thereof at Law X 2
Relieved in Eqnity. X. j
Remedy againft Perfons cancelling,
delhoying and Healing Deeds. X 4
Indenture. O. a. 3
V\'hat muft be by Indenture, and not by Deed-
Poll. O. a ;
Poll, what is confidered as fuch, and the EifecT:
thereof, and Difference between it, and
Indentures. G
Counterparts of Deeds, and where they va-
ry from the Originals. H. a
Duplicates. I. a
Cultody, who fhall have the Deeds Z
Detain "em, who may. A. a
Brought into and remain in Court, in
what Cafes. See Forgery. K. a
Detinue of Deeds, who fhall have the Adtion L. a
Pleadings. L. a. 2
Bar. L. a. 5
Damages in Detinue, what, and the
Difference between Damages in De-
tinue and Trefpafs. L. a. 4
Pafs. Where there is a Will and a Deed,
what fliall to pafs by the Will, and
what by the Deed. See XJCes. (M. a)
Kept private by, or in the Cuftody of the
Maker, and the Eftedt thereof B. a
Loft Deeds. (See (U. a)
Actions. In what Cafes Adtions lie at
Law, tho' the Deeds are loil. B. a. 5
Where Adtions lie on theCounterpart B.a. 4
Supply 'd by aftar Deeds. W. a
W^ithout Deed.
What may be done without Deed. See
Parol.
What may be granted without Deed. Sec
Grants ( )
The diftercnt Operations of the ieveral Sorts
of Deeds. See Conveyances (A)
Pleadings.
In General. N. a. 4
What Deeds are pleadable. O. a
W^hcre Deeds refer one to another. O. a. 2
Profen, or Monftrans of Deeds.
Ncccflary
A TABLE of the feveral Til LES,
JScccll.irv ill \v!iat C,:ifc> in Gcuciul,
and ti'x Kcafon tlicieof. M. a
Immediate or preiently. M. a. 2
l:\ the Declaration, or not till de-
manded M. a. 5
Sufficient Shewing, What. M.a. 4
Second Tinic, occ. after a former
* Shewing, M. a. 5
E^:cu!ed by
Fraud or Force. M. a. 6
Accident. hi. a. 7
IJctaincr
By another v. i-.o has R ight to it M.a.S
In another Court, S:c. in another
Suit, Src M. a. 9
Ellates, &c. -vvhich they relate to
being executed M. a. 10
In what Cafes
The Thing fued for, being grantable
without Deed, or not. M. a. 1 1
Tho' the Deeds when pleaded or
fhevvn cannot be traverfed. M. a. 1 3
Difierence between Oyer and Monfirans
of Deeds and Records. M. a. 1 2
Aft of Law. Where I'erfons come in
by Act of Law. ISI. a. 14
By what Perlbns.
Alfignee.s. M. a. i 5
Jiaily or Servant M. a. 16
Of the King. Jtl. a. 17
Ccfty que \]^c, Truft, Covenantor,
&c. U. a. i3
Corporations and their Grantees,
&c. M.a. 19
Pcrfons that are in by Defcent. M. a. 20
Devifce. M. a. 21
Difleifee. M. a 22
Grantee, Leflce, ?iic. M. a. 25
Of a Chattel. M. a. 24
Loi d by Efclieat. M. a. 25
Lord mefne and Tenant. M. a. 26
Officers. Ikl. a. 27
Privies. M. a. 28
Strangers. M. a: 29
Tortfeifor. M. a. 50
To whom M a. 51
Aided or Cured by -what. M.a. 32
Of what Deed,-;. See Voucher
(G.a)CH. a) TriaUZ. a. 4)
Non ell Factum.
By what Perfbns. N. a
In what Cafes. N. a.2
Specially or generally, and at what
Time. N. a. 3
Averment as to Deeds. Sec Averment
(G) See Grants.
Evidence. See Trial ^B. f 6)
Punifliment of pleading falfe Deeds, or
denying his own Deed. See Amercement
(A a) (G. a)
Equity. Deeds.
Conftrued, how in Equity. P. a
Averment as to Deeds in Equity. Q_, a
Bringing them into Court. K. a
Ordered to be delivered up or cancelled.
In what Cafes. S. a
Cancelled Deeds. X. 3
Dcfefts in Deed fupply'd T. a
Loft I )eeds aided at La w, or in Equity. U. a
Supplied by after Deeds. W. a
Sui)prcf-,'d Deeds. See Difcovery (M ) R. a
InfpeCting Deeds by Order of Court,
and at ■what Ti.ii;. X. a
JfalfC JUDgUlCnr* See judgment.
Who Ihali hold Pic.i therc.f. A
Lies. In what Ca!es. And
Where falle Judgment, Writ of Er-
ror, or other Action, and the Dili'erence. 3
In what Court, and at what Time, and to
whom directed. D
Tried by whom, and how. '"And of returning
the Wnt, and removing the Record. G
The Effect thereof, and how it rauft be obey^
ed. C. 2
Pleading and Errors therein. E
Judgment. How. F
Execution awarded. Where and how. And
of Sci. fa. * G
JfalfC jLnttiu A
ifnlfe £)att). a
.f nlfc \m^. A
JfnifC ^US-rjCffiOn* See Prerogative
(N. b) Suggeltion. Trial (G. b. 2)
if nlfifpino; UeCaljeriCSi. See Recovery:
At Common Law A
What Things may be falfifyed, B
In what Cafes, and ho\i . B
Bv Entry. B. 2
B'y Plea. B..4
In the' Point tried. C
Want of other Remedy. C 2
In Refpeft of the Place, w here. B. 5
By whom
Succeil'or of Parfon. G 2
Infant or Feme Covert. H. z
'Tenant in Tail. H
Reverfioner or Remainder-man, or Heir,
and how. D. 2
Termors. D
Orher Perfons than Termors.
Privies or Strangers E
In Refreft of Covin. F
F. 2
I
G
Notwithllanding a true Title.
At what Tima.
For Dilatories.
V^'arranty and Aflets.
M'ant of^ Jurifdiition.
Prior Right.
Feint Ple.iding.
Pleadings.
K
L
1*1
N
O
Bar. What may be pleaded in Bar to the
Falfifying. P
By other Action. R
After Recovery by Default. Q^
Equity. S
Verdict. See Trial (D. g. 2)
ifaCin0* Sec Clergymen (C) Non Re-
lidence. Trial (£. f)
jfatt)et: ant! S^oit, $c*
Action. What the Father may have by Rea-
fon of his Child. A
Inter fe, as to
Legacies, &c. to Chidrcn by others. ' B
Allowance for Maintenance out of the
Children's Fortunes. C
Coertion. What Acts by a Child fhall be
fo done, to be relieved againlf. D
ifealtp anu Damage. a
ifee^Jf a?iu IKent0»
Notes in General. A
Conveyances thereof. How.
By the Patentees. B
Purchafors indemnified and favoured; And
how enabled to lue. C}
Extent
With their Divilions and Subdivilions.
Ej.tint of the Act, as to tlie I'owei' of the
Truliees, und wliat thev might convey. D
Oi-dci-cd Kow, till Sale.' E
Pleadings by I'urchal'ors. F
UiSherifts. A
Upon Executions. A 2.
of other Oliicers. A 5 .
Coroners. A 4.
OlHccrs in Courts. [/;; ivhat Cafes he may
det.-.in the Body fill paid.] B
Prohibited ; or due ; in what Cafes, and
how much. F
,In Courts. MarHial, &c. _ C
Ecclcii.iftical. See Prohibition. (F) C. 2
Panifhmcat for takinf^ more than ulunl Fees D
Prompt Payment. In what Cafes they may
not infill upon Prompt Payment, before
thev do the Duty of their OiSce ; And
how puniOied for fuch P.efufal. D. 2
Granted and a'certained. How. E
Determined by Accc(fion of other Office. F. 2
Adions and Pleadings. G
In what Court. H
Loft by Difcharge of Officer, or where the
Fee fliall remain, though the Office is
taken away.- — See Oilicer (P. 3)
ifcigiicti Action.
Or lllue in what Cafes. A
Icia He ft.
Idow confidered, and v/Iiat Perfon may bcfo.jA
"VN'hat Ihall be laid for fuch Offence. , " C
Forfeiture of what. B
Relation. To what Time the Forfeiture
fliall re'a'x. D
Inquifition, by whom ; and how to be taken E
JfcniC* — See Baron and Feme.
Cafes wherein an Infint and Feme Covert
differ. See Enfant (N)
Capable of what. A
Sole Merchant who is and of being a B
Seperate Trader in General.
J\Iade by whom, and againfl whom, and where
none weie before. A
Trefpafs by Cattle through Fences, or for
want of Fences. B
Actions, for not repairing Fences. C
Curia Claudenda, in what Cafes it lies, and
for whom, and when. D
Pleadings in Curia Claudenda, and Trefpafs. £
Contracfs relating to draining them A
JfcofFment.
Charter of FeotTment, what good or void. B. 5
\^'hat is aFeoflment. A
In what Cafes, where a Grant is not good. B. 4
At what Time. B. 5
The Force of a Feoffment, and what isex-
tinguifhed by it. — (See Conveyances.) A. 2
Amounts; What amounts toa Feoffment. B. 2
Where theUles-are veiled or changed by it
SeeUlb(Y)^_ A. 3
Difference between Feoffments at Common
Law, and by Statute R. 3. A. 4
Kame.
Cf one Thing by Name of another. D
Feoffee named wupng, yet good, (what- is
Name fufticicnt ) G
Feoffee named wrong. H
By whatName. F
Liver v.
The fetfed: and Operation of Livery,
Necelfary, on what Conveyance, land inwhat
Cafes, atid cf what T'kin^t^s.] B
Amounts to Livery. What. C. 2
(Jf what Things it may be. C
Without Deed. '." Y
W^hat Perfon may make it. and to whom,
In Refpeitof Incapacity E
of Eitate. ' . E 2.
To what Perfon, /w refpefl of Efiate ■ ~ G
To one where it fnall Icrve tor others:
K. 2
To Perfons not in Effc. See In Effc
How T
Of Parcel in Name of all. X
Of more or Icfs than is in tlic Deed.
U.2
At what Time, T. 2
Secundurn formam Charts.
Of morethan is in the Deed. Sce(U.2)
Hov\-, as to the Same ar.d ^bhig. U
At whatTimc it may be. U. 5
Take by it ; who mav or fhalL C, a
Within View. What thing is neceffar)' to
perfect: the Livery. I
In what Cafes it may ba. M
To whom. N
In what Place. O
How, and in wh.at Manner. P
Countermanded, by what Ad:. P. 2
E.vecutcd, by what. IC
Hindred. By wiiat PolfclTion or Eftate. L
By Letter of Attorney, and what. R
Who may be Attorney. R. 2
How to be executed. Q_
At what Time to be made. S
Revoked by what Act or Tiling. Z
Who may do it by Attorney. A. a
Relation.
What pafles by the Livery by Relatiori.B. a
Take by the Livery. Who may. C. a
Pals by the Livery.
WhatTliing or Elfate fhall be faid to pafs.
D.a
Without the Words, Heirs or Succef- •
fors. _ D. a. 2
What may pafs by Livery. G
What Thing or Elfate pafs by Feoffment
or Livery. D. a. 5
Words. What. See (D. a. 2)
Without Deed. Y
Pleadings. E. a
Traverle. E. a. 2
Equity. ISIilbkes. G. a
Livery prefumed at Law, or fupplied in
Equity. F.a
Extinguifhment by Feoffment. See Extin-
FuifhmentCF) Right (C)CF).
fzix Bmiz. A
l''leadings in Trefpafs Ibr taking T'hings.
Fene Naturas. B
iTClTp* A
jfcunall QSaronp. A
jfictian of laiu. a
jfigu^eiEi* A
Jfifc
of putting Things on the File, or taking off! A
Antiquity thereof A
The Original of Fines. A. 2.
Plea ofthe Fine ancientlv. B
How to be levied. iS E. i. Stat. 4. A. 5
, Confidered howin Law. A. 4
Who
A lABLE of the feveral TITLES,
"Who TTi^it, or may i.J;c Fi:;;s. ar.cieutly or
fio-w. ^
The feveral Parts thereof; M. b. 2
And w hcti they begin to operate. M. b. 3
Levied.
In what Places or Courts, other thanC. B.
at Common Law, and now, and who
may take Fines elfewhere. C. 2
By whom.
At Common Law. K
In refpeft of the Eftate. D
Having been in Pofleflion of tlie
King. — See B a. 2
Not being commenced. D. 8
Infant. K.
Ideot, Inflmt, and Perfons under natural
Difabilities. D 10
Vacated. D. 1 1
Perfons under legal Difabilities by Crimes,
&c. L> 13
Baron or Feme fingly. B. b
Baron and Feme. C. b
Or by Feme '■xithcut her Baron. T
Other Perfon of the Lands of a Feme Co-
vert, either in Poffeirion orReraainder.D b
Corporation. U
Tenant in Tail
Ofwhat Eftate, D. 12
Before he is ieifed of the Eftate Tail.D. 2
InTruft. See(Y)
Bv Feoflee 0+ Tenant inTail. D. 4
By Tenant in Tasl Dificifee. D. 7
After a Conveyance by him. D 5
During Difleifm. D. 6
Remainderman or IlTue ; and where a
Conveyance is made after by Tenant in
Tail in PofiefTion. D. 5
To V, horn, or luhat Perfons may take by it, hi
refpeH of EfiaU. ^ E
A Stranger. _ N. 2. F. 4.
What Perfons may be Cogniz.ees. D. 9
Tenant in Tail, Cogniiee. Sec
D. a. 2.
How.
Without Writ. F 2
fpon what Writ. F 5
Covenant. _ G
How it fhall be exprejfed in the If lit
of Covenant. H
Render, how the Writ fhall he. I
By wh om. N
To whom, and how. Not named
the Writ. N. 2.
Of what
Things a Fine may be levied B. a
Upon the Writ, and of what a Render
may be. L
Things not named in the Writ Sce(L. b. 2)
Eflate having'been in Pofleflion of the
Kirg. B. a. 2
Names
Of Things.
Bv what'NamesThings will pafs in aFine
not being the very proper Names C . a
Of Perfons.
Mifnofmer. See E b. 4.
Place
In what Place orCounty Fines may be le-
vied, other than in C B. — See Conu-
fancc (D.) C. 2
Fines levied of Lands in feveral Vills.
Where Good E. a. 2
In Lieu Conus. See(R). E.a
Examined,
In what Cafes Fine being levied by a
l'"eme, flic fliall be examined. F
In what Cafes Ihe fliall b.; examined, ,1
i 'ire being levictl to her and Barcn. ^i
Bound. Who.
Party. S
Fcme,or other Perfon, boundat Common
Law. T
Peribns thatmuft mention the Conufor in
conveying their Title. R.2
Conufee bound by Leafc, Sec. granted be-
fore the Fine levied. S. 2
Corporation. U
Take.
Who may take by the Fine.
Not Party to the Writ. — ^See(N. 2) F 4.
By the Limitations. F'. 5
Received
hlow the Fine being may be received. —
See(Z.4) O
/;; reffect of the
Tliiig refer'^ed. O. 2
Render. Q. j
Limitations. Z. 5
Grant. 0. 7
Warranty. B b. 5
Being with Render or not. P
Want of Certainty, &c. Q. 5
In what Cafes the F'ine being received,
fhall be good. Lieu Conns. R
Uncertainty in Fines. O. 5
Explained by the Intent. O. 6.
Stayed. What good Caufe to flay it. CJ_
Deatli of any of the Parties. — See (H. b) Q. 2
Ahated by Death of the Kmg. P. j
Good, in refpectof the
Form. Z. 5
Defcription of the Land. Z. 4
The Names of the Parties. Mifnofmer.
See (E. b. 4) per tot.
Writ of Covenant. See (F. 5^)
Limitations in a Fine. What Limitations
are good or will be received. Z. 5
Refervations. See (O. 2)
Dedimus. See (F b. 4) M. b
Certified. How Fines fhall be certified, and
when, and by whom. P. 2
King's Silver, what it is, and
Fines reverfed on Account thereof. F. b. 6
Concord
Sorts. The feveral Sorts of Fines, and the Na-
ture of them. N. h.
With Proclamations. And Pleadings. E. b
Sur Releafc ; to whom, in Refped of Ef-
tate, &c. and how M. b. 4
Sur Surrender. See ( Y a. 2)
Sur Grant and Render.
What fhall be faid to pafs by the Ren-
der. See(X. 4)
Of what thing upon the Writ,
a Render may be. L
Where the Grant orRender maybe of
another thing than what the Writ is
of L
Upon what Fines M. 2
Who may Grant and Render. N
To whom, and how N. 2
Take. Who may take by the Render,
orte not named in the Writ. — Sec
(N-2)
Operations of the feveral Sorts of Fines. N. b 3
Gr_"nted. What may be given or granted
by a Fine. X
Proper for what Eftates ; what Fines are.
See (N.b. 2)
P-ifTe-;.
With their Divilions and Subdivilions.
partes, What palTcs, or m;iy julj
By a Fine only. X. 5
By what Names. C a
How much. X. 4
Things lying in fevcral Counties.
Tiling.'; not contained in the \\'rit. L. b. 2
One, or feveral Fines necelFary, in what
Cafes. X. 5
Ufes, where well limited.
Repuf;nant, as limited in theFine, to the
Declaration in the Deed. T. a. z
Enure. How.
Where the Ufes declared arc repugnant,
or feemingly fo. T. a
>Jot being direttcd by Deed of Ufe.s. I. a
Where it is levied to a particular Pur-
pofe. K. a
Declaration.
Good in refpeftof the Perfbn
By whom. M.a
Baron and Feme, or one only
or differently bv each of Lands
oftheFcme. See (,S. a) (Ufes.T)
To whom. N. a
Manner of doing it. O. a
Variance. Good, notwithftanding
Variance as to the Ufes. P. a
As to the Time of levying. P. a. 2
W^here there are feveral Decla
rations of Ufes.
Declaration by one only, of
differently by each.
Made when. After the Fine.
Pafs. What Eftate lliall pafs by the De
claration.
How much by Relation to the Inden
ture;
Enure. How the Fine enures.
Where the Lands lie in feveral Vills.
Second Fines.
By Grant and Render.
By Way of
Surrender.
Extinguiflimcnt.
Effoppcl.
Pleading;?;
Where Conulbrs or one of them takes back
no greater Eftate than before. Z, a
To make
A Difcontinuance. A. b. 2
Eftate, in what Cafes it is turned
to a Right. H. a. 2.
Prior Grants good. L. a
The feveral Parts of a Fine. M. b. 2
Operate when. M. b. 5
The different Operations of the feveral Sta-
tutes of, and relating to Fiwes. — See (W)
Of the Ingrolfing, Inrolling, andTabling of
Fines, and tnc further ordering them,
and Fees for the fame. N. b. 16
Proclamations. — Sce(D, b. i) Sec.
How to be read and proclaimed, and the
S.
K.
\J.
X..
W. a
X.;
Y. ;
Y.a. :
A.
La.
L. a.
E.
Mb.
O
G.
Effect thereof
Effeft. When they havcany Effeci.
Done. What may be done by Fine.
Claim or Entry.
What, to avoid aFine.
By ^vhom, to avoid it.
Strangers, &c.
One. where it fhalHerve for another,
to revive an Entry loft. F. a.
When to be made, And in wh»t Ca-
fes it may be at any Time. F
a. 2
Vv'here there arc feveral future Right?
By leveral and di ;lmct Titles. F. a. 4
Wiiere there are feveral Impediments
or Defects. F. a. J
How. Into Part. E. a. 5
In refpedt of the Place where. ^ ; E. a. 4
Non-claim and Entry, within five Years.
How to be accounted. H. a
Repugnant. See(T. a. 2)
Certiorari. Of Certiorari to remove Fines.
K b. i;
Avoided or reverfed.
For what Error. G.b
Writ of Error
By whom. SeeRecovery,(C. a. 2) G. b. 2
Return. Error in the Return of the
Caption. E. b. 7.
How.
By Plea without Writ,and bv what
Plea. G. b. 3
For what Caufe
Durefs. F. b. 2
Fraud, Perfonating, &c. and Plead
ines thereof.
E.b. 5
F. b. 6
G. b'. 6
L. b
H. b.2
King's Silver.
By one, where it iliall benefit
others.
In part, or in all.
At what Time.
By Infant, &c. See (D 10)
Pleadings.
, Setting forth the Title. E. b. 8
In General. E. b. 4
in tiie Caption. , F. b. 5
In tlie Proclamations, and the Eflec^
F. b'
of Co
F
and
F. b. 4
H.^
E.b. 5
lb
K.b
thereof,
in the Dedimus, or Writ
venant.
Variance between the Caption,
Fine ingroffed, &c.
Death of Conufor, or Conufee.
Barr of Error in Fines. What is.
Not perfected.
Unduly gained. Equity.
By Writ of Error brought in B.R. How.H. b. 2
By Writ ofDifceit,being of Ancient Dc-
mefne Lands. H. b. 5
At what Time. H. b'. 4
What muft be done in order to reverfal
Scire Facias againft the Tcnetc-
nants, &c. E- 1>. 2
Where a Fine is Barr of Error. Y
Pleadings to reverfe Fines. G. 5. 3
Variance between the Writ of Error,
and the Record, &c. E. b. 6
Confefling and avoiding. G. b. 5
Falfified. See Falfifying, &c. (A)
IMifnoliner.— Sec CE- b. 4) pertor.
Vacated. D. ii
Amendment of Fines, and common Reco-
veries, and Writs relating thereto. H. b.2
Relation of a Fine, to what time to avoid
Incumbrances, &c. A. a. 2
Bar. In what Gales in general a Fine is
a Bar. Z, 2
Bar by St at tit ts of Fines, &c. 27 E.l.c/rp. \. W
24£'. 3. 16. W. 2
I /I. 3; 7- W.3
4 H. 7.24. W4
3iH. 8.3(5. V;^. 5
\\' here, the Proclamations arc made aftcr
the E)eath of the Parties. D. b. 2.
Of What. Y
(Copyhold 'V. I
Entry
A TABLE of the feveral Til LES,
Entry.
Error and Pleadings.
Infant and Tiuil.
Lcafe
Legacies and Devilc.
What other Things.
Y. 2
y.4
Y. 6
Z
Remainders in the King. Vid. Reco-
very ( Y )
The Ertate being turned to a Right, and
in what Cafes the Eltate fhall be faid
to be turned to a Right. Vid. Ouftcr.
Vid. Right. H. a, z
In refpeft of the Name 'tis called by in
the Fine. See (C. a)
What Perfons. (Strangers.) D. a
Iffue in Tail, Tenant in Tail being
Conulee. D. a. z
Such as have uncertain Interefts, as
Terms for Years Y
Equitable Intcrelh D. a
Want of Privity. X. a
Immediate. In what Cafes a Fine fhall be
a prefent Bar. G. a. 2
Revived. F. a. 5
Error in Fines barred, by what Aft. E. b. j
Ancient Demcfne. The Force and Effeft
of Fines there. N. b. 4
Rcverfed by Difceit. See (H. b. 3)
At what Tiine. See {H. b. 4)
Extinguiftiment
Of what. A. a
Surrender. In what Cafes Fines will amount
to, or enure rs a Surrender. See (Y.a. 2)
Aided and made good by Fine and Recovery.
What. See (L. a)
Voidable Grants, &c. to Strangers, prece-
dent to the Fine. S. 2
Levied.
Of what B. a
By what Name. C a
Of Lands in feveral Vills. E a. 2
Of Lands, &c. in Liea Conus. See (R) E. a
When it fhall be faid to be levied. E. a. 3
What Fines proper for what Eftate. N. b. 2
Warranties in Fines. How they may be.
See (P) B. b, 3
Forfeiture.
In wh.-it Cafes. Vid. Eftate. E. b. &c.
Entry for it, good.
Advantage.
Who ihall have it. See Eftate, (C. b.4)
Execution. In what Cafes Fine,*; fhall be
faid to be executed. Vid. Execution {¥>.)
How, and where neceflary
At Common Law and now. P. 5
At what time it may be. N. b. 20
Barr'd by what. P. 4
Abatement by the Death of the King, P. 5
Entry, in what Cafes necefl'ary. Vid. Ex-
ecution (C. 2)
ToU'd, hy what Defcent or Alienation,
&c. P. 6
Amounts to it, What or what Fines need
Scire facias.
In what Cafes it lies to Execute a Fine,
and how. See (P. 4) N. b. 5
At what Time it lies. N. h. 6
How the Writ fhall be. N. b. 10
Variant from tlic Fine. N. b. 1 1
Of what thcConufee, &c. fhall have Exe-
cution. N b. S
Abatement of the Writ, and what is a good
Ple.i in Sci. fi. on a Fine to abate the
• Writ in Part, or in all. N b 1 5
Againft Tertenants, &c. Neceffary in what
Calcs to reverfc Fines. E.b 2
Bar of Scire facias to execute a Fine, what
is N. b. 13
After Scire facias. Judgment being re-
veifed, P. 6
By what Perfons. N. b. 7
Stranger,'?. N. b. 5
Pleadings in Scire facias, to execute a
Fine. N. b. 9
To reverfe Fines. G. b. 4.
Confeffing and avoiding. G. b. 5
New Writ. In w hat Cales a new Writ
may or muft be brought. N. b. 14
Awarded by B. R. in what Cafes, N. b. 12
Pleadings.
At w hat Time, and how. L. b. 5
Of Fines good. And in what Cafes ne-
ceffaty. L. b. 4
As of what Term levied. L. b. 5
Variance between the Fine and the
Writ, on which it is counted or
pleaded. N. b- 19
Protert or Monftrance, necefl'ary in what
Cafes. L b. 9
In Bar to a Fine pleaded. As
Partes finis non habuerunt, or Con-
feffing and avoiding. G. b. 4
By whom the Plea of Partes finis
nihil, &c. may be pleaded. L.b. 6
That the Defendant was always feifed,
and by whom it may be pleaded.
I 5 £•. 2. ' L. b. -
Nient Comprife. L. b. 2
Proclamations. £. b
Averment againft Fines,
By Continuance ot Pofllffion, and
dying feifed. I. b. 2
De.tth of Conufor before theTefte
of the Ded. Return of the Writ
of Covenant, Execution, &c. I. b. 3
Collufion, or Ufury, &c I. b. 4
Other Matters . I. b. 5
By Strangers. I. b. 6
Ertoppel. In what Cafes a Fine is a
good Eftoppel, unlefs the Plaintiff
Ihews how he came to the Frank-
tenement after. K. b. Z
By and againft Strangers See (D.a) K. b. 3
In Scire facias. N. b. 7
In Bar of Fines in general. L. b. i«
Continuance of PofTelTion by the An-
ceilor. I. b. 2
In Maintenance of Fines. H. b'. 5
Seifin in the Conufor. In what Cafes
it muft be file wn. L. b. S
Mittimus, of the Mittunus. Vid. (E. b. 9) N. b. 1 7
Exemplification. N. b. i3
Equity. O. b
Variance. See(F. b. 0 (N. b. 8.)(P.a)
jf irft Jf riutjs nnti Cetrtb0,
Original thereof, and Statutes relating there-
to. A
How to be received and accounted for be-
fore 2 Anne 11. B
iforciblc Cntrp anD Detainer*
At Common Law , and Now, and wh.it is, and
where the Wat lies, and for whom. A
Forcible Detainer. What is 3
Of what it may b,; C
In Rcfpett'of the Nature of the Poffcf-
fions D
Tuftifiablc
With their Divilions and Subdivilions.
JulHhable. By what Perfons, and in what
Cafes. E
Inquiry
by whom, and Power of Juftices of Peace,
and others F
Prevented or dlfcharged, as to the Force by
what rinding , F. z
Three Years quiet Pofleffion. What
and Pleadings. . G
In whofeName the Suitor Recovery fhall be. H
Reftitution.
In what Cafes, and at what Time. I
Of what kind of PoiTeflions, and to V/hoRl. K
By whom, and how. L
Stay'd, for w hat Caufes M
Superfeded before or after Execution. How .
and by whom. N
Re-Reftitution in what Cafes; O
Indiftment.
Lies. In what Cafes P
Good or-not.
In refpect of
Not flicwing whatEftate or Title, Q_
Defcription of the Place where, &c.
and uncertainty. R
Repugnancy. S
Wrong or improper Words. T
Implied Words. U
Omiliion of Vi & Armis, &c. and
WLi-.t of certainty. W
Variance from the St;tutes. X
Certiorari, and how it mull be obeyed. Y
Conviction, &c. j
Quafhed. In what Cafes, and how Z
Actions, &c.
In what Cafes, and by whom, in refpeft of
Eftate. A. a
Writ or Declaration, good or not,
and in what Cafes the Writ Ihall abate. B. a
Pleadings
Good. In what Cafes. C.
Not guilty, &c. D.
Juftification. E.
Traverfe. F.
^lonftrans of Deeds
necelVary in what Cafes, G.
Iffue, of what it Ihall be. H.
Verdia:.
How the Jury may find. And what is
Supported,' or intended by it, or h a
fufficient finding. I. a
Punifliment. And
What lliall be recovered. K. a
Courts,
Decrees, Judgments, &c. there^ how &r
binding or regarded here. A
Lands,
Judgments, &c. of Things done there. B
Laws and Culloms.
How far regarded here. C
Money. D
Plantations.
Barbadoes, Sec. E
Jamaica, and otliers. , F
Aftions for Matter.'; there. In what Cafes
may be brought here. G
Governed, by what Laws. H
Spates. I
lordgners* a
jfOrnon a^OUCibCr* See Voucher.
JTOCCprijE* See Abatement. Declaration.
if Oreft, l^atR, Cljaft, &c. See Park. A
Trial. (B. i: 6) Forell.)
Made by whom. B
Lav/ of the Foreft. C
What is a Foreft, Antiquity and Extents there-
£Tro'f|S"^i^^-Foreftgood. ( |
Grants of Foreft to a Subjcfti good, and how
confidered. Q.
OfScers in Forefts. H
How far the Bealls arc piivileged, when out
of the Foreft, Parley or Chalc. See Tref-
pafs. (L) H. s
Difaffbreited, and the Eftl-ft thereo.. I
Offences in Forefts, other than killing and
hunting Deer, how punilhed. K
In killing and hunting Deer, and
Pleadings. K. 2
Pleadings and Proceedings. L
iFo?cltauer0 anH JforeftaHinff, $ e*
At common Law. W hat was A
By Statute,
Who, and what is. B
Puniriied or reftrained, How. C
Pleadings. £)
Indidtment or Inforraationj
Laid how. E
In wliat Court. , F
Licences and Pleadings thereof. G
JForfCitlire» See Felo de le.
Trc:;lbn.
In Cafes of Treafon.
In what Cafes-. A
What Things or Eftate fliall be faid for-
feited. B
InRefpeft of theLimitations of theEftates,
or of Statutes relating thereunto. G
Felony.
In Cafes of Felony, D
In what Cafes.
Killing in Defence, &c. E
By Acceffaries. F
Eftates in Lands. G
In Offices, Dignities, &c. H
To whom. I
Grimes at common Law. K
In relpedl of the Place where. L/
Treafon and Felony.
In Cafes of Treafon or Felony.
Forfeitable, what. M
Chattels. N
What is to be done with them be-
fore Convidtion. O
From what Time ; and what Power
the Offender has over them. P
Of one, how it fhall affect others. Sec
Officer. (E. a. 2) Q.
Relation, as to Lands or Chattels. R
Prevented, purged, or difpenfed with, by
what S
Incumbrances, what avoided by it. T
By Flight, and how to be leifed.und when. U
For Ott'ences.
In Cafes of inferior Nature. W
Where, after Forfeiture, a Subjeft may
enter without Livery of the King X
Levied and recovered, bow. Y
Pleadings. Z
Equity.
Forfeiture reliev'd in Eijuitv. A. a
Affifted, how far Equitv will adift one to
take Adyantage of a Forfeiture. B. a
forgtrp*
JfOrgCrp* V id. Antedating.
At Common Law, and
By Statute.
In rclpett of the
Deed or Writing, and the
Things contained therein.
Making, or proclaiming it.
Alteration, &c. thereof.
Forfrer. Who.
A TABLE of the feveral TITLES,
jfcancf)ire0~ "
What a Franchife or Liberty is, and how it
may be. A
By Prefcription or Appendant, &c. and
Claim'd how, and allowance thereof. A. Z
A Power and Privilege of Bailiffs or punifhed. B
B Extinguifhed or Loll. Vid. Prerogative.
C (X.c) ° C
D Reftrained. D
Forfeiture. £
What fhall be faid, an Aftion arifing within
the Franchife. Vid. Conufancc. (L1)
DifpUtes between Sheriff and Franchifes. F
Pleadings and Proceedings V^id. Prerogative.
(C.d. 5) G
fmnk aitttoiffn» a
iftatccnitp. (a)
Iraim*
What is
In general. A. 2
Conveyance. Vid. Voluntary Conveyance. A. 3
Of Land.
Q'e prevent Forfeiture to the King, or
Lord for Crimes. A
Set afide. B
Of Goods, Vid. Bill of Sale.
Set afide. C
Good in Part. D
At Common Law. E
Conveyance fraudulent
As to
Creditors. Cafes in Law and Equity,
upon the Icveral Statutes. F
By one Creditor, &c. Screening or
Protecting Debtor. G
By Conveyance or Gift to PerJbns
not Creditors, to fcrcen. H
Purchafors. Cafes in Law and Equity
upon the feveral Statutes. I
Landlords and Tenants, and other Per-
fbns, claiming Right in the Lands. K
What ftall be faid to be
Voluntary Conveyances. K. z
In refpeft of Power of Revocation. L
Forfeitures or Penalties inflitted for frau-
dulent Praftices. JM
Aftions and Pleadings on the feveral Sta-
tutes of Frauds. N
By PerCons intrufted. O
By Conftruftion. P
As to Mortgagees. Q_
Purchafors. Q^ z
Marriage. * R
Settlements and
Portions. S
Refunding, &c. T
In Breach or Prejudice of Truft. U
By fupprclTmg, &c. Wills, Sec. Vid. Faits.
(R.a) W
To avoid Executions, &c. X
Decrees. Y
As to Wills. Vid. Wills. (P. a)
Purged. Z
Puniflied how. I. a
Difcountenanced and
fet afide. Vid. Forgery. (A) I. 2
In what Cafes. Vid. Fines. (E. b. 5) A. a
By what Court. B. a
By Circumvention, what is, and how re-
liev'd. C. a
In refpcft of
Young Heirs, Sec D a
Publication thereof, what is or amounts to it. E
Deeds, &c. forged. What is to be done
with them, and how regarded in Law. F
Aftions and Pleadings. G
By what Perfons,
In refpeft of
Eftate. H
Indiftment.
Before whom. I
Exceptions to Indiftments and Informa-
tions. K.
Verditt. What is a fufficient finding or
Proof. L
Punifhment, and what fliall be recovered. M
Second Offence. N
Chancery. O
ifOrum l^aUpEri0» Vid. Pauper,
iformctiou*
Of Formedon in general. A
Lies.
In what Cafes.
In the Dcfcender. B
Remainder. C
Reverter. 1)
Of what _ E
In what Cafes in general F
pleadings. G
Writ and Declaration
In the Defcender. H
'- In the Remainder. I
In the Reverter. K
' By Parceners. L
Plea by Tenant in Abatement. M
In Bar. M. 2
By confefling and avoiding. N
Profert or Monftrans of Deeds. O
jformcr action*
Pleadings.
Good Plea in what Cafes in general, A
Varying the Place in which, &c. from
what were alleged in the former. B
Againft the fame Parties, with a different
Charge, as Principal for Acceffory, and
Vice verfa. C
iFo?inet %\\{u
In Equity: Good Plea, in what Cafe. A
^founuet anti jf oimuattoiu
Vid. Corporation.
Jtact(on0»
In general. A
As to Eftates. B
Time. ^
Jraigt)t»
Due
How much. A
In what Cafes. B
Decreed in Equity. B. 2
Liable.
Who liable for Fraight or LofTes. C
How far. D
At what Timci E
Pleading. F
A
With their Divilions and Subdivilions.
I. a
K.a
A prefent Want, or general Weak-
nefs of Underftanding. E. a
Ignorance of Title or Valiie F. a
JSiifapprehenfion. G. a
.Mifinformation. H. a
Bound by it.
Who (See Voluntary Conveyance.)
Pleadings. Averred in what Cafes
Tricdin whatCafesby Jury, or by the Court L. a
Evidence. In what Cafes it may be given in
Evidence JVI. a
Badges of Fraud what are. N. a
Equity.
As to
Creditors. O. a
Obtaining Wills. (See Wills (P. a) C^. a
Wliat Adt are deemed Fraudulent in Courts
ot Equity, in Regard of after Creditors or
Purchafors M. 2
JfrCilj{)t. (See Fraight.)
Stud) %niU (See ElLape.)
At what Place. A
When. At what time it fliall be faid Frefh
Suit.
Ncceffary in what Cafes
To preferve Property
Plea. Where it is a good Plea
In Trefpafs.
Efizape
ifllll Defence* (See Defence (B)
JFuneral Cljamess*
(See Executors (L. c. z)
B
D
D
CATALOGUE
O F
AUTHORS made Ufe of,
WITH
Their Several C O N T R A C T I O N S and E D I T I O N S.
A
^ND. 2 And.
All.
B
Bendl.
Broiwnl. 2 Brownl.
Bridgm.
Bf.
Buls. 2, 5 Buls.
C
Cai-t.
Carth.
Ch. or Chan. Cafes
2 Ch. or Chan Cafes
5 Ch. or Chan. Cafes
Ch. or Chan. Prec.
Ch. Rep. or Chan. R.
2 Ch. Rep. or Chan. R.
5.Ch. Rep. or Chan. R
1 Rep. or 2 Rep. &e.
12 Rep. 15 Rep.
Comb, or Cumb.
ANderfon's Reportsift.
and 2d. Parts 16154
Allen's Reports 16S1
Bendloe'*Repons 16S9
Brownlow 's Reports i ft.
and zd. Part 1675
Bridgman's Reports 16 5 9
Brooke's Abridgments
157?
Bulftrode's Reports ift.
2d. and 3d. Parts 1657
Carter's Reports 16SS
CarthewV Reports 1728
Cafes in Chancery ift.
Part 1 701
Cafes in Chancery 2d.
Part 1707
Selei^l Cafes in Chancery
1715
Precedents in Chancery
1795
Reports in Chancery i ft.
Part 161 5
Reports in Chancery 2d.
Part 161 5
Reports inChanceryi7 16
Ld; t^oke'sReports in 1 1
Parts 169-
Lord Coke's 12th. and
15th. Reports 16-7
Combcrbach's Reports
Cro. E.
Cro. J.
Cro. C.
D
Croke's Reports in Q_
Elizabeth's Timei 635
Croke's R^eports in King
James's Time 1685
Croke's Reports in King
Charles the ift Time
168^5
Dal.
Dalifon's Reports 1689
Da.\r.
D.
F
Farr.
Fin.
Fin. R.
Fitz,h.
Davis's Reports 1674
Dyer's Reports 16SS
Farrefley's Reports 17 15
,1 Finch's Law
Reports ofCafcs in Chan-
cery, in Ld. Notting-
ham's Time 1725
Fitihcrbert's Abridg-
F. N. B.
ment iv65
Fitzherbert'sNaturaBre-
G
Gibb.
vium 1687 — 1730
Fiti-Gibbons's Reporfs
G. Equ. R.
1732
Gilbert's P.cports of
Godb.
Godolp. Rep.
God, Orph.
Gold*.
Cafes in Equity 1734
Godbolt's Reports 165a
Godolphin's Repertory
1680
GodolpIiin'sOrphansLe-
gacy 1685
Goldsborough's Reports
1655
Hard.
Hard.
Hawk.
H
PLC.
Hawk.
PI. C. Abr
Het.
Hob.
Holt's
Hutt.
Jenk.
Rep.
I
Co. Litt.
2lnft.
3 Inft.
4lnft.
Jo-
2 Jo.
Keb. 2
K
, 3 Keb.
Kelw.
Kel.
or Keilw
L
Lane
Lat.
Le. 2, -
;,4Le.
Lev. 2,
Ley
L. P. R
5 Lev.
Lit R.
Lutw. ;
or Rep.
I Lutw.
Alar.
Mod.
M
2 Mod.
3 Mod.
4 Mod.
5 Mod.
€ Mod.
7 Mod.
S and 9
Mod.
10 Mod.
11 Mod;
12 Mod
Mo.
N
Nov
O
Ow. or Owen
P
Palm.
Hardrefb's Reports \C<)i,
Hawkins's Pleas of the
Crown 1 724
Hawkins's Pleas of the
Crown Abridg'dnzS
Hetly's Reports 1657
Hobart's Reports 1724
Holt's Reports 1758
Button's Reports 1656
Jenkins'sCenturics 1661,
1754
Coke on Littleton 170^
ed. Part of Lord Coke's
Inftitutes 167 1
jd. Part of Lord Coke's
Inftitutes l6^a
4th. Part of Lord Coke's
Inftitutes 1648
Sir William Jones's Re-
ports 1^7 5
Sir Thomas Jones's Re-
ports 1695
Keble's Reports i ft. 2d.
and 3d. i6Sy
Keilway's Reports 1688
Kelyng's Reports 1 7 08
Lane's Reports 1657
Latch's Reports 1661
Leonard's Reports in 4
Parts 1687
Lcvini's Reports 1702
Ley's Reports 1659
Lilly's Praftical Regis-
ter 1719
Littleton's Reports 1683
Lutwich's Reports ift.
and 2d. Part
Marfli's Reports 1^7 5
ift. Part of Modern Re-
ports 1 700
2d. Part of Modern Re-
ports 1698
3d. Part of Modern Re-
ports 1700
4th. Part of Modern Re-
ports 1722
5th. Part of Modem Re-
ports 1 7 20
Modern Cafes argued
&c. inB.R. 171;
Farrefley's Reportsi 7 16
Mod-'rn Cafes in Law
and Equity 1730
Cafes in Law and Equity
chiefly in Lord Mac-
clesfield's Time 1736
Reports of Cafes in B.K..
in (> Ann's Time 1737
Cafes in B. R from the
2d, Year of W. 3 . to
the end of his Rdgn
1738
Moor's Reports 166^
Noy'sReportj 16^6
Owen's Reports 1656
Palmer's Reports 16S8
Pari. Cafes
Perk.
Pie. of Recov.
Pl^C.
Poll, or PoUexf.
Poph.
R
Raym.
Roll. R. 2 Roll. R.
Roll.Abr. 2Roll.Abr.
RS. L.
S
1 , 2 Salk.
Sav.
Saund. 2 Saund.
Sel.ChCa.inLd.King's
Time ^
Show.
2 Show,
Sid.
2 Sid.
Skin.
Sti. or Sty.
Swinb.
T
Treat, of Ten.
V
Vaugh.
Vent. 2 Vent.
Vem.
2 Vern.
W
Went. Off. Ex.
Shower's Parliament
Cafes 1698
Perkins 1642
PigotofRecoveriesi7 j9
Plo wden's Commentaries
158S
Pollexfen's Reportsi 7 02
Popham's Reports 1656
Raymond's Reportsi 69(»
Roll's Reports ift. and
2d. Parts 1675, 1676
Roll's Abridgments in
2 Parts 1668
Readings upon the Sta-
tute Law 1723
Salkeld's Reports ift.and
2d. Part 1721
Savill's Reports 168S
Saunders's Reports 1 ft. 8c
2d. Part 1722
Scleft Cafes in Chancery
in Lord King's Time
1740
Shower's Reports ift.
Part 1703
Shower's Reports 2d.
Part 1 7 20
ift.Part of Siderfin's Re-
ports 17 S3
2d. Part of Siderfin's Re-
ports
1714
Skinner's Reports 1 7 28
Stile's Reports 1658
Swinburne ofTeftaments
1728
Treatile of Tenures 17 28
Vaughan's Reports 1677
Vcntris's Reports ift. and
2d. Part 1726
Vernon's Reports firft
Part 1 7 26
Vernon's Reports fecond
Part 1728
Wentworth's OfSce of
Executors 1728
Weft's Symb. Weft's Symboleographia
1641
Wms'sRep.2Wms'sRcp. William's Reports ift.
and 2d. Part 1740
Winch, or Win. Winch's Reports 1657
Yelv. Yelvcrton's Reports
1674
YEAR BOOKS.
V/TAynard's Edward 2d.
^^ Firft Part of Edward 3d
Second Part of Edward 5d.
Third Part of Edward 3d.
Book of Affifes
Henry 4th. and 5th.
Firft Part of Henry 6th.
Second Part of Henry dth.
Edward 4th.
Long Quinto
Edward 5th, Richard 3d, Henry 7th,
8th.
1580,
1575.
155'^,
1^79
KS79
1679
1600, 1679
1606, 1679
1601, 1679
1609, 1679
1567, KJ79
157S, 1680
1638, 16S0
and Henry
1555, i<579
FACTOR.
(A) Who may be a FacStor, and how confidered; rup"
I. A Fa61or is a Servant created by a Merchant's Letters, and jijai. Le:^
l\ taketh a Kind of Provifion called Factorage; fuch Pcrfons Merc. 8i.
JL jL are bound to anfwer the Lofs which happens by over-paf- And his Duty
fing or exceeding their Commifiion ; but a fimple Servant or an Ap- '^ as a Servant
prentice can only incur his Mafter's Difpleafure. The Gain of the d'iz'^Thebeit
Fadorage is certain, however the Succefs of the Voyage proves, he can, and
Molloy 462. Sedt. I . differs from a
Ferryman,
Inn-keeper or Carrier, who take Hire, and mull anfwer for Things ftole. 4 Rep. 84. in Southcote's Cafe.
2. 9 £5" 10 //' 3. 26. No Govrrnor, or Deputy Governor of any of the
plantations in America, or the Judges there, or any other for their Ufe,
Jliall be a Fador or ^ge7it for the African Company of others.^ for the Sdlb
or Difpnfdl of Negroes i and any Perfcn offending therein fhall forfeit 590 1.
to Le recovered m any of the Courts of Record at VVeftminfter. Expired.
3, By2oH.6. 5. NoCuliomer^'zSc. their Sercants^^c.fkanWFanor to any
^iirchanU
(A 1.) What is his Power.
I. A Factor that has only a hdrc Anthority to fell cannot Tnift, but
±\. ought to take and receive the Money prefently on tlie Sale.
I Bulft. 104. Barton V. Sadock. Molloy 463. Sed:. 3.
2. When the Merchant delivers Goods to the Fa£lor to fell, he haS
made the Faftor Negotiator Gcfiornm, and therefore he may fell with-
out ready Money, and 'tis good Reafon, for by Chance they are Bona-
peritnra i but if he fells them to one -juhom he kno"Jss will prove Bank-
rupt, 'tis not good. Per Hobart Ch. Juft. Winch 53. Fadfor that
has a general Commiflion may fell on 1'rujl, but not take Bond in his
ffxn Name. 2 Chan. Caf. 57. Dafhwood v. Elwell. Pleading fuch ' ^°"- ^^^'
Bond is not good by Way of Account, but 'tis a good Plea before the cifeto'' '^'
Auditors by Way of Difcharge. Bulft. 103. per Williams Juft. cites pT^j.^^'
D. 29. pi. 193. ButfuchTruil
mull he fir a
reafonahk 'Time only, according to the ufual Time allow'd for fuch Goods fo difpofed of, the' his Power wa?
neneral, of doifig with them as if they were his own ; but he cannot trull for an unreaibnable Time, as
for ten Years. Bulll. 103. Eurton v. Sadock. . Alolloy 463. Seft. 3.
3. A Merchant delivers Goods to his Fador ad Merchandizandum; If Faftor fells
he cannot fell them upon Credit^ but for ready Money, unlefs he has a '^°'"^'' ^° °"=
. . •' that is worth
nothing, or that cannot give Security for them, it Ihall be to his aim Uf:, and r.ot his Mailer's. Yelv. aoz.
Sadock V. Burton.
Z Fador.
_„^ — . - - ]»
particular Commiffion from the Mafter fo to do j for if he can find no
Buyers he is not anfwerable, and if they are Bona pcritiira^ and cannot
be Ibid for Money on the Delivery, the Merchant muft give him Au-
thority to fell upon Truft. 2 Mod. 100. Anonymus.
4. In Trover and Cbnverfion of divers (Quarters of Malt ^ the Cafe
upon the Evidence was, That the Defendant having a great Quantity
in a VeflTel impowered one Smith, a Broker, to fell it, and afterwards
the Defendant hin/fclf fold it to a Stranger, and the fame Day, and be-
fore Notice of the Sale by the Defendant Smith, fold it to the Plaint if,
who demanded it of the Defendant, who denied to deliver it^ and the
Cafe was doubtful to Rolle Ch. Juft. For if the Defendants Sale floouU
(land againfi the Sale of Smith, before Notice of the firft Sale, then
ihould he be chargeable for his Bargain which he could not perform
without any Default in him; and on the other Side it were hard that
the Sale of the Owner, who hath the abfolute Property in the Goods,
fliould be defeated by a fubfequent Sale of him that had but a bare Au-
thority. But in Conclufion he declared his Opinion, that the Sale of the
Defendant fhould {land good, and the Broker ought in fncb Cafe to make
bis Sale conditionally, if the Mafter hath not fold it before j but he faid
that neither the Broker nor his Vendor fhould be liable to any A6I1011
for detaining the Goods tho' demanded, without Notice given of the
Sale by the Mafter. Et partes concordaverunr. Aleyn 93. Alwin v.
Taylor.
5. He cannot barter any Commodities for other Commodities, but
he muft have exprefs Commiffion and Order for it from the Merchant;
neither can he transfer or fct over any Rills obligatory. For albeit this
Manner of Commiffion given to Fadors is very large, yet it containeth
certain Reftridions and Limitations in every Merchant's Underftand-
ing. Mai. Lex Merc. 83.
6. A Faftor is not barely intrufted with the Cuftody of the Com-
pany's Goods, and as fuch has a Power to inveft their Money and Goods
m whatever he thinks nioft for the yldvantage of the Company, and is
not to account for the Goods themfelves but the neat Produce-of them,-
ib that he may convert the Company's Stock to his own Ufc, provided
he anfwers it to them out of his own Eftate. 10 Mod. 144. Shepherd
and Maidftone, B. R. (Alias The Eaft-India Company's Cafe.)
VkU/s he can 7. Every Fador of common Right is to fell for ready Money; hut if
prcme that he he be a Fadlor in a Sort of Dealing or Trade, where the Ufage is for
was ig''ora>:t^ Fadors to fell on I'rnfl, there, if he fells to a Perfon oi good Credit atr
weak Etote^ ^^-'^^ I'ime, and he after becomes infolvent, the Fador is difcharged ; but
and Credit, or otherwife if it be to a Man notorionfly difcredited at the 'Time of the Sale,
that be fold the But if there be no fuch Ufage, and he, upon the general Authority to
Goods on kis Cg]]^ feijs upon Truft, let the Vendee be ever fo able, the Fador is
"T-J- which °"^y chargeable; for in that Cafe, the Fador having gone beyond his
argu'eth plain Anthority, there is no Contrad created between the Vendee and the
Dealing, or Faclor's Principal ; and fuch Sale is a Converfion in the FacSor ; and
that he hat/ jf jj ^g ^lot in Market overt, no Property is thereby alter'd, but Tro-
^he'o£\°L ^'^^ ^'^' ^'^° ^'^ againft Vendee. So likewife if it be in a Market
to deal for overt, and Vendee knows the Failor to fell as PaBor. Per Holt Ch. Juft.
him as if it at Guild-hall. 12 Mod. 514, 515. Anonymus.
were for his * ,
own proper Goods. Mai. Lex Merc. 83.
Mai. Lex 8. In Commiflions they now generally infert thefe words: Difpofc,
Meic 81. jr,, and deal therein, as if it ivere your own, by which the Adions of
the Fador are to be excufed, tho' it turns to his Principal's Lofs, be-
caufe it fhall be prefumed he did it for the beft, and according to his
Difcretion. Molloy 463. Sed. 2.
2 (B) Tranf-
Fador. 3
(B) Tranfadions and Accounts between him and
his Employer.
I. TF a Cofifuf beyond Sea hath Power, and doth levy Gaods ttpm a
X prrjate Merchant^ the Company muft bear it, if the Faflor
could not prevent the Ad; of the Conful. Hill. 1630. Toth. 169. Leare
V. Turkey Company of Merchants.
2. An Eaft-liidia Factor was not allowed to place any Thing to
Account under the Head of Geiieral Expcuccs^ 6cc. Fin. K. 117. Eaft-
India Company v. Blake.
3. If a Fader by Error of Account do wrong to a Merchant, he iS
to amend and make good the fame, not only for the Principal Money,
but alfo with the Intereft the^^of for the Time ^ and on the contrary,
if a Faftor in his own Wror-ift hath forgot to charge the Merchant's
Account with fome Payment.'-^nade by him, or Aloney made over by-
Exchange j the Merchant is to anfwer it, with Intereft for the Time.
Mai. Lex Merc. S3.
4. Between Merchant and Fadlor, if the Failor has paid more than
the Merchant could have demanded of him, the Merchant ihail have no
Account from the Fador till he has made even. Sic dicitur. 2 Chan.
Cafes 38. as a Note on the Cafe of * Fafhion v. Atwood. * Vide (C)
5. Fador's Account reji-ed upon fourteen Tears, and his Books and Pa- P'- ^•
fcrs loft by 110 Vault of b:s, but by a Seifure in Spain where he factored,
he fhall not be charged beyond his own Oath. Chan. Cafes 30, Borr
V. Vandall. N.Chan. R. 140. S. C
6. Fador lliall have the Benefit of Qtftoms faved and not the Mer- Chan. Cafes
chant that imployed him. Chan. Cafes 25. Smith v. Oxenden. 76. Knipe f.
This was where the Cuftoms were ftolen from a fore'gn King^ but of J'^'^""' ^- ^•
Cuftoms ftolen from our own King, Fat-lor fliall not have the Benefit, y^^joj, o„ (^^
Chan. Cafes 30. Borr v. Vandall N. Ch. R. 87. S. C. but reports Cafe lies for
it decreed againft the Fador on the general Foot of Fraud. the Owner
againft the
Faflor for ruiming Goods, by which Means they ^k forfeited and feizcd. D-o. J. 265. Lewion v. Kirk.
Where a Faftor fmuggles Foreign Cuf.omj, and yet fets them down to his Mafter as paid upon Account ;
ihe Chancery would not relieve, for that the Faftor ventured his Life ; and fo it was ruled by Hide, Lord
Chancellor, in the Cafe of aiailDcrtoalDV and ^avrv ; but North (Lord Keeper) f;ud he was'not faiiiiied (jf
ir, for that he ventured his Mailers Goods as well as his own Life. Skin. 149. Anonymus in Cane.
7. Fador deceives the Merchant in fending him from beyond Sea one
Sort of Silk for another; Merchant fells them again to J. S. for the
fame Sort of Silk for which the Fador fent ir, and was ignorant of
the Deceit. Per Holt, The Merchant is anfwerable for the Deceit of
the Fador civiliter, tho' not criminaliter, and Judgment for J. S. 1 Salk.
289. Hern v. Nichols.
8. As to Accounts between the Agents and Fadors of the African
Company and the Company, vide 2 Chan. Caf. 11 to 14. Mellilh v.
African Company and Edlin.
[See Account ( ) pi. 8.]
(B 2.) Trahf-
Faftor.
(B 1.) Tranfadtions between Fadior and Employer.
Frauds by falfor.
MjI. Lex I- TF Faftors (hall give Time to a Man for Payment of Monies con-
Merc, bz. I traded on Sale of their Principal's Goods, and after the Time is
elapfed, they fliall fell Goods of their oivn to fuch Perfons for ready Caf}}
{leaving their Principafs tinreceived^ and then fuch Man break and be-
come mfolveutf the Faftor in Equity and Honefly ought to make good
the Lofles, for they ought not to difpenfe with the Non-payment of
their Principals Monies after they become due, and procure Payment
of their own to another Man's Lofs ; but by the Laws of England
they cannot be compelled. Molloy 463. Sett $.
2. If any Fador fell unto a Man cerr^'n Goods of another Perfon's
Account, either by themfelves or amo ap other Things, and gives not
yldvice to his Principal of the Sale of the faid Goods, but afterwards
having more Dealings with the fame Man he becomes infolvent j the
Debt for the Goods fo fold the Fa6lor fhall be anfwerable for, becaufe
he gave no Advice to the Owner of the Sale of the faid Goods in con-
venient Time; and it is as if he had difpofed of thofe Goods to a Man
contrary to the Commiflion given unto him ; for the Salary of Fadlor-
age bindeth him thereto. Law of Trade, i3c. 2d Part 403.
3. Jlfo if a Fafror by Commiffwn of a Merchant bay a Coii/i?wdity for
his Account, with the faid Merchant's Money, or by his Credit, and
the Fa6lor giveth no Advice of it to his Principal, but fells the fame
Goods again for his o'-jon Benefit ; the Merchant fhall recover this Bene-
fit of the Fador, according to the Cuftom of Merchants, and his
Fador fhall likewife be amerced for the Fraud. Law of Trade, ^c.
2d Part 403.
4. If a Fadtor fhall by falfc Entry in the Cuftom-houfe, either ?/;;-
aivares or of Piirpofe conceal Part of the Cuflom zvithont C^nfent or Pri-
vity of the Merchant, whereby the Goods become forfeit to the Prince,
the faid Fador fhall bear the Lofs of them and anfwer the Value
thereof unto the Merchant as they did coft, if it he for Goods to be
tranfported, or as they might have been fold, if it be for Goods to be
imported. Mai. Lex Merc. 83.
5. If a Fador, by a Letter of Advice or by an invoice of Commodi-
ties which the Merchant fendeth, doth make a Jljort Entry in the
Cuflom-houfe, the Goods not entred fhall be lofb, but the Fador can-
not be charged with the fame. Mai. Lex Merc. 83.
[See (B) pi. 6. (F 2.) jl 2.]
(C) Difputes between Fadtor or Employer, and
Creditors of the other; and where the Factor or
Employer dies or fails.
I. A Merchant remits Goods to his Fador, and about a Month after
Xv. draws a Bill on him, the Fador having Effe^s in his Hands
accepts the Bill, then the Principal breaks, againfl whom a CommifTion
of Bankrupt is awarded, and the Goods in the Factor's Hands are
feizcd ; it has been conceived the Fador muft aufwcr the Bill not-
a w;thftanding.
Fador. S*
-^ — — - — ■ — ■ — ■ — — — — - — ■ ■"»■
•withftanding, and come in as a Creditor for fo much as he was en-
forced by reafon of his Acceptance to pay. Molluy 465. Sedt. 8.
2. Fador having over-paid his Merchant, but having Goods unfold
of the Merchant's in his Hands, the Merchant by Parol agrees that
tador jhall pay himfelf out of the Monies anfwg from the Sale of the
Goods remaintug in his Hands ; Fadtor being indebted to others by
Parol likewife affigns to his Creditors the Debts which vfcre due for
Sale of the Goods of the Merchant. The Merchant dies, and owes
Debts by Bond. — 'The Fadtor dies indebted by Bond likewife. Per
Lord Chancellor, the Factor had a good Title in Equity to the Debts
which in Equity are become his, and are no longer the Merchant's,
and decreed for the Creditors of the Fador. 2 Chan. Caf 36. Fafhion
V. Atwood.
3. A. as Fador to B. fells Goods on Credit, and dies indebted by
Specialty more thnn his AfTets would pay. The Money fhall be paid
to R. and not to A.'s Adminiftrator, as Part uf A.'s AfTets, but the
Commif/ion Money muft be deduded for the Adminiftrator of A- And
per Cowper C. Tho' the Fador has a Right at Law, yet he is only a
ftrufee in Equity. 2 Vern. R. 638. Burdet v. Willet &. al.
4. A Blackivcll-Hall Fador having Cloth in his Hands advanced Wliethcr he
Monies to the Clothier; the Clothier dies, Adminiftrator fues the may retain in
Fador at Law for the Cloth, the Fador fues in Equity to be allowed 9^'^ '{^^ ^'°"
what he advanced, but denied per Lords Commiflioners; for if there bankrupt
are Debts of a higher Nature, 'twill be a Devajiavit in the Admini- 2 Vem. 254.
ftrator to pay or difcount the Plaintiff's Debt. 2 Vern. 117. Chap- Woodford v.
man v. Derby. Swaine.
5. If one employs a Fador, and intrufts him with the Difpofal of
Merchandize, and the Factor receives the Money, and dies indebted to
Debts of an higher Nature., and it appears by Evidence that this Money
•was invefied in other Goods, and remains unpaid : Thofe Goods fhall
be taken as Part of the Merchant's Eftate, and not the Fador's. — But
if he have the Money, it ihall be looked upon as the Fatlors Efiatc,
and muft firft anfwer the Debts of a fuperior Nature, i Salk. 160. In
Cane. Whitcomb v. Jacob.
(D) Of Joint Fadors ; or where one Fa(5tor is iiii-
ploy'd by feveral Principals.
l./^NE and the fame Fador may ad for feveral Merchants, who Mai, Lex
vy muft run the joint Rifqne of his Anions, tho' they are raeer Merc. 8z.
Strangers to one another; as if five Merchants remit to one Fador five
diftind Bales of Goods, and the Fador makes one joint Sale of them
to one Man, who is to pay one Moiety down, and the other at fix
Months End ; if the Vendee breaks before the fecond Payment, each
Man muft bear an equal Share of the Lofs, and be contented to ac-
cept of their Dividend of the Money advanced. Molloy 463. Sed. 4.
2. But if fuch a Fafior dra-jus a Bill of Exchange upon all thofe five
Merchants, and one of them accepts the fame, the others fhall not be
obliged to make good the Payment. Tamen qusere de hoc. Molloy
463. Sed. 4.
3. If two Men are Partners of Merchandizes in one Ship, and one
of them appoints and makes a Fador of all the Merchandizes, it was
faid, and not denied, that both of them may have feveral llats of
C Account
Fador.
Account againft him, or may join in one Writ of Account if they
pleafe. Qujere of that. Godb. 90. M. 28, 29 Eliz. B. R.
4. Surviving Faftor fliali account for what was made by himfelf or
Co-Fador, and yet Account lies againfi: the Executrix of the dead
Fador. Chan. Caf. 127. Holtfcomb. v. Rivers.— N. Ch. R. i39- S. C.
Mai. Lex
Merc. 85.
Wal. Lex
Merc. 86.
2 Law of
Trade 403,
404.
2 Law of
Trade, &c.
404.
2 Law of
Trade 404.
* The Book
is mifpaged
('39)-
(E) In what Cafes his Contracis bind the Principal,
I. TF a Fador enters into a Cbarter-farty with a Mafter for Freight'
X ment, the Contrail obliges him ; but if he lades aboard gene-
rally the Goods, the Principals and the Lading are made liable, and
not the Fador, for the Freightment. Molloy 466. Se(5l. 9.
2. The Principal orders his Fador that as foon as he hath loaded
(he having Monies in his Hand) to make an Affnrance on the Ship and
Goods; if the Ship happens to mifcarry, by the Cnftom of Merchants
he Ihall anfwer the fame, if he hath negledled his CommifHon 5 fo it is
if he having made an AlTurance, and Lofs hath occurred, he ought not
to make a Compofition without Orders from his Principal. Molloy 466.
Sea 0.
3. If a Fador by Order or Commiffion of his Principal buys any
Goods above the Price limited to him, or they be 7iot of that Sort, Good-
fiefs or Kind, as by the Authority they ought to be ; this Fador is to
keep the fame for his Account proper, and the Merchant may difclaim
the buying of them. Mai. Lex. Merc. 82.
4. The like he may do, if the Fador having bought a Commodity
according to his Commifion fhall fjip the fame Jor a7iy other Place than
he hath Commiflion to do. Mai. Lex Merc. 82.
5. But in fuch Cafe if the Price of the Goods rifcth, and the Fador
thereupon fraudulently ladeth them for fome other Port, to take the
Advantage thereof, the principal Merchant may recover Damages of
the faid Fador upon Proof made of it. Mai. Lex Merc. 82.
6. If one be a Fador for a Merchant to buy one Kind of Stuff, as TiUy
or other fuch like, and the faid Fador hath not ufed to buy any other
Kind of Wares, but this Kind only for his Mafter; if now the faid
Factor buys Sales, or other Commodities for his Mafter, and aftumes to
pay Money for that, now the Mafter fhall be charged in an y^ffnmpft
for the Money, and for that let the Mafter take heed what Fador he
makes. Per Cur. Goldsb. * 138. pi. 46. Petties v. Soame.
7. A Motion for a new Trial in Indebitatus againft a Fador on Sale
of Rape-Seed, becaufe tho' the Goods were fold to S. yet it was for
the Life of D. and fo were the Receipts ; fed non Allocatur. For
per Cur. if a Fador or Servant buy Goods generally, and do not upon
the Contrad declare that he buyeth only as Fador or Servant, he is
chargeable in his own Right, and Judgment for Plaintiff; but if he
would have ftood only on Payment, new Trial might be. 2 Keb. 812.
Dcgelder v. Savory.
(E 2.)
Fador.
(E 2.) Liable to cinfwer Damages in what Cafes in
'■r
general.
'F a Faftor, having received other Mens Goods or Monies into
_ his Cuftody, be * robbed of the faid Goods and Monies, he is to * Tn Account
bear the Lofs, and to make good the fame unto the Merchant ^ but not ^^^^ ^^Z
in Cafe where the unmerciful Elements oi Fire and Water fhall deftroy Auiliiors ^'^tha.t
the faid Goods or Monies, or where a 7'ozm is facked or pilled., which he was rob-
is always to be born by the Owner or Proprietary of the fame. Mai. ^^'^- Po""
Lex Merc. 83. tho' he has
■' Wages, yet if
he ufes a!l his Induftry, he fhall be difcharged. 4 Rep. 64. in *)OUtl)COtC'i Cafe. — S. P. and lb if they
are burned without his own Default. 2 Mod. 100. Aiionymus.
2. If a Fador buy a Commodity which after-joards becomes dcwmifiei
hy fome Accident or Cafuaity, whereby the Merchant (for whofe Ac-
count he bought the fame) becomes a Lofer, the Fador is not to be
charged with any Part of the Lofs. But if the Commodities were
damnified before, then he is to bear fome Part of the Lofs, altho' it
happened to be known afterwards. Mai. Lex Merc. 84.
3. If a Faftor receives Money for other Mens Accounts, which
are aftericards decried, or fome Lofs doth happen by exchanging the
fame, be it upon Copper Monies, or light Gold taken for Merchan-
dizes fold, every Man is to bear that Lofs proportionably according to
his Sum, and the Fadtor is to fufi:ain no Damage thereby, unlefs it
■ were for falfe Coin by him received, which he is bound to know. Mai.
Lex Merc. 84.
(F) Facfior liable to anfwer Damages, in what Cafes.
ISlot ohferving Orders, or a^ing ivithout Orders.
1. A Faftor felling Merchandize under the Price limited unto him ^ Law of
l\. by his Principal, he is to make good the Lofs or Difference of ^'^^^^' ^'^'
the Price, unlefs he can give a fufficicnt Reafon for his fo doing. Mai.
Lex Merc. 82.
2. A Fador is accountable for all lawful Goods which come fafe
to his Hands, and fhall fuffer for not obferving of Orders. If he has
Orders not to fell any Commodities particularly fpecificd, and yet fells
them, he is anfwerable for any Damage that flnall be received ; in Cafe
Goods are bought or exchanged without Orders, it is at the Mer-
chant's Curtefy whether he will receive them, or turn them on his
Faftor's Hands. Law of Trade, &c. 2d Part 409.
3. If a Fador do pay Money for a Merchant Qivitbotit Commiffion') to
another Man, it is at his Peril to anfwer for it : And if he deliver
another Man's Money at Interefi, and take more than the T'olcration of the
Statute, whereby the Statute againft Ufary taketh hold of him, and
the Money is loft, the faid Fador is to be charged therewith, and to
make good the Money unto the Merchant. Mai. Lex Merc. 83.
4. If a Fador be required to make yljfnrance for a Merchant upon
a Ship or Goods laden for a certain Voyage, and have Monies in bis
Hands to pay for the Premium or the Price of Aflurance ^ and this
Fa6lor doth negled the fame, and giveth no Notice of it to the Mer-
chant, who might have made Aflurance in another Place, and the
faid
8 Fador.
faid Ship or Goods do perifh at the Seas ^ this Fador is to anfwer the
baniage, unlefs he can give fome fufficient Reafon for the Non-Per-
formance of the faid ©rder or Commiflion. Mai. Lex Merc. 86.
5, If a Fador having made AfTurance upon Goods laden, which
afterwards are taken by the Bnemy, makes any Coinpofition ivith the
AJfnrers for the fame, -without Order or Commiflion for it, he is to
anfwer the whole Afllirance to the Merchant. Mai. Lex. Merc. 86.
(F z.) Liable to anfwer Profit or Damage. J^ct
gi%;ing Notice of Tranfadlions.
I. TF a Fa61or do fell unto a Man certain Goods of another Man's
J. Account, either by it felf or among other Parcels, and this
Faftor giveth not Advice unto the Owner or Proprietary, of the Sale
of the faid Goods, but afterwards (having had more Dealings with
that Man in felling of Goods and receiving of Monies) this Man be-
cometh Iiifolvc72t, the Fador is to make good that Debt for the faid
Goods fo fold, becaufe he gave no Advice to the Owner of the Sale of
th«m at convenient Time, even as if he had fold thofe Goods unto a
Man contrary to the Commiflion given unto him ; for the Salary of
Fadorage bindeth him hereunto. Mai. Lex Merc. 82.
2. If a Fador, by the Advice of a Merchant, do buy a Commodity
for that Merchant's Account, with the faid Merchant's Money, or by
his Credit, and the Fador giveth no Advice of it to the faid Merchant,
but doth fell the fame again for his o--jo7t Benefit and Gain, the Mer-
chant fhall recover this Benefit of the faid Fador, by the Office of
Prior and Confuls, according to the Cuftom of Merchants, and fhall
be moreover amerced for his Fraud. Mai. Lex Merc. 83.
[See (B 2.) pi. 2.]
(F j.) Liable, how. In Cafe of prohibited Goods
or Seijures.
1. |F a Fador make Return unto a Merchant for the Provenue of his
1 Commodities fold, /;; prohibited Goods which may not be tranf-
ported, and bai;e no Conimijfion from the Merchant to do the fame ; he
fhall bear the Lofs of thofe Goods, if they be feifed upon for the
King, or taken as forfeited. But if it be upon Commodities to be im-
portcdy the Fador is in no Fault. Howbeit he ought to give Advice
to the Merchant what Commodities are forbidden to be imported or
exported, according to the Pleafure of the Princes, which are abfolute
Governors in their Havens, Harbours, Ports or Creeks. Mai. Lex
Merc .8 3.
2. If a Fador commit an tmla'sfnl Afl by Dirc^ion of the Merchant,
be it for the T'ranfportation of Gold or Silver into the Parts beyond the
Seas, or othervvife ; and if it happen thereupon that the fame be
taken, the Merchant beareth the Lofs; And yet the Fador is fubjeil
to pay treble Damages by the Law, if it be followed within the
Year i or may he fined for the fame in the Star-Chamber , altho' it be
i7iany Tears after. Mai. Lex Merc. 83.
I (F4)
Fa dor.
(F 4.) Offences by Fa dor. Puniflimcnt.
IF a Fa6lor or Merchant do Colour the Goods of Merchant Strangers^
in pc.ying hut E7iglijlj Cuftoms (altho' he did bear the Adventures
of the Seas for the faid Goods) lie runneth into a Prxmttnire, and for-
feiteth all his Goods unto the King, and his Body to perpetual Ira-
prifonment. Mai. Lex Merc. 83,
[See (F3.) Pl. 2-3
(G) Adions, Pleadings and Evidence.
I. tT is a good Difcharge hfore Auditors for a Factor to fay that in Br. Account
Jl a 1'eiiipeft^ becaufe the Ship was furcharged, the Goods were cafl p'- S^- <^'tes
over-board into the Sea. Dubitatur 41 E. 3. 4. Roll. a. 124. (O) pi. 1. ■^* 3' ^
— So, that he was * robbed., or that the Goods were burned without his * ?'Rep. 84.
own Default. 2 Mod. 100. Anonymus. in Somhcote's
Cafe.
2. A6tion on the Cafe lies for the Owner againft the Fador for Lane 6^
Runnijig Goods., by which Means they are forfeited and feifed. Cro. '''• ^- ^y
Jac. 265. Lewfon V. Kirke. Na-/[
Kirke.
3. If Faftor that has a general Commiflion takes a Bond in his ozvn q ^q pi
Name, he cannot plead fuch Bond by ivay of Account, but it is a good ,93.
Plea before Auditors by way of Difcharge. Per Williams Juft. Bulft. i Roll. Abr.
103. cites D. 29. >.Z4- pJ- I*-
4. If the Factor makes a Contra^ for his Majicr, tlie Mafter fliall *^"" ^" ^'
have the Adion on the Contraii, Per Coke Ch. Juft. Roll. R. 337.
5. If, where the Ufage is for Fadors to fell upon Truft, he feils to a
Perfon of good Credit at that 'Time, and he after becomes Infolvent, the
Fadtor is difcharged ; but otherwife if it be to a Man notorioufly Dif-
crcdtted at the Time of the Sale, tinlefs he can prove that he was ignorant
of the Party's weak Eftate and Credit. Mai. Lex Merc. 83.
6. The proper Remedy againft a Fadlor, afting as fuch, is Account ;
but if he converts, Trover will lie againft him. Per Holt Ch. Juft.
12 Mod. 602. Anonymus.
7. Where a Factor at the Canaries deferves Money for Factorage,
he cannot bring an A^ion for bis Factorage, unlefs the Principal refifc
to come to an Account ; and if it appears that the Fador has Money in
his Hands, he may detain, and cannot bring an Adion for his Fac-
torage ; but if he were direded to veft all the Produce of his Adven-
ture in Wines, then he may bring an Adion for his Fadorage and
Pains, becaufe he cannot detain, and hath no other Remedy. Per
Holt. Comb. 349. Hereford v, Powell.
8. Where a Fador or Agent of the African Company had delivered
up his Accounts to his Succeffor, according to the Rules of the Eftablilh-
ment, which were afterwards burnt by a late Agent of the Company,
the Lord Chancellor ordered the Plaintiff to f-wear that he left them
with the Succejfor, which Ihould conclude the Company. Mich. 3 1 Car. 2.
£ Chan. Caf 11, 14. Mellilh v. African Company and Edlin.
D 9. A
10 Faculties.
9. A Factor took a Bond in his own Name, and died, and the Obli-
gor having failed, a Bill was brought againft his Son for an Account.
The Lord Chancellor put the Son to prove that his Father the Tefta-
tor gave particular Notice to the Plaintiff that he fold on Trufl-, and
to whom. Trin. 33 Car. 2. 2 Chan. Caf. 56, 58. Dafhwood v. Elwall.
[See Mafter and Servant (E).]
(A) Faculties.
4 Inft- 337- i.^ ■ "^H E Court cf Facnlties is a Court, aJtho' it holdeth no
5 Sc'a^?' I ^'^^ °^ Controverfy. It belongeth to the Archbilliop,
■ and his Officer is caWed Magifter ad Facilitates. And his
-fl- Pozccr is to grant Difpenfations, as to marry, to tat
Flefh on Days prohibited, (and fo may every Diocefan) the Son to
fucceed his Father in his Benefice, one to have two or more Benefices
incompatible, Sc It is called Faculties in the Statute of 28 H. 8.
which in one Senfe fignifieth a Difpenfation. So as Facilitates (in thi?
Senfe) Diffeufationes t? indulta, are Synovyma. This Authority v/as
raifed and given to the Archbilhop of Canterbury by the Statute of
■'• 25 H. 8. 21. 4lnft. 337-
An Exception 2. 25 H. 8. 21. ena^s, that the Archbifhop of Canterbury and his
T^* "'^f"' ! Sacccjfui-s Jhall hwve Po^jner and Authority to ordain, make and conftitnte
ty cranted^by ^ Clerk, whicb jhaU Write and Kcgifter every Licence, Difpenfation,
the Arch- Faculty, Writing or other Infiniment to be granted by the faid ArchhiftJop,
biitop of Can- and Jljall find Parchment, Wax and flken Laces convenient for the fame, and
terbury was jjj^ji take for hls Pains fuch fums of Money asJJjall be hereafter in this pre-
"h the Arch- A'^^ ^^ ^'^ ^-'"'' limited m that Behalf lor the fame. And that likctvife
bijhofi Clerk the King, his Heirs and Siicccjfors, fijall by his Letters Patent under his
of the Facul- Great Seal ordain, depute and conjlitiite on-e fufficient Oerk, being learned
'i"'jj"' ^^ ''li ihe Court of Chancery, -xhich akvays fl.'all be Attendant upon the Lord
C/eri"'\vhen CbaiKellor, or the Lord Keeper of the Great Seal for the Time being, and
'tis e'xpre/ly J^^^^H make, Write and inrol the Confirmations of all fiicb Licences, Difpen-
required by fat inns, Jnjlruments or other Writings, as be thither bro/ight under the
the S:at 25 ^rchbijjjop's Seal, there to be confirmed and inrclled ; and JhaU alfo intitlc
H. 8. tluit It -^ ^ -^ *■'•'.
ftould be _ _ '"
iigned by the Clerk himfclf, which is very true ; but t/v A^ is hut D'lrrSlory, and 'tis not faid that it
ihall be figned by the Chief Cleric himfelf; fo tliat this being (igned by his Under-CIerk, and it being
aiftomary in this Office for the Under-Clerk to fign Faculties, this Exception is of no Weight. 8 IVIod. 36^..
King V. Bilhop of Chcller.
Another L^vception was taken in the Cafe above, that it was not fubfcribeti and inrtlhd hy the King's
Clerk of the Faculties in Cane, as it ought, becaufe he is imfo-ivered by the Statute to tender an Oath to the
Perfon who hatli obtained it i which Statute was made to rcflrain the extravagant Grants of the Pope in
thofe Days, and tlierefofc (liould be fully and Ihidlly performed by the Clerks themfelves, and not by
tlieir Deputy Cleiks; and this mud be intended by the Legiflators, for cnherwife this Adl would have been
penned as the Statute of Wills, or as the Statute of Prominbry Notes, by which 'tis enadted, That the
Signing flinll be by the Parties themfelves, or by any other Perfon authorized by them; therefore this mull
be done by the' principal Cleiks tiicmfelves, and not by tlieir Under- Clerks, for 'tis not aflignable to them ;
I and
Faits or Deeds. ii
in bis Book, and imol of Record, fiicb other IVritings as Jhall thither l-e and therefore
brought under the Arcbhtjljofs Seal, mt to he confirmed, taking for his f'"^ Faculty
Patns fiich reafonahle Sums of Mouey as hereafter by this AB J]ja!i be li- ^^^^^^f ^'P^"
raited for the fame ; and that as zccll the fud Clerk appointed by the faid there is a
Archbifljop, as the faid Clerk to be appointed by the King, his Heirs or Pn-vijo in the
Sticceffors, fljall ftibfcribe their Names to every fucb Licence, Difpenfation, ^jiculty it fel/;
Faculty or other l^'riting that fljall conic to their Hands to be written, '^'f^'^ " ^f^r
7nade, granted, fealed, confirmed, rcgiftred and inrolled by Authority of j'^if^l^°^^{ J^^
this A£t, in Form as is before rehear fed. regijiredby the
Clerk of the
Faculties in Chancery, which is in the Nature cf a Condition precedent, and not to be figned or fubfcribed
by his Order. It was held, that where a Jilan doth any Thing by the exprefs Order of another, as it
was done in this Cafe, 'tis as good as if done by himfelf; as where one exprefly orders another to fign
jl Deed, which the Pcrfon tlius ordered did afterwards fign, this is good as one determinate Aft ; but
where the Deputy doth any Thing by Virtue of general Deputation, it mull be where a Deputy may be
made by Law. The Judgment was.affij-med. 8 Mod. 364, 365. King v. Bifliop of Chefler.
3. The King by his Prerogative, without the Archbifjjop, may-
grant to a Bifhop to hold a Church in Commendam, notwithftand-
jng the Statute of 25 H. 8. 21. Cro. Eliz. 601. Ariniger v. Holland.
[See Commendam. Pluralities (G).]
Faits or Deeds.
I
(A) What Perfons may make a Deed.
jF an Infant ueIi^jcc a DecD, it fsi not void but iJOiDablc. ri^uife
erenc!
8 fi). 6. 22» 9 D. 6« 6. "ken that
'^ ' the Deed of
an Infant (as Letter of Attorney) w herebj* he gives an Authorit)', is 'void, but where he puffes any In-
terell (as Bond, l£c.) is only -voidable, is not agreeable to Reafon ; for by that .Nleans the In&nt would be
inore prejudiced in paffing his Eftate than he would in giving a bare Authority, which cannot be maintained.
Per Holt Ch. Juft. Comb. 4.68. in Cafe of Thompfon v. Leach.
Where 'tis held that the Deeds of Infants are not iio-J but -voidable, the Meaning is, that Non cfi faBum
cannot be pleaded, becaufe they have the Form tho' not the Operations of Deeds, and therefoie are not
void upon that Account, without fhewing fome Special Matter to make them of no Efficacy. 3 Mod 310.
Thomlon v. Leach. But he may fay Is'm concejftt, ^c. Per Wray Ch. Juil. 2 Le. 218. in Hum-
frellou's Cafe.
2. B'-im fmt infra JEtatan was brought by an Infant of Land and
Rent, fo that you may fee that Grant of Kent by Inrolment by Deed i?
not void but voidable, as it feems. Br. Faits, pi. 83. 46 E. 3. 33.
3. 5 Eliz. 4. Sed. 42. Becaufe there hath been fnmc ^lefiion, ichetber
any Perfon being wtihin the Age of one and tvejtty Tears, and houndcn t^
ferve as an Apprentice tn any other Place than in the City of London,
Vjoiild he hounden, accepted and taken as an Apprentice,
.4. Sea.
Br.
Age,
pi.
So.
cites 4
Ma
. I —
ri-
45. cues
21
E.4.
J3.
14.
Br.
Age,
pi.
6+.
cites
20
E.4.
8.
II Faits or Deeds.
4. Seel. 43 . Be it enaftcd^ 'That all and, every fiich Perfou and Perfojis
that at any 1'ime or Times from henceforth fiall be bounden by Inden-
ture to fcrve as an Apprentice in any Art^ Science, Occupation or Labour,
according to the Tenor of this Statute, albeit the fame Apprejitice, or any
of them, floall be within the Age of one and twenty Tears at the Time of
the making of their feveral Indentures, fjjall be bounden to ferve for the
Tears in their feveral Indentures contained, as amply and largely to every
Intent, as if the fame Apprentice were of full Age at the Time of making
fuch Indentures ; any Law, Ufage or Cnflom to the contrary notwith-
flanding.
Noy 130. 5. If an Infant makes a Deed of feoffment, and a Letter of y^torney
citet 21 fl. 6. to a Stranger to make Livery of Seifin, and he makes Livery of Seifin
3'- "T" by Force thereof, he fliall be taken for a DifTeifor. Perk. 6, 7. cites
Roll. R. 242. ji „ CI
Palm. 237 18E. 4. 2. See pi. I.
Br. Feoffment pi. 48. cites i 8 E. 4. 27. But a Letter of Attorney by Infant to receive Livery and Seifin for
him is good, becaufe it is for his Advantage. Per Al'cue Jull. But econtra per Paflon Juft. Br. Faits, pi.
31. cites 21 H. 6. 31. But he fays the Law feems to be with Afcue.
6. In Little Brook, fol. The Cafe is, a Varfon cr "Prebend being
within Age made a Leafe for Years o\ Us Benefice, and would, but could
not, after avoid it for his Nonage ; for feeing the Church had made
him of full Age to difcharge the Spiritual Office, our Common Law
thought it fit to enable him to difpofe of his Temporaltics. Callis of
Sewers 202. Watf. Comp. Inc. 456.
7. In 21 H. 7. 12 & 13. the Cafe is put by Bridges, and confirm'd by
Juftice Sylliard, and was not denied by any. That an Obligation made
by a Mayor and Commonalty, Dean and Chapter, Abbot and Covent,
JJjall not be avoided for the Nonage of the Mayor, Dean or Abbot. Callis
of Sewers 202.
8. If a Blind Man has Underftanding, he may deliver a Deed
fealed by him. Jenk. 222. pi. 75,
r'ln.LawSvo. 9. If a Man be born Dumb, but can well hear, fuch a Man at full
«oj Age, by Delivery of his Hands by Signs, and without Delivery by
Signs, may make a Gift. Perk. 11. SeA. 25.
Vide Martha I o. And a Man that is born Dumb and Deaf may make a Gift, if he
Elliot's Cafe, have Underflanding, But it is hard that fuch a Perfon fliould have
Cart. 53. Underftanding. For a Man ought to have his perfect Underftanding
by his Hearing, yet divers Perfons have Underftanding by their Sight,
i3c. And a Man born Dumb and Blind may have Underftanding. But
a Man that is born Blind, Deaf and Dumb, can have no Underftand-
ing, fo that he cannot make a Gift or a Grant. Perk. 11. Stc\. 25.
ir. The Grants of all dead Perfons in Law, as Monks, Friars and
Canons profeffed, and fuch like others, are void, if they be not made
by the Sovereigns of fuch Iloufcs, or by Matter of Ccnclufion, or other-
wife that it be in Special Cafes; and therefore if a Monk, Friar or
Canon profefted, who is not Sovereign of the Houfe, grant unto me
an Annuity by Deed Poll, the Grant is void notwithftanding that he
be dereigned afterwards, or made Sovereign of the fald Houfe, or cf
another Houfe, or created a Bifliop, &c. Perk. 2. Sedl. 3. cites H.
. 14H. 8. 16. Mich. 2 H. 3. 5. H. 32H. 6. 31.
12. If a Feme Covert grants an Annuity by Deed, the Grant is void.
Perk. 3. Se6t. 6. cites M. i H. 5. 12.
13. And if a Man be feifed of Lands in the Right of his Wife, and
his IVife grant a Kent ifpiing out cf the fame Lands, without the Know-
ledge of the Husband, the Grant is void ; and fo 'tis notwithftanding
that the Husband had Conufance of it, if it be made and delivered
ivithotit his Affent, or with his Aftent, if it be made in the Name of
the Wife, and jicf in the Na7ne of the Husband. Perk. 3. Sett 6. cites
M. 9 E. 3. 28.
Faits or Deeds. i^
14. /^nd notwithftanding the Husband was abroad oat of the Count;-y
at tbel'imc of fuch Grant made and deliver'd, fo that it is not known
whether he be alive or de^d; yet fuch Grant is void if the Htjsband be
living, in as much as if the Grantee, by Force offuchGrant, enter intd
the Land and diflirain, the Husband, at his Return, Ihall have for his
Entry and Diftrefs an Aclion of Trefpafs. Perk. 3, 4. S. 6. cites H.
4H. 4. 13- H. 2 H. 7. 15.
IS- 34 y 35 ^- 8- 22. EnaBst 'That Receveries and Leeds inroHed^
^c. by Femes covert in corporate Towns Jljali be of the fame Force as
they 'juere before 32 H. 8.
f Deaf, Dumb and Blind (A). ") rGrant ( )
See < Enfant ( ) WLunatick (B).
(FeofFment (E), * 3 CNon Compos (B),
(B) By what Names they may make a Deed.
\_MifnoJmer'].
I. Tj? n $^aU WXM^ a DtCU bp BnmC of J. S. the Eider, where
1 he is J. S. the Younger -, pEt f)C tijnil llOt nUOlD tljC DCftJ, faC-
Ciiufc \)z 10 tljE pccfon Urijo mane it* 1 3 1). 4* 4* b.
2. €>o if T-Bofom mnfees n DeeD ftp Ji^amcof J. Bozom, ije^rFaits, pt,
Hjall not audiD iu i^l).^. 3. b* ff '"" '+
3. M js. biiHJ0 Ijimfcif in an ©bliiratioii bp tOe mtmz of rs„ti?Li„
W. S. Ije (ban not aUOin it-, but if it be talfe in the Name of Bap- Original and
tifm only, it i.S OtljeCUllfe* 3 Ip. 6. 25, b. 26. in the Year- •
Boole]
It feems that one cannot plead Mifnofnier of the Name of Baptifm, neither need he do it, for he is not
the fame Perfon. Nota, Br. Mifnofmer, pi. 4. cites 3 H. 6. 25.
If J. S. grants an Annuity by his contrary Name of Baptifm, viz. by the Name of W. S. fome think this
Grant is not good, becaufe that the Deed of W. cannot be the Deed of J. for a Man cannot have (a) two
Names of Baptifra, and fo they conceive the Grantor may deny the Deed. Perk. 17. S. 38. cites 3 II. 6.
26. [a] Cro. J. 558. Watkins V. Oliver.
And fome hold contrary, for when they are at I/Tue upon the Deed, the Plaintiff may git'c in Evidence I he
Day, Tear and Place, where the Plaintiff delivered- the fame as his Deed, Sec. then the Grantor hath not
any Thing to help him, iut to fay that his Name is y . and not W. and fo not his Deed; now they fay. That
the Plaintiff may demur upon this Evidence, forafmuch as he hath not gainl'aid the Delivery of the Deed as
his Deed, they fay, that he fliall be concluded to fay, that his Name is other, but as the Deed doth fuppofe
Ideo Quire. Perk. S. 39. cites M. 9 E. 4. 43.
But if "J . 5. reciting by his Deed, that his Name is j . S. and by the fame Deed grants an Annuity 6y th».
Name of W. S. this is a good Grant, for the Writ Ihall be brought upon the whole Deed. Perk. S. 40. cites
3 E. 3. Itin. Not. Efto. 132.
4. If a ^an binli0 Ijimfclf bp a falfc Surname, ns b^ tIjeBnme Br \fifnor
of J. S. where his Name is J. D. {JC fl)nll nOt abOiD it, bUt it IIjaH mer, pi. 4.
fttop bltlt, bCCaUfC fjC (^) may have divers Surnames. 3 J^. 6, 25. b, cites s. c.
;/') Br. Mif-
nofmer, pi. 2. S. P. cites 2 H. 6. 5. Surges m:idc a Releafe by the Name of Burgeles, and the Defen-
dant pleading that Burges, by the Name of Burgeles, relealed, 4c. the fame was held good. Br. Faits, pi.
34. cites 22 H. 6. 48.
5. Debt, and counts ^wd cum pradicius Jacobus., per nomen Johannis
IVinloWf fuch a Day and Year, per qiioddavi fcriptitni fwnn Obligatorium
concefjit^t ^c. The Defendant demandtd Oyer of the Bond, whereby it'
appeared, that the Defendant, by the Name of John WinIow,/m^ fcrip-
tiim, ^c. and the Condition ivas. If James M'/nlow paid, &c. where-
upon the Defendant demurred. And all the Court held, that the Ac-
tion lay not: For John cannot be James. Cro. E. 897. Field v. Johti
alias James Winlow.
E 6. A. binds
•$■
14 Fairs or Deeds.
6. yi. biuds bivifelf by the Name of B. and he 'is accordingly fued by
the Name of B. he may filecii Mijhojmer, and the other may reply^ thaC
he made the Bond by the Name of B. and eftop him by demanding
Judgment, if againfh his own Demand he fhall be admitted to fay his
Name is A. and then he may rcjo'tn^ and fay he made no fuch De-
mand; and this he muft do without Oyer; for if he pray Oyer, he ad-*
niics his Name to be B. Per Cur. i Salk. 7. Linch v. Hook. ■■■ -
6 Mod. 225. Fox V. Tilly ■ Litt. R. 184. per Rxhardfon Ch. Juft*.'
„ fEftoppel (O). 7 CMifnofmer (A).
•^^"^ iGrants (B). /iNofmes (B).
(C) To zvhat Perfons may be made.
Per Catesby, J\ J^Jcctl lltn^ feC XWtX^t tO H Feme Covert. 3 Jp* 6, 23, Ij.
It one enfeoj}
a Feme Covert, nnd after ihe Baron difagrees, the FeofFment is void, to which Brian agreed. For the FeofF^
merit was never good without the Agreement of the Baron ; qusre of this Opinion, for it feems tiiat 'tis good
till the Baron difagrea. Br. Feoffment dc terre, pi. 36. cites i H. 7. 16.
Perk. 19. S. 43. fays, that the Gr.int is good till the Huiband difagrees, and therefore if a Rent-charge
be granted unto a Feme Covert, and the Deed is dcUi-cred unto her, her Husband not knowing thereof, and
the Huiband die before any Difagreement made by him, and before any Day of Payment; now the Grant is
goixl, and (hall not be avoided, by faying that the Husband did not agtee, &c. But the Difagreement of the
Husband s.v^/'/ to be fl.eived. Perk. 19. S. 43. cites 15 E. 4. :.
If an Kliate be made to a Man's IJ'ife de no'vo, 'tis not ncccllhry to aver the HushaniVs A£enl, for it {c) veils
till he diflent ; but Aflent is neceflary where the Wife had an Ellate before, which cannot be devcjied by his
Affent to the latter Eftate. Hob. 204. [d) Swain v. Holman .Jt Ux'. Hutt. 7. (e) Show. 29S. ar-
guendo cites C. L. 3. 3 56. of a Feoffment by Livery to a Feme Covert. (./) S. C. cited arguendo, Show. 300.
If he agrees fcven Years after, 'tis good. So 'tis of a Diffeifin to an \]fc, and fo 'tis of an Jjjiimjfit te the
Wife. Arg'. Goldsb. 13. cites 27 H. 8. in 3lojI)au's Cale, and \ H. 7. in 1Do\)C's Cafe.
If an F.ngliih- 2. X^Ut if il DCCti tC matJC to a Monk it i.d iJOlQ. 3 tp. 6. 23, l!.
man goes into
France, and there becomes a Monk, yet he is capable of any Grant in England, bccaufe fuch Frufefp.'in is not
triable, and alfo becaufe all ProfeiTion is t.aken away by the Statute, and by our Religion now revived, fuel*'
\ows and ProfelUon is held void j 1 have heard that this was relolved accordingly by ail the Juftices at Ser*
jirants Inn in 44 Eliz, in one 3vCl.>'s Cafe. 2 Roll. 43. Grant (C). pi. i.
lizLeafcfor 3, %^ if ttlHtlC tO fl ChannoH profeft, (t (0 1)010. 3 J^» 6. 23.
Life be made
to a NIonk, the Reniaindcr over, both the Eilates are void. Per Coke Cli. jull. 2 Bulf. 292. cites 9 H. 6,
44. and Perk. 109. pi. 568. and PL C. 35. in Colethirll's Cafe.
4. But if a Monk or Friar profefi'd, &c. be Sovereign of the Houfe^
he may be a Grantee. Vide Perk. 24. S. 51, cites 5 H. 7. 25. M.
19 H. 6. 25.
5. A Man mn faux Memorise may be a Grantee. Perk. 24. S. 51.
- 6. A Man attainted of Felony^ Murder or I'rcafon., may be Grantee,
and a Clerk couviH and a Man imprifoncd. So may the King's Villeiii
■'■l .--"'' and an Alien. And a Man ontla-wed in n perfonul APJon, and a Ba-'
Jlard.y m ly be a Gr.intee or a Purchafor, but a Bafhird cannot be Heir,
nor have Heir, without Idlie of his Body begotten. Perk. 22. S. 48.
7. An Aibot m.iy be Grantee, and fo may Dean and Chapter, Mayof
and Cojtimonalty. Perk. 23, 24. S. 51. cites 5 H. 7, 25. M. 19 H. 6. z$,
[ See Grants (C). ]
2 CD) What
Fairs or Deeds. i^
(Dj What Things are mceffary to the making of a
Deed. \_And what Words.']
I. '-pr:)cte oitryfjt ta he tfjcCe Cljingd to tijc {?9iifeinn; of a Deeti, p^rk. sua.
X tl)at I'Si tO_ fnp, Writing, Scaling and Delivery. 4 j^. 6. 4^ fays,' that
and Princes
have ufed to make Hani PaHnts and Chnrters fealed to be delivered to divers Men, to write what Matter
foever they would in tlxem. And that luch Patent has been futlicitnt warrant to the Patentees, &c. Yet if
a common Per/on feal an Obh'gation, or any other ])ced, without any Writing in it, and deliver the iarac un-
to a Stranger, Man or W'oinan, it is nothing wortii.
2. JX n DceU lie wrote upon Wood, I,eather, Cloth, 0? t\)t Il'he, 2 !"«■ 6;2.
it 10 not gOaO, Init Ottjtljt tn be UnatC Itpatl Parchment or Paper, "^'^^ 5 R<ip.^
otljcciDifc It IS not gooD, uccniifc tljc (iBritina: upon tijem ma)> c°are ''"'
tic Irf0 iJitiatcD o? co^ruptcli. €o. Lit* 35. b*
3. CljC DCCD takes eftcd from the Delivery, ailt! UOt ftOlU tljC vf°?Jf"
iDntc, 29 E- 3. 23. aHjuiig^D. 2jle'p;.God.
dard's Cafe.
r 4. $1 Dccti fljnll be gooiJ enoUKi) tljo' it fjns not nntJ Date. 2Rep5.God-
13 1)* 7» UeKoujiiu 34* 1). iff? tijc Ciuic of tlje cpakinij map be ''"^^'^ cafe.
nncnn;^ in Ipleatiinn:. " ^"^ s- ' ^°-
^ Jf an Abbot and Covent nuikc a Deeti, atin in tlje €nti tDe ^s taseaiing.
^o?tis avc Jn cuiu0 rci teftimoniiim rigiUum noftrum appofunnus, p^'J f^^-
tl)0' It lie not S^iixiKnm noffnim Commune, pet it ijs gooU cnouijD cites s.c'Ld
to binU tIjc ^ucccflo?* 22 ip, 6, 4, i ■ e. 4. 4.
and37H.6.3.
Br, Faits, pi 30. cites S. C. and 21 H. 6. 3.
6. Jf an Olilfffotion lie, litti t^unm qtiiticin folutionem bene $
fiuclitec facfenoam obhgo mc, IjaeteOcs, (^tccuto^jcs ft aominf*
nratOZe^ niCOS fltmitet per prs-lVntes datas, &c. tIjO' tlje ££!O!r!0
(Sigillo meo figilhit') are omitted, pCt It Id fl ffOOU "Dzt^, 99* 10 JaC*
"IB* E. aOintiffD bctiuccn Meytai ano /^vw^.
7- "Cljis Moi^ (meum) in « DetH 10 not itccefTarp, fo? 3^n ru-
Sm iTi * teftimonUim fiLTilIum appoftif (0 ftifficient iiMtljout tlje
©HO?D ^CUm; f02 if ijC Teals it with the Seal of another Man, it {.S
fufficient* 21 e. 4^ 81.
8. 'CljefC UlO?t!,0 (In ruju;; rei teftimonium fif::illum meum appofui) Br. Faitsy
r.rc not ncccirati? to be in a DceO. Ti5?o. Dbliiration s, in abiitJn:= ?'• '°3- ''^^'
ing 40 e« 3* i7» t\eIIoiuaP4ub» €ontta 40 c. 3* 2. ^ "•7- '-f-
. 9- Cbefc tuops cfigiUum meum appofui) nce iiot ncccJTai'p*
8 ri)v6. 35.
1 o. There niuft be Grantor and Grantee ; yet where a Deed tripar-
tite of Bargain and Sale inroll'd had not the Grantor's Nume before the
ivords {Ih'.tb Granted) fo that it was not faid, who hath granted, and zA'ent. 142.
(Hath) was irt the fingular Number tho' the Deed was tripartite, yet Tretheway v.
becaufe a Grantor may '■juitb Certainty enough be coUefied from the whole I^"<^'^'-"'>-
Deed^ the Deed was held good. 10 Mod. 45, Sec. Lord Say and
Seal's Cafe.
II. If a Deed of FeofFment be ^vithont Premijfes.^ habendum, tenen-
dum., reddci'duin, Claufe of Warranty, or * of In cnjus Rei tejli-iiioninni^ • D. ig.
t\-\GDate and the Claufe oihis teflibiis, yet 'tis good. Co. Lit. S. 1,7.3. pi- 13- Dal.i.
pl. 4. 96.
pi. 24. — I.e. 2j. Eedoe'sCafe Ow. 33. 3Bulf.3oi. Ke!w. 70. b. 2Rep.5. Godd^rd'*
Cafe. - — — _P'«. 7S- Peters v. Field.
12. The
1(5 Faits or Deeds.
12. The Tear of the Kwg is not effential to a Deed. 2 Salk. 462,
Cromwell v. Grunfden.
13. Tho' a Deed be fufficiently written, viz- without Rafure, In-
terlining, or new Writing upon the old Writing, or without any other
like Fault, and alfo be fufficiently fealed and delivered as the Deed of
the Party, yet if the Ifords in the Deed in themfelves are not fiifficieat
in La'W to bind the Party, the Deed will avail little or nothing againft
him. Perk. S. 155.
14. Ih the Reign of Queen Elizabeth, Deeds were often without
Ifitnejfes, and a Counterpart of an old Leafe without Witnefles made
about that Time, was allow'd as good Evidence ; and Windham Juft.
faid, that he had feen feveral Deeds made in her Time without Wit-
nefTes. Lev. 25. Garret v. Lifter.
15. \( A. makes a Deed to B. and delivers it to J. S. to deliver it t(f
See Aflent S. this is not a Deed without B.'s Agreement to it ; for J. S. the Bai-
{B.4.) lee, as here, is Servant to A. who makes the Deed, and not to B.
to whom the Deed is made. Br. Faits, pi. 80. 8 H. 7. 13.
(D 1.) What fhall be faid to be, or lliall amount to
a Deed.
I. A Pyefentation hy IVriting to a Church is not a Deed, but only In
±\. Nature of a Letter to the Bifhop. C. L. 120. a.
2. Debt upon Bond of 200 1. to indemnify againft a Bill fealed (fop
the Payment of 42 1. in which the Plaintiff was bound) when he ihould
be required ; the Defendant pleaded Non eft fadum, upon which they
were at iflue ; and it appeared upon the Evidence, that the Bill was
ziritten in a Book., and that the Defendant put bis Hand and Seal to the
fame Leaf on -which it was written, after a Verdi61: adjudged, this was
a good Deed, tho' there was no Evidence of the Delivery. Cro. E. 613.
Fox V. Wright.
3. Grant of next Prefentation or Avoidance of a Living cannot be good
without Deed, and a Letter wrote hy the Patron to the Father of the
Plaintiff, in which the Patron faid he had given him the next Avoidance^
is not fufHcient. Cro. E. 164. Crifp's Cafe.
[Vide N. a.]
(D 3.) What fhall be faid the Deed, or onlj the
Agreement of Perfons figning it.
WH E N an Jncumhcnt grants a Kent by the Confent of the Patron
and Ordinary, and they put their Seals to it ; this is not their
Deed, but only their Agreement to it. Cro. E. 57. Eaft, Skidmore,
&c. v. Vaudftevan.
(F) What
Faits or Deeds. 17
(E) What Things are nscefTary to rilake a Deed hdented.
I. TC cannot lieaOcerJintlCntCtJ, \\\M^ \t be aftually indented. Cm. E1. 4-4.
X iFOr If ti)C l©a^D0 of tljC DeeO are, Hsec Indentum, &c. pet (fit Fii^mpton V.
i)e not uiOentcD ni fact, it cannot be an ijnocnture* Co* litt. 143- , in^T,
1)* 5 Ecp. snuis cafe 20. 1), aii]iiiJseri, tljo' tijerc tocrc tioo i0act0
of It,
2. It tlje DeeD be indented, tho' the Words Of t!)e JDeeU are not z Inft. 672.
Hffc indentura, pct It 10 au :jnoenture, Co. l!tt» 143- b* ^"" 5^ ^'^P-
^20 b. Stiles s
Cale.
(F) [Chnrter-Pari'ies] Who fhall h6 ia'id Parties to the
Indenture to be charg'd, or to take Advantage by it.
[Or rather y who fhall take Ad-uantage or he hound hy a
Deed, mt heh/g Party or Searif/g.~\
I. TJf an Indenture of the Charter-party bC UtatSC between one A. and g^^ ,q jx_
X others, Owners of the Ship called E. whereof B. is Mafter, of Mollov dc
the one Part, and C. of the other Part. Jn lUljiCl) IlttientUrC (a) A. Jure Mariti- '
covenants with B. and C. and C. covenants with A. and B. aiUl binUS "^o ^6 1 . cites
ttjeni to C* anD Qo. for performance of Cai3cnants in 600 1. aim S;^;- J"f^'x
tlje ConClllfiOn of tljC JnUentUre i?, in Witnels ^^-hereof, the Par- A. covenant-
ties -abovefiid, have put their Hands and Seals, and the iiiid B. tO tije erl with C.
(illD 3intJentUrC, put his Hand and Seal, and delivered it. Jn tljtSl ^"^ ^- f^ '
Cafe B. is not any Party to tl)i0 JnOcntute, fo tijat 03- cannot re= Sv", to the
leafc tlje Action, brougbt upon tljig ijnoenture bp a, bccaufc it iss Plaintiff, and
an Indenture reciprocal, between Parties ot one Part, and J^attieiS of B. in 600 1.—
the other j^art, itt Uiljtcl) Cafc tto ©bligatton, Covenant or arant )^''\"^ ^
can be mane luitij anj? luljo ijs not part? to tijc Deen -, \m where the ^"VaZr"„
Deed indented is not reciprocal, bUt i0 ttJitl)OUt t!)e JlBO^UlS, between, figning and
Sec. as Omnibus Chrilli tidelibus, &c. tljere tIjC Obligation, Covenant, fealing makes
or Grant may be made to divers feveral Peribns. CO* Jaffna Cljatta ^- ^ '■'''*">''
673. UJljcre 10 citeu Trin. 29 ei 05* E* aniiitiij'D* X;: "'"'""'"^
lUerem.
? Salk. 214. Nuffe v. Franipton. (a) In the Indenture were divers Covenants to be performed
by A. and by B. to C and c converfo ; and there was a C'aufe, that A. and B. bound themll-lvcs to C.
to perform the Covenants. Cro. El. 56. Eaft, Skidraore and Foame v. Vaudftcvan, The Words in
2 Inlh (5-5. arc, that A. covenanted with C. and B. and alio C. covenanted with A. and B. and bound
themfelves to A. and B. for Performance of Covenants in 600 1. &c. z Inft. djg.Scudamore 7. Vandeftene
2. Jf an Indenture of Charty-party be tliatlC between A. and B. SeeCD.a)
Owners of a Ship, of the one Part, and C. and D. Merchants, of the *-r^^o^p^,
other Part, anOttjerC arefebcrai Covenants of the one Part and the other, feavesoutthe
anQ A. only feals the Indenture of one Part, and C. and D. of the other Word (All).
?art ; OBut tw * all tl)c Sititicnture 10 (i^entton, tljat a* anti 15* cobe= -Debt on a
nant luitb C* aim D* ann C* aim D* covenant tuitba* anu 15. 2n <-i>^'-"r-
tljiSi Cafe a. and B. may join in Adion againll C. and D. UpOtt tW In-' ITJrJe^^
UentUre, for Breach of a Covenant in tlje DCCD, tho' B. never fealcd tIjC 'ram 'teflatum
Dcet! i for be is a l^artp to tije Deen, aim C* anti D* ban fealen ^^'pt> ti^-t
tbe otljer part to 05* as uiell as to a* upon iuljicb tbe action is ■''-, «^^"'"'';
brouffbt* ipill* 18 Car* 05* E* anjimgeti per Cur' upon a Deniur= To'Bhlil^°tza
xn tcitbout argument, for tbe Clearnefs of it, bettoecn Clement whom, as
anU ipenip* owner, and
C. iMcrcoant
the Indenture was, ti7:A ico /. to D the Plaiafif, as Mafter The Defendant pleaded, that the Plaintiff
was no Party to the Indenture. The Plaintiif demurred ; and per Curiam, any one mentioned the-ein,
is Party enough to fuc this Indenture, being not between Parties, but only H<ec Indenture tejlr.^nr^
which is all one with a Deed in the iirft Perfon ; as if it was, I give fo much to J. N and fo much
to J.S. 3 Kcb. 115. Hi!! 24 Car. z. B. R. Coke v. Child. .,
F ■ (G) In
1 8 Faitt or Deeds.
Seeindorfe- (G) In what Line or Place the Writing being, fhall be
Parcel of the Deed.
A Boad was I. T jf Part Of t!je DCCtl fcC UJrittCll upon the Back Of tIjC DeCtI fCC
^T^lTutu A Dctault of litJarcIjincnt, ^zt it \% n gooo Deeo, 41 e« 3.
frum ;ill In-
cunibrances made by the Obligor, and a Memorandum wa« alfo indoried, that the Condition
^i>:ulA vet exur.d to an Hxtent of a Statute acknowledged by him to J. S. and it was held to be Parcel
of the Condition conjoined to it as an Exxeption ; for it is an Explanation in V\'riting of the Intention
of the Parties, written before the Scaling of the Bond. Mo. 6-(). Broke v. Smith.
But it ourht 2. g)0 nn Obligation, UUtl) 3 Condicion upon the Back Of it, l£i 0
to hcnvntten pOC COnBmOH, 4I €, 3- 10- &♦
he/ore the
Sea/irg ar^i Delivery, or t\fe h is not good. Per Harvey Juft. Het. 157. Taylor's Cafe,
Indorfement after Sealing and Delhery, and at another Tsme, makes a new Deed. 6 Mod. 257.
Cook V. Remington.
3- If an SDbligilttOn U matie, airtl one Word is put above and ano-
ther beiov/, and another in another Place, J)Ct t\)t 2DCC5 10 QJOOD* 14 1>«
4. 1?.
f>y^-^^ 4* * Jf it ^an U bOUlltl in an obligation upon Condition, CfjHt
, ^45^ . if \)t mv a certain gmm to m fira Cfttlo inljiclj fljaU be I)o;?!t aftet=
ivTo. 6-9 toat::^, tijrn tljC ©WlUatiOn fljall be ilOiU, ann belbre the Sealing of it
Erook V a Memorandum is made under the Condition, t!)at it ijS tl}C 3'ntent Of tije
Smith. A JpSiirtIC0, th.it the Sum mentioned in the Condition Ihall not be paid till
f'f%lT fi^e jfifit Ct3i!n, tol3ic{) fljall aftcruiatnsi be bofit,can a^li 1)16 ifatljet's
«;-;.v. is no Xlcffing ; ti)i0 10 part of tijc Conuition a0 ftroniTlD as if it IjaD
Part of the htm put ux tljc i\cfimtc of t|)e Contiition, it beinn: no'nc before S)eal=
Recogni- inQ. ^ i^ is not repugnant tO tljC ConllttiOU bCfolc, bat only an Ex-
bcin^'irthc pi'ination Of t!)e Condition ann of tl)e 33ntfnt of rije I3attie0. ©ti^
Recogni-' bitatur IPafcliae i6 3;ac> betmccn aMom mxXi Ucrwoo^f, upon a Dc--
zance, but IKUrrCr+
tinder. So if
it was Of! the Back of it. — > See Trial (C g.) pi. 25. cites 56 H. d. 2. adjudged,
5- But tlje £Dbligee 5iD not nmtl) telp upon tlje laiu, but ftieli in
tl)e Court of KcqueftS*
6- And in tl)t0 Cafe, if the Memorandum had been, that the Matter
aforelaid ihould be Parcel of the Condition aforefiiid ; tOi0 ttJOUlU ItialtC
it Iparccl of ti)t Connition* ipet ^ountague^ in t\)z (aio Cafe of
Ctiil^bum antJ £>oriBaon»
7. And in t\)Z Cafe afO,?C(aitI-, if after the Memorandum, mU tfjC
i^atter aa?eraiTJ tlOne anU allCgCTl, tbere had been thcfe Words, then
the Condition lliall be void, It fj.ltl Um l^&UZl Of tljC COnUitiOn* Jtt
ttje faio Cafe agrceti per loouiybton,
8: Jf a Clauie COnie0 in a Dce5 after tijefe t©O?tl0, in cujas rei
cont a. Ht teftimonium, &c. figillum appofui, &c. it 10 UOt aUP Patt OftljC O'XVi,
88 arguendo tlio' It UJa0 tDHtten liffo^e tijc ^f alino; ann Deliueri)* i ^a» ISiooiu
s.p." iFaits, 72- agrccu bp t'jc Ju(lice0» auD ibiti. 76-
' If zPro-
iifi'he. put in .ifter the In cujus rei teffimcmum, and fubfcribed to the Deed before the Sea'ing, it is then
Part.of the Deed. And tho' it be after the Sealinf^, vet it may be as a Condition annexed to the Deed.
^er Doderidgc Jufl. 5 Bulii. ;oi. Thompfonv. Butcher.
. That which is 'v.-ritten in a Deed after the fn rujus rei^ejlimcmitn: fhall be Parcel of the Deed as well ai
that wliich is wr.ote before. Per omnes J. Mo. ^. pi. iz. Anon. -Per Coke Ch. Jull. "Tis no
Part of the Bill, bat may be a Condition, and muft be pleaded. So in Covenant brought on Words of
Covenant in a Desd, aftci' the In cuius, Sac. and above the Seal, it was held good. Brownl. 59. Hamond
V. lethrcl!. r-i Brownl, <)q. S. C.
Before the Scaling twenty Thinj^s majr be JrJ.'y/.'J or fubfcribtd, as Condition of the Obligation, anl a'l
fliall ftand. Mo. 6'-9 Brcok v. Smith.
.— ^vy .. 9. Before
iaits or T>ttdi^. 19
9/ Belbre the vScaling :i Leafe of Houfes in which ;i Rent was referv-
ed, it was mdorfed for the Payfiie/it of twelve Bottles of Canary Wine every
l^ear to the Lefjbr. 'Twas argued lor the Delendant, that the W^ine
ariies in Co\enant, that 'tis a Rclervation and not properly a Rent ; but
lor the Plaintiff it was faid not to be material, whether a Relervation or
not; For that 'tis a Duty, and arifes by Reafon of the Thing demiled,
and goes along with it. 4 Mo. 74. in the Cafe of Pitcher v. Tovey.
10. In Debt to perform Covenants in an Indejiture^ one Covenant was.
That the Defendant would fately gi\e up to the Plaintiff the Goods, a
Particular ivhercof was writ on the Back of the Indenture, It was held
per Cur. that the Indorfcment, if made at the tinie of the Enfeahng and
Delivery of the Deed, was Part of it, and therefore giving Oyer of the
Deed without Oyer of the Indorfement, was an in compleatOyer of the
Deed relating to the Indorfement, and not perfeft without it^ 6 Mod.
237. Cook V. Remington.
(H) Sealing..
I. npl:)at cannon U tlje IDtz'^ of anv, U)i)o noejs not ftol it 6 ]|), scccn. a. 4)
X 4- S- P'- 1 —Perk,
S. 150.
Tho' JFords oUigatory, or &c. are •written in Parchment or Paper, and Obligor, or, &c. delivers the
fame as lis Deed, and it is vet fealed at the Time of the Delivery, it is but /r?; Efcrovjl notwithftanding
■ that the Name of the Obligor be i'ublcnbed. Perk. S. 1 19.
A. by Indenture leafes to B. irm C. rendering Rent and with divers Covenants, and B. andC. bind
tlemfelves for FerjorniayKC of the Co'jer.anis in 41-1. and B. fe.il s the JhJemure, hut C. does »ot, but both etjter.
This is no Obligation as to the 40/. but only againll B. who fealeJ it, as it ieems there. Br. Obligation
pi. 15. and 2-, cites 58 E. 5. 8. and 45 E. 5. 5. 1 1. Br. Dcttc pi. So.cites S. C. becaufe it is at^olla-
teral Thing, tho' he <hall be bound by his Agreement to the Leafc as to the Payment of the Rent, yet
not as to the 40/. unless he had (ealed, per Finch. Br. Dette, pi. 58. cites 45 E. 3. 4 But Brooke
fays, Qusre Legem. For that it fecms not Law in the Point of the words Obligatory, and cites 45 E.
5. II. that of all Refervations and Things neceflary to the Lcafe, C fliall be bound by his Agreement
tho" C. had been a Feme Covert at the Tin-.e, but that of a Thing which binds the Perfon as a Thing
Obligatory iealing and delivery is neceflary. Br. Dett. pi. So. S. P. cites 38 E. 3. 8. and there Brooke
lays, that a Penalty for Non-payment of the Rent annually is a Rcfervation.
2. 3"? fo^^ir rnake a Deed, two may make one Seal, and the other Two
another Seal ; ant! tW itia? fac a^etreo, ano fftaU be a goon Deeo of
all loan 6p,^.s. 29^.3-32.
3. 3f Twenty nwfeC a DeCO ano ail feal it at the flime Time with J'' ^'^r'^-^-
one and the f.ime Seal, pct It l.S gOOO, anO tU DeCO Of alU * S Ip. 4. 'S. tcT'sCafe t
t 22 ip. 6. 4. Jjv per l^OlU Br. Faits, pi.
+ 5. C. 17. pi. *S. C. 50.
One Piece of If'.tx may (hrve for all the Grantors which are named within the Deed, if every one of
them put his Seal upon the fame Piece of Wax, or if another do fo for them, &c. if the Words in the
Deed imply fo much, viz.. if it be faid in the Deed hi cujus ret 'feflimonium fi^e,illa mjira appftiimus, or
Words to the fame Ert'ett. Perk. S. 134. cites 8H. 6. 8. 27 H. 6. Feoffm. 105.
Per Clark Jufr. 'fv.-entj Men ni^yfeal with cue Seal on one Piece of Wax only, if all lay their Hands on
the Seal together. Per 2 J. contra. 2 Le. 21 in the Cafe of Lightfoot v. Butler. Per Noy, Attor-
rey General, that it is good. Jo. 26S. in Itinere Windfor. Cro. El. 247 Bretton v. Bolton. .
Br. Obligation, pi. 73. cites 21 H. 6. 3. and 27 H. 6. 4. S. P. which Brooke fays, feems to be intended
wlierc all Seal with one Print.
4. Jf an Abbot and Covent feal a Deed with a Seal, it i|S g005 CnOUfff)
to cljargc tl)c ©ucccfTor* 22 c* 3- Slitie 21.
5. 3f a ^lan feal a SDCCO with the Seal of another Man, (t 10 ffOOO Jo. 33 r.Lort
rnoitgi)* 21 €♦ 4. 81. V. BifhoDof
St Davids.^
Br. Faits, pi. 75. For the Print of the other's Seal is his Seal. Br. Obligation, pf 6<). cites 21
E. 4. 81.
6.Jf
20 Faits or Deeds.
Tho- the 6. 3f an Abbot and Covent tlial^e tl "^tZ^^ ulltl leal k with my Se.il, it
10 0000 eitoust)* 22 ip, 6. 4. tj, i£)cr l|3alc* pcrUm? 132.
Words are
In cujusrei
Teftimonium appcnfum eft vofintm pgiUum commune ; for this Seal ihall he faid the Covent or Common
.Seal for the Time, for witli their common Ailent they w.iv change their common Seal at what Time they
will. Perk. S. 152 Br. Ohligation, pi. 75. cites 21 ]d. 6.5. and 22 H. 6 4.
So if it had hecnjigilla tiojlra appcfmrz/us, inftead of faying theC^ommon Seal, and yet held good, and
it fliall be intended their Common i:e3l. Br. Faiti, pi. ;o cites 11 E. 4. 4.
7. The Sealing of Charters and Deeds is much more ancient than
fome, out of Error, have imagined , for the Charter of the King Ednyn,
Brother of King Edgar, bearing Date Anno Dom. 956. made of the
Land called JecJdea m the Ilk ot^ Ely, was not only fealed with his
own Seal (which appears by thefe Words, Ego Edwinus Gratia Dei
totius Britannije telluris Rex meum donum proprio ligillo contirmavi)
but alio the Bilhop of Winchclter put to his Seal, Ego Elfwinus Win-
ton Eccleiiae divinus fpeculator proprium figilluni imprelli. And the
Charter of Ktfig OJfa^ whereby he gave the Peter-pence, doth yet re-
main under Seal. But no King of England before or lince the Con-
quell fealed with any Seal of Arms, before King Richard i. but the Seal
was, the King litting in a Chair on the one Side of the Seal, and on
Horfe-back on the other Side, in divers Forms. Co. Litt. 7. a.
Br. Ohiiga- 8. If Dean and Chapter or Mayor and Commonalty caufe a Writing to
tion, pl.75. be made, in which it is i^i<i Jigillam nofiriini appoftiimiis, and not ligil-
^"and 22 H ^^^^- no^^i"^"^ commune, yet the Writing is luliicient, and llrall bmd
6.4. them. But i? Dean and Mayor feal a VV^riting made in their Names,
and in the Name of the Chapter and Commonalty, iioithout the yijfent
of the Chapter and Commonalty, and it is faid in the Deed ligillum no-
itrum Commune appofuimus, and the iamc is deh-vered by the Dean and Mayor
"without the yf/fent or Agreement of the Chapter and Commonalty j this is
only the Deed of the Dean and Mayor and not of the Chapter and Com-
monalty ; caufa patet. Perk. Seft. 133. cites 11 Ed. 4. 4. 22 H. 6. 4.
37 H. 6. 3.
Keble^ and 9" ^^ '" ^ Deed no Mention is made of Sealing, it is not a good Deed
not denied f^°' fealed in Faff, if thefe Words, ligillum appofui, are wanting. Br.
pcrReadof Faits, pi. 76. cites 21 E. 4. 81.
the other
Side. Br. Faits, pi. 10;. cites 7 H. 7. 14. and 8 H. 6. ^5. S. P. but not adjudged there. and cites
alfo 40 E. 5. I.. Br. Obligation, pi. 8. cites 40 E. 5.1. where Debt was brought on an Obligation
which -aas in the third Perfon, and no mention made that the Parties had put to their Seals and awarded
that the Plaintiff take nothing by his Writ ; but he makes a Quire if the Want of thofe words (SigiV-
fuum appofuit) be material.
'um
lo. Declaration of Ufes of a Fine may be good by Writing only, with-
out a Seal, even fince the Statute of Frauds. Per Holt Ch. Juil. Fan.
76. in Cale of Shortridge v. Lamplugh.
[ See (F) pi. 2. (I) pi. 9. (Y. 2) pi. 4. Corporation. ]
(H. 2) What Things are efiential to make a good Deed.
A MAKES a Bond to B. but does not fulfcrile it, yet the Bond is
• good w^ithout it ; for fubfcribing is no elfential Part of the
iJeed, and Sealing is lufficient. 2 Salk. 462. Cromwell v. Grunlden.
2, Signing
Faits or Deeds. 21
2. Signing is not necefHiry to a Deed. For in former Times they Per Holt Ch.
were only i'ealed but not figned. But now fince the Statute of Praifds, h 1%^^"^*
an Jjffignimit by Writing, if 'tis no Deed, yet it muft be figned. Per only matwiaL
Holt Ch. Juft. 3 Salk. 171. Queen v. Goddard. Comb. 477.
3. All Solemnities in Conveyancing are appointed to hinder the Par- S- C.
ties from Surprize. G. Equ. R. 170.
(I) What Things are necefTary to make a good
Deed. \_Deli^cry^ and ivhat is a good Deli'ucry.']
I. '-pJ^CCe OUgI)t to OC a Delivery, OtljeVlDlfC it CniinOt U il ^a>; on a
± Dceil* 9 P* 6, 3 7i iJ* >■«/ Bo>,J
was brought
agahift one, and a Verdift was for the Plaintiff. On Motion in Arreft of Judgment, that tho' this might
have been pleaded in Abatement, yet fince it appears on the Face of the Record that the PlainciiF had no
Ricrht againll one alone, he cannot have Judgment, the Court was of Opinion, that it did not appear of
Record that the other figned, fealed or delivered this Bond ; but admitting that it did appear that he
ftgned and fealed it, yet if it appeared not that he dclmered it, it is the Bond of the Defendant alone, the'
another is named in it with him, for it is not his Deed without the Delivery. 8 Mod 2<j2. Cloud v.
Nicholfon.
2. cijcre ougljt to hz a Lifterp in Law or in Deed to ma^c a
3. 3f 31 ntnfee a 'Dzf^ to 13. nnti fcnl it, nun nflft ?3. takes ?^°';."''-,
tlje DCCti without any Delivery Of UlC, without my Will, or other- f ^ecf be'
wile. It is not n ffodo Dceu, liccaiife it iuant0 n tiiietp> 9 1).6, fufhcientiy
37* b, CUtin. 10 |). 6, 25* COntl'il 14 IP* 6« I, b* w-ittcn in my
Nanriej and
fealed by me, if it is not delivered by me, or by another, by my Aflent, or by my Agreement or Com-
mandment, the fame fliall not bind me ; for all this while it is but an Efcrovvl. And if I make fuch
Efcrowl, and let it lie by me, and a Stranger gets it, it fhall not bind me, for it is not yet my Deed.
Perk. Sed. 137.
4. %\)t Deed of a Corporation tlCCtlSS ItOt ntip DcllUCt)^, bUt ^ Le. 97.
tljE Appofition of the Common Seal giUep PCtfcSiOtl tO it iDltlj- ^- ^: ^^ '""
out anu DeliUctP* Da* Eep. 44* ^* 2>cnu nun Cijauter of '' •''™'"-
lctnc0.
5. As if Dean and Chapter put their Chapter Seal tO a IDCClI, Cro. E. 167.
tW \^ a petfca DeeU bp it luitljout aiip Ddibcti). Da. Rep. «. c.
44. b. 1|). 32 €f. 05. R. arjccen betineeii ©ccmiit ant) ailiilis. n. a ^>
6. * But if a Dean ann Cfjapttc have a Right to tlje laiin, * fol^.
but tbCP cannot make a good Leafe before an Entry IHntJE bP tfjCUl '^-/"V^XJ
into tijc lann, as [if] a Ssttangcc Ijass a ijoitiable leafe, they j, 53 ^ g,^^
may make a Leafe in Writing, and affix their Seal to it, and make a Lcafe; for tho'
Letter of Attorney to J. S. to deliver it as their Deed upon the Land, the putting
lubo beliijetjs it arco^niiifflp. COis \% a ffooti leafe, fo? tljc'J:'^"'"*^'^^
<3^m\n of tijE «SenI to tl)e leafe tiotb not mafec it a Dcen, tbep %lZTro
being out of Polfeffion tilt tljC attOJUCP IjaO tIEliiJei-etl it aS tbCit the Deed car-
Dceti upon tfjc lanti, becaufc otfjenuife it fljail be ijoin. ^\i\), ries with it a
13 Cat. 015. JR. betiueeu * Findd nnti Gregory. Pec Cut. tefol\)'D Delivery, yet
upon a Ctiai at 03ar, Uiliiclj coiicetnen tbe Dean ann Cfjaptcc JLtf/^/
of l^etetbutglj, ann Itifticc Joaeis citcn a Ecfolution acco2n=/;w. .'»»/;&,
tnglp* ' Land fhall
fufpend the
Operation of it till then. Vent^ 2J7. Anon. upon Evidence in Ejeftment. * Per two Juftice-. accord', and
per two contra. Jo. 170.
G ". 3f
Z2 Fairs or Deeds.
»^ - ■ I ■ ■ I ^ ■■■ ■ ■ — -— - . I ■ ... - -.. — — ■ " .1 ■ '-
7- 31f % ninfe0 nit obligation to two, and deliver it to one Of
tl)Em Onip, and fay nothing of the other UpOH W)% liilCt?, tJje
£)0CD 10 void as to him. 3 |). 6* 19.
8. 3if a £J9att feal0 a ^litimj iIDl)Ilffato?j>, in tDJjfclj Ije isJ
bound to J. S. iHlt tl)i0 10 llintlC for the T^CljOOf nilU Ufe of A. S.
Mjom tlje ©bliffo? int£nO0 to marvp, ann on tlje Dap of tfje
@^oIemni?ation of tfjc Q^ariiajje !je delivers it to a. s. ikying tijcfc
(Ktl0?llj3, fCiliCCt, This will ferve ; anH immediately the Feme delivers
it over to the Obligee, tljI0 10 a 0OOtl DeliUa*]?* £>♦ 3 €!♦ 192^
26« aOjutis'tJ, €enant'0 Cafe*
9- 3if a Deed not fcaled ije p^OtlUCCH in COUtt, if the other ac*
knowledges it, it i0 Of fO?Ce. 41 (£♦ 3« lo, I),
10. A Statute is good tho' there was no Delivery, per Fenner Juft.
And per Popham, Debt lies upon it as upon a Record, tho' ir never
was delivered ; for 'tis upon Record that it was delivered, and the
Party is efiopyed to fay the contrary. Cro. E. 494. in Cafe of Afcue v.
Hollingworth.
Vide (K) pi. II. A. makes an Obligation to B. and feals it and flings it on the
5- ^ahle, and B. takes it, it is not good. Ow. ()$. Stanton v. Chambeilin.
• Cro. E. 122. S. C. D. 192. b. pi. 26. Marg.
T«nk. 22t.pI. 12. A. makes an Obligation to B. to the Ufe of C. and A. delivers it,
75. S. P. to C. in the Prefence of B. and fays to him, this will ferve. This is a
good Delivery to B. Jenk. 195. pi. 2.
13. If a Patron draws a Prefcntmcnt in Writing, and futs his Seal to
it., and lets it lie in his Study, and the Parry named in it to be pre-
fented gets it without the Privity of the Patron, and carries it to the
Bifbop, and is inftituted and indu6led thereupon, 'tis merely void, and
no Prefentation at all. Yelv. 7. in the Cafe of Grendit v. Baker.
[See Corporation ( )]
1. 'T^^
(K) Delivery of a Deed, how it may be.
'\)€ DeeH of a Corporation I1OE0 not neeU DditiErp, Ijut
tIjC Aopofition of the Seal gives Perfedion tO it* iDa» RCp.
iDcan anD Ciinptet of iFci-nc0, 44, li*
2. Co* 9* •Cl)O?OU0lJ!JOOll, 136. tl* EcfoWQ tfjat a^ual Delivery
Of a eilritinff fCai'O to the Party without any Words ijg a ffOOH
DcJitJcrj'.
Dal. ,04. pi. 3. Co. litt, 36> Co. 9* Cljo^onffljffooti, 137. b. EefoltJ'D if a
46. £^an deliver a fiUH'ting fearO to the Party luitl) tljCfC eilO|ll0, I
deliver this Writing to you, it 10 ClCntlp fllffiCiCnt, tJjO' \)t UOtfj
not fay, as his Deed, 0? a0 W CIS.
4. Co. 9* C!jo?oufffj0ooli, 13^ 3lf a o:iritina: lie fcain, antJ it
lies in a Window, or upon a Table, anU tljC OiJUgO? faith tO tIjC
(DbiiljEC, Do you fee the Writing there ? 'J'nke it as my Deed, anU
\)z takes it acco?5inff!p, tlji0 10 a jjooD 'DzM^\> in lain* Co*
lit. 36.
D. 192. b. pi. _y So if Jje faitlj, Go and take the faid Writing, it is fufficient for
Tenant -""■ y°"' «^ '^ ^'>' ^^''^'^ ^^^ Turn. CO. lit. 3^.
Jenk. Z2I. pi. 75. S. C. Cajlbig a Writing figned and fealed on a Table, and faying nothing, is no De-
livery. But if he fays, This ii;ill fir've, 'tis good. Le. 140. Chamberlain v. Stanton. The Jury
found that the Defendant caufed the Oblig.ntion to be written, and figned and fealed it, and then laid it
upon a Table, and the Plaintiff came and took it ; the Queftion was if this was the Defendant's Deed ;
and the Opinion of all the Juftices was that it was not, without other Ci;cumliances found by the Jury.
Cro. K. 122. S. C.
Delivery is fuflicient without fpeaking any Words. Per Anclcrfon Ch. Jull. Cro. E. 356. in Cafe of
Hollingworth v. .Afcue. Co. Lit, 49. b. — Othcrwiic a .Man that is t/iute cannot deiiver a Deed,
which he may do. See i .\) pi. rj.
4 • 6. Jf
Faits or Deeds. it
6. 31f a ^an fCnl0 a DeeU, nUD delivers it to a stranger to keep
to the Ufe of the Maker, tljlS IS IlOt OUP DCC5 UlItDOUt OtDCC
DcIiUcr}>« 4 8^' 4* 3. b» Diibitiitia%
7- ;jf a $^an mabCS an Obl:^ation to J. and delivers it to B. if ^"'"' ^'/"/"^
J. gets the Obligation !)C fljOll IjaUC aSlOll tipOll it, fO? ft fljad bC uponfiToft-er
intenoeti tljat Ol?* took tlje DecD fo? Ijiiu n? W S)etunnt» todeuveritto
3 8), 64 27* him as the
Deed of A.
he got the Obligation, and recovered upon it- 2 Le. iii. pi. 145. Alford v. Lea. cites i Eliz. D. 167^
Taw's Cafe.
8. 3If a Q9an tU?ltC0 a Deed of Feoffinent to J. with Letter of -' -^ -.'^
Attorney to B. to make Livery, IjUt does not deliver it, anD aftCC
alters 1)10 3[ntent, aim razes out tIjC Jl5amC of J. and puts in the
Name of S. ill 1)19 plflCC, and delivers it to S. but doth not fay any
thins upon the Delivery, pct tfligi I'.S a 0000 ©CCH, fO? W Jlh
tent appcai-0. Dtibitatui* 35 SIT, 6,
9. Irllt if tl)f0 UJill not tt fufflCient, rpct] if t^C Attorney
makes Livery to S. and the Feoffor agrees tO it, It (I) all S3E fuffiCiCIlt,
fo? tijis tyill explain Iji0 genctal DcIiiJcrp before* iDubitntur
35 sm 6,
10. A Parchment (not a Deed indented) fealed and delivered ly one ^ Ceed Poll
/r/2, and then by the other, is the Deed of one as well as of the other. ^^,,!?J^7T'*
Per tot. Cur. 2 And. 36. Crofs v. Powell 41. S. P. adjudged ac- a>id b- in
COrdingly. v.hich A. co-
venants to
convey Lsnds to B. and B. covenants to pay A. tool. B. delivers to A. and then A. deliuers the fnine
Deed to P. thib Re-de/jvety does not make the Deed void. 2 And. 41. Crofs v. Powell. Cro. E,
483. S. C and that 'tis a good Deed to both. ■
11. Bond to fubmit a Matter to Arbitration, Ita qtiod deliheretiir
utrique partinm If there are two, or four, &c. it muft be delivered
to every one. 5 Rep. 103. a. b. Hungate's Cafe.
12. A. delivers a Deed made to J. S. to f. D. tho' he does not fay to
the Ufe of J- S. yet 'tis a good Delivery of the Deed to J. S. if he ac-
cepts it. Clayt. 31. Anonymus.
13. An Jndorfement after Sealing and Delivery is a new Deed.
-6 Mod. 237.
[ See Corporation ( ) 3
(L) * How the Delivery of a Deed may be, and
what Ihali be faid a Delivery.
I. TiT a 99att, heing out of PoflefTion, makes a DCCt Of Leafe
.1 Of tljC Lanll to try the Title, and annexes a Letter of At-
torney to enter and deliver the Leafe upon the Land, anil aitnCCfSf
tJje letter of SttO?nep to tfjC Lenfe, and makes a Label of both,
and puts his Seal upon the Label, and aftCL' pUtiS another Seal upon
the Letter of Attorney only, filltl tOCU delivers the Letter of Attor-
ney only as his Deed, and not the I. cafe, tl)i0 10 nOt anP 2DeIitiCrp
in ILaU) of tOc lenfc nlfo, tljo' it be nnncteo to t!je^ letter of
attojiicj), anU fo \}t Oefiiicrs it in ifaSo ^ fo? Ijc mnp tuell divide
his Deiiverv to [jiiie Cffeft to tljiit uiijicfj Ijc ini:cnri0 to rich'i)er
onlD. 9Q\t\i 15 Jn. 05. E* betiueen D^t-w anU hndge!;, in
Cjcftionc fiiinac upcn Icafc uiaoe In? tfje Biji.or, of Oxford a--
24 Faits or Deeds.-
gainlf Fawkner. Ecfolu'D aiiH nujuns'li pet Cur* upon €W
Hence at tljc 'Bat.
Popham will- 2. %i a S^ail H]?itC0 an obligation in a Book, and there at the
ed the Jury to f^^g p^ij^ p^^j j^j^ Sg,,j ^^ j^^ gj^^ jjjjj^ delivers the Book to the
dally" buT Oblip^ee as his Deed, tlji0 IS 3 IXOOtJ ObliptlOll, fO| \)Z \m HCll-
they found it Dct'D tljat uiljicl) mafeejj tijc ©bliijation, aiiD mo^c, as ijis Deco ;
generally to aHtl tf)0' tljE DcIl^JCtp be void for the Surplus, it I'S gOOD fO? tlj6
be Fa^um jt^efiOue. Ct. 4° €1. OS. E. bettuecn lot ant) Ollriffljt.
Jlum, for they _ ' "
fnid it was an ufual Courfe in London ; and being afterwards moved in Court, Clench and Popham agreed
that it was a good Deed, but Fenner doubted. Yet now by the Verdift it is put out of Queilion. Cro. E.
613. s. c.
3. Leflee for Years grants his Term by Deed, and fealcth it in the
Trefcnce of divers^ and of the Grantee himfelf ; and the Deed at the
fame Time --ji^as read^ but not delivered, nor the Grantee did not take
it, but they left it behind them in the fame Place. Yet the Opinion of
all the Juftices was, that it was a good Grant ; for the Parties came for
that Purpofe, and performed all that was requifite for perfeding it,
except an actual Delivery ; but it being left behind them, and not
countermanded, it fhall be faid a Delivery in Law. Cro. E. 7. Shel-
ton's Cafe.
(M) Delivery to deliver over.
PI 5. i.TiF 31 ntatie a Writing to a. and deliver it to another as an
Perk. S. 142. J[ Efcrow, and after A. gets the Deed, J)Ct tljl0 10 UOt nip DCCH,
fo? tlje 15ailee Ijajs not anp Clutl)0?itp ta ticiitet it as ijis Dtcti,
10 j;. 6. 25. 9 jtp. 6. 37. ti. ^0 it feems, bp tf)i0 Eeafon, it
fl)OiilD be tljo' tljc l?ailee ban t!cli\jercn it oiict as Ijis Deeti j
fo? tbis f0 out of \M !autbo?itp, it not bcinn: appointeo.
It is not his 2. 3!f a 2]0an fcals a CCtcitinij', anti ueliUets it to a stranger
Deed fimpli- (as his Deed, it fCCmS, It iS tO be inttnllCtl) to deliver to the Party
ciier. Terk. jj, \^\yQx^ (( {t^ UiaDC, after certain Conditions perform'd 5 if tljC
Verdia'was Stranger delivers it to iiim before the Conditions perform'd, pct It 10
that ^. /eii- bi0 Deen, ann be is put to W EcmcUj) againft tbe Q3ailec»
-vered a Deed 9 |). 6. 37. b. COlltta 8 |). 6. 26.
to B. to the
Ufe of C. and D. fo as C. ivould agree. A. direfled B. to carry it to C. and pray him to take the fame,
but if C. would not, that then he would not that D. ihould be made acquainted with it, but that all (hould
be void. B. went to C.'s Houfe, but did not fpeak with C. and C. after died, not having any Notice
of the Deed. Adjudged that this was a Condition precedent, and fo not his Deed. Mo. 300. Degofe \'.
Rowe. Le. 152. S. C. and two Juftices againll one that it was his Deed. But adjornatur.
Perk. S. 144. 3. So it fljaH be if he to whom the Deed is made jrets the Deed
S. P. and without any Delivery of the Bailee, it I'S a SOOD DceD^ 9 ii). 6,
Hates It as in , ■' -' ^ ^ -u ^ -
pi. 2. fupra 3 7* 0*
of the Delivering to a Stranger {as his Deed).
As until cer- 4. jf 3) mafee a ©CItitinn; to 3. anl« feal it, anu command an.
tain Inden other to keep it till certain Conditions perform'd ; (f A. takes the
ine"and"the" ^^^'^ '^"'^ °*^ ^'^ Poffeflion before the Conditions perform'd, J^et tI)iS
faid A. con- is uot a DecO, becaufe bete is not anp Contiition eitbct in
taining cer- ^DceD 0? LaVU ; ailtl i)tXZ is not any Word that the Deed fliall be de-
tain Condi- livered to A. at any Time. 9 fD. 8. 37. b. CUtia.
tions, are fell-
ed and delivered ; this Obligation fo taken away ftiall not bind me. Perk. S 142. cites 9 H. 6. 27.
4 5- If
Fairs or Deeds. 2^
5- Jf 31 nmlic a COcitino; to a. nnU Beliljcr it to nnotf)£tr to pi i-
deliver to A. after certain Conditions performed, if A. takes the Deed « ^ n^(/'',j
out of the PoflefTinn of the Bailee before the Condition performed ; ^ Pafmore
tf)i0 IS not 1)10 Decn, bccaufe fie Docgi not Oclim- it ajs W '
Dccti, luit as an efctoiu. 19 l|x 6, 58, 10 ri)»6, 25, Dubitatiir*
6. So if Biiiee delivers the Deed before the Conditions performed,
!t 10 not fjis "^tt^. 19 iix 6, 58, Contra 14 Jjx 6, i, !)♦
7. If 1 deliver an Obligation or other Writing unto a Man as my
Deed, to deliver unto him to whom it is made '■^hen he jloall come to
Tork^ it is my Deed prefently ; and if he deliver it to him before he
comes to York, yet I (hall not avoid it ; and if I die before he comes to
York, and afterwards he cometh to York, and he delivereth the Deed
unto him, it is clearly good, and my Deed, and that it cannot be, if
it were not my Deed before my Death. Perk. S. 143.
8. A Difference was taken bet\Veen a Delivery of a Deed to a Stran- Co. Lit.
ger, or to the Party biuifclf. It cann6t be an Efcrow, if delivered to 1^ ' T7 .
the Party himfelf Mo. 642. Williams v. Green. 6 Mod. 21 S, „°ea'e?Part^
Bufhell v. Pafmore. Noy 6. Whiddon's Cafe Hob. 246. Hoi- ot the Juiliccs.
ford V. Parker 9 Rep. 137. Thoroughgood's Cafe. Mo. 697,
Wilcock V.
9. A. delivers a Deed to B. as an £/ctoot, to deliver it to C. who re- °^^ °"'
fstfeSf upon which B. leaves the Deed, and afterwards C. brings Action
upon it, and held good. And. 4. Taw v. Bury. S. C. cited 2 Le.
loi. D. 167. pi. 14. S. C.
(N) At what Time the Delivery fhall be good.
Second DeHveiy.
I. I jf a DCCH l"!E fcalcn antl UCU'ijerct!, vet if the Sealing and De- _ ^ _
i_ livery are * all utterlv vo.d, fo that it cannot take EfFett as a * FoIio^6.'
Deed ; tl}Cl*C a fCCOntI Dcliiierp, without new Sealing, tolll XWtikt it ^-/'^y'^^
a goon DCeH* 8 l), 6, 7* when a Per-
ron at the firil
Delivery has no Po^ver or Ahility in Laiu to make th Leafe, ISc. hut before the fecond Delifer)i he becomes able,
there the Lcafc, ire. is void. But when he has Ability at the firjt Deliijery to contrart, but emmet perfetl it
till an Impediment is removed, there, \f t\\e Impediment is remo-veil b.fare the feeond Deli'voy, the Cont raft
13 good. 3 Rep. 35- b. cites the Cai'e of Jenningi v, Bragg.
2. As if a Feme Covert fCnlS aittl tlCliyCf? a DceU, a ferond De- Perk.S. 154.-
livery when (he is folc \ui(i \\\{xU It JJOOD •, fO? tfjC fita DCliUCtP Asifan/«-
toa0 mCrCiU DOiO* /ant or Feme
Co'vert AeVw-sx
a Deed ns an E/croii.; and 'tis delivered after full Age, or ii^hen Jhe is file, 'tis void. For it has Relation to
the firil Delivery ; ib e converfo, where a Feme file deli^jers a Deed as an Efero'iv, Sec. becaufe it was deli-
vered by Autiioriry before, when fhe was fole. Cro. EI. 447. in Cafe of Jennings v. B.'agg.
S. C. cited 5 Rep. 35. b. in Butler and Baker's Cafe, Gdldsb. 167. S. P. cites Paf 5 H. 7. 27.
3- Jf a 93an fcal anti Hrlilici* a DccH, anti after the seai is ta-
ken from the Deed, if he leals and delivers ic dsain, tJjO' the fame
Writing continues, })Ct it 10 a IXOOD DeCt!. (jF02 tijC firff DcctI
Uia0 utterly defeated 111) t)5C tilkinB' aloap tfjC ^tdX), 11 f!)* 6., 27,
Curia, ifoi tijcrc otljcr Q3atter 10 plcaneo*
4. But if tijE firft Delivery be not void, but it continues a Deed Where it ow^
onlvvoidable, iuit nOt iJOltl, tfjCtC a fCCOUtl r>Cll)3Crt> Uliii UOt '"'''^^ -^Z^^'- *
make it gooC, s ip, 6. 7, ^ '"<^=°"d ^f^-
-^ '^ very will not
make it good. Br. Faits, pi. 28. cites S H.6. 6. pi. 64. cites i II, 7. 14. per Vavifor. Ptik. S. 154.
H 5. As
2(5 Faits or Deeds.
Br Fait?, 5. As if nil Infant iiiafecs niiD DeliUcrsi a DecO, nnD aftct: at fuii
pi. 28. ;\j,e delivers it again, tljfS fCCOUD Dellijerp l|S iJOlIl • hCmiit tl]t
perk.s 154. ^j.j.jj ^^^^ j^m- ^ojHi^bic fap piea, nnn not Doiu* s tp» 6, 7,
Br. Faits, 6. So if a £0mi ninkf& a ^Zt^ by Durels, and delivers it again
pi. 28. at large, tljiS feccniti Oeliucij) ij5 uoiD -, Iiecaufc it tuasi iJoiDaWe
Perk. S. 154. jjp pjjj,^ ,^j,( jjju'j,^ 8 p^ 6, -7,
"7. Jf A. be bound iu ail ©OfigatlOlt to B. aitU afteC.'B. delivers
it to A. in lieu nf an Acquittance ot Money, and A. after, before any
Cancelling Of tl)t iDbligntiOlT, delivers the lame Obligntion to B. for
another Duty ^ tljl0 10 DOlO, bCCailfC It COlltilUtCS IjlS DeCU ll|»
ifo?cc Of t!)c fitft DcliDcrp at tOe Cinic of tlji's fccono Deliiiecp,
aiiD fo tfje fcconD Deliiicip uoiu, i Ip« 7* h* b.
8. 3if a ^Bn'tillQ; by the firft Delivery rakes EfFedt as a Deed, tho'
ft be void in Operation, vn a fecoiiti DrliUctp, at a ^imc luljcit
It map operate in latb, fljnll be boio, aiiD (Ijall not make it
gooD.
Br. Faits, 9. As if a Parfon grants an Annuity, ailtl tljC Patron Teals and de-
pl. z8. cites livers a Deed of Confirmation before the Grant, and after tfje <J?2ant
\^:^:^- . delivers it again, tW fCCOUD DfUbCrU 10 UotU; bCCaufC tIjO' bP
by Ihe fecTd tlJc fittt Deliliecp it tJoc0 not tal^c em m a Confitmntion, tut
Delivery, be i0 boiO ill ©pcratioii i pet it U)a0 W DecH, fo? fjc coulD not
caufeittook pieaB iI5on eft faSiim, €i'n;o» Contra s io,6, 6,h. 39 |x 6,^741*
no Efieifl by
the firft Delivery. As where one grants a Rent-charge out of the Manor of C. and has nothing in it at the
lime. Sec. and after he furcha/cj the fame Manor, and then retakes the Deed and redelivers it to the Grantee,
this is good.
Br. Faits, lo. So if 31 releafc tO POU all my Right in the Manor of D. where
^'^^^ *!'" you have nothing in the Manor at the Time, and you after purchafe
pi"64 cites tlje ^mm, ant after 3! tJelfUer tlje Rclcafe agnin, tlje feconti
I H.7. 14. DcUijerp 10 iioiu, becaufe it iDa0 mp DceB before, tijo' it U)a0
per vavifor. uoin I'n ©petation. Contra i lo*(^* 4« b* i p. 7* h* b» Dubira=
tUr 8 ip* 6, 22,
Br. Faits, 1 1 . Debt upon Bond by A. againft B. who faid, that the AVriting
pi. 96. was fealed and delivered as his Deed, and after A. by Negligence broke
Fitzh. Bar.13. ^Ij^ i^^^i^ and prayed B. to feal it again, who did fo, and delivered it to
L°bel\vas ta- ■^- This is a good Deed, Br. Obligation, pi. 8i. cites ii H. 6. 27. •
ken out, and The Reafon I'eems to be, that tho' a Deed cannot have two Deliveries,
a new Label yet when the Seal is broke it is not a Deed but a Writing, and a Wri-
and Seal put jj^g ^y Sealing and Delivery may be made a Deed. Quod nota. Br.
Faits pL 98. Faits, pi. 78. ut fupVa.
cites 1 1 H. 6.
27. 12. If a Man be difTeifed and make a Writing of a Leafe for Tears,
and deliver the Deed, and after deliver it upon the Ground, the fecond
Delivery is void, for the firft Delivery made it a Deed, and for that
the Leafe for Years muft take EfFett by the Delivery of the Deed,
therefore the Deed delivered when he was out of Poflefllon, was void.
But fo it is not of a Charter of Feoffment, for that tikes Effert by the
Livery and Seifin. But if the Leflbr had delivered it as an Efcrow to
be delivered as his Deed upon the Ground, this had been good. Co.
Lit. 48. b. (d)
13. A Corporation fcifed of the Lands in Queftion in the feveral Pof-
feffions of A. and B. made a Deed of Leafe to J. S. and a Letter of Attorney
to IV. K. to deliver the Deed and the Pojfefficn. \\. R. entered on the Pof-
feflion of A. and there delivered the Deed, and then into the PofTef-
fion of B. and there delivered the Deed ; and this was found by Ver-
did ; the Queftion was, if this were good for the Land, for which the
fecond Delivery was, becaufe one Deed cannot have two Deliveries.
The firft was not doubted ; 'twas held, that as the Verdidl is found, this
Matter does not come in Queftion ; for 'tis found that the Corporation
5 was
Fairs or Deeds. 27
was feifed, and being fo feifed made the Deed, and then there is no Im-
pediment, but that the Delivery fhall be good for allj for it Ihall not
be intended, but A. and B. had Poflcffion only as Tenants at IVill to
the Corporation.^ and then the Delivery in one Place is good for all ; and
it fhail not be intended, that they had a Leafe for Years or Life, ex-
cept it be fo fhewn. Cro. El. i8i. Williams v. Afhet Afh.
14. A Dijfeifee made a Leafe for Tears, and delivered it to a Stranger
as an Bfiroiv-, commanding him to enter into the Land, and then to ifvVd h
deliver it as his Deed, who did it accordingly. This was adjudged a Deed as a
good Leafe, for the LefTIir was able to make a Contrad as well in re- Deed, and of-
gard of his Perfon as of his Right and Intereft in the Land, but was ''"'' deli'vered
only hindred by the DifTeifin, which Impediment being removed ^^efore "-."V'" ^^^'
the fecond Delivery, the Leak is good. 3 Rep. 35. b. cites it as ad- jivery is voidt
judged in the Cafe of Jennings v. Bragg. • Cro. El. 446. S. C. for the firft '
adjornatur. But it was there iaid per Anderfon, that 'twas not his Delivery
Deed till the fecond Delivery, at which Time he had a good Right ^^^'^j "^ .
and Power to let it. ■ And the fecond Refolution, 3 Rep. 35. b. becaufe^the
36. was accordingly, and that to fome Intent the fecond Delivery (hall Leafe for
have Relation, as where it is for NecefHty, and [/t Res magis valeat '^^^'^^ mad
qiiam pcreat, but to other Intent it fliall have No Relation, but accord- wkeEffedby
mg to the Truth lliail become a Deed from the Time of the fecond of^the SeZ
Delivery, and not from the firft, when the LefTor was out of PoflTeflion, therefore the
and the Leaie therefore void ^ and Ficlio legis iniqne operatf/r alicui DeedddWer-
damnum vel Injiiriam. ■ 'I'was refolved 3dly, That as to collateral '^^ ^^'^"^^ ^^
ACls done between the firft and fecond Delivery, there fhall be no Re- PoflMlon was
lation. As if Obligee rcleafe before the fecond Delivery, fuch Releafe void. Co. Lit.
is void. 3 Rep. 36. Jennings v. Bragg. 48. b. (d)
Secus of a
Feoffment, for that takes EfFeft by Livefy and Seifin. Co. Lit. 48. b.
So a Leafe h a Corforation perfefled in their Chapter-houfe, by fetting to it their Seal, .ind afterwards by
Letter of Jtiorney delivered on the Land to ejefl the Tenant in Poflellion, was held good for Neceffitv, there
being no other Way for a Corporation to make a Leafe but this. Cro. El. 1 67. Willis v. Jermin.
A. The Lefibr of the DaintifFin Ejeftment being in another County, and out of Pofleffion of the Lands
delfvered a Leaj'e to B. as his Deed, to the Plaintiff\ Uj'e, and afterwards made a Letter of Attorney to B. to
deliiier it upon the Land, which he did ; the Leafe is void, for it was delivered in another County when A.
had nothing in the Land ; and tho' thefiri^ Delivery is void to pafs a Thing, yet 'tis his Deed by the firfl Deli-
•very, fo as it takes thence its Eflence, and fo the fecond Delivery is void. Cro. EI. 483. Stephens v. Elliot.
15. In Cafe of a Leafe delivered as an F.fcrow, if at the Time of
the firft Delivery the Leffor be a Feme fole, and before the fecond Deli-
very file takes Baron or dies, in fuch Cafe for Neceftity, Ut Res magis
valeat to this Intent, by FicVion of Law, this (hall be a Deed ab initio.
3 Rep. 35. b. in the Cafe of Butler v. Baker.
(N Z.) Second Delivery necefHiiT, in what Cafes.
A
Made Indenture of Covenant to ftand feifed to Ufes, according
to Perpetuities, and delivers this to a Stranger to the Ufe of the
Covenantee, who hearing of it, utterly difagrced to it, by which yf,
in every Part of the Deed rafed the Nai,ic of the Covenantee, and writ
the Name of J. S. Lord Keeper Egcrton agreed, that the Deed is void
as to all the Benefit which the Covenantor might have; but 'tis not
therefore void for the Ufe and Eftates to the other Perfons; and that
a iVrjy Delivery is neceflary, otherwife there is not any Covenant for
Want of a Covenantee. Mo. 300. Waferer v. Row.
(O) Deo
28 Faits or Deeds.
(O) Delivery of a Writing as an Efcrow to be his
Deed, upon a Condition pertorined.
iMo. 642. I. Tif a SBvitino: be ticlitjereri fcnl'D to the p^rtv as an (gfcroto
L'^ 152- 1 to take C-fFcft as Iji0 Dccti, upon ConUitiou pEcfo^iifD, it
Degory v. j'jj jj|g 2>)pj,j, j,g^. fg^ fjj^ ^j^, i-efp(.g0 tljc DcliUcrp ta tlje J3)ar.-
6 Mod 218 tP Ijimfcif, anti rnea© tfjc 2Ho?tis \of)icIj fljall make tfjc ccp^cfs
in the caie of ^tlMxp to tljc l?iUt^ upoii tljc Ci^attct: no DeliUerp. 9 K-cp*
Budiei V. Pal- 137, Thoroughgood'0 Cafe, ann arc citeU 12 ix^, Eot« 751*
""■■^ CIpoit DcnmrreL- atJjutiijcn, nnu 1 3 io. 8» Hot* 405* (Upon Dc=
nuu'i-ei* alfa anjiiogeri accojuiiifflp* ^3iclh 3 Jnc* 03* E. tictiuccit
Wade anO Biundeii aHuttJU'li. 0obarf5 Eepo?t.6 307* betiuccii
Hackford nilB Parker nOfUrili; 0, 8 I), 6, 26, i\ Trin. 3 ZdC, pCL*
Cro El 8.C CllL'\ CO*Lit,36.
Hawknandv. 2. ipf^^S^S. DcIlDCtP Of au SDWlffatiOlt to the Party upott
Gatchdi. ConOition0 to be pecfoOTcU, oi otfjcriuife but aiS an (Sfcroiu,
(Tys^^ ann tijere atiiutJn;D, tfjat it is Ijio ^ati p?cfcntli'» (Nota) Cbat
^P\r\ ' ^^^ OcliDciTO it a0 an Obligation, Uiijicb iniplirs it to be Ijis
5 Rep. 84. b. Dcen ; anD tiicn it is dear, tijat ijc cannot nidkc it * as €fcrotu
(d). Perry- bp Bon^pcrfo^mancc of a ConDition, I5iit note, -CDnt tijc De=
man's caie. jf^^fy fg {-jjjr p.^'tp ccplains it, fo? tljctc it is agrecD, tIjat
S P Tho'' OtljCrUlifc it lUOUia be to a stranger. Paf. 44 CI. 03* CltCS
roiighgood's Trin. 43 €h 15. E» to be atijutiiin. Mich, 9 Cat. OS, E, be=
Caie. tuieen Baker anti shepherd, atJjutJgeD upon a Demurrer* 3intra--
A Deed can. jjn- Hill. 8 Cat, Eot> 419* Coutta 29 p. 8, D. 34,
vered'afan 3^"* P^i^ ^^"0 JitRifes. 27 ip, 8, 12. atmiitteo, JFo? liTuc is taken
Efcrow tor/., upou tljc pcrfo^mauce of tlje Contiition, Trin. ^3 €U 15* E,
Party himielf [w tl)Z OpiUlOU Of tfjC COUtt aDjUBff'D, Hanckton aUD Gatchell.
Cro. El. 520.
Whiddon's Cafe. Cro. El. 835. diftinguifhes between delivering it as an Efcrow, upon Condition to be
his Deed, to the Party hinifelf, and delivering it as his Deed upon Condition, Sec. and that in the lall Cafe
the Deed is abfolute, but not in the firii Hawkland v. Gatchell. But Cro. El. 884. Contra, and ad-
judged, that it cannot be delivered to the Party himfelf as an Efcrow, becaufe then a bare Averment with-
out any Writing would make void every Deed. Williams v. Green.
3. A. delivers a Deed as an Efcrow to J. S. to deliver it to the Ter-
tenanc on certain Conditions to be performed, and before the Day A.
becomes Ncn compos, and then the Conditions are performed, and J. S.
delivers the Deed. This is good, becaufe it has Relation to the firft
Commandment. Br. Left. Stat. Limit. 150.
4. If I make a Deed and deliver the fame ti7ito J. S. a Stranger as
an Efcrow], to keep until [itch a Day, &c. upon Condition, that // he-
fore that Day B. (he to whom the Efcrowl is made) fhall pay to me 10/.
or Ihall give me a Horfe, or infeofFme of the Manor of Dale, or Ihall
perform any other Condition, thru J. S. pall delfier the Efcroul unto
B. as my Deed, in this Cafe, li J. S. deliver the fame unto B. a.s my
Deed, before the Conditions or Condition performed, it is not my Deed
finipliciter ^ but if the Conditions or Condition be performed, and the
Efcrowl be delivered by J- S. after the Conditions performed, as my Deed,
then it is my Deed and fhall bind me, and at the Time of this Deli-
very then begins it to be my Deed, and fliall not have Relation to the
firft Delivery. But Qusere, if it fhall have Relation to the Time of
the Condition or Conditions performed. But it feemeth not. Perk.
S. 138. cites 9 H. 6. 37. 10 H. 6. 25. 41 E. 3. 29.
5. J. S. delivered a Deed to A. to the Ufe of B. and C. // B. would
agree to the fame, &c. B. dies before Agreement. So the Deed is
void, becaufe 'twas a Condition precedent. Mo. 300. Degoze v. Row.
S : J-e.
Fairs or Deeds. 29
— Le. 152. S. C. but no Judgment; but Anderibn Ch. Juft. and
Periam J. held, that it is the Deed of J. S. tho' B. never agreed. But
W'almfley contra.
6. \( A. delivers an Obligatiou to B. as an Efcrcju (in which he is S. P. Goldsb,
bound CO C.) to be deliver' d as his Deed to C. after certaiit Conditions '^7 and i68.
performed, and after C. releafes to A. before the fecond Delivery, this Hoo^v^Ma°^
is void, becaufe tho' after the fecond Delivery it ihall relate to the firft flian^ jites
Delivery, where there is a Neceflity, Ut rts niagis valeat quam pe- q H. 7. 27.
reac; yet as to collateral A6is it fhall not relate at all. 2 Roil. 410. "owithftand-
|Leleafe<B a.) pi. 3. cites 3 Rep. 36. Butler v. Baker. e^'^'Tscon""
trary.
(O z.) Pleadings as to Deeds delivered on Condi^
tions, and to be delivered over.
I-..' A Ltho' the Qlligor cannot avoid his own Deed, by alledging, that
jTV he delivered it to the Obligee upon Condition ; yet a Stranger
to the Obligation, to whom the Obligor delivered it, to be delivered to
the Obligee upon the Performance of a certain Condition ; if Detinue
he ftied againfi bim for this Deed by the Obligee, he (the Stranger)
may plead this Bdiliiient and Condition^ and pray Garnijljment againft the
Obligor, to acknowledge 'shcthcr the Condition be performed, or not ; for
he is Party to the Bailment, but not to the Deed ; and upon the Gar-
uifliment, the Trial of Performance, or not, fhall be between the Ob-
ligor and Obligee. Jenk. 166. pi. 20. cites 8 H. 6. 28. — 43 Ed. 3.
27, 4 Ed. 2. — Ficz. Debt, 167.
. ,2. A. delivers a, Deed to B. to deliver as his Deed to C. C rcfv.fes 2 Le. io<,
to accept it; B, leaves it, C. however fues upon it and has Judgment. ^•^•
And. 4. Taw V. Bury Dy. 167. pi. 14. S. C. 5 Rep. 1 19. b.
fays, by the Refufal, the Delivery has loft its Force, and Non eft
fadum may be pleaded. i Salk. 307. S. C. cited.
3. In Debt on Bond, Defendant pleads, that he deliver'd it as an ero.EI. 884.
Efcrou), & hoc paratns eft verificare. 'Tis not good, for he ought to crccn*"^^
lliew to whom he delivered it, and alfo to conclude his Plea, and Jfflnt Mo. 642.S.C.
liicut foil fait. Vent. 9. Anonymus. — ■ Vent. 210. Ward v. Ford. S. C. If the Deli-
very was to
the Party himfelf, he cannot ple.id Non ell fadlum, for 'tis his Deed ab origine. Mo. 642. Jenk. 327.
pi. ;o. cites M. 14 Jac. Aflifield v. Wrensford D. 34. b. pi. 25. . Cro. El. 835. Hawkfland v'.
Gatchell contra. He ought to conclude to the Country, i Salk. 274. Watts v. Rofwell. Cio. El. czo.
Whiddon's Cafe. Noy 6. S. C. ibid. 50. S. P. *
(O 3.) E(crow. Relation thereof to what Time.
,1. TF I make a Deed and deliver the fame imto J. S. a Stranger as an
. J_ Efcrow], to keep until fich a Day, &c. upon Condition, that //'
hefore that Day B. he to whom the Efcrowl is made, fliall pay to me
lot. or (hall give me a Horfe, or infeofF me of the Manor of Dale, or
fhall perform any other Condition, then J. S. pall deliver this Efcnrxl
unto B. as my Deed ; in this Cafe, if J. S. deliver the fame unto B. a.i
my Deed, before the Conditions or Conditron performed, it is not my
Deed fimpliciter. But if the Conditions or Condition be performed, and
the Efcrowl be delivered by J. S. after the Condition pcrfjt-med as my
.. . i ' - 1 Deed,
50 Faits or Deeds.
Deed, then it is my Deed, and fhall bind me, and at the Time of
this Delivery then begins it to be my Deed, and (hall not have Rela-
tion unto the firft Delivery. But Quaere, if it fhall have Relation unto
the Time of the Condition or Conditions performed. But it feemcth
' not. Perk. S. 138. cites 9 H. 6. 37. 10 H. 6. 25. 41 Ed. 3. 29.
(P) Date. INecejJiiry or mty and what is fnfficient^
I. TJT a DCCD fjaS not any Date of Day or Place, ))Zt it Igl gOOD*
1 20 C. 4. i» PCCfelfUS S), I20* 20 IX 6, 44. Ij.
A Date is not
tjpntial to a
Deed. Per
Tirrcl Jull. Cart. 153. cites Perk. fo. 25. b. t Rep. 5. * Goddard's Cafe. PI. C. 23 r. b. A
Deed is good without any Date, by the Delivery of the fame. Per Doderidge Jull. 3 Bulf 312. and
agreed. But upon tlie Statute of Inrolments, the Inrolment muft be within fix Months after the Date.
Per Jones Juft. Ibid. 313. * S. C. cited arg. 5 Mod. 284.
For the Plead- 2. SltH in fuch Cafe a Day and Place may be averr'd Of tl)C %^t-
ings vide 1,-^jj.p^ "^tlSlXM^ ©♦ I20*
(P J.) - •^
Hob. 148. 3. A Deed is good tho' it has m Date. Kelw. 34. b. Noy 21,—*
Per Hobart. 2 Roll. R. 274. arg', PI. C. 231. b. in Cafe of Williams v-
The D.iy of fiajk^iey fays 'tis the fame in Cafe of Letters Patent.
the Deli-veiy ■' ' ■'
is the Day of the Date, tho' no Day is fet forth, i Salk. 76. pi. iS. Armit v. Breame.
4. Bond was given March 25, and Releafe of all Demands, dated
s.'jtby but altered to tbe z^^th, before Execution, to avoid releafing the
Bond, and the Day indorfed was the 24th ; yet this upon Prmo deli-
berattun pleaded was adjudged a Releafe of the Bond. N. B, The Re-
leafe lliould have been till the Day of the Date. D. 307. pi. 67.
5, The Date of the Deed many Times Antiquity omitted, and the
Reafon was, for that the Limitation of Prefcription, or Time of Me-
mory, did often in Procefs of Time change, and the Law was then
holden, that a Deed bearing Date before the limited Time of Prefcription
•was not pleadable.) and therefore they made their Deeds without Date^
to the End they might alledge them within the Time of Prefcription.
And the Date of the Deed was commonly added in the Reign of
E. 2. and E. 3. and fo ever fince. Co. Lit. 6. a.
A Date im- 6. A Deed was dated Anno Domini 11671. and yet held good.
fojjlhh as to 5 Mod. 45. in Cafe of Ford v. Lord Gray. An impoffible Datt
tUtearo/the ^^ no Date, and the Plaintiff muft declare of the Time of makin?.
Kin^, but tne „,, ,^^ n/^n '^
Year of the 2 Salk. 463. Cromwell v. Grunlden.
Lord, and the
Day cf the Month being well, is fufficient. Cro. J. i6i . Dobfon v. Keyes. So where the Tear of tit
LorJvJ^s, impoffible, and the Year of the King was right. 8 Mod. 45. Ford v. Lord Grey.
In Wilis tlie Ecclffwftkal Lanu takes Notice only of the Anno Domini, but the Common Laiu of Anno
Regis. Per Doderidge J. Lat. 11.
A Deed dated 7. The Date of a Deed was 1701. (without Anno Domini) and
8 Sept. Anno i^'iUielvii tcrtH mtnc Regis Angli.^, &c. Domini tcrtio (without Anno
78. without Regni) and yet held good, for it is Implicitly in the Deed, a Salk. 658.
laying more, ,,V-ni
« 1478. or Holman V. Borough.
1578. was
held a void Date, becaufe the Years were not well alledg'd. Br. Faits, pi. 74. cites 21 E. 4. 38.
[ See Grant (R 7,) }
(P 2.) Dates.
Faits or Deeds.
3*
(P 2.) Dates. Conftrudion thereof.
I. TF a next Avoidance of a Church be gr anted unto B. hy Deed
J, bearing Date the firft Day of May in the 5 H. 7. and the fame
Deed is firft delivered as a Deed to B. the fourth Day of May the fame
Year; and by another Deed dated the fccond of May in the fame Year,
the next Avoidance of the fame Church is granted by the fame Grantor
to C. and the fame Deed is delivered as the Deed of the Grantor the
third Day of May in the fame Year; in this Cafe the laft Grantee
fhall have the next Avoidance of the fame Church, and not the firft;
Grantee ; and yet his Deed did bear Date before the Deed of the
fecond Grantee : But it is, becaufe a Deed firft takes Effe5l by its Deli-
very, &c. Perk. S. 145.
2. A data includes the Day, but a die dattis excludes the Day.
2 Saik. 413. Hath v. Afli, 3 Lev. 439. S. C. Roll. R. 387.
(rt) Bacon V. Waller. Per Croke and Haughton, that a datu, and a («) 3 Buif.
die datus, is all one, and Judgment accordingly. This Difference 264- S. C.
is good where it is in a Cafe^ 'u;here an Intereft is to be convey'd from one
to another, as in Cafe of a (^) Leafe for Years, &c. But in Matters (*) Cro. J.
of Account only, where no Intereft is to be pafs'd, as if A. is to be ^47- Scavage
accountable to B. and the Deed exprefles it to be done a die datus, Heid"^^(j -j^
or a datu, 'tis all one. Per tot' Cur. Bulf 177. Anonymus. — There an Ejeftment
is no Difference between the Date of a Deed and the making of it ; Leafe. Cro.
for the making is the Delivery, notwithftanding i Inft. 46. b. Per J- '3J- ^'"
Holt Ch. Juft. and Sir B.irth. Shower faid, that 'twas held by all the ^JJ" "' ^'''
Court of Common Pleas, (c) to hold from the Date, or from the making, Hahend' from
is all one. Cumb. 399. Hicks v. Harvey. henceforth in-
cludes the
Day, and an Ejeflment may be alledged the fame Day. Cro. J. 258. Luellin v. Williams..
Policy of Infurame was, that the Defendant undertook to pay the Plaintiff too 1. if Sir Robert Howard
did live a Tivelvemonth from the Day of the Date of the Policy, being the third of December 1697. and he
died the third of December i6g8. and Holt direfted the Jury to find for the Plaintiff. And he faid, if a
Man born on the third of December, die the fecond of December twenty Years after, making a Will on
that Day, it would be a good Will. 12 Xlod. 256. Fanlhaw v. Harris. (c) Cro. J. 647. Scavage v.
Porter.
3. The Day of the Delivery of a Deed is the Day of the Date, Per Dode-
tho' there is no Date fet forth ; if a Deed bear Date at one Day, and "^g« J"ft-
be deliver'd at another, it was really dated when deliver'd, tho' the jj 307 ^pl^
Claufe of Gerens daf be otherwife. i Salk. 76. * Armitt v. Bream. — 68. 5 Rep.i.
Brownl. 30, 31. S. P. But every Grant by Record has Relation to Cleyton's
the Day of the Date fpecified in the Record, and not to the Time of p^^-
the Delivery. PI. C. 491- b. Ludford v. Gretton. ^^^ ™
Gerens daf mud be underllood of an e.xprefs Date, but Cujus dat' may be the Delivery. 2 Salk. 463.
Cromwell v. Grunfden.
(F j.) Pleading of Dates.
i.TF A. be bound in a Recognizance to B. and B. grants unto A.
J. by his Deed indented, bearing Date before the Recognizance,
S'hat if A. perform certain Conditions contained in the fame Indentures,
that then the Recognizance fijall be of no force, in this Cafe it be-
hoveth A. to take Advantage of this Deed, by averring the Delivery
of the fame Deed after the Rcocgnizanc^ entred into. Perk. S. 147. cites
29 AflT. p. 4-^.
2. If
^Z Fairs or Deeds.
2. If the Dcfeazaiicc of a Rccogvi%ance be dated before^ if in this
Cafe any Ufe be to be made of it, it mud be avcrr'd to be delivered
at or ajter the Time of the Kecoguizatice entred into. Heath's Max.
37. cites Perk. S. 147.
3. A Bond bears Date at S. in the Coimty of S. and Atiiou is brought in
Com. /K the Plaintiff ought to fnrmifc^ that the firji Del/very liTas made
at B. in the Cviiuty of IV. where the Writ is brought. Ut dictum fuit.
Quaere. Br. Faits, pi. 35. cites 22 H, 6. 57.
4. In Aflife the Defendant pleaded a Relcafe, hearing Date at A.
the Plaintiff fays, that tempore ConjeLtionis he v:as iniprifou'd at B. and
the Defendant fays, that after the Jmprifonment the Plaintiff delivered
to him this Releafc at C. ivhen he vhis at large ; and becaufe he had
departed from the Place where the Releafe bears Date, the Aflife was
awarded. Quod Nota. Br. Faits, pi. 46. cites i H. 6, 3.
Vide Perk. S. ^ Note, per Cotefmore, if I deliver an Acquittance to J. N. the
Vd B F 'ts T'*^''''-' ^/ ^^'■Vi dated the fame Day, and afteritards J. N. delivers itte a
pl. 48. cites' Bond., hearing hate the firfi of May, and in Debt upon the Bond J. N.
I H. 6. 8. pleads the Acquittance, it is a good Replication, that after the Delivery
Where a Con- of this Acquittance th's Obligation was delivered to me. i H. 6. 4.
firmation de- g^^ ^g j^ ^ 8 H. 6. 5 H. 7. are contrary, and * that the Plaintiff iliall
Jivered after r^ ,j ' ■ i • >•, , j ■ 1
a Grant bore counc upon a priiuo Deltberattun in bis Lonnt, and not come m with
Date before it in his Replication, for then there is a Departure, wz. he fhall
it- count that the Bond bearing Date a Week before the Delivery, 'xas
Saoi^pefea- ^pii^,.yg^ fg ijj„i f/j^ ^fh of May after, quod Nota, fcilicet, quod idem
io''"iz!i>i'ze ^' •^^^- P^'" fc'ptuiTi fuum obligatorium gerens dat' primo die Maii, &c.
Br. Faits, pi. et primo deliberat' to the Plaintiff odavo die Alaii, &c. concefliffet
60. fe teneri, &c. and then the Acquittance bearing Date the fixth Day
^9 ^^- 47- , of May (hall be no Bar to the Obligation bearing Date the firft of
pl iqi '^'' May, which was not delivered till the 8th of May. Nota. Br. Obli-
5 H. 7.27.— gation, pl. 40. Vide Br. Faits, pl. 47. cites 1 H. 6. 4.
pl. 102.
j8 H. 6. 8. (^ ^refpafs was laid the frfi of June, the Defendant pleads a Releafe
■• nntil the ^oth of May, (which was the Day of the Date) abjqite hoe
" quod caufa a^iicnis accrevit poft ConfeHioncm fcripti : This is naught,
becaufe the dies datus excludes the Day of the Date. And the ^m-
iierfe ought to be alfque hoc, that he ivas guilty after the 29th of May,
which is the Day next before the Day of the Date. Pafch. 5 W. &. M'.
B. R. L. P. R. 393.
7. If a Deed bear Date before ^inie of Memory, it is not pleadable, if
it be not upon Record, but the Party may well give fuch Deed in
Evidence. Perk. S. 120.
8. In an Adion brought by a Feme Sole upon an Obligation, if
the Releafe of one who was her Husband be pleaded, &cc. the Woman
may fay, that at the Time of the Delivery of the Releafe he was not
her Husband, &c. and the Jury Ihall be charged to enquire of the I'iwe
of the Delivery, and not of the Date, notwithftanding that the Woman
in her Plea doth not make Proteftation of the Date, &c. And 'tis to
be known, that he who pleads a Deed, and he againfl: whom a Deed
is pleaded, may vary from the Date of the Deed in the Time of the
Delivery. Perk. S. 146.
9. Debt was brought on Bond conditioned to perform Covenants in
an Indenture bearing even Date with the Bond, (but neither Bond or In-
denture had any Date). Per Cur. they ought to have averr'd a Date of
the Bond, and alfo that the Indentures bore Date the fame with the
Obligation. Noy 21. Anonymus.
10. A Deed Poll was pleaded thus: (Et quoad diem & menfcm fine
datu) fed geren' datum in eodem Anno 1638. The Deed was to all
Chriftian People, &c. and concluded thus : In Witnefs whereof the
l^arties to thefe prefent Indentures their Hands and Seah interchangeably
I ■ have
Faits or Deeds. 33
have jet the Day and Tear firft above -written, 1638. But there -was no
Day or Tear named throughout the "whole Deed. But no Objedlion was
made to it. Vide Carth. 340. Ward v. Everard.
11. Plea of Payment of a Bond fuch a Day Poft datum Co7iditlo72is,f
is well enough, and fhall be intended PofV datum Obligationis ; for
the Bond and Condition are but one Deed, and the Date of the one
is the Date of the other. Cro. E. 732. Forth v. Harrifon.
12. When a Man declares that he leased by Indenture of fuch a
Date, it fhall always be intended to be deliver'd at the fame Time
whereon it bore Date, if it be not ihewn with a Primo delihcrat^ at
another Day; and he that pleads a Deed of fuch a Date, cannot by „
Replication, or other Pleading, maintain it to be delivered at an- 5^/^''^//^^
other Time, for it would be a Departure. Cro. E. 773. Hall v. Den- Dau is mif-
beigh & al. cites 5 H. 7. 26. D. 167, 221. Cro. E. 890. '«'''■«, the
S. P. • But when 'tis faid, he demis'd May ift, by Indenture dated P'i«y may de-
March 2j:th, 'tis necefTary to be intended, that 'twas not deliver'd the hir^firft"^ Pi"a
fame Day it bore Date, but upon the Day of the Demife, as 'tis al- plead, that^y
ledg'd. Cro. E. 890. Houfe v. Laxton. Deed bearing
DrJe fuch a
Day, but primo de.Uhcrat' other Day the Party granted, or become bound, &c. and To are D. 307. a.
31;. a. Cro. E. 773, 890. 5 H. 7. 27. a. to be taken upon this Difference. 3 Lev. 348, 349. Stone
V. Bale.
13. Averment o^ 'Primo dcliberatum ought not to be received againft
a Deed inrolled; for by the fame Reafon that that might be averr'd,
Nunquam deliberarum may; and fo upon the Matter, Non eft fadlum.
3 Le. 176. Holland v. Bonis alias Baincs. Savil 91. Holland v.
Downes, S. C. contra. And the Court were of Opinion, that a Stranger
pj all not be efiopp'd by the Inrolment, but the Parties fhall be bound by
it. For tho' the inrolment is reputed to be of the Record, yet 'tis
not a Record created by any judicial Aft. For 'tis not like to a Ke-
CGgniziVice, and in all Recognizances Nul tiel Record is a Pica. The
Sealing and Delivery is the Force of (uch Deeds, as Deeds of Bargain
and Sale, &c. and not the Inrolment. But in Ca'es of Recognizmces,
there they take their Force and Effed by Inrolment, and the Conu-
fance only, and not by the Delivery; and therefore the Time of Deli-
very may well enough be denied, which is but Matter of Fadt ; but
the Conufance before the Judge is Matter of Record, and by that the
Debt is created. But Bonds, Indentures and Deeds of Feoffment:
take their Force by the Delivery ; fo there is a perfeci: Acl before the
Conufmce is taken, and before any Inrolment ; and Judgment was
srivcn accordingly. ■
14. Tho' a Man may plead that a Deed was delivered after the Dav f ,. '^
of the Date, yet he cannot plead that it ivt^s delivered before the Day of p^'j^' g'
the Date. Vide Br. Faits, pi. 28. cites 8 H. 6. 6. — pi. 94. 12H. 6. 8. — 149.
Vide tamen Br. Faits, pi. 99. cites 11 H. 6. 48. to the contrary. Foi" every
Deed, wJn'ch
hath a Date, (hall be intended to be written the Day of the Date, but it is no Deed before the Delivery,
and a Deed cannot be deliveieJ to take Effefl as a Deed, before it be written.
After the Dfli-very of a Bond, ami before the D'lte, the Obligee died Inteltate, yet Judgment was given
for the Adminilbator. 3 Lev. 100. Denton v. Goddard.
15. If A. declares on a Bond as bearing Date the fixth of May, Debt on Bond
he cannot on Non eft fadum give in Evidence a Bond bearing Date ';f^'^ ^l'^ ^}
at another Day, but he may give in Evidence a Bond that bears Date ^j.^ ^ ~^
the 6th of May, tho' 'c was delivered at another Day. 2 Salk. 463. in Kon eft f.iSinm
Cafe of Cromwell v. Grunfdeii ; and Holt Ch. Juft. denied the Cafe pleaded, the
in 2 Cro. 136. • ^^'\^T^^
Bond dated
1 .7 Novemb. 23 (zO Eliz. hnl not fealed till iS No'vemb. 26 Ehz. Refolved that the Verdidl v.'as found
for the Plaintiff; for the Iffue Non ei\ faclum being generally plead, J. it appears to be his Deed ; but 'twas
faid, that peradventure by Special Pleadings the Defendant might ha\e helped himfelf. Cro. J. 136. Lane
V. Pleadall.
K. 16. Dccla-
Re-
146,
34 Fairs or Deeds.
^■■■11 I M^i^— ^w^— ■ III ■ . I .r
16. Declaration^ That the Defendant the eighth of September 1689.
per fcriptum fuum obh'gatorium conccffit fe tcneri, &c. to the Plain-
tiff, and upon Oyer the Bond bore Date the eighth of September
1699. and for the Variance a Demurrer. And it was urged, that
fince the Plaintiff varied the Lien from the Date of the Bond, he
ought to (hew when it was firft delivered ; and the right way had '
been to declare upon the Bovd •ucitb the Date it bore, and then to fay
Primo deliberat' at fuch a Time, and at this Rate one might declare
Upon a Bond after the Adion brought. But per Cur. fince it is faidj
that fuch a Day cvncefjit fe teneri, it is well, for that could not be
without it were then delivered, Jud. pro Quer'. 12 Mod. 651.
Lane v. Green.
17. There is a Difference between Declaring on a Deed, and De-
claring of a Deed; as iuppofe in Trefpafs for cancelling a Deed by the
Defendant, made by the Defendant to the Plaintiff ^ in the firft Cafe
the Date muft be fet forth, but in the other it need not, for here it
is only a Defcription of the Deed. Holt's Rep. 455, 456. Norris
V. Ware.
1>1. 2. 18. If a Deed has no Date, or an impo£ible Date, you raay declare.
In a Declara- that the Defendant by his Deed on fuch a Day and Year did fo and
tiononaBond f^-,^ ^^^^ ^p^^ Oyer there will be no Variance ; but if you fay, that
^trinw die" ^y '^'^ Deed of fucli a Date, or bearing Date fo and fo, and upon
Julii, Anno Oyer the Deed has no Date, or an impoflible one, it will be a Va-
Regiii Regis riancc. Per Holt. Farr. 38. Anonymus.
Caro/iSecutidii
167.5. whereas there is no fuch Date, and it is a void Date, and the PlaintifF may alledge the Deed
made when he will ; and tho' by the Profcrt hie in Cur. * he has confin'd himfeif^ yet the Cujus datus
fliall be underjlood of the DeHuery, and not the Date. Cujus datus (hall be the gi-vitig of ivhich tvas, f f.
If it had been Gcren dat\ it might have been ctherwife, but here it is good enough ; and Judgment
accordingly, iz Mod. 193. Cromwell v. Grunfdale. 5 Mod. 285. S. C. but adjornatur. Comb.
478. S. C. adjudg'd. 2 Salk. 463. S. C. * 12 Mod. 205. Pullen v. Benfon.
I
(Q.) D^y.
if a Deeti bcarsi Date at a Dai), toljcre it aupraris there is
no fuch Day, pet tlje DceU IS 0botl>,2o C 4* \*
for the Plead- 2. And |)e may count of Primo deliberatum at another Day,
ings vide 21 (j^^ 4'^ ^^
(P 3)
Br, Faits, pi. 28. cites 8 H. 6. 6. 3 Lev. 348. Stone v. Bale.
3. 31f a Deet IJC iJatell S December, without Mention of the Year
of the King, or of God, It 10 a llOl'n DatC, ailU tIjC Plailltlff
map count of a Deliucrp of it at anp otljct Day, 21 c% 4. 3^* 1j»
4. So if a DeeH lie DatrU Sth Day of December, 78. aitti tl0tl>
not fay, if it be the Year of God, or of the Kinij, It Ij5 H iJOltl Diltf,
ann tljc 19Iaintiff map count of tfje Dclitjcrp of it at anp otOcc
Dap* 21 Cm* 38* I)*
(R) Place.
Faits or Deeds. ^(j
(R) Place, l^nd Pleadings.']
I. tJF a DccH Ijcatsi ID^tz nt n ipincc, anH there is no fuch if a Man
1 Place in Ens^land, pct tijC DCCH 15 ITOOtl ilUDfimbfC, nilU fljatl ^™Z Debt in
U tafeeii ncco?Oing tfl uiljcre tfjc l^lauitiff count?* 20 c^.u obf^T"'"
«zrontra JSatlnis, e. 120. 015ecaiirc fje cannot \jncp from t!)c bearing Date
2;)atC* at Be>%Mk,
the Plaintiff
ihall take nothing by his Writ, betaule he cannot vary from the Place dated in the Obligation, and the
Common Pleas bath mt JurifdilHon there. But w hen a DcfeJ is pleaded bearing Date at fuch a Place uhere
the Court hath not Jmildiilion, if the Deed be not anlwerable, the Plea Is good enough. Perk. S. 121. cites
zE. 3. Oblig.
2. Jf a Deetl lJear0 Date at C. in L. ilim there is not any fuch
ViU as L. m tijc ©bliixation i<> gooti* s ix 4. 4. In
3. Jf a Dfco bears ©nte out of the Realm, it (0 gooD. 20 e.
4. u Ontra DoSf. $ g)tuti« 62. n rp*7. 16. pcrfcins, %. 121,
Contra 4.1 €. 3* -9* b. 20 ip. 6» 28. fa,
4. Jt fecmsi if an asion tie b?au0{)t upon fuclj Deeti, if Ijc a-
vers, that the i-'lace mention'd in tfje iDeeD is in any Place in Eng-
land, tIjc (Safon mill lie, foj it 10 not traijerfabfe ; but if it be
not aHeDn: D, but appears tijat it i0 natrO beponn @)ea, it isi
otljeriDife; anD io tIjc 15ooU.5 mnp be reconcKeD; fo? tijen it can-
not be trieU*
5. 48 €♦ 3* 2 DeCtI UiaS UateU in H. which in Truth was in Nor-
mandy J but in Debt UpOU It, it was fuppofed in Kent, auU tfje OtfjCr
travers'd, tljnt tfjcrc lua^ uot anp Jp, \\\ l^ent, anB tlje otfjcr im-
parl'D. 48 03. 3. 3 ♦ b*
6. Jf an Obligation be DateO at c. in London, ano tljeee is not
any fuch Place in London, but in another County, in aU ^fttOU Up-
on it, one iunu alfcnge C. to be in lonuom 3 ip. 4* 5*
7- 3!f a ©cell be DateU apud Manfionem meam, it 10 gOOU.
48 (£♦ 3* 3. b;
8. ^0 if it be Oatetl at H. in fuch County, aUD if H. be not ViU Perk. S rzo.
nor Hamlet, nor in any of them. 48 (!£. 3> 3+ b* DubitatUt* %3, thatiii*
laid, that this
is a void Deed for the Party, who ufeth the Deed from the Place dated tvithih the fathe Deed.
9 Jf a DeeU be made out of the Realm, JJCt if it has not any
Date, * gaiOn mai> be biJOUgljt IjCre, fuppofmg it to be made in any
Place in England, iul)ici) \% UOt ttaDcrfable* 20 j|), 6^ 44, b.
10. A Man may flead a Deed to be delivered at another Day than Br. Faits,
it bears Date upon, but vot to be delivered at another Place than is p'' ^5-
Compriled in the Deed. Br. Faits, pi. 28. cites 8 H.6. 6. l4k's '^'
11. He 'xho pleads a Deed JJja II not vary from the Place where it
bears Date ; iut be agahifi -jLibom a Deed is pleaded mny fay, that it was
made by Dnrcfs of I})ipi-?fonment at another Place, and in anothtr Coun-
ty than it beareth Date. Pevk. S. 151.
12. And therefore. If in ^lare ejecit infra terminum, or terminum
qui prtcteriir, or in Formedon, &c. the 'fenant pleadeth the Releafe of
the Demandant hear'ng Date at Dale, &c. and the Demandant Lys,
that he was taken by the Tenant at Dale in another County, and there
ims imprifoned by bim, until he made the Deed unto himi this is a
good Plea, and the Matter fhall be tried where the Imprifonment was
ajledged, fjc. and fo a Man miy vary from the Place which is com-
prifed in the Deedj becaufe when a iMan maketh a Deed by Impfi-
ibnment, he to whom the Deed is made, may put in the Deed what
Date he will. Perk. S. 152. cites S E. 3. 3. 22 E. 3, i6. Vifne 7.
13. An
o.
3^
Faits or Deeds.
i:
J 3. An Obligation or other Deed may be made by Abtot and Covent
out of their Monaftery, for all the Monks may be in another Place, fo
that if the Deed fay, Datuiu apnd London, without fpeaking de domo
capitidari, fuch a Dfeed is good enough, although that their Alonafte-
ry were at Kingfton, Sic. But if their Deed fay D.itum in domo dipi-
tiilariy this cannot be but where the Chapter is, &c. Perk. S. 153. cites
9 £. 4. 40.
(R 1.) Avoided, how, or where it remains good.
'F a Deed be delivered to the Party himfelf to he cancelled, yet if
. it be not cancelled, and the othtr gets it again, it remains a
good Deed. Cro. £1. 483. in the Cafe of Crofs v. Powell.
I.TF a
1 it
(S) What kCt or Thing at the making of a Deed
will make the Deed void. \_Falfe Reading],
And^nMia '• 1^ 31 am a S^an not letter'd, nnn 3! tieliUer a enritinn;, mid)
Tnent lies for J IS teao to iiic coutcatp to tljiU UJJjicl) is ncUnoUiictifjcu in
fuch feife tlje Deen, it is not a gooti DecD* 9 Jp* 6, s% b* 10 %), e, 1 o,
Reading.
Sid. 312. K. V. Skerret, &c.
But if J can nad, fuch felfe Reading will not be reliev'd, for it is my own Folly. Skin. 159, Anonymuf,
pi. 6.
If a Deed be rtad otherivi/e than it is, and thereupon the Party executes it, 'tis not a good Deed, if the
Perfon be illiterate. 2 Rep. g. Thoroughgood v. Cole And. 129. S. C. - — - Mo. 148. S. C.
Whether the Pafty is literate or illiterate is all one. Kelw. 70. b. pi. 6. Mic. 21 H. 7.
II Rep. 27. b. in Pigot's Cafe. Hob. 226. in the Cafe of Needier v. Bifliop of Winchefter.
So where a literate Perfon became blind, and a Deed was read falfly to him, he was not bound by it.
1,2 Rep. 89. Shulter's Cafe.
But if a Perfon illiterate feal and deliver a Deed and does not ask to have it read to him, he (hall never
plead Illiterature after ; but if it be read to him in other Form, he ihall plead it after. Per Anderfon Ch. J.
Mo. 184. pi. 326.
ri Rep. 28. 2. 3if Agreemert be to releafe 20 1. atttl tIjC OtljCt makes a Gcne-
m Pigot's ral Releafe, ailtl ()E bCllliy not lettered HCfliirrS it ll? ^gtCCIUCllt aS
''^' n Eelcafe fo? 20 1. oiiip, tfjis Dcrn is iioiU. 47 C% 3. 3* !)♦ 17*
3 3f SlJVCCniCnt be to rtlenfe all Trcfpadcs, and in the Deed is
put Eelcafe of I-and, anti tljJS 10 tlClillCrCtl lip a Sl3aU not letrer'd,
• - ass a Ecieafc onip of (jLvcfpafS, tijis Dccl? is vroiD* 44 €♦ 3. 23,
44 ^(L 10^
ABondgivtn 4. So iDljCtC tfjCrC is not any Agreement tO UialiE atlP EClCufC,
byaniliite- jj^jj ^ jv^ia,^ comes to another not Ittter'd, and prays him to feal a
by the Per- Deed, faying, that it Oiill be no Prejudice to him, anD fjC fe.ls it
fivafanofan- without hearing it ; tl3C 'D^i'^ is a OOOO "Dtf^^ bCCaufC \)Z DiU llOt
other, who p^njj to fjcat it, 4+!3ff« 30* 44^* 3. 23. ©ubitatiir.
impofed on
him, telling him it was a Thing of another Nature, and th:it it would not damnify him, was fet nfiJe, and
fo was the Judgment obtained upon it, and the E.xecution- money ordered to be repaid, and a per^ictual In-
jitttiiion. Fin. Rep. i6i. Jones v. Crawley and Wolfton.
5- Jf a Q5an fo? gtcat Clue cannot fee to read, ant! fcais ait
Obliption npon falfc EcatJuuv, \)z fljall alioiti it. 3 0.6. 52. i\
$@iclj. 9 3iac. i\\ tOe ©tai-Cfjaiiibci', shuter's Cafe citeo n Ecp.
Faits or Deeds. 37
28. refoiu'u, tW U tDajs lcttcc'5, fo? \\m Ije Ijnis al! ijfs Jntclli-
rrcncc bp Denrinn;.
6. 3f a DCCD be rCntJ to a 99nn illiterate, to be upon Condition, Br. Faits,
where it is without Condition, It iS llOt Ijl'jS DCCU. 9 O. 6» 59* ^^ ^'''g ^j^
per Brooke.
7. 3if a IDZZT^ be read to a Man illiterate, as a Giftin Tail, with a ,iRep.2-.b.
Letter of Attorney, where it is a Feoffment in Tee, it f0 llOiD fit all,
as tocll in tljc Oatc as lU tfjc Lcttct of atto?nrv ^ fo? all is but
one Deed, aiiti bi' tlje JLi'Dcrp fcciinOum fo^maiuCljaitac, uatljino;
palfcs, tOc Dccti bcinn; \)OiD, 3c e« 3* 3u b. Cuna.
8. 3if an ©bliuatioit be rcaD to a ^aii illiterate, that he binds nRep.zT.b.
himfelf hy it in 5I. where it is looi. it iS \30iD III all. 30 €.3*
3ub*
9. 3i,f a {^ail not letter'd will make a Feoffment, ai'ltl upon one uRcp.zy.b.
Parchment, &c. two Feoffments are contain'd, ailU only one is read
to bini, pet tbe DeeQ, fo? tljis feoffment iuljicD 10 tean to Ijim,
IS gooD. 30 €. 3. 32*
ID. 3lf fhree diflmd: OV>ligations are to^itteil upon one Piece of Br. Faits,
Parchment, aut) one Of tijCUl only is read to the Obliaee, aUB \)t \SS- P'' H" '"^'
imx a a3an not Icttccn fenis ann nelibri-s tlje DceD, CijiS is ''^ *'
ryooD fdi tljat UiljicO loas teatJ, nnB iJOiD fo? tije otijers. 1 1 Uep,
-7* b* pigsot's Cafe*
(T) What Act or Thing will avoid a Deed. Rafure,
[and Pleadings].
1. r\ iilfute luiU aljoio a 2^ceO. 14 rp. 4. i s. Mo. so. Ar-
den v.Mitchel.
If a Deed-Poll be rafed hi a Place not material, the Deed is not fufpicious for fuch Matter. Perk.
S. 124.
As if a Deed of Feoffment be rafcd in tlie Addllion of the Name of the Feoffee, or if the Deed comprehend
Dcdi l^ coiiccff, and conceffi is ra/ed, the Deed is not fufpicious for fuch AJatter. Perk. S. 124.
But otherwife is it, if Dedi be rafed, for the Word Dedi comprehends the Effcft and Force of the Word
concefTi, and more ; for Dedi in a Deed 0/ Feoffment comprehends in it a IFarrantv againll tlie Feoffor, and fo
doth not the Word concelTi. Perk. S. 124.
A»d altha a Deed-Poll be rafed in a material Place, as in the Kame of Baptifm of the Grantor or
Grantee, if it appear that there was no Wiiting there before, it is not very fufpicious. Perk. S. 1-24.
2. iClafUtC of the Condition upon the Back of an Obligation tUlll It will not
maftc tijc Obligation fufpicious. 4' ^- 3. 1°. b> make it void.
Br. Faits,
pi. 7. S. C.
If there be a Rafure of a Bond indorfed for Performance of Couenants, the Indenture proving the Bond
makes it good. Mo. lo. pi- 37. Anonyraus per Hale J.
3. Clie laafurc of the Date of a Deeu mill a^oiD tbe Deen, ^r. Fait*.
beCaUfe perad venture 't was dated out of the Realm. 41 C. 3. 29, b, pi. n.
44 C% 3. 42. b. aCjUtJffeD. if the Date of
a Releafe be
rafed in the Place, it is very fufpicious, becaufe it may be it was dated cut of the Realm. Perk S. 123. cites
44 E. 3. 42.
Plaintiff altered the Date cf a Bond (oT Performance of Covenants from S4 to 85 ; per Cur', the Rafure is
in 3. Place not material, and alio tends to the Advantage of the Defendant himlelf who plead-, it ; and if the
Indenture had been void by it, the Obligation had been fingle. Le. 2S2. Lord Darry v. Sharp.
L 4. But
58
Faits or Deeds.
Br. Faits, 4. But fit tljf^ CClfe if tljC IpUlIlltiff avers. That it was dated in
P 9- London, and Ihevvs a Defeazance thereof, which bears Date there, If
10 pou enouffl) ; fo? notu tijc Date 10 not matcrfal* 41 €. 3*
29.11* ll^ccWns ®» 126.
5. If the A''a7?/e of the Grantor or Grantee be rafed or interlined,
the Deed is very lufpicious. Perk. S. 123.
6. If there be a Rafure of the 'Thing granted^ it makes the Deed
very fufpicious. Perk. S. 123.
7. So it is, if the Rafure is in the Lmitation of the EJiate, &c. Perk.
S. 123.
8. If a Man grants unto me a Kent-charge by Deed, which he hath
iffuing out of the Land of another Man, and the Tenant attorns, and
the Grantee by his Deed reciting the fmie Grant, regrants the fame to
■ his Grnnt6r^ yet it is not very fufpicious, becaufe it doth rely npon
another Deed, in which Rcher, (viz. Recital) it is not rafed ^ ^'xre^
if fuch Deed be rafed in the Date of the Place, &c. Perk. S. 125.
9. y^nd if in Debt brought upon an Obligation, the Date of the Ob-
ligation be rafed, r,nd the PlaintifF lliews forth m-\ Indenture of Defea-
zance proving the Obl/gatton, the Obligation is good enough. Perk.
S. 126.
10. So it is of Indentures bipartite, tripartite, or quadripartite. If one
of them or all of them be interlined or rafed in a material Place, they
are fufficient notwithftanding the fame, if fo be they do not vary in the
/lords. Perk. S. 126.
Bui if one ^ '• I^'''^ng of onc Indenture after Sealing, does not make it void, if it
Indenture be agrees in W'ords -with the other Indenture. Per Cur. Mo. 10. Ano-
rafed in a nymus.
Place mate-
rial, and the other Indentures or Indenture are not r.ifed, and the Indenture which if rafed doth nol agree in
Words, in tliat Place which is rafed, with them or that which is not rafed, tlie Indenture rafed is very fd-
fpicicus. Perk. S. 127.
12. Several Perfons enter into frvcral Covenants. If the Deed be
rafed in any Clauie which concerns them all, or in the Date, the
Deed is avoided as to all ; but otherwife the Deed is intended feveral
to every of them, fo that the pulling off the Seal of one ii no Difchar^jC
againft the other. Cro. El. 546. Matthewfon v. Lydial.
13. In cafe of Rafures and Interlineairions in antrcvt 'Times, the
Judges adjudged on their View the Deed to be roid, as appears
7 E. 3. 57. 25 E. 3 41. 41 E. 3. 10. but of late Times the Judges
have left this to be tryd by furors, wliether the Rafing or Interlining
was before the Delvery. 10 Rep 92. b. in Dr. I.eyfield's Cafe.
I). 26 r. b. j^_ Rafing a Deed by the Party himfclf avo.ds the Deed, tho' it be
Anom'm^ui. '•! ''' P'^ce not material, but Rafure by a Stranger does not, unlefs it be
T-Mo. 835. in a Place material. Per omncs J. Anglice. Jenk 232. cites 11 Rep.
pi. 1125.S.P. 27. Pigot's Cafe.
Anonjmus.
If tlie Inden- 1 5. Leffor rafcs one if the Parcels out of the Leafe; this m^dc all the
tures are of Deed void. Per omnes — Gut per Dyer, LefTee may plead this as a
Bargain a„d Lgalc Parol. Mo. 36. pi. ii6. Anonymus.
bale oj Land •' v j
nnd Tenements, and the Indenture which remaincth with the ^''cndee is rafed, and the Word which is rafed
is Mattor, and in the other Indenture the Word wiiicli is rafed is Houfc ; and the \>ndor hath a Manor and
■alfo a Houfe in the fame Town where tlie Laiuls fold lie; the Indenture whicJi the \'endee hath is greatly
fufpicious, ar.d (b it i? of Interlining and other like Things. Perk. S. 128.
And if the Words which tcllify. That the Grantor, Obligor or Feoffor, &c. ha-cc fut their Seal tO the
Deed, are rafed, the Deed is infulEcient notwithilanding it be l(;aled. Perk. S. 128. cites 40 E. 3. i.
Ifitbeinthe 1 6. A. is bound to B. in 20 1. B. rafes out 10 I. and makes the Bond
8um to Ix; only for lol. all the Bond is void, and yet this Aft is to the Ad-
Son?'^'" "'^^^^^ age of the Obligor. Arguendo Kelw. 161. b. .
;: Bulll, 2.].S. in the Cafe of Piggot v. Winchcomb.
I J7. h.
I
Fairs or Deeds. 39
1 7. A. made an Indenture of Covenants to ftand feifed to Ufes accord-
ing to Perpetuities, and delivers this to a Stranger, to the Ufe of the
Covenantee, who hearing of it utterly dilagrced to it, upon which A.
in every Part of the Deed rafed the Navie of tbc Covenantee, and 'jorit
the Ndiiie of J. S. Lord Keeper Egcrton decreed, that the De-.d was
void as to ail the Benefit which the Covenantor niight have ^ but 'tis
not therefore void for the Ules and Eftates to the other Perfons; and
that a nciv Delivery is neceffary, otherwife there is not any Covenant
for want of a Covenantee. Mo. 300. W'aferer v. Row.
18. Drawing a Line nnderticatb any Words is no Defacing or Draw-
ing them out. Cro. Jac. 542. Draycot v, Heaton.
19. A Policy altered by Confent after 'twas underwritten, was held
well. 2 SalK.. 444. Bates v. Grabham.
[See (U) pi. 6.]
(U) * Interlining fhall avoid a Deed. 14 H. 4. 18.
t. T if aDCCtI lie altered in a Point material (lj) t!)C Pfill'lltlff DimfClf, Jo" R^p. 39.
■ 1 0? bp a ®trann:cr, without the Privity of the Obligee, t£ \t ^"g^jj^ g
by Interlineation, Addition, Rafure, 0? iD' drawing of a Fen thro' the s. C
Mid(t of any Word, tljZ i:>£tXi bV tljIS bCCOIllCO DOlD, 11 Ecp* 27^
Pigot'0 Cafi% pci- €tiV tefaiuco, to? it iu not nolu tijc fame
2. As {f nn ©bftiTntfoJi be matic to a ^Dcrfff to appear, ate* f the inter-
nnu in tijc Obiiprlon tbc J^amc of tbc sheriff I'g omittc5, ann ii™nbem
nftcc tfjc Ddibcn} of it ijig N;ime is intciiincn, cirbcL- by the oi,ii- „","°'j
gee or by a Stranger, without his Privity, ^)pt tiJC DCCll 10 bCfC hy doe? not "avoid
It. 1 1 JaCp. 2 7« Pigot'jS Cafe, rcfolb'H pci; Ciit\ the Bond, &c.
as where a
Bond was made to a SherifF without the Name of Office, and in an A61ion upon it P'icecomiti Com. O. was
found interlined alter Delivery, but not Ibund by whom; it »vas adjudged for the Piaintiffj becailfe not in a
Place material. Mo. 835. pi. i 125.
3. But if tbc DcrU hZ ilttCrlillCtl in a Cbinn; not material, by a j^j^ g,.
Stranger, withnUt the AfTehtof the Obligee, tbl'S fijall UOt HinUC tbC pi. 1125'.
iDbUaatiou Doiu. Rcfoibcb 1 1 Erp. 27, piijof g Cafe. Anonymus.
A.andB.fea!
and deliver a Bond to D. then by Confcitt of all tht Parlies, the Name, kc. of C. was interlined, and C.
fealed and dcli\ereJ it. Relblved it is good, and the Obligation of all Three. 2 Lev. 35. Zoucb v. Glar.
Blanks were filled up with Coiifeni of Obligors after the E.xecution of the Bond, ahd held good. Mo. J47;
Markham v. Gomallon. Cro. El. 627. S. C. held contra.
Vent. 185. Zouch v. Glay, takes no Notice of the Confent of the Parties, but that upon the Delivery bf
A. and B- a Space iias left in ii.hiJ} ths Name of C. iias fut in, ivbo alio IcahA and dflivcrcd il i and held,
that the Bond remained the fame as to A. and B. and they could not take Advantage of it ; dnd 'tis
the ufual Pratticc for Sheriffs to make their Bonds for Appearajice in this Manner.
4. Tout otherwife \i IS, if tfjC Interlining of tbe Dccti be by the
Obligee himlelf, tho' it bC lU a Ihing not materKil. pCf CuriaUl,
II acp. 2 7* i5iftots Cafe.
5- a ^an leafed fo? ^cavG bp JnncnttU'c, rffcrltfin^ Ucnt, cro. t\. 6z/,
nnd in the Counterpart oi the Lcflbr 21 I. uas refeiA'd, and in tljC tites it as
Counterpart of the LeHee but 26 1. anQ after a Controuerfp itvcui f'/'^n'"^ 'r^
tetujcen tbe leiTci? anB Icffee, tobicb Ecnt tljoulb be patD,"ai!i:i iiV'cafe
tDe iciroi UJOi;!\) ba^c --^1. ano tije icfec uiculo paPbut^^i.
40 Faits or Deeds.
0!5tlt after the LeflTte was content to pay 27 1. and fo agreed tDltl) tljC
LclTO?, nnU fO| tIjllS tIjC Leffee made a Stroke in his Indenture, and
made it 27 1. CljiS WUU^ 1)10 ICafC DOlQ, Facman^ Cafe n5--
jutJn: D, citC!S ^it, 40 $ 41 ei. 015* E. 76.
6 Jf 3* leafc JLantI to To* bp 3]nOCntUL-C dated ro Feb. 27 H. 8.
iinn after Cics, aiiD C the Heir of A. bi) 3^nticnturc reciter tIjc
jLcafc, but miirecites it, tljat iS to fap/rccitiun; it to be tintcn
lojfcb. 28 H. s. aiiD tbcn lenfejs it bp JuDcnturc to Od» foi
local's?, to commence after tlje (ircpiratian of tlje fain ccciteli
Lcafe, ano after tije @»ealinii- ano Dcliberp of tW iall ILeafe,
tIjiS MiiVecical is raled nuD VefO|m'D, and made 10 Feb. 27 H. 8.
aCCO^tJinn; to tfje true Leafe, but it is not known by whom it is
(a)Cro.Car. done, nor when (a), ^0(0 fljall llOt allOlD the Intercfl: of the Eftate
399. s. c. for Years, tljo' it tljail aisoils x\)Z Dccb, bccaufc tlje Dcen i0 not of
tlje eiTrnce to pafs tlje €ffatc : but tijc Cftate beiniy Uicll paficu,
anti it not bcinrc nccefTatp to (tjciu tije DceO fo? Q3aintenancc of
tfjc effate, tlje eftatc fljail not be UcftroD'D ^ it, 1)\{L lo Car*
(b) Jo ,.,- 15- E. bctuieen c^^ Miiic.-^w'n Mauzvaring pct !Jone0 ann l^arft-
s. c- cru lei' contra Crol^c. 3intratui' Crin. lo Car, Hot* 321, In tlji0
car.397.sc. Cafe lufticc Jionc0 cites y^iien s^.^rj^-uk's Cafe in tlje Court
(a) It was fo of eiiarns to be refol\j'ti, Cljat tljc Rafure of a IDeeU of Feoff-
held per Jones mcnt doth not dtftfoy the Fftate.
and Harvey J.
But Crokc I . held contra, that as it is a Leafe by the Deed, it is a Contraft by the Deed ; and the Party in-
tereUed rafing the Deed, he determines the Deed and his Intereft by his voluntary Aft, as if he had furren-
dered; and the Contrad being by Deed, he may not determine the Deed and the Covenants ; but f^ioad him-
filf he doth deilroy it, but perhaps fhnad the Leffor it may have Eflence, if the Leflbr will ; but this is at
his Eleclion, and not at the Elcftion of the Leflee. Cro. Car. 399. cites i \ Rep. 27. D. 261. 10 Rep. 97.
in Dr. Leyfield's Cafe, 7 E. 3. 57. 14 H. 8. 27. per Brook 44 E. 3. 42.
Adjudged 7. Jf A. at tlje EeO.Ueft of 06. be bound in a Statute with B. to
good, being c. a0 Di0 ©uretp, anU upon tlji0 b caufes d. Iji0 @^erbnnt to
iiiied up by „,^j.e ^ counterbond, in luljiclj \)Z anU C loiU bc obliffeD to K. to
Mo"'-T7 SC f''^'*-" hini harmlefs frOUl t|)e faiO Statute, and commands him alfo to
fays?it was leave out Of tljC COUtlitiOn Of it the Chriftian Name of C the
afterwards fo Tiace of his Habitation, the County and his Addition, luljO tlOe0 it
adjudged in a ncco^TJiuiTlp, autJ after C. rcal0 ann Delibcr0 tlje Counterbonn
b'r '^pon'" «^ 131SS 25eeti, to tlje Gfe of a. ant after tlje fain d. by theCom-
Demuner. mand of B. and by the Afftnt ol' E. inftrts in the Spaces the Chriftian
the riamtiVf Name of C. the Place of his JjabitatiOU ik\\^ COUUtP, aUt 1)10 Sin=
having plead tjitiou, aut aftct Oo, feal0 ann ncliberis tlje 2)blin:ation •, dji0
C^r^,C^ i0 * a tioin ©bliixation anainfl C» bi» tbe fain Qonition in tljc
v^aAj S^Piicc05 tljo' it U)a0 none bu tlje aifcnt of e, aniung'n 93iclj*
ed the Aiient 40 $ 41 CI. 05, E. between 95arl{ljam ann Q5oneftone*
of A. and B.
Cro. El. 627. S. C. but th^t is an Aftion on the Cafe brought by C. againft D. in Nature of a Deceit for
dellroying the Fftcft of the Bond ; and theie Popham held, that if it had been afpointed by the Obligor hi-
fore theSfalma and Delivery thereof, that it jhould be afiei-ii:ards filkd up, it might perhaps be good and net
have avoided the Deed.
A Bond IS made finale for Payment of a Sum of Money, and afterwards the Obligee indorfcs a Condition, that
if the Obligor infeofted the Obligee by fuch a Day, the Bond to be void. Adjudged per Three Juftices againft
One, that the Obligation was good ; but Three of the jiillices of B. R. were ot Opinion, that the Judg-
ment oui'iit to be reverfed, tho' it was not; and about twenty Years afterwards, three other Julliccs of the
C B. in another Cafe before them, were of Opinion, that tho' B. R. did not proceed to Reverfal, yet
that if it came in Argument now, it would be reverfed without great Doubt : and per Fitzherbert, he
might plead Isan eft fadum, for wheji tlie Condition is written after the Deli\'ery, it is not the fame Deed
that was delivered. Kelw. 162, 164. Mic. 3 H. 8.
Perk. S. 124. 8. If a Deed be rasM or interlined in the Jjate^ in the Name of Parties^
in the Limitation of Efiatc, in the Name of the 1'king granted, or the Rent
■ referved, 'tis fufpicious to enfeeble the Deed, becaufe in a Thing of
s 1 Subftarice
Fairs or Deeds. 41
Subftance. But if it be in Recital or Addition, or in other M^ord ;'
of Explanation in Deeds, or M^ords of Cotirfe and Form, This (hall not
impeach the Credit of the Deed, becaufe they are only Matters of
Circumftance. Per Man wood Ch. B, Mo. 230. in Fanlhaw's
Cafe.
9. There is no Book in the Law, which avoids Leafes or Grants of There muft
Corporations for Variance in any of thefe four Circumftances, f,on"°f^',*
viz. Addition., Interpofition^ OmiJJion, Coimmitation ; if they retain material Part.
the four firft Principles of SuLiftance, viz. Name oi Perfons, o( Honfc, And. 23.
Foundations or Dedication, and Place known before the Foundation in ■'^"'^ ^^'^
which the Houfe is fituate. Per Manwood Ch. B. Mo. 2^5. in Fan- ^''^P'f, °!^
„ , „ ,, - -* Eaton s Cale.
Ihaw s Cale.
10. Where Words oi Power referced (as to grant, fell and demife, &c.)
which give a larger Power than before, are interlined, but there is no
Proof when thefe V\'ords were interlined, or that it "was by the TiireBion
of the Grantor, they muft be looked upon as if they had been original-
ly incorporated in the Body of the Deed. Per Reynolds Ch. B. Gibb.
2^4. Fitz-Gerald v. Lord Falconbridge.
11. An Interlineation (if nothing appears againft it) will be prefu-
vied to be at the Time of Making the Deed, and not after. Kcb. 22.
Trowell V. Caftle.
12. A Deed of Revocation, and a new Settlement made by that
Deed, tho' after the Sealing and Execution thereof Blanks were filled
2ip, and not read again to the Party, nor rcfcaled and executed, was yet
held a good Deed. 2 Chan. Rep. 410. Paget v. Paget.
(U 2.) Actions and Pleadings, as to Rafures, Inter-
linearions, Falfe Readings, 6cq.
I. TN a Bond the Day ivas omitted, and a Space left, and after Deli-
J. very the Plaintijf inferts the Day ; per Dyer, the better Plead-
ing had been to plead the fpecial Matter, per quod fcriptum prsedidlum
perdidit eifedtum. Mo. 28. pi. 89. Anonymus.
2. It ought to be fpecially pleaded, and not given in Evidence. Mo.
66. pi. 179. Anonymus.
3. Aftion on the Cafe lies againft a Stranger interlining a Bond by
Order of the Obligor, and fo avoiding it ^ and a Writ ftiail be award-
ed to inquire of Damages. Cfo. El. 626. Markham v. Gomafton.
(X)
0 Breaking off the Seal.
D
I. Tif tljE %U\ I)C taUCn atuap fCOm tlje Dcetl, it is not any Deed. Where the
i II $)♦ 6« 27., Seal is broken
off, Non eft
faSlum is a good Plea ; but if there is any fpecial Alatter, the Jury may find it. 5 Rep. 119. b. D. 112.
pi. 50. Peres v. Bifhop.
M 2. %X
4Z Fairs or Deeds.
Br Faits ^- 3if tIjCl'E bC no Manner of Print remainins;, bp tUljICf) It maj>
pi. 22. cites appenc tijnt it tXta mag fcaleu, it fljnll nuoiD tijc DccD. 14 fp»4.
s.c. 30, ]i, Dcmuui-a**
Perk. S.I 3 5.
S. P. Bu/ if there appear aij Print of tlie Seal upon it, and the Seal remains annexed to the Deed, it is fuffi-
cient.' Bui if the Seal be fe-veted from the Deed, notwithftanding the Print remain;, the Deed is infutS-
cient. Perk. S. 135. cites 7 H. 6. 18.
Br. Faits, 3. Jf tye @CnI be once fevered ftOm tl)C DCCtJ, and after fewcd
?,'■ f"c (. together, and glewed tO it again, JJCt tOC DCCD IJj VlOl'tl lip it* 7 J)»
lerk. b. ,36. ^^ ^g^ ^^jj..^^ 13£lUin0, g'* 135- ' '
4. If the Seal ot a Deed be a little bruifed, whether it be an antient
or new Writing, if Pert of ihe Seal remains^ upon ivhich there is any Print,
the. Deed is good enough ; but if the Part which remains to the Deed
has not any Print, then the Deed is infufiicient. Perk. S. 136.
Dtbt on Bond 5- -Debt was brought upon a Bond, and after Pica pleaded the Seal
againil A. was broken j the Jury weredirefted to find the fpecial Matter. D. 59.
and B. Jury pi_ j 2_ Nichols V. Haywood. This Accident (ball not be affigncd
^°^^^\p^^ for Error. D. 59. pi 12. Marg. cites 41 Eliz. Worfley v. Charnock.
}o'b!ejfZirl 'ibid, cites Michel v. Stockworth and Andrews. Ow. 8. Mi-
hefore Ni/i chael's Cafe, had it been hfore Jffiie joined., it would have avoided the
priuuhe Seal Deed cited 2 Show. 29.
of B. was ta-
ken from the Bond, adjudged the Bond was good. Owen 8. Michael's Cafe. For it was Defendant's
Deed at the Time when Ifl'ue was joined, and the Trial fhall relate to that. Cro. £1. 1 20. S. C. ■
Coldsb. 83. S. C.
6. Debt upon Bond againft Two, the Seal of one is broken ; this
avoids all the Deed, tho'' the Bond is joint and feveral ; for this implies
jointly, and it is not material who broke the Seal. D. 59. pi. 12. marg.
citts Paf 3 Jac. B. R. ■ 2 Show. 28. Seaton v. Henfon.
7. A. and B. co^jcnant with Six, "who feparatim covenant with A. and
B. one of the Seals (f one of the Six is broken off- this does not
avoid the Deed. But if the Seal of A. or B. who covenanted, jointly
had been broken, the Deed had been defeated. 5 Rep. 23. Cro.
E!. 408. Mathewfon v. Lydiate, S. C. 470. 546. S. C. — 2 Bulft.
248. cited Poph. 161.
8. A Deed was left with Baron Snigg, and hy Cafnalty of Fire the
Seal was viclted off. The Defendant being r. meer Stranger, and
Owner of the Land (the Maintiff by the Deed claiming a VVater-
courfe thro' it) pleaded a fpecial JSion eji fa^nni ; PlaiiuifF moved, that
he might plead the General Iffue, and then the Jury might well find
all the Special Matter for the Court to judge upon: Per CokeCh.Juft.
we cannot aid in this (tho' Snigg made an Affidavit); for if his Right
depends on a Deed, if he lofe his Deed, by this he lofes his Right, and
no Remedy here for him ; agreed per Curiam (abfente Doderidge); af-
terwards the Book of 43 Eliz. c. 3. was rcmembred, that if one has a
Deed, and the Party, from whom he had it, takes it from him and pulls
off the Seal, be may plead this Deed without fliewing it, but (hall
plead that his Adverfary has done this. It was urged, that Ne gran-
ta fas a Stranger may plead, but not Non eJl faSum ; but an Executor
may plead Non eft factum. 3 Bulfl:. '79. Moor v. Salter.
Palm. 403. 9. Seals were broken off from a Deed to lead the UJ'es of a Recovery.
S.C. -Argoi Yet upon Examination it was admitted to guide the Ufes, it being
^' "^yy- proved to have been done by a little Boy, and that the Seals were
once annexed, and being compar'd together, the Rafures of the Parts
agreed. Lat. 226. Anonymus.
(X 2.) Can-
Fairs or Deeds. 45
(X 1.) Cancelled Deeds. The Effed: thereof at
Law.
i./^^Ancelled Deeds were allowed to be given in Evidence .^ Proof
V^ beinj firfl: made of the Truth of their being cancelled. Het.138.
Beck row's Cafe.
2. Comminioners of Bankrupts had ajjignd a Bankrupt's Goods to A. B.
C. (Tiid D. But his Deed of AfTignment was afterwards cancell'd, and a
new Deed made to A. B.-and C. only, who without D. brought an Adtion
for the Goods; and per Rainsford and Wild Juft. (Hale Ch. Juft. be-
ing ficic) tho' the Cancelling of the prior AfTignment does not alter the
Pyoperty, but chat it remains in A. B. C. and D. and tho' D. is not
Party to the Adion, yet the others upon Not guilty pleaded lliall re-
cover Datmges in Trover for two Parts of the Goods, and (hall not
be nonfuited; but the Defendant might have pleaded this in Abatement
of the Writ for fo much. But having pleaded Not guilty, they, tho'
Jointenants with one another, fhall recover Damages for their Parts j
to which Sir Will. Jones, of couniel for the Plaintiff, hxfitanter fub-
mitted. 2 Lev. 113. Nelthorp and Farrington v. Dorrington.
3. The Court declared, that tho' the Deed appeared cancelled, yet it
was a good Deed, and that the Cancelling thereof did not deveft the
Eftate of the I'rnftees therein named, and that the Truft thereby created
ought to be performed. 2 Chan. Rep. 100. Leech v. Leech.
4. Grant of an Office to A. and B. for their two Lives and the Life of
the longeft Liver of them, B. keeps the Deed without being produced j
which in Trial of an Aftion brought by A. appeared to be cancelled; it
was infilled, that the Eftdte in the Office was thereby deftroyed; but
per Cur', not as to A. unlefs it appeared that A. had a Hand in the
Cancelling it. Vent. 297. Woodward v. Afton.
5. A Rent or other Grant is not loft by the Deftruftion of the Deed, Qusre per the
as a Bond or Chofe en ASiion is. Per Cur. Vent. 297. VVoodward v. Reporter, If
Afton. The Property remains the fame. 2 Lev. 113. Nelthorpe J-^i^^^^^^^^'ll'
and Farrington v. Dorrington. 2 Vern. 476. Lady Hudfon's Cafe Vent. 297.
cited there.
6. A Father having taken Difpleafure at his Son, made an additio-
nal Jointure on his Wife by a voluntary Cvnveyance, which he kept in
his own Power, and being afterwards reconciled to his Son, the Fa-
ther cancelled the additional Jointure, and died. The Wife after his
Deceafe found the cancelled Deed, and recover'd by Virtue of it. Ci-
ted per Lord Wright, 2 Vern. 476. as Lady Hudfon's Cafe cited
per Lord Wright Ch. Free. 235.
(X 3.) Cancelled Deeds relieved in Equity.
I. A 5«>«^ was taken away fraudulently and cancell'd. Decreed, that
±\ the IVidow ought to have Satisfa>.'-tion out of her Husband's
Eftate by whom the Bond was cancelled, and as much Benefit, as if it
had been uncancelled. Fin. Rep. 184. Brown v. Savage.
2. A Bond torn may be relieved in Equity. Per Finch C. Obiter,
Vern. tS. in the Cafe of Wi'cox v. Stuart.
3. A. devifed his Lands to feveral Relations, at the Funeral a
younger Brother of the Heir at Law fnatches the /nil out of the Exe-
cutor's
44 Faits or Deeds.
cutor's Hands, and tore it in many fmall Pieces, the Pieces (eTpecially
of that Part in which the Land was devifed) were picked up and
fiitched tcgetbcr. A Bill was brought to eftablifh the Will ; and de-
creed the Devifees to enjoy againft the Heir, and he to convey to
them, tho' no diredl Proof was made, that what was done was by his
DirecHon. 2 Vern. 441. Haines v. Haines.
4. A. by Anfwer confeffcd he had in a PalTion burnt bis Marriage
Ai-ticlcs, but it being proved, that he had produced them at a Com-
mifTion afcer the Time he pretended he burnt them, he was comiiiittci
to the Fleets and tho' he made Oath he had them nor, and could not
produce them, yet tlie Court would not difcharge him, till he confeuted
to adnnt, they 'xar to the Effect in the Bill. 2 Vern. 561. Sanlbn v.
Rumfey.
(X 4.) Remedy againft Perions Cancelling and
Dellroying Deeds.
-A.
delivered a Deed of B. to J. S. who tore it in Sport "xithout
Malice, by Misfortune and Chance. Both A. who delivered
the Deed, and J. S. who tore it, were imprifoiied, and the Deed was
inrolled immediately. Br. Faits, pi. 88. cites 3 E. 3.
2. If a Man finds a Bond, and cancels it, ^refpafs Vi £5" armis lies,
for he deitroys the Thing found. Cro. E. 723. Watfon v. Smith.
3. Aclton on the Cafe lies for tearing off the Seal of a Deed, by
which J. S. granted to the Plaintiff unmu annaalem Kedditum five An~
niiitatera of lol. for his Life, tho' the Plaintiff ihewed not, whether
it was an Annuity or a Rent, or that it was the Seal of the Grantor,
or the Seal of the fame t)eed, but only Sigillum eidem annexat'^ or
that he loft the Annuity ; yet it was adjudged for the Plaintiff. Cro.
J. 255. Afh V. Brudnell.
4. A. on the Marriage of his Son fettled feveral Lands in this Man-
ner, viz. as to Part, to the Ufe of himfelf for Life, and after to the
Ufe of bis Son for L'fe, then to his firfi and other Sons in I'ail, and.
for want of fuch IfTue, to the Ufe of the Plaintiff, 'who was his Bro-
ther, and his Heirs j and as to other Part of the Lands, to the Ufe of
the Son for Life, and after to the Ufe of the H'lfe for her Jointure,
then to the firfr and other Sons in I'ail, and for want of fuch IfTue, to
the Plaintiff and his Heirs; the Son and Wife died -xithont Iffne in the
Life-time of A. and after their Deaths A. got the Settlement and cut
it in pieces ; but the Counterpart was intire, and in the Hands of A.
and the Bill was brought to difcover it, and have it preferved ; and"
the Counterpart being confefTed in the Anfwer, the Plaintiff obtained
an Order at the Rolls to have it brought into Court, and a Motion
was made to have that Order difcharged, for that the Remainder to
the Plaintiff was meerly voluntary, and therefore he ought not to have
any Aid from a Court of Equity ; but the Court would not Dif-
charge the Order, but made the Deed be brought into Court, there to re-
main, and thereby hinder A. from felling the Efiate from the Plaintiff.
Trin. 1 69 1. Abr. Equ. 168. Brookbank v. Brookbank.
5. 2 Geo. 2. C. 25. S. 3. If any Perfon fjall fteal, or take by Robbery,
any Exchequer Bills, Bank-Notcs, South-Sea Bonds, Eaft-India Bonds,
Dividend Warrants of the Bank, South-Sea Company, Eaft-India Com-
pany, or any other Company, Society or Corporation, Bills of Exchange,
Navy Bills or Debentures, Goldfmiths Notes for Payment of Money, or
other Bonds or Warrants, Bills, or Promiflory Notes for the Payment
of
I
Fairs or Deeds. 45*
of any Money-, being the Property of any other Per/on, or of any Corpora"
tion-t not-'jiitbftanding any oj the faid Particuhrs are termed in Law a
Chofe in Action, it fjall be deemed and conjirued to be Felony of the fatnc
Nature and in the fame Degree-, and ivith or 'without the Benefit of
Clergy, in the fame Manner as it icould have been if the Offender had
ftoleu or taken by Ro' lery any other Goods of like Value "with the Money
drie on fi/ch Orders, Tallies, Bills, Bonds, fj^arrants. Debentures or Notes,
cr fecured thereby, and remaining tinfatisfied ; and the Offender fiall fnffer
fiich Punifoment as he fjjonld or might have done, if he had Jiolcn other
Goods oj the like Value with the Money due on fitch Orders, Tallies, Sc.
(Y) What Act or Thing will avoid a Deed. [//-?
part or in all.']
I. TJf tJltJCr^ feveral Perfons make feveral Covenants in one Deed P' 4-
1 tUitO one nUOtfjCr, nnti no joint Covenant, fllltl t!}C Seal of one
of the Covenantees 19 l'?0{tEIt Off, Vtt tlj{0 lljnK llOt aUOl'D tf)e
jDccn as to tlje ctfjcrs. Ci% 2 jn» 05, aQiiitigcti bcttorcii ^la-
ba/icr nilH Hnkman* 5 JRcp* 22, tl, 23* n5)Ut>!JC5, Matthewfon'^
Cafe.
2 3!f ait Under-SherifF covenants tDltlj (51S I>l0fj^@)Ocn'ff tO falJC •' Rep. 27,
Ijfm fjcmiilefs of all ifince anti amcrrianirntSi fcj anp Cfcapc, ';? ^^'s^'^
ailQ COtlCnant0 alfO, that he win not execute any Writ of Execution ^^Jj^
atovcr ihe Sum of 20 I. t^O' tlji0 (aft COllCUaUt fcC apitlft X\)t lam, Hob iTTc
nnn iioiH; (lircatifebp tlje g^tatutc 27 €L cap, 12. tfic (Llni)cr=
©Ijcfiff taUc0 Iji3 ©atO to wcciitc alf l^^occfs) pet tlji0 Dotij not
niahe tlje otijcr Cotienants Doio. i#» 1 1 31a, 15, facttcceu ©itr
j)/^;//f/ A'orfw/ anO >i>ff?«w, nUjuUffcU, CI** 12 3ia, ID* fame Cafe
aujutiiycti*
3. In the faid Cafe, if tljE cIlnlicr=S)fjctfff obUffes fjuiifclf I'u nn s c '"■
Obligation, luitlj CTOntn'tlOU for the Performance of Covenants in AndDip..,.
tlje faiO 3illtlCntUlT, tljO' fome of the Covenants are ac^ainft the was taken b
Law, and void, pct tfjC SDbll'lXatiOn 10 nOt DOin bp It, iHit Ije 10 '''^«" ^ ^"'"^
bountJ to pcifozm tljc goon Covenants in tfje Jnncntute, €i-, s^^fj'"^ ^
12 313,13, aDUltJg'ia, the Covenants being feveral, bCtlUCCn S'lC Da-' by'co'mmm
ni'cl Bojtcn anu Spmm0» u^, for
upon the Sta-
tute of 23 H. 6. if a Sheriff will take a Bond for a Matter againft that Law, and alfo for a Debt due,
the whole Bond is void ; for the Letter of the Statute is fo, for a Statute is a ftria Law, but the Common
Law doth divide according to common Reafon, and having made that void that is againft Law, lets the
reft Hand ; as is 14 H. 8. fo. 15. Hob. 14. in Cafe of Norton v. Simms.
erence
e-
4. 3!f divers covenant jointly tip a DCCtl tO QO a Cfjinff, anU PI- '•
nftCt the Seal of one of the Covenantors is broken off frOHl tljC
DectJ, t(ji0 fljaK make tljc "^zt^ uoiD a0 to all tijc otljec Co\)c=
iianto?0, 5 Ecp, 23, a3att()cujfon'0 Cafe,
5. Jif two are bound \\\ an ©bllljatiOn, anH aftCL* the Sell of
one is HilTallj'tJ ailU taken from the Obligation, tljl0 niakC0 tljS
Cibiigati'an \iGiti a0 1^ tljc otljci*, tbe fcal of lufjom remains to
t{}e £Dbiifiat(on notijurt; in as mucfj a0 tfjc one 10 biTcljaraca
bp tIjc Cahinix off fiis ideal, nnU bp Confequnicc tljc otDcc alfo.
3 $;, ",5* IT Ixcp. 2S, b* Pin;ot"0 Cafe,
6. 3if a DeeD contains divers diltind and abfolute Covenants, ff
any Of tljC CCi'UCnaiitS' be alter'd bv Addition, Jnterlineation or Ra-
^' fare.
46
Faits or Deeds.
II Ecp* 28* ti» 3i)in;af j2 Cafe* 14 |x 8, 25, 26,
[See (E a) (F a) (S) per tot. (U) 7. ]
(Z) Who fliall have them.
liailcn, bccaiife tljt loailci ougljt to (;aiic tfjem to ijoucfj o\)cc
toljcn Ijc fi)ail te iiouci)U 39 €* 3* 17*
2. Jf a Si3an mal;cj5 a Ftoffmenc in Fee, no Dccti0 0? €DiDcnce<s
_ ^ _ pars to tlje ifroftcc, but onlp tlje IDceD of jfcohmnt it kit
lJ^lefs"t)>e"' l8lp, 7^ ll%elU 3*
Feoffor gifcs
them to the Feoffee. Per Huffey. Br. Charters de terre, &c. pi. 54. 6 H. 7. 3- But again/I a
Stranger the Feoffee fhall have an Adtion of Detinue for thofe Charters which concern the Lands, if he can-
not make Title by the Feoffor, or thofe who claim Tide by the Feoffor. F. N. B. 138. (G).
3 Keb. 711. 3 3ir a P^an ma!iC0 feoffment in jfce to 3i» ^. to tfjc Ofc
S. p. adjudg-d Qf j^ ^^ |„ j|rg0^ fj.£. ir)ectI3 belong to the Feofiee, and not to the
Sdon ^' ^^^^' 1"^ u^"^' t'Jo' ijc Ijao not anp Cftate continuing in fjdn,
carth. 516. fo? Ije UJas onip tlje Conuepancc ndiu Qnce tijc Statute of 27 ra.
Reyneii v. 8* jFo? ftcfo^e tfjc jfeoffcc ougljt to Ija^c it, anti tljc statute hath
Long, S. p. not exprefly j^iven the Deeds tO tlje CeffP qUC Ofe. D* lo (£(♦ 277,
/ \ cro Fi 5^* Curia, 37 €\. 'B* Eefomti bettoeen (a) sachcvcreii anti 5^^-
36 sc ■ nail. jp. 6 31a* 05* E* pet Cur. p?acter miaJnmc)', betiueen tljc
(b) Cro. J. Countcf^j of (b) iJuntington ano ©ir antDonu ^iiuniap*
21
Walmfley Juft. faid, that in one Cfeiu's Cafe, wherein he w.as of Counfel, it was held, that the Deed ap-
pertained to the Feoffee, and not to Cefty que Trull. Cro. E. 357.
They belong 4. Jf a ^aU XiX^M^ FeofTment in Fee Of LanU, without any
to the Feoffor Warranty, tljc jfcoffee fljall IjaDc afl tlje COnrtcr0, Decti0 anb
to have h.s (ij^j0,.,|f(-gj concerning tijc Lant), a0 inciDent to tljc LanU, to
,«rr, and tDc Jntent tOat bp tljem De map DcfenD tljc Lann. Co. Lit* 6,
the Feoffee
(hall not have them, unlefs there be a Covenant between them to that Purpofe. Br. Charters de terre, pi. 15.
44 E. 3. I. per Thorpe. Ibid. pi. 38. 39 E. 3. 17. per Kniver, quod non negatur. For the
Evidences are as it were the Sinews of the Land, and the Feoffor being not bound to Warranty, has no
Ufe of them, But Evidences which concern the Pojfiffton, and r.ot the Title of the Land, the Feoffee (hall
iiave. Co. Lit. 6. .
5- Cbe fame ILaU) i0 tuijen a Jfeoffment is matic N^ith a War-
"■' ranty only againft the Feoffor and Heirs, fo? ti)C JJ^eOffCC CaUUOt re=
iriefs there ^^^^"^ "' ^'^""^ "1^^'^ ^^J^^ ^Uirraiitin Co. lit. 6.
be 'an exprefs 6. Jf ICOffmcnt bC UiaHe of lanO with Warranty, upon which
Grant of the the Feoffor is bound to Warranty, and to render in Vahie, tftCrC tfjC
Deeds. Re- J eoffo?, becaufe Ije is bounti to Delenti tijc €itle, fljall Ijauc all
fb Lord'^" 23een6 whlrh comprehend Warranty, Of lUljiCfj IjC UW]!) taUC %^-
BuckhuriVs vantage. Co* lit* 6,
Cafe.
AsMAinfcoff 7. So in tljisi Cafe tljc jfecffo? fljall Ija^e fuclj 2Dcetij>, which
B.iuithH'ar- may ferve to dereign the Warranty paramount. CO* lit* 6*
ranty, to him ■
and his Hciis and /f^gns, and B. hy Deed infcoffs C. ii'ithout Jf'arranly, and C infeoffs D. iisith Warranty,
yet C. ftull have the firll Deed and the fecond alfo. i Rep. i.-b, Loid Buckliurft's Cafe.
4 8. So
Faits or Deeds. 47
8. s6 \\x tW Cafe tlje ifcaffo? fljall Inm ail "DttW anti €Di ■ Rep. ,. b.
llcnCC0^ tOljlCl) ate material tor the Maintenance of the Title Of tfjC ^°'''^, ^"'^''"
t! «. ,tf^ 11 ;<■ i. liuill's Cafe.
jtann* €o« ILit* 6v P„, ,3 ^,,^
Feoffor is bound to render in Value, there is great Reafon that he fliould have all the Evidences material oi*
requifite to defend the Title, and the Feoffee has trulled to. his Warrranty, by which he Ihall vouch the
i'eofibr. 1 Rep. i . b. Lord Bucldiurll's Cafe.
9. But UJljeit a JFCOffmcnt 10 mntiC with Warranty, tf)C JFCOfFce ^^ Court-
fliall iliiUe the CtliDCllCCS which concern the Poflcffion, and not the ^/^>'^^- Cot
litie Of m lano. Co. iLit. 6. ^,Z Tnd
• incident to the Pofleffion. i Rep. i . b. Lord Buckhuril's Cafe.
10. lif a I-?afe for Life be maf.e, tf)C Remainder over in Fee, 2Ch.Car42.
tIj!0-DccB ainsertasH^ to tije Jtoin SJunug 010 life. 12 rp*4. f^-^^l'^J'"]
20* b* 34. 33 'h. 6,
22.
ti. $Int! not to him in Remainder. 7 D* 6« i+ 10 Hcp* 93* !)♦ ^«/ where
£)?» IC^fiCiO'Si Cafe* t^e Deed is
deli'vered to
the Rimaindcr Man, he may detain it. Br. Charters de terre, pi. i6. 47 E. 3. 18.
12. 3if Leafe for Life bC, t()C Remainder in Tail, ailll Donor re- If a Alan
leafr-s to the LelTee, who dies, tOiP DCCB GOtl) llOt appectillll tO "-^kesaLeafe
Ijim in rxcmmi-tier. (Jt Izzm it i^ iietciruco tijat tijis entatges) arWa'rds
tlje cftate of tSjc IcffecO 9 Ip* 6^ 54* „„/,.,« /,» e-
Jlate in Fee,
the Heir of the Fecffee (hall have the Deed cf the Lcjfor for Tears, as well as the Deed of Confirmation, be-
caufe the Deed doth make the Confirmation good. And fo of every Deed which makes his Title, or a
Releaie, or the like, without which his Title lliall nol be fure, and he ihall have an Adlion of Detinue
for them. F. N. B. 138. (K) cites 9 E. 4. 53.
13. If Gift in 'fail he to A. Remainder to B. in I'ail^ and then ^.
dies ivithont IJfne, B. fliall have the Deed, which Nota for clear Lav/.
Br. Charters de terre, &c. pi. 52. 3 H. 7. 15.
14. The Deed of Intail, !ipo!2 Difcontinnauce of the intnird Eftatc^ The Heir in
belongs to the Difcontinuee, and not to the Heir, for he has no Pof- T-ii> 1^11
felTion of the Land. Per Rede, and Keble and Tremaile accordingly. ^^^^;^^^''2
But per Fairfax and HufTey, the Deed belongs to the Heir, for it ''^^ gai,fi the Dif
ro Chattel, nor paflTcs by Gift de omnibus Bonis & Catallis ; and cor.tinuce for
Replevin lies not of a Deed, for it is an Inheritance as the Land is, and the Deed of
of the Nature of the Land, and fliall go to the Heir. And if Te- J^^^^'^ Jj/
nant in Tail cancels or burns the Deed, the Heir is without Remedy jr^^^^j ^^,J
for the Deed, but not for the Land, for he fliall have Formedon tho'it given. F. N.
was of Rent, and this without Monftrance cf it, for it is in the Right. B- 138. (H).
But in Avowry he fliall fliew the Deed, for it is in the Poffefl^ion. ^''" 18E. 4.
. Charters de terre, &c. pi. 53. 4 H. 7. 10. i'?'io^E.4'.9!
15. If Land be given to A. for Life^ Kemainder over \_to feveraf\
by Deed, any of them "who firjl gets the Deed fliall retain it. And
therefore whoever has any Land contained in the Deed, where others
have the Refidue of the Land, yet he that has this Parcel, may on Ac-
count thereof retain the Deed. Per Fairfax and HufTey. Bro. Charters
de terre, 6ic. pi. 53. 4H. 7. 10.
16. Deed of Intail, after the 'Tail determined, belongs to the Donor, f.N. B. 13.8
and in Cafe of his Death to his Heir, and he may have Detinue for (F).
n ; and the Original and Counterpart arc but one Deed in Law, and 3^ H. 6.^ 24
both belong to the Donor or his Heir. Br. Faits, pi. 51, 38 H. 6. ^^^ P ' ''
25. Br. Charters de terre, Sic. pi. 47. 3S H. 6. 24.
J 7. Tcnani
48
Faits or Deeds.
P 17. tenant in Fcc-fimple may give the Deed or Charter of his Land
in^'cafe'^of " ^° whom he will, but * otbcrwife of a tenant in 'Tail; for in the laft
Keliack V. Cafe the Heir lliall have it, but not fo of the Fee-fimple. Br. Faits,
Nicholfon. pi. 86. 9 H. 6. 60.
* The Iffue
ftall have all the Deeds notwithftanding that liis Fatlier gave them away, for it may be that the Dono'- ivas
in by Diffeifin, and after the DiJJeifee rcleasd to him, the Iffue Ihall have this Releafe. Br. Charters de
terre, pi. 36. 9 E. 4. 52.
Ibid. pi. 36. 18. Leafe to A. for Life, Remainder to B. in Fee, after the Death of
9 E-4. 52. j\_ ji^e Deed belongs to B. But if a Releafe be to A. only, this does not
belong to B. after A.'s Death. Bro. Charters de terre, pi. 6. 9 H. 6. 54.
19. If A. infeoffs B. on Condition, and B. breaks the Condition, the
Deed belongs to the Feoffor again ; for it fhall not remain as an Evi-
dence againft him or his Heirs afterwards. Br. Charters te terre, &c.
pi. 5. 39 H. 6. 36.
20. If I am infeoff'd with Warranty to ine and my Heirs, and after /
infeoff A. in Fee, and bind my Heirs to M arrant, and die, if any one
gets the Deed by which I was infeofF'd, my Heir Ihall have thereof
Detinue by Special Count, and Non ratione terrje. Br. Charters de
terre, pi. 58.
Not.n, if //. 21. If A. infeoff B. with Warranty to him, his Heirs and Afjigns,
infeojs B. a,;^ B. infcoff C. With Ifarranty, tho' C. may vouch A. as Aflignee,
11.7//^ WV- yj,j i^g fi^gii „Qj j^g^.g jf^g fjj.^ Deed ; for B. has made Warranty to C.
/^!uf/c by ^^'^ ^- "^''y ^^ vouched, and therefore B. (hall have the firft Deed to
Dedi, that B. have his Voucher over, i Rep. i. b. the fourth Refolution in Lord
during his Buckhurft's Cafe.
Life (hall have
the Charters, which comprehend Warrant)-, and which ferve for the neceflary Defence of the Title. But his
Hdr fhall not have them, but the Feoffee. Per Coke, i Rep. 2. b.
22. One Parcener may have the Charters "^hich concern her Purparty
only, and fliall have Detinue thereof againft her Sifter on a Special
Count. F. N. B, 138. (G) the Notes there.
23. The Heir fhall hnve a Detinue of Charters, altbo' he hath not
the Land; as if I be infeoffed with Warranty, and I infeoff another with
a Warranty in Fee, my Heir fhall have a Detinue of that Deed by
which I am infeoffed, becaufe he may have Advantage of the VV^ar-
ranty. F. N. B. 138. (L) cites 9 E. 4. 53.
24. And if my Father be diffeifcd, and dieth, I fliall have a Detinue
for the Charters, altho' I have nor the Land, and the Executors fhall
not have the Adion for them. F. N. B. 138. (L).
25. After a Leafe is determined, the Counterpart of the Leafe be-
longs to the LefTor. Jenk. 254. pi. 46.
26. Counterpart of a Deed, by which a Rent is referved on a Feoff-
ment, does not pafs to the Vendee by Bargain and S.ile of the Rent,
as incident, for it is not the Original Deed by which the Rent was at
firft referved. Per Omnes, except the Ch, Juft. who fays, that this
Counterpart waits upon the Intereft, and is good Evidence for it.
Yelv. 224.
27. When the Common or Statute Law gives Lands, it gives the
Means to keep them, as the Evidences. Arg. God. 323.
Mo. S. C. 28. If A. be feifed of a Seigniory, Rent, Advowfon, or any <Jljij:g
4%*. to 503. rgjjjjci lies in Grant, and grants it over to B. with Warranty, and B.
grants it to C. with Warranty, C. fhall have the firft Deed, becaufe
it is necefTary to the making his Title, and without it he cannot make
.nny Defence againft A. or any claiming by him ; and when IJ. grants
to C. the Rent or Advowfon, C. oiij:;ht to have the Effcdl of his
Grant, and B. cannot in Derogation of his Grant detain any Thing
4 which
Fairs or Deeds. 49
which is of Neceflity, and of the Effence of his Grant, i Rep. i. b.
fifth Refolution in Lord Buckhiirft's Cafe.
29. If A. makes a Feoffment with IVanairty^ and dies, the Heir of the
Feoffor Ihail have all Charters, which the Feoffor himfelf might detain
(tho' the Heir has nothing by Dcfcent) by reafon of the Pofri::)iiiry of
the Defceiit after, i Rep. i. b. fixth Refolution in Lord Buckhurft's
Cafe.
30. The Lord by Efcbeat (hall have all the Charters, which concern Br. Charters
the lame Land, becaufe (as Popham gives the Reafon) he is in in le ^^ '^"^ P'-
Poftt and cannot vouch ; and therefore the Feoffor (hall not detain the '^' '^^*^ "
Evidences, for he can be at no Prejudice, i Rep. 2. ut fupra, cites ^^'
10 E. 4. 14. b. per Moyle.
31. A. by Detd infeoff'd B. and C. and to the Heirs of B. and the Br. Charters
Deed of Feoffment, and other Evidences are delivered to B. and '''^ ^^"^' P'*
afterwards B- dies, C. Jljall have the Deed by 'which he was enfeoffed, ""
becaufe it makes his Eftate; but not the antient Deeds, for they were
delivered to B. the other Jointenant, for the afTuring his Inheritance.
1 Rep. 2. cites 34 H. 6. i. a.
32. ylud if A. after fuch Feoffment relcafc to B. and C. and de- Br. Charters
livers the Deed to B, C. fliall not have it, for C's Eftate was perfe3 '^'^ ^^''^> P^«
•without this Deed, i Rep. 2. cites 34 H. 6. i. a. "•
33. But per the Reporter of the Year-Book, if a Releafe be made to Br. Charters
two, who have joint Eftate by defeafwk 'title, and the Deed is delivered de terre, pi.
to one of them, who dies, in this Cafe the other who fiirvives "■
(hall have it, becaufe it pcrfei^s his Eftate. i Rep. 2. b. cites 34 H.
6. I. a. 6 H. 7. 3. b. 21 H. 7, 33. a. according to the Realbn of
this Cafe.
34. It w:is fiid, that if A. infeoff B. and C. to them and thsir Heirs,
ajid gives the antient Deeds to B. and B. dies, C. lliall have all the
Deeds, and not the Heir of B. for he can have no Lofs by not having
them, or Benefit by having them, as C. may; and C. fliall have them
as Things which go with the Land, i Rep. 2. b. in Lord Buckhurft's
Cafe.
[ See (H a) SutclifF v. Conftable (S a)]
(A a) Who may juftiFy the Detaining them.
i.f\B€ Coparcener maj> julfi'fp tijc DctaimiiQ; of tIjcCfjat-
vy ttts of tl)c Innn in Coparcennrp aiyninft tfje otfjcc in
Detinue, fo? tijep Uclong to Ijcc a0 uicll nsJ to tfjc otfjee* 3 p*6,
19. ti.
2. After Partition, tlje One Coparcener CannOt )U(tlf}> tfjC De-'
tnfnino; ngainll tJie otijcc tIjc COattets of tlje lano, tuljicfj flje
alone ijas ailotteD to Oer. 3 fp* 6, 19, b,
3. JX Tenant in Fee-fimple gives the Charters COnCetnUlff tlje ^ I^o"- 4J-
LanO to another, tfie Donee, tl)0' Ije has nothing in the Land, J^j'' 9-
J»Ct ijC may JUftifp tljC DctainlniJ tijem againft the Heir who has
the Land. lo iO, 6, 20, b,
4. A Leafe for Ltfe is made to A. Remainder to B. in Fee, if the
Deed is delivered to H. he may retain the Deed. Br. Charters de terre,
pL 16. 47 E. 3. 18.
O • 5- Grantee
^o Fairs or Deeds.
Mo. ztz. 5. Grantee of Deeds by 'Tenant in Tail cannot detain the Deed of
^- ^- Intail againft the IfTue after the Death of the Grantor: But 'tis other-
wife of fuch Grant by Tcnam in Fce-finifle. Cro. E. 496. in Cafe of
Kelfack v. Nicholfon.
6. Sevtral Writings left with Coiinfel for his Opinion, in order for
Sale of the Land, were delivered to a Scrivener by Confeiit of the Par-
ties., who finding a Deed concerning tbf Intercft of a third Perfon., delivers
it to him i upon Complaint to the Court, he was commanded to pro-
duce the Deed to be delivered again to the Parties, they conceiving it
to be an ylbnfc in his Prat'lice^ which was under the Regulation of this
Court. Vent. 46. Parry's Cafe.
[ See Attorney, j
(B a) Kept private by, or in Cuftody of the Maker.
-T
HE Condition of a Bond was to convey Lands to his Son to
enjoy after the Obligor's Death. In Debt the Defendant
pleaded, that he made a Feoffment to a Stranger to the Ufe of him-
lelf for Life, and after to the Ufe of his Son in Tail. This upon De-
murrer was held to be no Performance as it was pleaded, for the Infant
was not made Party to the Conveyance, nor had he any Deed or Af-
furance to prove his Eftate, fo as he is not fure thereof, nor can have
any Knowledge perhaps of fuch an Eftate, nor Means to prove the
Ufes limited, which was not the Intent of the Condition. Cro. E. 625.
Stutfield V. Somerfet.
2. A. is bofind to make a Keleafe to B. 'tis not fufficient to make it,
and deliver it to a Stranger to the Ufe of the Plaintiff. Cro. E. 826.
cites 20 E. 3. Aud. Quer.
But where a 3, A Bond to a Daughter^ found after the Father's Death feveral
ItilT^wlT ^^^^^^ ^3s fet afide ^ and Lord Wright faid, it appeared to be the
ma!ie to Trtif- Father's Intention, that no Ufe fhould be made of it, but only to pro-
tees and their tefi him from Taxes^ as (he had owned ilie took the Intent to be ; and
Heirs, in jt was without Condition, and payable immediately ; and he always
Truft to re- j^^pj. j^ j^y j^j(^^ ^^^ therefore if ihe had got it from him, and put it
Kents kc- '" ^"''^ againft him, he thought Equity would have relieved h:m a-
and put them gainft it, it being voluntary, and only for a fpecial Purpofe. Ch. Free.
out from 183, VVard V. Lant.
Time to
Time for the Benefit of one of his Daughters, and entred into a Bond to the fame Truftees for Pa}ment of
jooo I. for the LJie of the fame Daughter at a Day certain, but kept both Deed and Bond, and received
the Profits of the Eftate till his Death, on a Bill by the Daughter for a Satisfaftion out of the Profits from
the Time of the Stttlement made, and of the loool. from the Time it was made payable, Lord Wright
faid, they were the Father's Deeds, and he could not derogate from them, and decreed the Interell of
the Bond from the Time : But as to the Profits of the Eftate, Plaintiff and Defendants agreed to fet the
Pro/its of the L.ands againft the Daughter's Mamtenance. But tho' the Father had by his Will given her a
Legacy in Salisfulion of the Bond, yet the Court would not tie her up to tliat, but left her to her Eledion.
Ch. Prec. 210. Barlow v. Henc.ige.
4. A Bond for 1500 1. was made at the Time of a Will, and fhewn
to the Obligee with his Will, and afterwards found with his Will, and
it being for a like Sum which he had promifed fome Years before to
give to the Obligee, on his marrying the Obligor's Daughter in Law,
and whofe Fortune was in the Obligor's Hands, but not adjufted ^ Lord
Harcourt looked upon it to be only /« Nature of a Legacy., and toIuut-
tary as againft Creditors. Ch. Free. 370. Loeffes v. Lewen.
a 5. A.
Fairs or Deeds. 91
5. A. conveys his Eftate to the Ufe of bhnfelf for Life, with Power-
to Mortgage ftich Part as he fljall think fit. Remainder to the Truftees
to fell and pay all his Debts, but contitmes in Poffeffwn, and keeps the
Deed. He becomes indebted afterwards by Judgments, Bonds and
limple Contrads. The Deed of Truft is fraudulent, as againft Credi-
tors by Bond and Judgment, who having no Notice of the Settlement,
fhall not come in in Average only with the other Creditors. 2 Vern.
510, Tarback v. Marbury.
(B a 1.) Take by a Deed. Who lliall not, tho'
named in the Premilles.
LEafe was made to A. and B. his Wife, i3 primogenito proli. Haben-
dum to them, and the longer liver of them fuccefJively during
their Lives ; and then the Husband and Wife had Iflue a Daughter
born afterwards. Per three Juftices the Daughter had no Eftate, be-
caufe fhe was not in effe at the Time of the Grant. Ow. 152.
Stephens's Cafe.
(B a 3.) Loft Deeds, &c. In what Cafes Adions
lie at Law, tho' the Deeds are loft.
I. A Oicn lies not for a Deed determined, or for tht Counterpart of
l\- an Indenture, in which a IVarranty is contained, without a fpc-
cial Grant. Brownl. 222. Sutcliff v. Conftable.
2. Where a Demife is made of Lands, rendring Rent, tho' the
Leafe be loft or miflaid, the Landlord may fiie for the Kent, and de-
clare on a Demife in general, without faying, it was a Leafe in Writing ;
and fo you may in all Cafes, where it is not a Thing that lies in Grant,
&c. Per Cur. 2 Vern. 98, 99.
[ See Trial (B f 6.) Loft Deeds. ]
(B a 4.) Where in Cafes ot Deeds loft A(fl'ions (hall
be brought on die Counterpart.
A Covenants with B. to nuke an Affurance of Land before Mich.
• by Indenture, A. dies, the Covenant unperformed, and the
original Deed comes into the Hands of the Executors of A. B. brought
a Writ of Covenant on the Counterpart ; and per Cur. it does not lie
without the Deed itfelf. Per Walmefley, he may have an A6tion of
Detinue to recover the Deed. Noy 53. Yelverton v. Cornwallis. ■
In Cafe of a Mortgage lofi it was decreed, that the Counterpart (houid
be allowed as an Original, and admitted as fuch at any Trial, &c.
Fin. R. 239. Brifcoe v. Earl of Denbeigh & al',
(Ca) Who
f^z Faits or Deeds.
(C a) Who fhall take or be bound by the Deed.
One not named in the Premifies as a Party.
'A.
dipifed B. and then A. infenff'd J. S. by Deed, thus, viz.
Know all Men, &c. ^wd ego A. per ajfenfum & confenfnm B.
Dedi & concefTi, & hac prefenti, &c. rMo J. S. and that be done be-
fore any Entry made by B. thefe Words, Qper ajfenfum c? confenf/im of
A.) fhall not bind him, but that he may enter, notwithftanding that
it be true, that the Feoifment was made with his Aflcnt and Confentj
for when he is difTeifed, he hath but a Right, which fuall not depart
from him, if not by Extinguilhment ; and it ought to be at leaft by
Deed, and made unto him, who at the leaft hath the PofTeffion of the
Freehold in the fame Land at the Time, &c. And in this Cafe the
Feoffee had not any Poffeflion at the Time of the Feoffment, and the
Diffeifor cannot enter in the Name of the DifTeifee, and reveft the
PoffefTTon in the Perfon of the Difleifee, for the Diffeifor himfeif is in
Poffeflion, and he cannot enter upon himfeif, &c. So it cannot be,
that the Diffeifor doth make this Feoffment, as Servant to the Dif-
feii'ee, for it is made in the Name of the Diffeifor, &:c. Perk. S. 156.
2. yind if a Stranger had entred in the Name of the Diffeifee, and by
his Commandment had made a Feoffment in tfie Name of the Diffei-
fee, y per ajfenfum & confcnfitn of the Diffeifee by a Deed, contain-
ing in it a Warrant of Attorney to make Livery of Scifin, by fuch
Feoffment the Diffeifee fhall be bound. Perk. S. 157.
^. If J. S. be infeoffed to have and t© hold to J. S. and St. K. and
Livery of Seifin is made vnto f. S. according unto the Deed, it is void
unto T. K. Perk. S. 164. cites 12 E. 3. 77. 5 H. 4. 2.
4. But if Livery of Seifin had been made luito T. K. according unto
the Deed, then he takes by the Livery of Seifin, and not by the Deed.
Perk. S. 164.
5. If I leafe Land to J. S. Habendum to him for twenty Years, Re~
mainder to J. K- in Fee^ he fhall take the Fee-fimplc, and yet he is not
named in the Premiffts. Arg. PI. C. 15S. in Cafe of Throgmorton v.
Tracy — 160. S. P. arg'.
6. One granted to a Baron and Feme, being Tenants for Years in
PoffefTion, that they fhould have the Lands for their Lives, and
granted further by the fame Deed, that after their Deaths their Children
fljonld have the Land for 40 Tears. Per three Juftices, the Children
ihall take by inay of Kcmaindcr, tho' there be no Word of Remainder
in the Deed; and as a Remainder they may take it, tho' they are not
Parties to the Deed. Cro. E. 10. Anonymus. One may take an
Executory Efiate, or by way of Remainder, that is not Party to a
S. C. cited Deed. Cro. J. 563. Greenwood v. Tyler.
per Brown J.
Cart. 60. 7. Leffor devifed to his Leffee for Tears his Land for the fame Term
he had before, paying the fame Kent at the fame Days, and under the
fame Covenants which were in the former Leafc. Adjudged it was not
a Condition, but only a Cove7iant.y or rather a Truft. 2 Show. 40. cites
the Cafe of Martindale v. Martin. Cro. E. 288. Godb. 99. pi.
114. And. 197. Maunchel v. Dodington alias Michel v. Dunton.
Adjudged that they were vain Words. Ow. 54. S. C. they are
not either Condition or Covenant, cited per Popham. Poph. 8. as
Michel's Cafe.
8. In Copyhold Grants a Perfon may take by being named in
Habendum only. Cro. E. 323. Downs v. Hopkins.
9. A
Fairs or Deeds.
^5
9. A Demife was thus, fc. This Indenture made, &cc. between A.
of the one Part, and B. his li^ife, and their Children laivfnVy begotten
at the yljjignment of the [aid B. of the other Part. B. and his Wife
had a Child born at the 'I'llTie, and after had feveral other Children.
But per tot. Cur. The Child then born, or thofe born afterwards,
took nothing. And per Ayliff Juft. The Child then lorn ihould have
taken, had it not been for the \\ ords (it the Affignment) but by rea-
fon of thofe Words the faid Child is excluded. 4 Le. 64. Trecarram
V. Friendlhip.
10. A. made a Leafe to B. by Deed Poll, Hahend'' to B. and his But wLcrc k
tVife and Daughter picccffvc, Siciit [mbuntiit ^ nominanttir in or dine. ''^^^}^ ^!"''"^.
B. and his Wife died^ per Cur. the Daughter has a good Eftate in Suae/Tii'e^^li
Remainder, and thefe Words make the Grant Certain enou^jh. 4 Le. gave noRe-
£46. Grubham's Cafe. Cro. J. 563. S. C. Greenwood v. Tyler, (a) m.-imler.
Hob, 313.
Windfmore v. Hulbert. Godb. 51. S. C. argued. — S. C. cited Cro. Jac. 564.
(a) But there it is reported thus : The Deed was made between A. of the one Part, and D. of the other,
by which A. demifed the Land to B. and his Wife and Daughter, Habend'' to them, iit fiiprndiSlum eft, i^
eorum diutius Vi-venti SucceJJi-ve, far Term of their Li-ves ; ib that the lull Fart (hews that all fliall take, and
not the Habendum only; and this is much inforced by the Words (Ut fupradiftufn eft) and the (Succeliivc)
is before the Limitation for all their Lives, and it was adjudged accordingly ; but upon F.rtor in the E.x-
chequer Cliamber, the Juttices doubting, they moved the Parties to compound, who did fo.
11. Where A. and B. are named only in the PremifTes of the In-
denture as Parties of the one Part, and C. of the other Part, tho'
J. S. is afterwards named in the Deed, 'tis a void Deed as to him, and
no Covenant made to him, or by him, is good ; for he is a Stranger to
it, and his Sealing and Delivery is not material. Per Coke arg. and he
agreed the Cafe put on the other Side. 4 E. 2. WHiere a Bond was made
by J. S. and ad n/ajorem rei fccuritatem invent "J. D. fdejrijforem, and p^ t ^g
J. D. put his Seal to it, this was held his Deed, for 'tis not mentioned cites 2 R. 4.
whofe Deed it is, and fo it is the Deed of both which are named and 20. Br.
put their Seals, &c. Cro. E. 56. Eaft Skidmore, &c. v. Vaud Stephens. — ^^'"> P'- 42.
And W^ray faid, they conceived the Matter in Law accordingly in the ^^^.j^ ^' ^'T
Principal Cafe, which was of an Indenture between Parties, and a Re- fays it has
leafe made by one not Party, but who was covenanted with, and who been fo held,
covenanted in the Deed, and executed the Deed, was held not good. >'^' ^'^'^^ ^
12. A. bargains and fells Land by Indenture inrolied to B. and ^*'^-
there was a Provifo, viz. Provifo fcmpcr, and it is covenanted, granted,
&c. that J. S. (who was a Stranger') fball dig in the Lund for Mines.
Adjudged, that this Provifo doth not make a Condition or Covenant,
but a Grant. Mo. 174. Lord Huntington v. Lord Mountjoy.
13. Articles were made between A. of the one Part, and B. (not
faying of the other Part) by which A. lets B. a Honfe at 10 I. a leaf,
payable quarterly ; and -whereas the faid B. hath agreed and taken the
Honfe aforefaid, paying the Kent quarterly, Se. and leaving it in good
Repair, and that the faid Kent may be fatisfied as afore faid, be it knoirn
unto all Men, that I J. K. do covenant for my fclf, Sc. on the Behalf
of the faid B. that the faid B. fball pay the Kent, and perform the
ether Covenants, &c. and this Deed was fealed by B. and J. K. In an
A<5tion of Covenant brought on this Deed by A. againft J. K. the De-
fendant upon Oyer demurred generally i but after Argument the
Court was clear in Opinion, that the A<5lion lay upon this Deed againft
the Defendant. Carth. 76. Salter v. Kidgley.
14. He, that is no Party to the Deed, can neither g/r? or take any co. Lit. 2^51.
Thing by it, &c. except it be by way of Remainder. Arg. Carth. 77. A Leafe was
in Cafe of Salter v. Kidgley. cites 3 Cro. 56. 2 Inft. 673. 2 Roll, made by A.
220. 2 Cro. 559- I Inft. 352. See 2 Lev. 74. 'l\ ^j^J'^f
his Wife for their Li'ves. et eorum diutlus Viventi SucceJJtve uni pod alterum Jtcut fcrihuntur (jf nominan'
tor in ordinc. Adjudged a good Remainder in M. Cro. J 372. Wheadon v. Sugg.
P 15. One
f^4 Faits or Deeds.
Inft 67? ^S- One, that is not Party to a Deed made ict-ji;cc7i Parties, cannot
S. P. but if take by the Deed, unlefs by way of Remainder. Per Levins Juft.
it be -Mthout 3 Lev. 1 39. in Cafe ofGilby v. Copley. Hutt. 88. Windfmore v.
ft [hetitjeen) ^ Hobcrt. Hob. 313,314. Grccnwood's Cafe.
i^c. as Omni-
bus Chrifti fidelibus, &c. tho' it be by Deed indented, a Bond, Covenant or Grant may be made to di-
vers feveral f'erlbns not Parties. Trin. 29 Eliz. B. R. Scudamore v. Vandenftene.
If A. gives LarJ, To hai;e, Uc. to B- and his Heirs, this is good, tho' the Feoffee is r.ot named in the
Premiflcs; but this is only by Conllruftion of Law, Ut res magis valeat, &c. Co. Lit. 7. S. 1.
16. A Man cannot take immediately, where he is not Party; but
where do you find that a Man cannot give without being a Party? In
a Deed of Feoffment a Warrant of Attorney to A. not a Party, is
{^ood now, tho' formerly held to be otherwife. Per Holt. Ch. J. Show.
59. in Cafe of Salter v. Kidley. Carth. 76. S. C.
A. made a 17. Why cannot a Man ollige himfelf hy a Deed, if there be exprefs
Leafe to B. Words f(jr it, and he feals it ? Suppofe at the End of an Indenture it
named' to°^do ^^^ ^"'^ ^^ '^ kjiffwn uiito all Men, that A. B. for himfelf covenants, ^c.
feTerd and he feals it, why Ihould not this oblige him ? Per Holt Ch. Juft.
Things; and Show. 59. in Cafe of Salter v. Kidley. Carth. 76. S. C.
it was con-
tained in the Deed, that the /aid B. found IF. as his Surety for Pcrfonuance of thofe Covenants ; and then
is added, for ferformiiig ivhich Co-ver.ants tve bind our fel-ves, & utrunqiie noftrum per fe, &C. this is a good
Deed againft W. and Covenant was brought againll him in the Life of B. and well lies. Br. Faits, pi. 6.
cites 40 E. 3. 5.
18. One that is Party to a Deed cannot covenant ivith another that is
no Party, but a meer Stranger to it, but one that is no Party to a
Deed may covenant with another that is a Party, and thereby oblige
himfelf by fealing the Deed. Per Holt Ch. Juft. and Judgment ac-
cordingly. Carth. 76. Salter v. Kidgly.
Covenant 1 9. In a Deed Poll there may be a Covenant in Behalf of a third
may be Perfon, but not in an Indenture ; therefore where there is a Covenant
brought on a between A. and B. that fuch a Sum of Money pall be paid to C.
Sr'^then the '•: '^ "o^ ?>'^°^- "^•'S- ^ ^^^- ^^^- '" ^^^ ^^^^ of Lowther v. Kelly. —
Party muft be cites Inft. 47. 3.
named in the
Deed. I Salk. 197. Green v. Horn. — An Indenture of Cbarterparty not being between Parties, by which
one covenants ^..vith a Stranger to the Indenture to pat Money to another Stranger, both of whom are named in
the Indenture, is good ; and an Aftion of Debt being brought thereupon by the Stranger, and the Count
being by Tejleitum exiftit, was held good, tho' in Debt and not in C( venant, and tho' brought by him
alone, to whom the Money was covenanted to be paid. 2 Lev. 74. Cooker v. Child. S. C. cited Lutw.
305. and refolv'd accordingly in the Cafe of Lucke v. Lucke.
2 0. Where a Deed runs in the fir [t Perfon, Signing and Sealing makes
a Man a Party, tho' not named therein, i Salk. 214. Nurfe v. Framp-
ton. 3 Lev. 140. in Cafe of Gilby v. Copley.
Cro. J. 65-3. 21. A Servant fold his Mafter's Beafls, and took a Bond in his o^jdu
Name for the Money, but to the life of his Mafier ; adjudged, that the
Mafter cannot bring the Adion, becaufe he was no Party, and he
could not releafe it. Arg. 8 Mod. 116. in Cafe of Lowther v. Kelly.
cites Lev. 235. Offty v. Ward, 2 Lev. 74. Cooker v. Child.
3 Lev. 138. Gilby v. Copley.
[See (F) pi. I.— Habendum. — Condition (X) ( ) — Eftate C )3
(C a 2.) Bound
Faits or Deeds. 5*^
(C a 2.) Bound who, and by what. Perfons not
named in a Deed.
THere were two Obligors, the Name of one was omitted in the Bond^
but both figued and executed. He whofe Name was omitted,
knowing nothing of the OmifHon, was applied to to give frefh Security,
which he agreed to ; but after, upon Difcovery of the Omiflion, he
refufed, the other being run awayj this is a proper Matter to be re-
lieved in Equity. 3 Ch. R. 99. Crosby v. Middleton. — Per Cowper,
Ch. his Hand and Seal is fufficient Evidence, and the Omiflion is a
fufficient Accident for Equity to relieve againft. loi. But where a
Blank was left for the Chrifiian Name in the Bond, and the Surname
was inferted, and after the Obligor fubfcribed both Chrifiian and Sur-
name, 'twas adjudged fufficient. Cro. J. 261. Dobfon v. Keyes.
(C a 3.) Advantaged or bound. One not named
in the Premifles.
i.TF A- gives Lands to have and to hold to B. and his Heirs., this is
A good, tho' the Feoffee is not named in the PremifTes. And yet
no well advifed Man will trufl to fuch Deeds, which the Law by Con-
ftruftion makes good, Ut res magis valeat ; but when Form and Sub-
ftance concur, then is the Deed fair, and abfolutely good. Co. Lie. 7. a.
2. The Plaintiff defired to be relieved for a Leafe made by the De- if a Man
fendant to him for Years, which the Defendant endeavour'd to im- gram3 Land
peach, becaufe in the Premijfes of the Leafe there is no Leffec namedy but ^y ^^ed,
only in the Habendum ; and the Caufe being referred to the two Lord "p^'r"^ i^ fj,g
Chief Juflices and the Lord Chief Baron, they certified their Opi- Premifcs,Haf
nion in Law, that the Leafe was good in Law, notwithflanding the bendum to B.
Leffee was not named in the Premiffes of the Leafe, but in the Ha- " '^ "^' ^
bendum only ; and therefore it was decreed accordingly, that the becaufe "^he^'
Plaintiff fhould hold the faid Leafe. Cary's Rep. 122, 123. cites 21 & was not
22 Eliz. Butler v. Dodton. named in the
PremilTes, the
which is to defign the Perfon and the Thing, and the Habendum to limit the Eftate. z Roll. 67. Grant
(Ka) pi. 13. cites IVI. 37 Eliz. B. R. per two Juftices. Contra Co. Lit. 7.
[ See (C a) per tot. }
-n K *? « . i^"" 1 .' .^ HI
(D a) Who may take or be bound by it. Qa? not
iicrnin^ it.
I. TN the Queen's Patent there was a Claufe-for repairing and leaving S- C. cited,
J, in Repair. Refolv'd, that tho' the LefTee only takes by the jl"'| f ^; ""^
Patent, and it is not made by him, yet this is as a Covenant on the j ^,, [^'
LefTee's Part to bind him and his AfTigns; for when he takes by the Caie of Brett
Patent, he confents to all therein, and the Words in thijt Claufe are ^- Cuniber-
as fpoken by him, and 'tis a Covenant that runs with the Land. ^*"'^-
Cro.
^^
Fairs or Deeds.
Cro. J. 24.0. Lord Ewre v. Strickland. Arg. S. C. ciccd. Lane 78.
in Cafe of Sawyer v. Eaft.
Ar^. 3 Bulf. 2. If there be tivo Lcjfees^ and me only feals the Counterpart, yet the
163. other lliall be bound by the Covenants contained in it. Arg. 2 Brownl.
71. in Cafe of Portingtbn v. Rogers. So of Feoffees, where he that
did not feal entred and ag-^eed to the Eflate conveyed. Arg. 2 Roll. R.
63. cites 3S E. 3. 8. a. S. C cited, D. 13. b. Jo. 309. S. C.
cited, per Barkley Juft. Arg. Lnne 78. cites 38 E. 3. 8. that a
Man, that takes Benefit by a Leafe which he never figned, fiiall be
bound by a Nomine poense containtd in it.
3. If Leffi:r feals, and not the LejTee, it is as good againft him, as if
both had fealed, in the Caft of an Indenture, for an Indenture is the
mutual Deed of both. Fin. Law 8vo, 109.
4. A Feme Covert is bound by the Covenant by the Acceptance of the
Eflate. Per Barkley J. Jo. 309. cites 3 H. 6. 4. 26. b. 43 & 45 E. 3.
5. An Eftate for Life was made by Indenture, with Keinainder over
upon Condition. The Tenant for Lite feals, and dies. The Remainder
JVIan enters by force of the Remainder, he is bound to perform the
Conditions, becaufe he takes by the Deed. Arg. 3 Bulf. 163. cites
59 E. 3- 22.
6. A Promijfory Note to pay 1 00 /. for fo much South-Sea Stock obliges
the Perfon to transfer the Stock, by his accepting the Note. Gibb. 2.
Anonymus.
[See (F) pi. 2. (H2.)]
(D a 2.) Not Party or Privy, &cc. In what Cafes an
Agreement to a Remainder, Leafe, 6cc. fliall
make the Perfon fo a^reeina; liable to all Condi-
tions annexed to fuch Eftate, tho' not Party or
Privy to fuch Leafe, &c.
"A
Leafe is made by Indenture to y/. and B. and A. feals ^ B.
. does not, but enters and occupies. B. is liable to the Rent, per
Thorpe. And Finch faid, that this is a good Leafe ; for his Agree-
ment charges him. But he fhall not be charged by a Condition in
Grofs in the Deed, which is no Parcel of the Leafe, but a Thing by
it felf, and Collateral, unlefs he feals the Leafe. Br, Dette, pi, 80.
38 E. 3. 8.
Br. Falts, pi. 2. But the principal Cafe was, an Adion o( Debt was brought upon
■25. S. C. an Indenture of Leafe to A. and B, with a Penalty of 2.0 I. for not
performing Conditions 5 and A. feal'd, but B, did not, but agreed and
entred as above, and was flill living, and yet the Writ being brought
againft A, only, was abated. Br. Dette, pi. 80. cites 38 E. 3. 8. but
fays. Quod mirum, for he thinks this is not like a Penalty for Non-*
payment of Rent annually, for it is a Refervation. Ibid.
[See Condition (X)]
(Da 3-) Bound
Fa its or Deeds. 57
in. . '
-!.■'■'
(D. a. 3) Bound or advantaged Who ; By the Words of Sce(G.a)
one Party only.
I. T F a ALin makes a Lcafe of Land I'j JtL'icutnn refcrving Rent, and in
J^ the Deed are no Words of the Leliee, but the Lcjfce feals the Derd
and enters and pays the Rent, and alter retules, yet he ih compellable ; tor-
being bv Indenture it is the Deed of both IVties. Er. Eltoppel, pi. 147.
eites 45 All". 14.
2 One Ilia 11 be bound by puttifig his Se^l to a Deed indented md De/i^eiy
ol the fame, tho' the Words in the Deed are Ipoken only by another-
Man j and therefore if a Man makes a Leafe to ms of' my oivn Land by Deed
rndenitct, for Ihr/s, without faying any more, by this Deed I Ihall be con-
cluded, and yet there are no VV^ords of mine in the Deed. Perk. S. 159.
cites 14 H. 6. 22. - _ _ -j^l^j. y^.^ J.
3. yJ>/d if there be Father and Son, and the Father is feifed of Land in i^^^^^ ^^.^^
Fee and a Stranger leafes the fame to the Father by Deed indented jor Tears, not fecm to
and'the Father dies, the Leliee by this Deed Ihall conclude the Heir of accord with
the Leilbr to fiy that his Father died feifed in his Demcfne as of Fee, and ji^g^/jj^"'' '"
yet there are no Words of the Father in the Deed, &c, Perk. S. 159. Leafemadc ■
cites 43 E. 3. 17. by the Fatl.er
to n Straiwer
for Life of the Sfr.i/a^py, by which the Father lioiivd hhn/elf and his Heirs to Warranty ; hut it Teems not
clearly reported, nor doe-, this Point of Perkins .ippear clear in Fitzh. Abr. Eftoppel, pi. 6. And in the
Year Book it is not fettled whether the Father at the Time of the Leafc was feifed in Fee, or had any
Thiiif in the Land, or whether the Grandfather was not then Tenant in Tail and furvivcd tlie Father.
4 An Indenture was between Lord and Tenant, reciting, that the 7c-
fiant he/d of the Lord by Homage, Fealty, and 10 s.' Rent, the Lord confirms
his Ellace, falvo antiqtio Doinmuo i$ fervitioy and it was held, that tho*
it ^\as indented, and both fealed, yet becaufe it is a Recital, and all are
the \\'ords of the Lord only, therefore it lliall not ejhp the Tenant tq
plead Hors de fon lee. Br. Faits, pi. 4. cites 35 H. 6. 34. • .
fE. a) Where one Part being; void fliall avoid the Whole Sec(S)(u>
I. TN Debt upon an Obligation of 20 1. the Defendant p/i?^^f^ Not lettered, S C. cited
\^ and that it was read to him as 20s. "xkich he had paidy and Ihewed / ' ^^P,,^^ ''■
an Acquittance thereof^ and as to the Rejidite Net his Deed, and the Plea porter in hi'!
was held good. Br. Non eft laclum, pi. 8. cites 9 H. 5. 15. Obfervations
upon ^|5 •
rot's Cafe and fivs that this Cafe beinj; of one intircSum, proves without Queftion, th-^t if there arc
tu-o .ihfoh^te atai liijlinB O^ufes in one Deed, ar.d tiie one is read to the Party, and the other Not, that
the Deed is f^ood for the Claafe which was read, and void Ab Initio for the Reddue ; and that tho' the.
Deed confillin{^ of one Ititire Sunt ivns -voiA (or the If hole, as is agreed in 14 H. 8. and 50 E. ; 5 i. b. yet
it was wiil-'iv done by the Defendant's Counfcl in y H. 5. i 5. a. to plead the TrutJ-L-of the Cale, and not
to leave the Matter upon any Qucftion in Law, when the Truth of the Matter will cull all (jucflions,
, • i
2. Some of a Convent feakd a Deed by Darefs, this made the whole
Deed void, lor the Deed is intire ; and if it be void in Part, it is void
in all, tho' the greater Number did agree. Br. Faits, pi. 52. 38 H. 6. 27.
3. 11 three Obligations are Written in one Parchment, and one is read to him s. c cited
and no nure, it is his Deed as to this Part and not for the reft. Br. Non }erCoke 11
eft factum, pi. 11. cites 14 H. 8. 25. per Pollard to which Brudnel agreed, p.'^'' :" ^ '^
4. So where an Oblignticn is /;; fivo fe^xral lol.'s and it is read for one io\. '^^'* •
ciily, it is his Deed for the one 10/. and not for the other lol. and a Deed
raied in Part where more is Writ to it, or is interlined alter the makino;,
this ihall avoid the Deed, per Pollard to which Brudnell agreed. Br.
Kon eft fitlum, pi. 11. circs 14 H. 8. 25.
Q. s. If
n;8 Faits or Deeds.
5. It t-jL'ojotn or arc joined in ;i Deed, ichcrcof eve has tw Capacity^ (as a
Monk or Feme Coverc) yet it is good either to charge or benent the Fer-
Ibn able, tho' void as to the other. Br. Faits, pi. 37. cites 14 H. 8. 25.-
per Brudenell Ch. J.
6. A Recognizance was made to Sir Nich. Bacon Kt. Lord Keeper of the
Grea*-. Seal, and to 2 ethers, and thiswizj taken and acknowledged ^^o>-tf
the /'aid Sir Nich. Bacon Kt. Keeper of the Great Seal ; upon demanding the
Opinion of the Jultices it this was good or not, they tftought that as to
Sir Nicholas Bacon is was void, but as to the other 2 it was good
enough. D. 220. b. pi. 14. Pafch. 5 Eliz. Sir Nicholas Bacon's Cafe.
7. A Deed may be good in Part, and void in Part^ as if a Deed be
read to a Man imlearned, and Fart is interlined, it is good for fo much as
was read, and void for the Reft, per Hutton J. Ley 79. in Cafe of the
BilLop ot" Chichelter v. Freeland. But Rafnre avoids the whole Deed.
Mo. 35. pi 116. Trin. 4 Eliz. Anon.
It is eood m ^- ^- '^ ^oiind to inteoff J. S. of one Manor, and to dijfeife J. N. of
Part and Toid another Manor. It was taiu Arguendo, that the Bond is void in the
for the Reft. Whole, and cited 14 H. 8. 2j'. Godb. 213. in the Cafe of Norton v. Symms.
Br. Faits, pi.
57. cit«s 14 H. 8. 25. per Fitzherbcrt.
Hob. 14. ^ Where th&re a.rc legal Covenants and Covenants againji Laiv in the
fime Deed, the laft are \oid, and the firit ftand good. 11 Rep. 27. b.
per Coke in Pigot's Cafe. Cites 14 H. 8. 25, 26, &c.
10. As to a Deed's being good in Part, and void in Part, Coke thought
there was a Difference when a Deed is void ab initio, and when it becomes
Void by Afisfcazance ex pofi faBo. 11 Rep. 27. in Pigot's Cale.
11. Alfo there is a Dilterence lahen the Deed, which is void in Part ab
initio, confijls upon the Whole, and ""jnhcn upon diver fe fever al Claufes. Per
Coke, ut fupra.
12. Alfo tliere is a Diverfity when the fever al Claufes are abfolutc and
diftiiiii, and ivhen tho" feveral, yet one has Dependency on the other, uc
fupfa.
The fame 13. ^ Bond void in Part by a Statute Law is void in toto ; but at Com-
Diftei^nce ^^^^^ ^^^ j,- jg good as to the legal Part, and void as to the Illegal. Ar-
rcfolvUHob. g^endo 2 Jo. 90, 91. cites 3 Rep. 82, 83. Twine's Cafe.
14. Trin. iz •
Jac. C B. in Cafe of Norton v. Simmes.' As upon the Statute of 2; H 6. if a Sheriff taliei a Bt,nd
for a Point againft that Law, and for a due Debt alfo, the whole Bond is void. For the Letter of the
Statute is fo, and a Statute is a llrift Law ; but the Cominon Law doth divide according to Common
J^eafon, and having made that void which is againtt Law, lets the reft ftand.
Yelv. 18. 14. Where the Grant is void, the Covenants in it are alfo void, and
■^'p'?;'t4& fo is a Bond of Performance of Covenants. Lev. 45. Mich. 13. Car. 2. B. R.
Soprani v. (^^ys he heard it was fo refblved) :|: Caponhurlt v. Caponhurlt.
Skurro. S. P.
-Owen 156 held, that the Covenant fliall bind, tho' the Deed is void. Pafch. 10. Jac. Waller v.
Dean and Chapter of Norwich. * i Salk. 199. cites the Cafe of Caponhult v. Caponhurft, and diftin-
guiflies between dependent and independent Covenants, that the firit are void, but not the other. Mich. 10
W. 5. B. R. Northcott v. Underhill. * S. C. & P. 2 Brownl. 161, 164, 165. Pafch. 10 Jac. C.
B. in Caft of Waters v. the Bifliop of Norwich. \ Raym. 2-. S. C. adjudged.
(E. a. z)
Fa its or J^o^^^^. 59
(E. a. 2) Deeds voidable, by whom and when,
I. ^ I W/-: Grants of fome Perfons aie \ oidable ly themfehcs cud their
X Hdrs., and by thofe ucho jkdl have their KJiates for ever. And
the Grants of fome Perlbns are voidable hy the Grantors oniy dunn-r
certain 7'w:e^ and Ibme are voidable ajtcr the Death of the Grantor by
the Heirs of the Grantors, and not by the Grantors, or by any other
Perfon during the Liie of the Grantors, &ic. Perk. 2. S. 2. cites Braft.
1. 2. 5.
' ~ '~ — See Enfant
(B)CC)(D)
(F. a) Void or voidable only, what Deeds are. TOidubk'*"'^
I. A Bond, Rekafe or Feoff hmit, and the like, jnadehy Durefs, is not ^^^ C^- ^- ^)-
£\^ \oid, and therefore the Party cannot fay Non cfi fait urn, nor ^-^^ '|.-^ffor^
Ihall have Alfile, but may enter and avoid them by Plea; For fuch Deeds makes a Let-
are not void, but voidable. Br. Faits, pi. 68. cites 2 E. 4. 20. ter of Jttor-
7iey to deliver
Scijin, and all is done by Durefs of Impi-ifomcnt, and Livery of Seifin is made by Force thereof; this
is -d DifTeifin to the Donor , but that docs not prove thut the Deed of Feoffment and the Letter of At-
torney are void, for then the Donor might i;-azer/e tbem, which he cannot do, &c. And Imprifon-
ment ought to be made for the making of a Deed, &c. Perk. 8, 9. S. 1 7. cites p. 41 E. 5. 9.
2. So of a Deed ly an hif.uit, tho' otherwife of a * Feme Covert. See (N) * For a Bond
pi. 2, 5, 0. Feme Covert
is merely void, even tho' fhe has a feparate E!late, bat yet her Executors or her Husband, if he poflcfles
himfeif, after her Death, of any of her Ertert.s, are liahle to pav the Money borrowed; her feparatc
Eftate being all uTruft Eft.ite for Payment of D-.-bts. Per tlic Mailer of the Rolls. Trin. 1723. 1 VS'ms's
Rep. 144. Norton v. Turvil.
3. "Vis a common known Rule, That a/I fuch Gifts, Grants or Deeds
made i>y an Infant, which do not take Ejf'eii by Delivery of his Hand,
are void, but fuch Gifts, Grants or Deeds made by an Infant, by Matter
in Deed or in Writing, which take Etteft by Delivery of his own Hand,
are voidable by himfeif and his Heirs, and by thole which fhall have his
Eftate. Perk. 6. S. 12.
4. An tifurioiis Bond is not void, but voidable by Plea. Per ^Varbur-
ton J. 2 Brownl. 163. in the Cafe of Walters alias Waller v. The Dean
and Chapter of Norwich.
(F. a. 2) Voidable Deeds made Good by fome afterance— con-
. n firmation. — .
Act. Eftate.— Vo-
luntary Con-
I. TN Debt, the Prior of D. avoided an Obligation he Diirefs, made veyanccs.
\_ by the Prior his Predecellbr to the Convent ; and the Plaintiff
eftopped him by Defeafance made after he was at large upon the fame
Obligation ; and the bell Opinion was, that it is a good Eltoppel. And
fo it appears, that a Deed made by Durels is not void, but voidable, Er.
Faits, pi. 87. cites 35 H. 6. 17.
5. If an Infant infeoffs or makes a Lcafe to B. and delivers it with his
own Hand, this is not void but voidable only ^ and it^ when of Age, he
fays, God give you Joy of it, this is an Affirmance. Per Mead J. 4 Le. 4.
pi. 15. Anon.
3. feoffment by Husband and Wife of the Wife's Land, rendring Rent ; j^^i^ ,g j,
the Husband dies, the Wife accepts the Rent, this Ihall bind her. Arg. per Wood J.
2 Brownl. 141. in Cafe ot Portington v. Rogers So that her Deed is 4 Le 15 per-
not void. Cro. El. 769. Trin 42 Eliz. B. K. Shipwith v. Steed. Gawdy J.
(G, a.) Deed-
6o Faits or Deeds.
(G. a) Dced-Poil, and what is coniid^red as luch; the Ef-
icct thereof, and Diflerence between it and an Indenture.
I. \ Deed-Poll is that which is plain without any indenting j fo
J^\^ called, becauie it is cut even or polled: Every Deed that is
ple:ided Ihall be iiitciided to be a Decd-PoJI^ mikfs it be aUcdgui to be tn~
dented. Co Lit. 229.
2. A Deed-Poll is that which is only the Deed of the Grantor. .
An /«/r'f«/i'/r(;. ;j thuE which is the ?«//r//i7/ Deed of both. Fin Law, S°.
109.
3. Heretofore a Deed indented was called Charta Chircgraph.it:;., or
Charta Communis, becaufe each Party had a Part. And a Deed-Poll
was called Charta de una parte. Co. Lit. 143. b.
4. Tho' a Deed oi Defeafatice of a Statute be indented., }et it is but
in the Nature of a Deed-Poll, and the W^ords of the Deteafmce are
the Act and Words of the Conufee only ; and if the Conulbr and Co-
nufee deliver a feveral Deed to one another, and there be a Variance in
any Point material, it Ihall be taken according to the Deed deli\ered
by the Conufee. 2 And. 58. HoUingworth v. Wheeler.
S. C. cited ^ ^n Indenture not being between Parties is in Nature of a Deed-Poll,
d " (oWcil ^^' -'^ '^^^ ™^y covenant with a Stranger to the Indenture. 2 Le\-. 74.
accordin'^lv. Hill. 24 and 2$ Car. 2. B. R. Cooker v. Child.
Trin. i ]ic.
2 Luckc V. Luckc. S. C. cited 3 Lev. 159. in the Cafe of Gilbv v. Copley. An Inden-
ture bv tlie Words Hue IndejituxateJiatHr, is all one with a Deed in the lirll Perlon. 3 Keb. 115, Co-
cer V. Child.
6. A Deed of Covenants, being only a Deed-Poll, is, for that Reaion,
the Deed of the Defendant only., and therefore the Covenants cannot be viu-
tiird. 8 Mod. 41. Pafch 7 Cieo. 1722. Lock v. Wright.
7. A Contract by Deed-Poll cannot make that to pafs., which another
then enjoys, but is void. Arg. PI. C. 433. b. in the Cafe of Smith \.
Stapleton. .::i.'::.)
S P - \ d ^. A. hy Deed-Poll covenants ivith B. to fell Land to B. for 200/.
41. Trin. "S'^'Vrtf B. by the fame Deed covenants 'joith A. to pay the 200/.- B. Hrll
Elii. Anon. -delivered the Deed to A. as his Deed, and then A.fealed and delivered it
— — Cro. E. ,t;o B. as his Deed ; adjudged, that this was the Deed both of A. and B.
-s'eI s"c ^"'■^ '■'^'^'' '^^' '"'^'^'' ^^^ PollelTion of it, may have AiStion oi" Covenant againll
' '" ' the other, notwithftanding the iirll or fccond Delivery of it ; for it is
•iutlicient to bind both. 2 And. 30. Mich. 37 and 38 Eliz;. Crofs v.
Powell,
f^.''^ 1^' ^h '• 9" Upon a Recordare, the Defendent avowed for Damage-feafant, and
i^is'iVid by° ^^he Plaintiff' made Title at Common Law, and the Deiendant ihewed
fome, that if a Deed indented, running thus, Novertnt me J. Ahbateni de E. dedi(}c
inaDecd in- /o f/ji^- PAw;;'//''' tale Tencmentum, &:c. fro quo idem the Plaint iff rentiu-
dentcd be- ciavit tvtam Comnniniaiii fiiam quam habuit in B. &c. and it was held
both'^Vedc' there, that notwithilanding Part of the Words are in the Jirfl Pcrfon, and
by V\'ords Part in the third Perfon., and tho' the ^\^ords rcnuncia\'itj Sec. are all
within the the Words of the Abbot, and not the Words of the PLiintilf who re-
^h'^^w^^H^- ^^"^^^5 Y'^^ becaufe it is by Deed indented, and both have lealed and
o/onea'rc i"n delivered it, it is therefore good j but it was held, that becaufe it is re-
thc f{vi\?cv- nanriai'it, and does not fay to whom, &c. (for it ought to be, renunciarit
Ton, and the prcefito Abbati), &c. that therefore the Deed is not good Per Babbing-
Wordsofthc ^ „(,!. cuj.. Br. Faits, pi. i. cites 9 H. 6. 35.
other in the i ^ ^ .
third I'eribn, .that all. the Words in the Deed fliall be laid to be fpoken by lum him who fpokc in the
firft Perfon, yet fuch Saying is nothint^ to the Purpofc.
♦
Le. 24^. ' 10. Tho' * the ^V'ords of an Indenture arc the li'irds of both Par-
Trin_ 32 E- *_,gr vct is . othcrwife in a Deed-Poll; For there ilie Lelice is ml
lix 3. R.
Thomas v.Ward.-^Roll. P. cp. 69 arguendo cites D. 152. — Arg. Roll. P.ep 80.— Ow. 1 52 circs Whitch-
cot V. Fov.— Cm J. 398. Pafch. 14. J;i> B. R. V\'hitchcot v. Fox. C"o Lit. 4; b C.uth
24^. Hilman v Hor? Jc-c Eftopjel CN j ■ ' ,
■ ■ • • - ■ i^. Mod
Faits or Deeds. 6i
eftopped to p\eid, that the Leflor nihil habuit in Tenementis, &c. Arg. loMod. 47.
8 Mod. 312. in the Cafe of Shipwith v. Green. Gawdy Serjeant 48- Lord Say-
agreed, that in Deeds- Poll the Words (hould be takaj Jiroiig c:jgniuft the Cafe^^^''^
Grantor., but otherwife in Indentures; for there the Words fhail be ta- The WorJ^
ken according to the Intent of the Parties, being the Words of both, of an Inden-
Le. 318. in the Cafe of Scovel or Scobell v. Clave! or Cavel. But '"'^'^ P"' '"
this mud be intended of material Words, and not of every minute JhaifbinTbo^h
and defcriptive Word and Circumftance. Per Cur. 8 Mod. 313. Skip- parties and
with V. Green. be taken to be
the .Agree-
merit of each. Per Gawdy, Cro. EI. 567. in tlie Cafe of Rufic! v. Gulwfi'
IT. Tf there be a Variance hetiveen the Indenture to the Conufor of
a Statute and that to the Conufee, tho' that of the Conufee to the
Conufor is but in Nature of a Deed-PoIl, &c. yet, fo far as the Va-
riance is, it is utterly vo:d. 2 And. 58. Hollingworth v. Wheekr.
(H a) Counterparts of Deeds, and where they vary
from the Originals.
I. TF there happens to be any Variance hetiveen the Indent tire and
JL Counterpart J it ihall be taken as the Deed of the Grantor is; and
tlie other fliail bfe intended only the Mifprifion of the Writer. Fin.
Law, 8°. 109.
2. So of a Defeafance of a Staftite by Deed-Pcli, if there is one de-
livered by the Cognizee to the Cognizor, and another by the Cogni-
zor to the Cognizee, if they differ in a Point material, it fhall be ta-
ken according to the Deed of the Cognizee delivered to the Cognizor;
and tho' thefe Deeds were indented, yet as to this Purpofe of a Defea-
fance 'tis but in Nature of a Deed- Poll, and fo far a-s the Variance is,
it is utterly void. 2 And. 58. Hollingworth v. Wheeler.
3. A. infeoffed B. of a Manor, rendring for certain Clofes, Par-
cel of the Manor, 60 1. Kent per Ann. A. afflgns the Rent fo C. by
fiargain and Sale inrolled ; the Counterpart fealed by B. Vv'as delivered
to C. who loft it, and A. found it and tore it. Upon an A61:ion brought
by C againft A. for tearing the Counterpart, it was held by all but
the Chief Juft. that this being only a Counterpart, arid not being par-
ticularly granted, it does not pafs to the Plaintiff as incident; but the
Ch. Juft. held, that this Counterpart waits upon the Intereft, and is
good Evidence ?ox \t. Yelv. 223. Sutcliff v. Conftable.
4. Tho' a Condition may be pleaded by Indenture fealed with' the Seal
of the other Pai-t ; yet a Conveyance cannot be pleaded by Deed, unlefs
fealed with the Seal of the Party agent, fcil. the Feoffor, Grantor,
Leffor, &c. 3 Le. 95. Gurney v. Saer.
5. A Counterpart of a Settlement in Tail was admitted as fufficient 2 Vem. jgo.
Evidence, that there was fuch a Settlement, and a Conveyance was S. C.
decreed accordingly. Ch. Prec. 116. Fycon v. Eyton.
R ri a~)
6z Faits or Deeds.
(I a) Duplicates.
I. '~r^lfO Patentees of the fame Office for their Lives; one has the
J. real Patent, the other only a Duplicate. The Principal Patent
was wrote per VVarrantiam dc Privato figillo Auftoritate Parliament!,
and a little under the Seal of the other was wrote the w'ord (Duplicate) j
he, that had the Principal Patent, furrendered it in the Ablence of the
other Patentee beyond-fea, and took a new Patent to himfelf and an-
other, and the firft Patent was cancell'd; it was the Opinion of feveral,
that when the Principal Patent was cancelled, the Force of the Dupli-
cate was gone in Law ; bccaufe no Title can be made by this Patent,
becaufe it was granted and fealed by the Chancellor at his Pleafure,
and without any Warrant from the King to do it. D. 179. b. Kemp
V. Hales.
2. If a Fine is levied by Husband or Wife of Lands which he has
in Right of his Wife, and there is a Deed made at the fame Time to
declare the Ufes thereof, and afterwards this Deed ts loft, and then
another is viade to the fame Effe£i and dated as the firft, that Deed is
fufficient to declare the Ufes of the Fine. Per Holt Ch. Juft. Holt's
Rep. 735. in the Cafe of Bufhell v. Burland.
3. Where a Perfon has a large Eftate, and fells the biggeft Part, and
is conftrained to dcliier all the Deeds to the Furchafor, by which he
has none left to make out the Title to the Refidue by; upon the Ven-
dor's moving the Couit, that the Parties to the Conveyance to him
mioht be ordered to cxecrite a Duplicate of the Conveyance to be kept by
him, Lord Keeper Wright, fa:d he look'd upon it to be 'sithin the Cf
tenant for further Affurance, and ordered that a Duplicate Ihould be
executed, but that it iLould be indorfed upon it, that this was only a
Duplicate. Abr. Equ. Cai'. 166. Mich. 1700. Napper v. Allington. •
But the Matter being moved again by the other Side, the Order was
difchaiged ; for that the Decree being once executed, the Court had
no more to do in it. Ibid.
(K a) In U'liat Cafes they fliall be brought into or
remain in Court.
U'
Pon AW eft fa6lim found againfl: the Deed, it may be kept in
Court; but otherwife on a collateral Iffue. i Salk. 215. Fitch
V. Wells,
(a) S. P. and 2. Per Cur. If you had (a) denied, the Deed, according to Wey-
^T\i p" niark's Cafe, it is to remain in Court till the Caiife he tried:, fecus, it
nxiants it to ^^'^" °"'y remain for the I'erm in which it is brought in ; but the moft
fleadit in ail- it gocs is, that Upon Imparlance granted, it fhall remain in Court till the
other Aaiov, Defendant pleads ; as in an Adion upon a Bond, if it be by Bill, the
he ought to Defendant after Imparlance may crave Oyer, and therefore there it
ihew It, and ,-> . ■. ^ ^ ■ „ , r, ■ i t i i
hem.iyhavea "'"^" remam m Court, till the Party ts put to plead, that he may in
Writ to the that Cafe have Oyer of it. 6 Mod. 233. in the Cafe of Selby v.
Jufiices to Green.
remove the
Deed to Ihcw it. Br. Faits, pi. zo- cites 12 H. 4. 8. A Certiorari was granted. Br. Faits, pi. 85.
cites F. N. B.
2 3. Where
Faits or Deeds.
6?
3. Where Deeds and Muniments do concern as voell the Defence of Mo. 807.
the 'Tenant for Life's Title, who alfo poflefTeth the Deeds, as the ^■^■'^m'^e
Right of another in Keverfion or Remainder, it is ufual to have them ^'^^feof ^o'e
brought into this Court for the avoidins; all Perils, and the indifferent ""' °°u\ .
Cuflody of them. Gary's Rep. 26, 27. cites 40 liliz. Dixies v. Hil- Law, if the
lary. Tenant for
Life ha5 a
Deed whereby the Reverfion and Inheritance is in another, he may detain it againft the Reveifioner. Per
Finch C. Hill. 32^35 Car. z. 2 Chan. Cafes 42. Earl of Banbury v. Brifcoe.
4. It was ordered that a Settlement which concerned very much the E~ Fin. R. 161.
Pates of tisco Pcrfons fliould he brought into Court for its fafeft Cuftody, Nurfev. Yar-
and both Parties have the Ufe of it as they have Occ.ifion ; and both M°afon~~v^^''
may if they pleafe have Copies attefled. Hill. 32 & 33 Car. 2. 2 Chan. Goodburn.
Cafes 42. Earl of Banbury v. Brifcoe. Two Coheirs,
one claimed
the Whole under a Will, the other infilied on an Intail not dock'd, and on a Bill brought by him it was
ordered, that the Deeds be brought into Conrt for the Pl.iintifF to have the Liberty of Infpetting, the' the
Will is not fee afide. 9 Mod. 99. Foire v. Sidenhnm.
5. If a Deed belongs to Tivo^ and he, ivbo has the Deed, dies, the
other fliali have a Subpoena to deliver the Deed to him for Mainte-
nance of his Title, per Pigot. Quod non negatur. Bro. Confcience,
pi. 3. cites 9 E. 4. 41 .
6. A. on the Marriage of his Son conveys Lands to the Ufe of /;/;;/-
felf for Life, then to hts Son for Life, then to the IJpie of his Son in
Tail, and for Default of fuch IfTue, then to his Brother and his Heirs ;
the Son and Wife died without Iffue, living A. who got the Settle-
ment, and cut it in pieces ; bur on a Bill of Difcovery brought by the
Brother, the Court inforced the bringing the Counterpart into Court
by A. tho' it vvas objeded, that the Remainder to the Brother was £^.
meerly voluntary; and fo A. was prevented from felling the Eftate. mailder-man
Trin. 1 69 1. Abr. Equ Cafes i63. Brookbank v. Brookbank. has a Right
to come into
this Court for Aid, to compel Perfons to bring in the Deeds and Evidences relating to the Eftate. Per Cur.
Hill. II Geo. 9 Aiod. 132. per Cur. in Cane, in the Cal'e of Reeves v. Reeves.
7. A S.'.hf'xna ditcens Tecum was awarded againft the Defendant
to bring in certain Deeds, and fhew Caufe why they lliould not be de-
livered to the Plaintiff; the Defendant fhew'd, that the Mortgage was
tipon Condition for Payment of 40 /. at a Day, and before the Day the
Mortgagor fold the fajiie to the Plaintiff, and delivered the Eilate by Li-
very and Seijin, whereby the Condition was extindl, and yet the De-
fendant offered to give 100 I. It was ordered, that the Deeds fhould be
delivered to the Ulher of the Court, I ut not to the Plaintiff without
fpecial Order. Cary's Rep. 74, 75. cites 18 & 19 Eliz. Witford v.
Denny.
8. Adiiiiniflrator durante rninori state of one Co-heir who was Execu-
tor was decreed at the Suit of the other Coheir, to bring the Writings
of the Real Eftate into Court, that the Plaintiff may have Copies of
them, and try her Title at Law. Mich. 26 Car. 2. Fin. R. 136. Ma-
plet v. Pocock. 'i'n.ji(.i
9. A forged Bond or Warrant of Attorney fhould be lodged in' Court.
Cumb. 339. The King v. Lewis — It cannot be torn or defaced by Law,
but muit be kept, that the King may proceed upon it againfl the Cri-
minal. Vern. 66. Frankland v. Hampden.
(La)
64
Faits or Deeds.
(L a) Dctinut iof Deeds. Ad:ion. Who fhall have it.
IN Detinue of a Bag of Charters, Plaintiff counts of a Bailment ly
his Father, to rebail htm or his Heirs, and counts fpecially of a
Charter by which A. infeoffed one B. and tho' he makes no 'Title to the
Land in the Charter, yet he fhall have a Delivery, and the Count was
awarded good. Br. Chartres de terre, pi- 31. cites 19 H. 6. 41.
(L a Z.) Pleadings in Detinue of Deeds.
Br. Chartres i T^ Detinue of Charters the Count ought to mention the Land which
dteT'H^6'' .*- ''^^ Charters cbiictfn, and tlie Vahc of the Land ; for the Plain-
60. tifl" in this Adion recovers the Charters, and if they are defiroyed, the
But in Tref- Value of the Land in Damages. Jenk. 21. pi. 39.
fafs for taking
and detaining, it is good; without mentioning the Land, efpecially after a Verdifl, for in Trefpafs, Damages
only are recoverable, and not the Charters. Jenk. 20. pi. 39. For the 'J'aking contra paceni, Br. Char-
tres de terre, pi. 26. cites 21 E. 3. 28.
Otherwife if ^' ^^^'^^'"^ ^^^ Count is of a Box of Charters fealcd, there is no need
notfealed,' he to mention the Matter contained in the Charters. Per Brown Clerk.
mull count of Quod non negatur. Br. Chartres de terre, pi. 4. cites 9 H. 6. 18.
a fpecial
Charter. Ibid. pi. 37. cites 39 E. 3. 7, 8.
3. If A. has Deeds to which he has no Title, and lofes them, and B.
finds them, A. Ihall not have Detinue without Keqneji ; but otherwife
of him who hails Goods or Deeds. Br. Chartres de terre, pi, 9. cites
33 H. 6. 26.
4. Where the Heir hrings Detinue of Charters, he ought to count
upon a Keqneft pofi mortem ajitecejforis. Br, Charters of Land, pi. 10.
cites 33 H. 6. 29, 30. per Prifot.
5. Where Plaintiff counts of a Cheft, Bag or Bex fcaled, he JJjall
mt Jljew -what Charters ; for if they are open, he may demand the Char-
ters only, and not the Box, for the Box belongs to the Executors, and
this will not go to the Count for the Box only, but all the Count
fliall abate, per Thorpe. And Finch faid. That he might have count-
ed of a Box inclofed, and that it is not traverfable, if inclofed or mt.
Nota, Br. Chartres de terre, pi. 13. cites 41 £. 3. 2.
6. In Detinue of a Chefi of Charters, it is no Plea to fay, that it -was
a Hamper, for it is not traverfahlc ^ but only if he detains the Charters,
or not. Br. Chartres de terre, pi. 15. cites 44 E. 3. i. per Thorpe.
7. Detinue of Charters, ly "uuhich A. infeofd his Anceflor of Black-
acre, &c. and counts of his oiai Bailment, and found for the Plaintiff
to the Damage of 40s. And if the Deed cannot be found, 40.?. for
the t)etime, and 100/. for the Deed. It was moved in Arreft of Judg-
ment, becaufe he 7nade no Privity to the Anceflor as Heir ; yet becaufe
he counted of his own Biilment, it was awarded, th.it he fhall recover
the Deed, if it can be found, and 40 s. Damages j and if the Deed
cannot be found, then lool. for the Deed, and 40 s, Damai^es. Br.
Chartres de terre, pi, 28. cites 7 H. 6. 31.
8. W^here one demands Charters as Heir to the Land, he fliall J/jeiv
the Certainty of the Land, and where it lies ; but otherwife where he de-
I mands
Faits or Deeds. 65
mands by Pnvitj of B^ilincnt of his Father to rtbml to hnn or his Hctrs,
and the Father dies, :ind he cicmaiids by this Bailment, there he may
count generally ol' Land in A. and aJi/'i in tlic! County oi M. but other'^
wiic where he demands as Heir. Br. Chartres dc terrc, pi. 30. cites
19 H. 6. 10
9. In Detinue, Plaintiff counts of a Ckvtcr^ by "ivhlch J. -?. infcqff'cd
him of Bljck-acrc, and the Charter came to the Defendant by Trover,
and the Defendant mtitlcs himfclf to the Land, ahfqae hoc ^ that the Defen-
dant infcoffed the Plantijf-^ and pdr Townfend and Brian J. this is a good
Plea. Br. Chartres de terre, &;c. pi. 51. cites 2 H. 7. i.
10. hilt if he had counted, that he detained a Charter containing that
J. S. infeojfed hivi ; now the Feoffment is not traverliible. Per I'own-
Jend and Brian J. Br. Chartres de terre, &c- pi. 51. cites 2 H. 7. i.
1 1 Detinue of Charters lies well by Realon of the Poiieffion issithout
pjcsiing how the Defendant came by them. Per Cur. Br. Chartres de terre,
pi. 65. cites 9 H. 5. 14.
12. In Detinue of Charters by Tzt'o^ if the Defcnddnt delivers them to
cm oi^ them, tho' out of Court, he ihall be exculed againft the other,
and io in Dower againlt Two, who plead Detinue of Charters. F. N. B.
138 (G) the Notes there.
13. Tho' PlantiffccHints upon Bailment by Indenture, yet Xon Dctincc
IS a good Plea, notwitliltanding the Indenture Br. Barre. pL no. cites
10 H. 7. 24.
(L a 3) Bar j What is a good Plea in Bar in Detinue of
Charters.
i.TAEtinue of Charters as Heir, Bajlardy is a good Plea. Br. Char-
. \ J tres de terre, pi. 64.
2. A. brought Detinue of a Box of Charters againfl J. S. and Counts^
that R. and C. ivere pojjtjj'ed of them as of their proper Goods, and bailed
thcTd to the Defendi'int to deliver to the Plaintiff, J. S. pleads, that he is
Jeifed of fxenty y^cres in D. 'jjhith the Charters concern, and that he ijuds
polTeJfed of the Charters till B. and C took them from him, and that after
they delivered them to him prout tn the Count, and theretbre he detains
them, prout ei bene licuit ; the Plaintiff replies, that before J. S. had
^ny thing, W. R. was feifed of the twenty Acres, and poffejfed of the
Charters, and gave the Box and Charters to B. and C. by which they were
pollelled, and then W. R. died jeifed and J^ S. intruded, and B. and C. bail-
td the Box and Charters to f. S to deliver to the Plaintiff, and prajs De-
li \'erv, and j^. S. rejoins and tnaintains his Bar^ abfque hoc, that J. S. in-
trud'.d, &c. and per Cur. It is no Plea, but he ihall anlWer to the 'Title
of If R. tor that is the Subflatice, and -not the hitrttjion, quod Nota. Br.
Chartres de terre, &c. pi. 55. cites 5 E. 4. %$.
3. Detinue of a Chejl of Charters, and of one fpecial Charter, by which
Land was given to his Father in Fee bv J. N. of which Land the Fa-
ther died ieifed, and he entered, &c. the Defendant to the ipecial Char-
ter/)ra/'t/?<^7/;r/o, that the Plaintiff is not feiled, ^:c. pro placito /iwV, that
J. N. gave to the Father of the Plaintiff, and to U.S. ivho fiirvived the F.t-
ther, and that W. S. gave the Charter to the Defendant, and to the reft
ivaged his Law ^ and all held good. Br. Chartres de terre, pi. 73. cites
10 H. 6. 20.
4. In Detinue of Charters, the Delcndant y^^/zV/, that the Plaintiff' de-.
livered them upon Conditnn, that if the Feme of the Defendant furvived the
Plaintiff, that he Ihould retain them^ and faid.that kns Feme ts yet living,
and a good Plea ijithoitt title. Br. Chartres de terrc, pi. 68.
See Travcrfe (K. a) Bailment (G) — Detinue ( )
S (L a 4)
it^^ ■■■ .
66 Fa its or Deeds.
^
(L a 4) Damages in Detinue of Charters, what 5 and
the Diflercnee between Dama2;cs in Detinue and
Trefpals.
o'
S. p. ihid. pi. - T '^^ fi-efpafsfcr cdrryhig divay of Charters^ the Defendant pleaded Not
119. citcszo J[ Guilcv, and wiisfoua^ Gui/ry to the Damage of lool. and the De-'
Afl^_2. S P. fendant brought Error upon the Judgment gi\ en thereupon, becaufe the
£. dte" S.^ Pl-^i»tiff did mtpe'-.v the Quantity of land in k:s County lo that the Jury
<■; and 20" could not know the Damages, and yet the hrit Judgment was Affirmed,
AiT 5. inafmuch as the Plaintiff /;/ Trefpafs of Charters^ jball not recover Damages
according to the Quantity of the JcHcinents Compufed ^ For he did not de-
rnand the Charters, as in Writ of Detinue oj Charters ; therefore, in tb6.
one Gafe he Ihall recover Damages only for the taking, and in the other
he pjall recover the Charters; and in Cafe they are lurnt or dejhoyed^
then Damages to the Value of the 'Teiiciiicnts ; but here he Ihall recover
Damages only for the taking contfa Pacem. Note the Diveriity. Er.
Error pi. 61. cites 21 E. 3 28.
2. Detinue of a Bos oJ Evidences^ the Defendant prayed Garnifiincnt
cgainfl Ihio, who came and made Title to the Evidences, and the Flaintiff
other 'Title, and the Box was opened, and the Evidence of every One de=-
livered to him to whom it belonged, and the Plaintiff recovered Da-
mages againft the Garniiliee. Br. Damages pi. 41. cites 7 H. 4. 7.
3. And^ it' the Garni/bees have Isad i/iffife againfi the FUiintijfly and i^*
covered in Default of thofe Charters, ^et the Plaintiff' fall not recover Da-
mages in this A£tion of Detinue to tloe Value of the Land lofl^ per tot. Cm%
Br.^ibid.
(M a) Pleadings, where there muft be Trofcrt or Mofi^
firans of the Deed. In what Cafes in general and tho
Reaion thereof.
And it is not i.rx^HE Reafon i^hy Deeds are fhewn to the Court is, becaufe it be-
cnoup;h foi" J[^ longs to the Court to Judge of tPje iSnffctcmy or \r\\\\'^iQiencY of
J= ^hf/thc them. 6 Rep. 38. Bellamy's Caflv alias W'alker v. Bellamy.
Relit Sec. '^ ^"*^ whether they were duly executed, and if they are AUfohitc or Conditio
•which could 0/i^/and revocable. 10 Rep. 93. b. Dr Ley field's Cafe.
7iot pctfs nvith-
ciit Deed was m-anted to him, bnt the Court mnft fee and adjndge of it, orclfe the Ri^ht appears nor,
and the adverft Party may caufe the Deed to be Inrolled, which makes it a Part of the Plea, whereup-
on the Court fliall Judge whether it maintuins t!ie Plea or not, per Hobert Ch. J Hob. 255. — And tiiat
the Court may fee that there is no Ra/.iire, Interlining or other Defect to avoid it. Arg. i. Le. 510. in
Cafe of Maidewell v. Andrcw.s. And whether it Binds the Party, per Glyn Ch. J. Sty. 459. in Cafe of
Dod V. Herbert.
If the De- 2. Where the Plaintiff ufes a Deed, as a Deed of Grant of the Anccjior
fendant is ^j ^jr/g Defendant, he Ihall have Oyer and View of the Deeds, and econ-
^jDeed'°h<^ ^^^i '^^ ^ claims by a Stranger y Note a Diveriity. Br. Monflrans. pi. 85.
ihall'have cites 8 Aff 7.
Over and
View of it, but not when the Plaintiff Jtes claim by a Strafisff- Br. Oyer de Faits, &c. pi. 21. cites S. C.
•3. 'In Affile, if the Plaintiff inakcs Tttk to the- Rever/wn by Grant of
the Defendant, he ought to fhew Deed, for ocherwile, it is not good, fb
it feems, if he makes llich Title by a Stranger. Br. iMonltrans. pi. 86.
cites 8 Aff II.
A- In
Faits or T>QQds. 6j
4. In jVIuyt:i,uiccJior of a Rent chdr^e, the Allilc -vvas taken without Hr. Mon-
Ihewing Speci:iity. Br. Monltians. pi. 88. cites 11 AiV. 29. ftrans^plj[4i.
5. l^ormedon in Remainder does not lie without iLewing Specialty,*^"" "
and yet when it is ihewn the Party Tenant fliall not have Anfwtr to it.
Br. Forniedon. pi. 33. cites 21 E 3. 49.
. 6. .^/W a rt'c/oiYe^.'? lies well without Ihewing any Record. Br. Alon-i
ftrans. pi. 16. cites 41 E. 3. 30.
7. In Trefpals, a G/p of I'm-s may be Pleaded without fliewing Deed
thereof! Br. Monilrans. pi. 147. cites 42 E. 3. 23.
8. In Scire Facit-s^ upon a Recovery cf an yhnjiiity^ the Plaintiffneed not
fhew Teed ; For the Record liilhces per Opiiiioncni. Br. Scire I^'acias.
pi. 209 cites 3 H. 6. 40.
9. it was agreed, that wher? a Man declare upon Specialty^ and docs not
ihew it, or pkacis Rc/eafc, ortlie like, or Record and does not Ihew it, and
they T)i)inirr in Lckv for the not ptv^tng^ that this is Peremptory ^ quod nota,
Br. Peremptory, pi. 13. cites 7 H- 6. 19.
10. Annuity.^ the Delendant demanded Judgment of Count, becaule it
was Granted, npon Condition coiitaincd in the Deed, and the i'idint ff had
net made vicntivn of the Condition if} the County but the Roll -ivas otber-iijifc^
and there it appears that the Rlarntiff' ought to make mention of the Conditi-
on in his County if it be contained in the Deed, and be to he performed of the
Fart of the Plaintiff. Br. Count, pi 9. cites 9 \\. 6. 15. 16.
11. Centra if the Condition be indurfed upon the Deed, and not contain^
td in the Deed ; Foi this liiall come in ol tixe Part of tlie Delendont,
Note a Diverlity. Ibid.
12. In D cut upon an Obligation aijd in "Debt l/j Executors, upon Tefta-*
ment ; the Ohligaticn and the liiftapieiit ll.all be lliewn in the Declaration.
Contra of Deed in remainder, and where the Deed Ihall be ihewn iij
the * Count, there Variance is material, and it iliall abate the Writ. Br. ♦ q^-.^
Variance pi. 56. cites 14 H. 6. i. Covenant
13. In every Cafe where the Kifig is Party, a Man fhall fhcw the Deed,
•whether it belongs to him or not. Br. Moaftrans, pi. 11. cites 35 H. 6.
S. per Danby.
14. A Man may Plead a Deed, by xvay of Defence, without fhewing it,
Per Littleton Choke and Bri.an. Br. Monllrapg. pi. 60. cites 15 £. 4. 16.
15. So where a Man may plead a Deed 'ivi}hv!it Privity, he fhall have
the PJea without jhewing the Deedi Br. A-l.onltfans. pi. 61. cites 14 H.
8.4. per Fitzherbert.
16. A Difference Avas taken bet'Wfen Letters Patents, and other Afatters of
Record, "-ii-hich of their cisan Nature are of Record, and j/i^f/erj in Fatt,
that the Firft might be pleaded in the fame Court of Record, where they
lire InroUed witirout ihewing them, the' they were not pleaded before.
But tho' a Deed be Inrolled in a Court, jet it cannot be pleaded in the
Jame Court without ihewing it, 5 Rep. 74. b. in W'ymark's Cale in a
Kcte by the Reporter, cites 21 E. 4. 49. a. ^he Abbot of Waltham's
Caie. ■
17. Where a Man does not claim the 'thing granted, as Incumbent, •o^ho
rleads that f. S. granted the next Prelentation toW. N. who p relented
nim, he iball not Ihev/ the Deed, tor he docs not claim the Patronage, hut
'only the hicumbency, per Brian. Br. Monliran.s. pi. 125. cites 21 E. 4. 50. ^ - „ ...^
18. Kote, that the Deed of Tail belongs to the Heir in Tail, and if p| j.'cites
the Father breaks it,}et the Heir Ihall have Formedon, tho' it ho.* of Rent, 12. h. 7. n.
without fliewing of the Deed ; For Formedon is in the Right ; contra oi'But Brook
jivoivry or yJJ/iJe, for this is in the PofjcJJion. Br. formedon, pi. 44. cites mal^csaQuc-
4 H. 7. ID.
19. Conditions to defeat Chatties, may be pleaded without a Deed, but
not Conditions to delcat Freeholds ; as of a Leale lor Years, or Grant of a
^^'ard, the Condition may be pleaded without Deed. But Avhere it is
pleaded to defeat a Franktenement, be it in Perfonal Atlion or Real, it
I'Hill: be pleaded by Deed. 11 H. 7. 22. b. pi. 12. per Vavifor. Quod fuit
Conceiruni. per tot. Cur, £o. The
6B Faits or Deeds.
20. The Grantee of a Cojifoioii m.iy plead ;i Rdcjfc mudc to the Tenant
of the Land in difchai\'^c oi his Bearts without Ihewing it j becaule he
jultihes in his own Right, and there is no Pii\ity between the Party
who made the Releale and him. Per Brudnel J. Br. Monltrans. pi. 61.
cites 14 H. 8. 4.
21. He ijoho hath fiot the entire Fee, need not iLew the Deed. Br.
Monllrans. pi. 72. Marg.
22 //; any 'Title or Bar^ of other Matter, ro^ert' Land, or ot her Thing y^^//
he gained or 1(^1, the Party Ihall not be enforced to ihew more than what
makes for him. PLC. 410. a. in Cale oi Newya and Sciiolaltica. v.Larke,
23. As in Allile, a Man may plead in Bar a Feo^ment., which is upon
Condition without mentiotiirtg the Condition in it. PL C. 410. a. b,
24. So of Obligation on Cotidtticn. Ibid. 410. b.
izj. And yo ot" an Jc'i of Pariaiuent, in which are divers Branches. But
per Harper J. it" in the A£l there be a Provilo or Exception, or other
ALitter which goes to every Branch, there the Party ought to plead I'uch
JProvifo, SiQ. becaule fuch Provilo, &c. is parcel of every Branch lb that
the Branch is not perfect Law w ithout it. Ibid.
26. But of Matters of Record where the Record in Parcel makes for
the Party, as Fine or Recovery of One Acre, where there are in the Ke-^
cord 20 Acres, there all the Record mult be iLewn ; becaale the Original
is intire, and lb is the Record grounded upon it. PL C. 410. b. in Cale
of Newys and Scholattica v. Larke.
27. A Deed that is requilite ex Ji<fiitutionc legis, muft be Hiewn ia
Court, tho' it concerns a Thing collateral and conveys, or transters No-
thing. As in Cafe of Attornment by Corporation which mult be by
Deed, there the Deed mult: be Ihewn j Secus v/here 'tis ex Pro-Jijiune Ho-
minis i as v/here the Condition of a Leafe, is that the Leffee Ihall not
Adign but by Deed and not by Parol. I'here he might plead the Allign-
nient without Ihewing the Deed ; an Alignment by Par<^l being then
fufficient, had it not been provided againit by the Condition. 6 Rep.
38. Palch 3. Jac. C. B. Bellamy's Cafe. Alias \Valker v. Bellamy.
* Roll Rep 2^' ^^'here the Deed is but an hiduccvient to the Attion, it need not be
15. s. C. ■' mentioned in the Declaration. 2 Buls.' 228. * Babington v. Matthews.
Pi. C. 252. Style 193. Meets v. French, S. P. — Cro. E. 217. Vantry v. Alpert.
^o"R'^P; S. P.— Cro. J. 43. Dent v. Oliver. Cro. J. 70. Dagg and Kent v.
v."Dowdr Penkevon. Jo. 377. Stockman v. Hampton. Cro. Car. 442. S. C.-*
Sty. 264. King v. Weeden.
29 But where it is in Bar, it is otherwile. Jenk. 305. pi. 80. 316. pi. 4.
30. In all Cafes where a Thing cannot he demanded but by Deed, the
Deed mull be produced. But where it may be demanded either by Deed,_
or without Deed, it is otherwile. Per Glyn Ch J. Sty. 459. in Cale of
Dod v. Hert)ert.
31. A Prolert hie in Curia, is not ncceffiiry in aSuggcJlicn. 2 Show.
303. Trin. 35. Car. 2. B. R. Sands v. Exton
32. Where A. has bound hnnfelf to make a Deed, and is faed for not
doing it, 'tis not enough to fay that he made the Deed, viz. L-e.iie, Bond,
&:c. but he mult fet it tbrth that the Court may judge of its Sufficiency i
For it ought to be a good Deed ; but if it be to' deliver, or Jhezv, or pro-
duce a Deed (that is) a Deed already made, there 'tis enough to fa\' that he
• delivered, or ihevved, or produced it. Per Holt Ch. J. 2 Salk. 498. Ar-
mit v. Bream. Mich. 3. Annije. B. R. — 6 Mod. 244. S. C.
See Bar ( ) Que Eltate (Q
(M a 2) Where
Fa its ot^ D^Qd"^.
69
(M a 2.) Where the Deed or Record itiuft be fhewn pre-
ientl)';
1. '^kTO^^ ^cr Law, that I'F a Man pk.'rds a Rercrd as Dilatoy, \i7.. in -6. cites ii.
j_^ Abatement of a Writ, &C. he n'/f/^ /h-:v it prcJl7Jr/)\ i^cr Bah- H-.ij.rer
bington. Br. Monltrans. pi. 4. cites 3. H. 6^15. FiwvickCh.
2. EcGHfra ivhere he ■plciids it in Btiyr ; For there the other rriciy V\y that - I'- ibid. pi.
jMiil tiel Record, and the other may have Day to bring it in, per Eab- „ ■5'''"\"'
bington. quod nun negatur. Br. Monllrans. pi. 4; cites 3. H' 6. 1$. V\-ofj\J^
cii J. ■
(M a 3) Where it fliall be (liewn In the Declaration, o'^
hot till demanded.
J. "TN WcifJ- hy him in Ttcmaiudc?^ if the Deed and the Writ vary, yet it
\^ is no AJatter ^ For he is not bound to llicw the Deed unlels the
I)elendant demands it, and if he demands it, the Aciicn dees not lie by
'.nn in Re?}iai/idtr ivithotit Jkavitig Deed:, For this Afi ion is net proper/y
founded upon the Deed. Er.Yariance.pl. 108. cites 10. H. 6. 8.
2. In Debt iipcH em OLhigaticn., cr as Executor upon 'felhimcnr, the * S. P And
Obligation or Telhmient lliali bcjte':z-n in the Declarativii, and there Va- /"'" •^'•"■*
riance between the Writ and * Obligation, or Teftamcnt, is material to the '^fhiVh varies
\V rit. Br. Monltrans. pi 74. cites 14. H. 6. 5. from the
Specialty.
Br. Variance, pi. icS. cir^s lo. H.'<5. S.
3. Ccritra upon * Forinedon in Remainder., and there Deed Ihall not be Br. Mon-
iliewn til! It is demanded, and there Variance is not material. BrMon- {^™';,P'- ?^
Itrans. pi. 74. cites 14. H. 6. c. f^,.„.^«»
ti].i
pi. 74. cites 14. H. 6. 5. Formedoa
i.s nor
founded upon the Deed, cites 51^. H. (J. \6. — * S. P. And fo in Wafts by hiin in Remaindef.
Br. \'ariance. pi. 14. cites 4.1. £. 3. 25.
4. Debt by an Admir.ilhator, the Plaintiii' llicwed the Letters cf Jd-
minijlration upon the Declaration, but fiot in the Declaration, in which it
appeared that the Adminillration was committed to B. and the Defen-
aant imparled, and at the Day the Defendant /aid that there is Vari-
ance to the Writ, becaul'c the Letters which were Ihewn bore Date at C.
and not at B. and by tlie Opinion of the Court, the Plaintiff fliall not
be compeJrd to Ihew the Letters again, becaufe they were llieua at firlt
as thev ought; lor Letters of Adminirtration Ihall be fhcwn upon the Dc-
diaration 5 and an Obligation pall be pe-xn in the Declaration, and Ihail
remain aluays in Court ; but econtra of Lcttets of Adminillration, ibr
it may be that the Plaintiff hath another Suit upon it in another
Court, and therefore lliall not be fnewn but once, and the fame Lai;; of
Hefiament ; but if it had been in one and the fame Term, or if.the"^
Letters had been entered Verbatira, then may tlie Defendant plead fuch
Variance alt:er Imparlance. Br. Monllrans. pi. 82. cites 36. H. 6. 31.
5. Formedon in Remainder ^ the Tenant demanded the Deed, the De-
mandant would not lliev/ the Deed, the Tenant Oiall go line Die; and
\etif the Tenant had anfwcred v/ithout demanding the Deed it had
i)ecn good, quod nota in Scire Facias. Er.Monltrans.pl. 83. cites 3S.
H. 6. 19.
T (Ma 4) What
70 Faits or Deeds.
(M a 4) What lliall be flud a fufficient Shewing.
1. TN Affife of Ellovers, a J?eed oi Grant was let forth, by Avhich H.
J[^ the Delendant had gnintcd to the Plaincilf and his Heirs zo Load
of h ovd, of which the Planitiff had id of the <aijt of Richdrd his Father^
and Ihewed only the Deed ot' the Defendant, and not of his Father who
granted the 16 Load, and yet good j for it is a good Grant of 20 Load
by the Delendant, tho' his Father ne\er granted 16. quod nota. Br.
Grants pi. 69, cites 20. All' 8.
2. y][ftfe againfi 2. the one pleaded a Deed /;; Bar,-^ and would not that
his Companion ihould be aided thereby j and the other pleaded the fame
Deed in Barr for his Part; and the Plaintiff' deDini-rd bccaafe he did not
Jhe'ii} it i Per Mombray it llaffices by the llieu'ing of the other, by which
the Plaintitf made Title. Br. Monitrans. pi. 142. cites 40. Aff 34.
3. If a Man ought to flievv a Deed, and docs not lliew it, but a Con-*
fnuationo'i it, 'tis not good, quod nota bene. Br. Monllrans. pi. 134.
cites 12. H. 4. 23.
4. A Deed inrolkd mult be fliewn, and 'liot the Inrohnent ; and therefore
if the Deed be loll all is loli Br. Monllrans. pi. 137. cites 19. H. 6. 6.
5. Eiror to reverie a Judgment in C. B. in Debt, where the Plaintiff
declur'd, T^/'.-j? the i)t'/67/(/i-?/;r decimo oftavo Maii quarto Carol', co>ueJ/,'r
fe 7'eneri to the laid Sir Richard Greenvill /;/ 280/. folvend. upon Reqnejl-^
et profcrt hie in Curia fenptiiin P;\vditium, quod debitum Proediftura in'
forma PriEdifta teltatur, cujus dat. eft eifdem die & Ann. : The Defen-
dant demands Oyer Conditiunis foripti Obligatorii pn'edifti ; which being
read, he pleads Payment i and Ifiue thereupon, and Judgment given for
the Plaintiff; and the Error affigned^ becatife he does not declare^ according
to the ufual Courfe, qriod per fcriptiiin ObUgatorium couceffit^ nm- any Ji riting
mention d in the foriner Part of the Declaration: So it doth not appear to
the Court, that there was any Writing obligatory, and tb.at being faulty
in Subitance, no Plea or VerdiiSt may make it good. But all the Court
"were of Opinion, becaufe he flicw'd the Writing, whereby he demands
the Debt, and the Defendant by his Plea lliews that it is an Obligation
■v\ith a Condition, and Ifiue is taken thereupon, and found for the Plain-
tifl^ that the Declaration is good enough; at leaft it appears to the
Court that the Plaintiff has a juft Debt, and good Caule to recover^
wherefore the Judgment is good, and was affirmed. Hill. 6. Car. B. R.
Cro. C. 209. Sir \V^m Courtney v. Sir Rich. Greenvill cites Co.
Rep. 45. 7. Rep. 25. a. 8. Rep. 133. b. — 8. H. 7. 71. 18. E. 4.
(M 35) Second Time, &c. where Deed fhall be fhewn
after a former Shewing.
I. T"N Execution^ W". of C. brought Debt again fi B. and recovered 100/.
J[_ and 80I. Damages, and now he fiied Scire facias againjl- the 'Terte~
fiants, and they demanded the fliewing of the Tcjiament^ and were oulted
by Award, becaufe it WA.sfhe-mi in the firji Suit^ and is enter'd in the End
of the Declaration, quod proterunt hie in Curia litetas Teflament. &c..
quod nota Br. Monllrans. pi. 66. cites 24. E. 3. 3c. .
2. Scire facias^ the Defendant pleaded a ReUale, the Plaintiff' deuied it,
and upon this they are at Ifiue, the Plaintiff' ts N'onfiiited^ and brings
unotbcr /k'ii-cn upon it, and there the Defendant pleads the lame D(ic6[
again-
Faits oi' Deeds. 71
again rciujuiing in th: Cnjhdy of the Court as a Deed denied^ judpiiient,
I1 /iftio ; and a good Plea, and this without flicu iiig the Deed ot'ReJeafci
For it remains with the Court, quod nota. Br. Monltrans. pi. 67. cites
3. A Man was Indtdcd of Murder^ and pleaded n Charter ot the King
which w;is allowed, and alter tn Jppc.d of the liune Murder, the Dc-
fetidcvjt ivas arralgntd agn'tiit, and the Plaintift' was nonfuited, and the
Delendant was arraigned upon the Declaration, and pleaded how he
pleaded a Charter betore, et non Allocatur, without Ihewing it^ but he
may plead all the fiilt Record of Dilcharge, and have Day to ihew it.
Er.' Monllrans. pi. 36. cites 11. H. 4. 41. ' ^'' 9^ci'
4. Belt by an Ksutitov and Ihtivs the 'Tcjlamait^ as he ought, and the "|^ ^''^^\ ^'^•
Detendant makes Delence and iviparks to the next Term, he cannot plead -3 \i ^ ^*
"Variance ; For the PlaintiH' is not obliged topfs) the Tcji ivmnt (^gciH.^ and * .br. Eilop-
then the Vcriance of the Name of the Exectitcr in the Writ and in the r?'- p'- 80.
Tethiment cannot "be tryed ; For it may be that the Executor mull B,!y^j;i*^~
Ihew the Teltament in another Court in another Aftion the fame Day. pi, 44. cites '
Er. Monllrans. pi 53. cites * 19. H. 6. 7. S. C.
5. So, of Fcrmedon in Remainder^ he fball iliew the Deed prefently, and j^r- -Mon-
lliall not "be compelled to lliew it again in another Term -^ and theretbrc g^^";^,^'';^
the Defendant was ruled [to ftnfwerj over. Br. Monltrans. pL 53. cites * H.rf. i^^'s.F.
19. H. 6. 7. * Bi-. Eftop-
pel pi. 80.
cites S. C. Br. Variance pi. 44. cites S. G.
6. Contra of an Obligation; lor it remains alwavs in Court. Br. Men- ''> r"- '^nd
ftranspl.53.citcs*x9. H.6. 7. ' '^:Zt
rent. Br. ,
Variance, pi. 44. cites S. C. Br. Monftfans.. pi. So. cites %6. H. C. \G. S. P. * Er. Eftoppcl. pi. So.
cites S. C.
7. Where a Man fncd Execution by Capias in Chancery, tfpon a Statute
Aitrchant, retiirnalk in C. B. 15. Hill, there per tot. Cui'. he ihall not
have Extjcution if he does not Hiew the Obligation again, tho' he Ihevved
it in Chancery before. Br. Monllrans pi. 73. cites 37. Fl. 6. 6.
8. Econtra in Execution upon Statute Staple ; For there the Capias is
returnable in Cane, and Liberate Ihall lifue there, therefore once fhcwing
luffices for all ; For 'tis all m one Court ; contra where 'tis in another
Court: Br. Monlbans.pl. 73. cites 37. Fl. 6. 6.
(M a 6) Excuied by Fraud or Force.
I. TXT-^^iT by Baron and Feme dgainfi 'Tenant for L'fe, the Tenant TliisCurein
y Y pleaded that the Baron had rekafed to hnn'in Fee, and by Inden- vKep. -5. a.
ture,'-^-bich he JhcwJed to the Court, "nvas agreed between them, rhat if the i'l Wymark's
Baron acquitted the 'Tenant of a Statnte Aharhant to Ah. that the Rvkafe ^''^y,' '^^'^'^^
flould be -void, and laid, that he hath not acquitted him, judgment, &c-, i(epouer
9.1x6. fhailjhciv the Indenture, but nit the i?^/i'<?/i',Thorpe asked where is the tluis,Sc-ilicct,
Releafe? Kircon laid it was baiPd into an indifferent Hand, and the Feme pk
Deiendant has aW'rit of Detinue pending upon it in this Ctjurt now'; and ^""''Z''' y"";.
•becaule he did not den\- the Indenture, Judgment, &c. Per Belke he ..v^v^^Mff'the
mult ^he^v the Releale; For vvhereDebt is binught upon an Obligation oi Baro/ri-
• lool. and he Inews the Indenture <*f Delealimce provinij it, and not the t'-'ii'd f:d
Obligation, theA6tioii doesnot lie. Per Finche. Demurr li'vou will,, and 'j*'^''*; '' '''^
then dilpute alter. Per Belke. the Indenture is not our Deed and the ,^2^"^'^°/^
.other econtra.- Br. Monllrans. pi. 38. cites 42. £. 3. iS. //..j.-.f u de-
... /-'w lo De-
jhulv.t on cerf,ii)t Ccvnithm ti hr fcrforni',]; the Defemiaiit perform' A the Conditions; thi Br.ron ga the
Reje.ifi auii rlctni>'n it from the Leiicc ; /ind he ami his Feme Lraiight Jclioj: of li'ajh ; the Lcliee, upon
this 'Vecial .Mjtf.-r fli.'.!l p'ead tlis Re!e.i*i without Viewing it. Coke liivs It is a' good Calc, and cites
4: E. 3' I? a.
2. \\^here;
72 Faits or Deeds.
2. Where the Coj//ffte tjkcs the Difcafnice from the Conufor laitb Forcc^
r.nd fucs Kxecutton upon thcStatv.te^ the'Conufor Hull plead ic without Ihew-
ing the Indenture, per Juftitiariosi For tho' he nuy have Tref pals of the
taking, yet the Conufce may deny, and then the Action of Trcfpafs is
gone, and yet his Executor may lue Execution. Br. Monllrans pi. 26. cites
47. K. ?. 25. 26.
3. So^ Avhere an Ohhgni'nn h ckhvcfd into pu i?! different Hjiid^ upon
certain Condition pertornied to deliver it to the Obligee, and he retakes
it with Force before the Condition pcribrmed, and brings Debt upon it.
Br. Monftrans. pi. 26. cites 47. £. 3. 25. 26.
4. Or, where the Olligec makes lUi Acqmtti'iicc^ and after retakes it hy
Foree, and Irings Debt, the J>lendant Ihall be aided by Plea without fhew-
ing the Specialty. Er. Monllrans. pi. 26. cites 47. E. 3. 25. 26.
quaere hoc. for contra i H. 7. 14. ibid.
5. In Alfiie the Tenant pleads a Feofment of ths Jnccjior of the Plaintiff'
unto bjm; the Pli'.intijf faid, that it was upOH Condition, ijlc and that the
Condition was broken, and he reenter d, and that the 'Tenant efiter.i and took
i!--i\iy the Chejl in ivhick the Deed ivas, arid yet detains the fan/c. The
Plaintiif iliallnotin this Cafe be ibrc'd to ihew'the Deed. Co. Litt. 226. a.
* Twifden .^- ^^ ^lafe upon a Policj of hifttrance. Plaintiff declar'd upon a Writing,
J. fuidtliut without flying, Hie in Curia prolat. It was moved for the Dctcndant,
It is not u!u- that as his Cafe is, he cannot plead Non aflumpljt, but a Ipecial Ple;i
PoHc[-Tof'''' g''"'J"^'^d "Pon the Writing of which he has no Counterpart, neither is it
Afl'ar.mcc * enter'' d in the Office of Aifurance ; and therefore, that iince the Plaintiffdc-
■vv hen an Ac- clared upon it, he Ihould be ruled to make a Profert in Curia, that the
iwn on the Delcndant might fee it. And for the Plaintiff it was iniifted that he need
bi-ou?htu - "0'^>""""'^ °" =^"y ^^'riting, but on an Agreement generally by Policv oY
on them; but Affurance^ and that no Oyer can be demanded, nor hie in Curia prolat.
only V, hen Keble reports, that ibr thcfe Reafons, Twifden J. held that the Delendanf
they are put fhould not have a Copvi but that per Cur. prsecer Twifden, wherever
in km before ^he Plaintiff declares upon a Writing, the Court on Affidavit, that he has
tnc l„ommU- i-> r • -n i i • i /-!' -r-, i , ,-? .
iloncrs; ^° ^^'"'^ "^^ ^^-i ^^''^ ^'^^ ^im havc a Copy. But where the Declaration is
v.-hich is the 0'-' '^A' Agreement generally, and the Writing but Evidence, they will not grant
more dilate- it. But at lall the Parties agreed to take and grce a Copy to try it the
iL-r^o' ^"^"^e.Terni, Siderfin reports that the Ch. J. and Windham" f. held
S. C. *^'° ^h'\'^ ^" A£lion on the Cafe, where the Plaintiff declares upon a Writing, it
is in the Difcretion of the Court to grant Oyer or not; but Twildcri
econtra ;_ bu : that all agreed, that if die Plaintiff --jootdd Jinks atit of his
Declaration, the ^\'ords (per Scnptmn) then the perpetual Imparlance
should be difcharged^ and at l.ilt ttie Plaintiff agreed that Defondanc
Ihould have Oyer. Vide Sid. 386. and Kcb. 430. IVlich. so. Car. 2. B. R.
Suiller alias Suiter v. Cowell alias Coel.
^ 7. In ^are hnpedit, the Plaintiff declares on a Grant of the Advow-
i^o voul7' ^°" tohisAnceftor, and fays Hie in Car. prolat', but h.ad not the Deed to
plead the ^^"^ 3. there was an Jffldaiiit in Court that Defendant had got the DeM
Deed, has it into his Hands; fo 'twas prayed that Plaintiif might take Advantage of
not, he a Copy, which appeared in an Inquilition found Tempore Ed. 6. Pei'Cur.
■^"r?v .\i!^ ^V'hen Debt en Bond to perform Covenants in a Deed is brought, and the
IIlUii L Lilt. i"^ iT* J I 1 /'^ ■* 1 • 1 iD J
Court, and Detendant cannot plead Covenants performed without the Deed, be.aufe
theCiKri the Plaintiff has the original Deed, (and perhaps Defendant took not a
\vHl,rdcr Counterpart of it) we ufe to grant /;A'fl«;-At«<rcj till the Plaintiff brings
have the '" ^^^ ^^^ ' ^""^ "P°" Evidence, if it be proved, that the other Parry
Deed, or a has the Deed, we admit Copies to be given in Evidence. But here the
Copy of it. Law requires the Deed to be produced. You have your Remedy for the
Sicdiaum Deed at Law; we cannot alter the Law, nor ought to grant an Impor-
J,\"',,^'^ji^^;laace. Mod. 266. pi. 17. Trin. 29. Car 2. C. B. Anon.
1 ^ Car. 2.
E. R.^ The Court fometimes will compel the Pl.ji,:tiif to give a Ccpv efan Indenture to Defen-
dant, if iic /-xsart thxt he r:cvtir had a P.vt, or that lie hat!) /:'/ u ; but thk is ex Gratia Curia;, and nor
(M a 7)
Faits or T>CQds. ^%
e<c debito Juftiiic. i. Sand. 9 ^[ich. iS. Car. 2. Jcvciis v. H.inid^c. d. Mod. 25-. Mich. ^.Amic
B. R. Cook V. Reiinr.gton. 164. Mi^h 5. Annse. B. R. Wai-d v. Appi-icc. S. P. and if it
be loll, tlie Court will on AiTidavit coiDpcl the Patty to JJ.'ea' his Countermart and he to pl^.id thereto, o-
B.
be .-.., - , -, J -^ - , -
thcrwile they li;// j^tant an L/,parl.v:a', Cro. J. 42';. Tnn. 1 5. Jac. B. R. pi. 5. Anon.
See Policy of Inlliiauce. (B)
(M a. 7) Excufed, by Accident,
I. TTF there be TJltte in 'Tdil of a Gift of Rent in Tail, &c. (which can-
\_ not pals but by Deed) and the Gift be e>.eci!teil^ tlie Heir in Tail
fhall ha\'e Fo-nuedon n'lthoat Ihewing Deed j For he is aided by the ^tatiits
of W. 2. cap. I. ii:" the Deed be burnt or loll. Er. Monilrans. pi. 60. cites
15. E. 4. 16.
2. So where it is I^y lUiy of Defence. Br. Monftrans. pi. 60. cites 15.
E. 4. 16.
3. Eat otherwife 'tis of a Stran^^cr to the Tail., he fia// not hasce an Ac-
tion nor make Defence^ unlels he Ihesvs the Deed. Bn Monilrans. pi. 60.
cites 15. E. 4. 1 6.
4. If Tenant in 7^// of Rent granted by Deed breaks the Deed, and '''■ P '.''id.pl.
dies, the Heir in Tail ihall have Fornicdon without lliewing the Deed ; h."-. 2;'^^pcr
For this A6lion is in the Right. But he Ihail not have Avo-nry nor ^if/fe, ^'avifou
ur.
if he makes Title by Gift of Rent, if he does not ihew the Deed ^ lor Kr. Forme-
it is in the Polfeifion. Per Hulfey and Fairfax. Br. Monlhans. pi. loS. '^""Pl-44-
Tr cites4. H. 7.
Cites 4. H. 7. 10.
(M. a. 8) By Detainer by another, who has Right to it.
X. \ Sftfe by an Infint ctgainfi 2. the one pleaded in Bar,- a Deed of Fe~
_/Y ofment with Warranty of the Ancijlor of the Plaintiff., in \vhich
Deed ail the Tenements were comprifed, and iscould not fiiffer his Ccnipa-
mon to have the Deed ; and the other laid that the Anceltor by the liuiie
Deed, &C. ut in alia Barra. Per Alombray, becaule the Deed is in
the Hands of tlie other, who hath Right thereto, and he cannot
deraign it out of his Polleffion; therefore he Ihall ha\e Advantage of it
without lliewing the Deed ; bv which the Plaintiff' made Title j quod
nota. Br. Monltrans. pi. 56. cites 40. All? 34.
(M. a. 9) By Detainer in another Court, &;c. in another
Suit, i5Cc.
I. TN Affife the Tenant pleaded a Rekafe., icblch -xas before denied IfaDeedbe
\_ by the fame Plaintiff' in an Oyer and •tcrrnmer ., and there remained denied in
td be tried, and did not ihew the Deed ^ and upon good Advice it was oneCourtby
adjourned into Bank^ and there, becaufe the Oyer and Tertainer -xas difcon- main,s\here"
tinned^ the Detendant liied to ha\ e the Releaici but 'twas laid to the De- it may be '
lendant that he Ihould have his Releafe before them fuch a Dav at his pleaded in a-
Peril. Quod nota. Ousre what ih.ould be done if the Over and Terminer "°'^'^<^'' .
had not been difcontinucd, lo th.it it might have been tryed? Br. xMon- ou't^fhewin?
llrans.pl. 100, cites 38. Alf 10. ' it. ,- Rep.
74 b. per
the Reporter in \Vymark"i Cafe, cites 12 H. 4. S. a. b. and 43 E. 32" a a;c. For Lvx r.on togit ad
Iintcjj'.Ltlta-
U 2. In
74 Faits or Deeds.
*-■ --I, !■ II,. ■ ■ I ■ I __ ^
2. \.\\ Trcfpals, the Cafe was that 'taiant in 'Tail kafcd for I'exrs and
dictl, the JJiie conjirrded the Eftatc oi the Termor by Deed, and after en-f
ter'd, and the Tenant re-enter'd, and' he brought Alfife, and the Tenant
pleaded the Confirmation ^ the Plaintiif" denied the Deed, by which the
i}ci:d ran.i'iiicd in Co:i>t as a Deed denied, and the I'laintih' hrouglit Trel-
pafs alii) againlt the flime Tenant, and he pleaded the Leafe, and the
other pleaded the Tail, and that he is Heir, and the Defendant pleaded
the fame (Confirmation, and ^sonched it in the FLinds of the ^nfitces of
yiffife lis a Wntiiig denied; and per JhCanke, he Ihall not plead this without
^ . lliert'ing it, clearl)' ; but he ma\' have a Writ to the Jultices of Aliife ta
flumid'bL-Vz '^■^^'^ '^^^"-^ '^y-viw'^ and the IHaintill" pilled over, and den)-ed the Deed. Br.
.H'4, s. Moaftrans pi. 38. cites * 42. H. 4. 8.
(M. a. I o) Where they, or tlie Eftates^ &c. ^vhicb they
relate to, are executed.
I. TN quare impcdit, the PlalntifT made Title becaufe B was feized of
J[^ the Md)ior of P. and the Jdvoivfon appendant, and prefentcdj &c.
and li. died feizcd^ and tlie Prei}.'i(Jes defended to three Daiif-^hters, li-ho af-
jigned the jvlanor and Advowfbn to A. their Mother in Dozaer, and the '
Church being- void A. prefented, &:c. and the elde/i- Daughter granted
her third Part of the Manor with her third Part of the Advowfbn to J.
S. in Fee, and A. attorn'd, and J. S. granted it to the Father of the Plain-
tiff in Fee, and A. attorn d and after died, by which the Father of the Plain- ■
tilf enter d into the third Part of the A fa nor, and died feized, and the
Plaintiff as Heir entered, and lb the Plaintitf has the Eltate of the eldell
Daughter, and lb it belongs to him to prefentj and the Defendant de-
manded Judgment fbr not Ihewing of the Deeds of the Grant of the
Re\'erJion ; Per Thorpe, where a Revirf/on is granted, and the I'enant
Attorns, tlie Tenant fbr Life dies, and the Grantee enters, it ihall be good
Title in AHife without Ihewing the Deed of Grant of tlie Reverlion ;
becaufe the Poffefjhnwas exccnted ; and per Cur. bccaufc the Plaintilf is in
Poiieffion /^)' i>t'/r6vv/', therefore he need mtt Ihew Specialty; and if the
Grant was of the Land without the Ad\owfon, it is laved' to the Defen-
dant by way of Anlwer. Br. Monltrans. pi. 65. cites 24. E. 3. 52.
2. In fdfc Imprifoninent, where the Defendant /Y/?//'V.f by % Warrant to .
liim fent; hy all the Jiijlkcs, this Plea is gi.X)d, without iliewing any
Tiling of the Warrant ; fbr it may be that it is returned before the Ju-
llices. Br. Monitnuis. pi. 96 cites 27. Atf 36. perSharde.
3. In ^refpafs, the Plaintilf ctmnted, that he had bona JFaz'iata
hy Grant of the King, and leixed fuch W'aifj and the Defendant came and
carried it away : And there 'twas held, per Finche, that where a Man
has been in Poffe[fion of the 'Thing, and brings a Writ of Treipafs, as here^
h6 need not fliew the Charter of the King ; and econtra, inhere he de-
mands by theCharter a Thing, of which he had not Po£effion before. Quiere.-
Br. Monrtrans. pi. 13. cites 40. E. 3. 10.
Co.Htr. 4- In Ejectment by J. N. againlt C. the Defendant pleaded tliat A.
216. a. S. C. gave a Manor tu £. and M. hislFife in Tail ^ B. and M. had Ilfue C. and
and adds a jj^.^^ .^;(i-^;j. j^ ^^u,^ j[/f g^jrj^ ^he Manor to f. S. upon Condition that he fhonld
the Defcn- ''^4" ^^'^ Manor to J.' N. tor a Term of Years, the Remainder to B. and
dint behi"- M. that aftervv^ards J. S. leafed the M-anor to J. N'. the Plaintiff, the
Ill'uc in Tail Reverfron to himfelf, tiiat E. died, and Af. entered and died feized, and C.
^''■^'''f'f^''^'-^ entered as Iffhe'in Tail, &c. Judgment, )i Aitio. Cheld objected that C.
Tau"^ ' '"''^ tl""^ Defendant maintain'd his Entry for a Condition broken, which-
lies in Specialty, and yet he did not fhew it, &c. But Belknap fiiid
that the Thing was executed, fbr which Reafcm no Deed need be lliewn,
and if this Matter was fbund by Verlift of A 1 life, it was good, &c.
Fitzh. Monftrans. pi. 141. cites T. 44. E. 3. 22.
5. The-
.Faits or j^ceds. 73
f
5. The Plaintiil' need noc lliew a Fmc^ nor uny Deed when 'tis i^'-Nnji^'tion
executed; contra if it be executory; Per Hill, and Hunke. Br. For- J, '^i^'-'^i^"' ;''■
, ', . L, -^ ' C— lbui.pl.
niedon. pi. 23. cites 11 H. 4. 39. _ lo.cucsJi.C.
6. When a Remainder is -vcjicd or executed, Dad oi" Remaindery?;^.'.^
fint bt jhcxn after], per Threlam, and liuddey ad idem. In J[/iJv the
I'laiutiii' intitled hinileil:" b)' Remainder, he need not lliew the Deed ;
becauie b\- his Seii^n it was velted and executed; And the f into: Ln-m ih
Forhjeihii il" the Remainder be once xelled. Er lMonltrans.pl. 75. cites
14 M. 6. 26.
'■. It I(Ji!c in 'Tail Ic of a Gift of Rent in Tail, 6cc. which cannot pafs
but by Deed, yet if the Deed he esea/ted, the Heir in Tail ihall have
FormedoH without Ihewing the Deed ; lor he is aided hy the 'Stat, of W. 2.
Cap. I. il" the Deed be burnt or lolt. lir, MonllraiTs. pi. 60. cites 15.
E. 4. 16.
8. He, who jurtilies to make Rep/ez'/n ly Warrant of the Sheriff, rniifi B:-. Plc.id-
fay that he hathretnrnui his Warrant to the'SherilF; ibi- othervvile he Ihall '""': P'' ''''
ihew it to the Court. Quod nota, per Cur. Br. iMonllrans. pi. 126.
cites 21. E. 4. 66.
9. Coinynijjion'.rs, w lio ]it by Commiflion, and after return their Ccinnuf^
JtoH into Bank, may jultily bv it, without Ihewing the CommiHii:>n.
PerFineux Ch. J. Br. IVlonllrans.pl. 172. cites 13 H.7. 14. and 20. H. 7. 6.
10. ^\ here Land is grjen jor Lde.. or in Tail., the Rcinainder over in Tail,
&:c. and the Tenant lor Lile, or tlie Tenant in Tai/, dies tvithoiit Jj/'ie,
and he in Remainder enters ; there, //' IJifcontinnance, Dilieilin, i&c.
is made., fo that the Heir in Tail in Remainder, or he in Remainder in Tail
is to make Title by this Remainder, he need not llien' Deed ol" the Re-
mainder as in Formedon in Remainder; becauie the Remainder was ex-
ecuted before. Quod nota. Br. Monltrans. pi. 1. cites iS. H. 8. 4.
And lb isT. 34. F. 3. quod nota in a\\'rit of Entrv fur Diiieilin. Br. ibid.
11. If three Tenants in Common of an Alz'ozvfjn make Ccmpc/.'tion to
prefent by Turn, and every one oi them has prelented by his Turn once
b\' Vertue of the Compojition ; in a quare iuipedit brought after between
them, the Pl.iintilf need noL Ihew the Compt^lition ; becau5c it was ex-
ecuted: Bur othcrwile, il it \\as not executed ; and between Coparceners
(^ompol Irion iiia\- he made \\'itiiout \\^riting, becauie bv the Common
Law they are Pri\ ies, ami as one Heir^ and compellable to make Parti-
tion; and fo Diverfit)-. Held per Shelly and Fitzherbcrt J. and many of
the Serjeants. D. 29. pi. 194. Hill. 28. H. 8. Anon.
12. A Ltauie that is executed and has no Continuance need not be ^ Licence
ihewn. 6. Rep. 38. Pafch. 3. lac. C. B-. BellamN's Cafe. f "^ ^^^-
be without
XN'i-itiiif^, and there did not any Intcrelt pafs thei-cby, but a Rcflraint onlv fct upon a Libei'ty ; and 'tis
a Thing eseculeo ; and his AlTignee to whom he had alien'd Part by '/enuc of the Liccnfe, perhaps has
it for the Fortify ing hij Elhitc. Cro J. 102. VN'alker v. Bellamy.
* 13. A Warrcnt eseciited bv a BailiiF is returned to the Sheriff", and * Roll. R.
therefore need not be produced in J unification of a Treipals of Alfault, "i. per
&c. in Arrelling a Perfon bv Vertue thereof But 'tis otherwile in a f ';"-"' Tn^''
Jultihcation ror a Rent-Charge, or lucli Thuigsas ha\e Lontuuiance. Cro. aerid^e 'tis
J. 372. Trin. 13. Jac. B. R. Bateman v. \\ oodcock. the lame of
a Gr.wt cf
}:ext Jioidajice after Gr-antcc has prcfented. S. C S. P. 5. Lev. 205. Mich. 36. Car. 2. C B. in Cafe
of Aylesbury v. Harvey.
14. So of u Deed or * Lcafe detimiined. Arg. PI. C. 149. in Cafe oi' * S- I'- v
Throgmorton v. Tracy. ^ Juo'"'"''
15. In Replevin the Defendant jullifv'd by a Condemnation before the
Jiifiices of Feace upon the Statute ot Excile lor tlie Non Entrv of
ilrong Waters, and a Warrr.?it made thereupon to levy 20s. let lor n Fine ;
Exception was taken, becauie there .was no Profert hie in Curia oi' the
Warrant. But per Cur. the Statute docs not require that the Warrant l;e
under Hand and Seal, but only in Writing, awi no Writing is to he lb
pleaded unlels it be a Deed ; and that, of 1 hings executed, a Deetl need
not be llje,\n ; and cited 7. Rep. in the Er.d of Bellamy's Cale, and lb
judgmeuc
76
Faits or Deed;
s.
]udgment was given for the Defendant. 3. Lev. 1:04. 205. Mich. 36.
Car. 2. C. B. Aylcsbvry v. riai\ey.
16. in Trf//)/^/} of Alliuk, .Battery, Wounding and Iinpnfofnuent the
Defendant juitily'd by Warrant of the Council of State in BarbadceSj ^c.
for Comhiii.nait of the Plaint tf-^ Excepti(Mi vjxa taken, becauf^ the /K-?r-
^rant was not Ae^vn j but it was anfwered that it lay not in their Power,.
becade \t\vo.sddtVircd to the Provo/l MarJ/jall,a^h\s Awthorky tor the Cap-
ture and Detention, and therefore did belong to him to keep; and Judg-
ment was u;iven aceordingls lor that and otiier Rcalons, and ib a lormer
Judgnient'reverfed. Show, Pari. Cafes, 24. Ducton v. Hov/ell and al.
[ Sec (M. a. II.) pi. I, Reverfion (S) ]
(M. a. 11) In what Cafes, in Refpeft of the Thing Sued
for bcins; erantable without Deed, or not.
i.'TF a. A'fa/j pmrli.ifi's Ucnt-Scyvice^ and gets Seiftn^ he ihall have Aflile
\_ v»athout ihewing Deed thereof, and jet it cannot be purchafed but
by Deed, and this, by reafon that ^tis of coiniuon Right , therefore need not
Ihew Specialty after Seilin. Contra of a Refit-Charge and Rcnt-Scck ; and
the Reafon is, becaufe the Rent niay be claimed by ^iie FJlate ^vithouc
Ihewing Deed, where 'tis claimed as Parcel or Appendant to the Manor
where the Land is.; becaule the A4anor or Laud may pifs by Livery -icithont
Deed^ and then the Rent goes with tt. Br. Monltrans pi. 91. cites 22-
Air 53.
2. In Affile oi Rent, he, who prefribes in himfcij and his Jnce/ors, and
in thofe whofe FJlate he has, ought to ihew Deed of the Rent ; For Que
Ellatc cannot be of Rent without Deed, by which the Plaintiff /I?7(ZcW
Deed of the Grant of the Rent to his Anceitor, but did tut iliew Deed of
Commencement of the Rent, and therefore ill, by the bel^ Opinion ; For a
Man may prefcribe in himfelf and his Ancefi:ors, &c. without Ihewing
Deed, but net in a Que Eflate of a Thing Avhich cannot be granted
without Deed, without llievving Deed thereof ; Centra of j^cquittall in-
him and thofe whofe Eltate the Lord has in the Seigniory, or Common
Appendant, or Eltovers Appendant, &c. there he may prefcribe by Que
Eftate without flievving Deed. Br. l^refcription pi. 29. cites 24. E. 3. 23. 39.
3. A Corporation cannot make a Lcafe, Rcleafc, nor give Command, or
Licence but by Deed, vvhicli ihall be Ihevvn. Br. Monllrans. pi. 127. cites
21 E. 4 19.75..
4. He, who is a mere Stranger to a Deed of Releafe, and has no means
f> Otr^j. Suift. to come bv it, and the * Deed goes in difcharge of him, may plead it
without Ihewing the Deed ; Per Brudnel and Pollard fuftices. Contra
by Brook and Fitzherbert J. But they all agreed, that he who was privy
in EJtate, :ts Leliee tor Years, Feoffee, &c. and all 'xho claim Intereji tn
the Land, cannot plead the Deed without Ihewing it. Quod Noca bene.
Br. Monftrans. pi. 161. cites 14 H. 8. 4.
5. If a Man pleads a Gonveyance ot a Rent, or the like, which can-
not pafs without Deed, and does not produce the Deed in Plea, it is not
holpcn by the Stat. 27 Fliz. 5. of Derrinrnr. Per Hobert Ch. J. Hob. 233.
in pi. 295.
Cited •< Mod. 6. Leffee for ?ears claims a Way to his Houik by a ,&!ie FjJatf without
j2, fliewing the Deed, and hold good by 3 jultices againltone; becaufe the
Leliee has not the I^ced, and it is but a Conveyance to the Aclion, which
is grounded on the Diilurbance done to him in Polletfion. Cru. J 673.
Slac.kinan V. W ell Palm, ^8-. S. C.
-. E.^t
Faits or Deeds-, 'jj
7. But it ihe claimed ?i Rent or * G?/;/;;?!?;/ /'// ^ro/'}, which cannot pais * Ydv. 2or.
without Deed, it had been otherwife ; For there he could not ihcw 0:10 ^'''- ^- J^--
Eftffte without Ihcwingthe Deed, ho^v he came by the Eltute, Cro/j. yHuntTp
673. Mich. 21 Jac.B. R. Slackman v. ^V'elt. land
Brownl. 223.
S. C— And Cro. J. 17 1. S. C. 'Sin 2 Mod. z; 7. Birch v. Wilfon.
8. An j^rMtfameut under Seal is no Deed, and the Arbitrament may TIieDeedof
be made vs'ithout Deed, and thereiore is not necellarv to be produced in ^ T'j'".-''
Court ; For it is but a \\ ritin^- under Hand and Seal. Per Glyn Ch. T. ' .'"''^".""'^r
bty. 459. rrui. 1655. Dod v. Herbert. Dcod, ou-lu
to be fhcwn
to the Court, Av^. Comh. oS. cites Dv. 277. i H. -. T2. Ci-o. Cm-. 145. 10 Rep. 94. Yelv. 201. Hob.
;i;5- But tho' J. Thing w ill p.ils wtijoiit Deed, yet if tJie J'arty pleads a Deed and makes a 'fitle tkerf
ly, he niurt come with ;i l-'rofert. Ar;;;. 2 Mod. 64. cites i Lc. ;o9. K.0II. Rep. lo. And yet in fome
(.ball's where . I Tliinp; cannot pa's- without Deed, as a Rem;undei-, or Keverfion, a I)e.-d need not be
flicwn ; [but contra after E.vecution. Br. Monlcrans. pi. 5 j. cites 21 H. 6. 23. per Fulthorp, to which
Vclverton agreed.
[ See Qiie Ellatc (C) ]
(M a. 1 2) The Difference betu^een Oyer and Monftrans of
Deeds and Records.
i."^TOTE a i)iver//ty between Monfirans of Deeds cr Records, ttndths Overof a"
X^ Oyer of thevt ; For he who pleads tire Deed or Record, or that Deed or Re-
declares upon the Deed or Record, to him it belongs to HiCw the Deed cord h hi-''
or Record but the other againft whom the. Record or Deed, is .pleaded '^'1" <« ^« •
or declared, Ihall demand the Oyer of the Record or Dced,Svhrch his ^^fJll'^Z*
Adverfary brought againlt him. Br. Monllrans. pi. 165. , thargediyit
--'-'-■^' -^ V-- _ ':-' ,';^' 'And net hy
If 11; -xho pleads it; For he who pleads it, or declares upoii it fhall iTieW it:' Br. 'Oy«- de faits, &c,
pi. 15. (bis)
2. When Oyer of a Deed is prayed, it is intended that the Deed is in
Court, and the (ei kgitnr) or. reading of it is the Act oi the Court. Sid,
308. Alich. 18 Car. 2. in Cale of Je\ons v. Harridge.
3. When a Deed is pleaded \\ith a Proiert hie in Curia, the Aery
Tiecd it ftl^ IS by* intendnient of Law immediately in the P ojj'eljion of the CdurT; * Sid. ;o?.
{^nd theretore when Oyer is. craved, it is of the Court, and .not ot the^''f''- 'J" ■
Part\'. And after Oyer is craved the Deed becoims -parcel o\ the Record, iaCdeof
and the Court mull judge upon the Whole ; and the Demand of Oyer is fevons v.
a kind of Pica, and may be counterpleaded. 3 Salk. 119. pi. 2. 3. 4. Harrid-e.
(M. a. 1 3) Monflrans, in what Cafes there fnuft be a Mon-
ftrans or Profert, though the Deeds cannot be traverl^
ed when pleaded or Ihewn.
1.^^ FiHniedrifi in Remainder the Defendant ought to fliew the Dcetl, Br. Traverfe
I; and yet the Deed is not traverlable. Br. Monltrans. pi. 48. cites pc'''^^"s. &c.
n 1:1 f~- r o o 1 ^ -1 -J 1 ^ ^ • pi. S^. cites
21 t. 3. 49. Br. iraverle per Sans, &;c. pi. 128. ibid. pi. 324. cites 14 s C_-Decd
H. 6. I. ofFormedofi
in Remain-
der is not traverGb'e ; For he ihal! not f.iy Ke dona >.a by ihe Deed but V* dona tas only. Br. Traveric,
^l 145. cia-> 14 H d. 1 nota. Br. Forger de faits pit 20. cites 10 E 4. i.
X ». Forger
78 Faits or V>tQ.di)>,.
I
tlcrr.uil 2. f w^f/" of Deeds lies, whtrc 'Jiridor pr.'ya to be r:fce!:\ii^ and jhcjos a,
n"'V''p forged Deed of Lcdfc J For periMoilc, he cannot bo relLcived wirliDUC Ihevv-
thc Statute ii '"S ^^'^^ i ^'■'(^ t'"'"^ i^^'^'*-^ ^'i-'^^ "'^'^ t)e travelled upon the Kelceiptj
if he lit'tb l*er Danby and Chockc. Br. Forger de Faits, pi. 15. titcs 9 £. 4. 37.
v/Tiich i-; iy.tended hy JHion of Qienant. Ibid, and Br. Rclceit jil. 7 5. cites 9 £. 4. 30. Br. TiMvcife pef
lirw, &:c. pi 12S. citw? E-4-3;-
3. Executors lliall not have Aclion before Probat of the ^(.Jtnmenty
but if it be written on the Buck, quod Probatum elt, <!kc. this Ikill not be
t^^^■erf^ble, but only whether he was Executor or not, and not whe-
ther he proved the Teitament. Br. l"ra\ers. pi. i2y. cites 9 £. 4. 47.
(M. a. 14) Monftrans of Deeds. A61: of La^v. ^^'■hcre Per-*
foiis come in by Aci of Law.
IDebtona I. A 'tenant ly !^tc.tnte Staple or ^kgit, that lias extended an Abbot's
Bond Afpe,r!- j^\_ Leafcj or a Lcale made out ot" an Abbor'.s Leale, is not bound to
ediyComnnj- ^j-^^^y jj-^ becauie he conics in bv Act of Law; bur any other that comes
Biivkrufts '" under the Leaie, mult fhew it. Per tor. Cur. Browni. 3S. Mich loi
and bcLdu'e Jac. Anon.- — 5 Rep. 75. a. in Vv ynvark's Cale. ■
he comes in
by Art in Law, and hath no means to fliew the Obligation ; it was .td\iJ2;e(l upon demurrer to be gqod
cnougli without fhewing it in Court ; a,'; I'eK.xr.t h\ Statnle. Merchant or 'iVnant v; Oif-j;n fluU have ad"-
vantageof a Rmt-charire without fhewing the Deed. Hill. 6. Car. B. R. Cro C. 2:9. Gray v. Fielder.
Ic Rep. 94. in Ley field's Cafe.- — Jcnk. 505. pi. 80. Co. Lit". Z25. b. ,
2. \^ -A Guardian in Chivalry in Right of the Heif had entered for.
Coiuiition broken, he might have fkadud the Fjhitc to have been up'Hi Con-*
dition without Jliewing any Deed ; becaufj his Intercll was created by the
\^xyN. Co. Litt. 225. b.
3. So of T'enaiit in Doiver. Co. Litt. 225. b.
4. But the Lord by EJlheat, rho' his Eitate be created by the Lavy,
fliall not plead a Condition to defeat a Freehold w ithout Iheu'ing it ; hc-
CduCe tbe Deed belongs to bim. Co. Litt. 226. a.
5. So a Tenant by the Curtefy Ihall not plead a Condition made by bis Wife.
and a Re-entry tor Condition brt>ken without fhewing the Deed , For tho'
his Eitate be created by Law, yet the Lazu pref'umes that/x had the Poff'ef--
Jton of the Deeds and Evidences belonging to his \V"iti^. C-o. Litt, 226, a.-
(M. a. 15) Monftraiis, &c. By what Perfons. Affignees.
1 "T7CTHERE a Covenrnt i.^ annexed ro a Tlfing, •■dchich of it's Nature
V \ cannot pafs 'jjitbout Deed at firlt, in fuch Cale the AJignee oughc
to be in by Deed, otherwile he lliuil not have Advantage of the Co\enant;
lilt where the Covenant is not io, but runs 'ivith (he E/iate, the Alfignee
lliall have Covenant \\ ichout ihewing any Deed oi Allignnient. Cro. E.
373. 436. Hill. 37 Eliz. B. R. Noke v. .'\wder.
2. A Licence to Leafe Land need not be Ihewn by Allignee.; For he
docs not claim by it any Eltata in the Lund, but 'lis merely collateral to
the
Fa its or Deeds. 79
.^ - -- r ■ I-- I ■■ ■■ ..ii.i.* II ■— .11. ■«-*■■ — . .■■M.I. — — I I I iiOM— a— ■— ■ -^
ihe Iriterejl of the Land^ and oa\\ pleaded to excule the Forteicure of thii
Leale: and not like a Rtic^iji or Cou/irnutiai \ For they gi\'c or transfer :i
Right. 6 Rep. 38. Pakh. 3. Jac.'C. B. Bellamy's Calc— Alias Walker
V. Bellamy.
3. Where the Condition of a Lcafc is, that the Lcjjcc pjnll not Jffign hut
hy Deed and not by Parol, there he may pL^ad the AJiignment without
ihewing the Deedj an AlFignment by Parol being Ihlficient, if it be not
provided againlt by the O>ndition, Ibid.
3. In Del.'t upon a Leafe lor Years by the AlTignee of the Rcvcr/ion^ it
was alfigncd for Error, that he claimed by Grant of the Revcrfion, and
did not ihew that it v.as by Deed; and without a Deed or Fine a Re\er->
fion cannot pafsj and lor this and another Error principally the Judg-
ment was reverfed. Cro. C. 143. Mich. 4. Car. B. R. Long v. Nethercoie.
(Nf. a. 16) By Bally or Servant.
I.TN Trcfpals the Defendant juftified as Servant of a CoUc^ov to dijlrf^'ut
\^ for \os. 'Ttis^ and prated' Aid oi his Mafter, and the Plaintilt pray-
ed th.it the Dctendanc ihew the Letters Patents by which his Aialtcr
was made Collector j and was not compelled to ilx'.v tlicm ; For the
I'b-s-cr of the Majirr is the Aff (f Pc'rluinait^ ^\hich granted the Tax,
and not the Letters Patents. Br. iVionllrans. pi. 58. cites 22 H. 6. 42.
2. But where a Alan juji.'jks iis Scr-.wit vf ivrcthir^ or makes Coinifuice But if ,i IVfati
;'/; Replevin by reafon oi a Rent-chargv, he iliall ihewthc Deed of Grant diilr.ans tor
■which was agreed ; For there the Deed is the Eliecc of the titic. Contril ^^^'^^ '^'•"^ to
lupra. Br. Monftrans. pi. 58. cites 22 H. 6. 42. on^oSr
■ k . . .... Pei-fbn, as
B.uliif and is not their BallitF, and hs^ no Deed for tlic doin<^ it, yet it is good if the Partv, &c. a"-rees
to it; For it is not traverluble wlicthcr Bailiit or not, it lie to -whole Ufc Sec. agrees to it. Br.
Ti-avers. j*r &c. pi. 3. cites 26 H. 3. S, .
3. A Baily, or Servant, \mo jiiji' if cs for a Rent granted to hitnfelf^ ought
to Ihew the Deed of Grant. Br. JNlonltrans. pi. 125. cites 21 E. 4. 50.
per Brian.
4. Bail}' of a Dcav and Chapter marjufify toast frees to repair or make s p F- ■ 'f
the Pales ot the Dean and Chapter's Park:, ■iv:thout fJ:'(!z:ing Spuialty ho'ui belore^-uc his
he was made Eaily ; lor he is but an Officer or Servant to them, and for Ofncc'iiLe -
their Ufe. But econtra of them v/ho clairu Intertji jrorn the Dean and '^^i*'-" to cut
Chapter, as a Leafe or Licence to take Trees, &c. Br. -Monltrans. pi. tJi'tobeAt-
113. cites 12 H. 7. 25. 26. tomey to
>ll.^^e Liiery
and Scifn, 8cc. it mud be by Deed. Br. Corporations pi. 51. cites S. C!.
He who jujlifi'i .7J Servant oi a Ciyjiorntrni ard h tlcir Ci);!>7/tjKiin!ei:t niilft fhew Deed ; but Br.ily fhall
not. Br. Corporations, pi. 54.. cites - E. 4. 14. and Trin. 10 £, 4. ace — But fee ibid, pi. 56. cites i; E.4.
(}. ic. Contra per Littleton —If a .Man ti.'c.-iiis the Fr.^nUimmoH if a Dcr.i: .wd Ch.ipter^iiud thAt he ptitereA
ly t'neif Qni»i.i>!d, he niufl ftew a Writing of their Command ; bv the belt Opinion, Br. Curyor.itions, pi.
59. cites iS E 4. y. viV or Servant ot JJ.i^or and Cvrtnutiutlty. Ijid.
5. If a Man appears as Bailiff in Jffife for the Defendant, the Plaintiff
}1 ail not ha\e Traverfe, that he is nut his Baiiift". Br. Bailie, pi. 9. cites
15 H. 7. 17. pet Tpwnknd.
6. 11 there are 2 Copantna-s and ooe di-flrains, lie mftyavo\v lor her- - - «
felf, and '■.iifiiiy as Bailiif to her Companion, ar.d it is not traverfable if
Ihe be Bailiff "or not. Br. Baillie. pi. 9. cites 15 H. 7. 17. per Collowc.
7. A Servant, Sii:. who pleads a Re/cafe^ ought to ihew it. Per Fitz-
liVlLuT and Bfcuke. Bi. ^.ionllrin*. pi 6i- ciie^ 14 U i. 4.
8o Faits or Deeds.
8. Ic is a Maxim, that where a Man is a Stravger to the Deed, and
d<^ith not claim the iT/^/z/g compiifed in the Grant, or any thing out c^' it, nw
tluth claim an)- thing in Right of the Grantee^ as Balhff] or Servant^ there
he Ihali plead the Patent, or Deed, without Ihewing it. lo Kep. 94. Hill.
S jac. Dr. Lcylieid's Cafe.
'9. In Treip4rs oi" carrying away Trees ; Defendant faith, that long
betore the Piaintiflf had any thing in the Place ^vhere, &c. one P. "Was
ft! fed in Fee J and by Lid cat lire dcniijed to J. S. the fud Ckfe, &.c. eyctptifig.
the H'ood and LinderiMood tterctipofi growing ^ Habend lor the Lite of one A^
and farther Covenanted, that it ponld be la-difnl for the faid J. S. and his
JiU'igns to take }icce[fary hireboot and Hoiifeboot, Sc. and Deiendant laith,
that J. S. alligned over his Etlate to the faid A. and that he as Servant
took the faid Trees for neceilary Fireboot, &g. to be expended upon the
Premiiies, and avers the life of A. and it was thereupon demurred, be-
caule hejiiflljics by force of a Covenant in an Indenture, and does not ihew
the Indenture, it being a Thing Avhich cannot be granted without Deed ;
and the Plea was held to be ill and adjudged lor the Plaintiff Cro. J,
291. 292. Mich. 9. Jac. B. R. Purfry v. Gryme.
10. In AlTault and Battery, the Defendant //{/?//ft'^ as Servant to J. S.
for that the Platntijf came to Jifh in the fevcral Pifchary of his Majter; and
Judgment being given for the Defendant, a Writ of Error was brought
•and 2 Exceptions taken, i. That whereas the Defendant had lutltkd bis
Mafler in his Plea of Jiiflijication to the federal Pifchary by the King's Let-*
tcrs Patents, he had not ihewn, that the King \vas leiled of this fe\"cral
Pifchary Jure Goronte, and fo it might be that the King had no Power to
grant it; 2. That he did not lliew the Letters Patents, Avhich he oughc
to do, becaufe he derives a Title by them : And a Rule was gi\en to
Ihew Caule why the Judgment Ihould not be reverfed. St\-. 15. Palch. 23^
Car. B, R. Jones v. Young.
(M. a. 17) By Bailiff, or other Officer of the King.
P Br ■^' A •'^^^" ^"^y ^^ Bailiff of the King without Patents Contra of a Por-^
aillie.pl. '2. jf\ rejier. Br. Monltrans. pi. 153. cites 33 H. 6. 3.
S.P.
Baiili^
But he can-
not be SheriS or Eftheator without Patent, cites 5 5 H .6. 2. by the beft Opinion. — S. P. 3r. Baillic. pi. 45.
4;ites 7 H. ;. 10.
2. In Trefpafs t]:e Deiendant may juflifv hy Ccmmand of the King, tho'
he be not the King's Bailiff, nor other Officer, quod n<Jta b}' Award 3 and
■ therefore it feems that he may do it without llie\\ ing a Deed or N\ riting
• thereof Br. Monltrans. pi. 79. cites 39 H. 6. 17.
He may be 3- ^^here a Man rrjakes Co«}iizance lo diflrain, as Bailitf (.if the King's
Baily of the Manor, for Rent or Services arrear, and prays aid of the King, he Ihall have
Kingwitii- it without Ihewing the Patent how he is made Bailiff ^ becauie he claims
T'-^u*.^^"*^' to the Ui'e of the King. Put if he claims of the King to his oivn Ufe,
notbc'^Gran- there he ihall llievvthe Patent. Br. Monllrans. pi. 64. cites 15. H. 7. 17.—
tee but by Br. Baillic. pi. 9. cites S. C. — Br. Aid delRoy pl.5 1 . cites S. C. per Vaviibr.-
Patent. Br.
Travcrs. per fan.';, 8cc. pi. 118. cites S. C per Vavifor. — A Diftrefs taken by one as B.iily who is not
Bailiff is good, if the Kinj^ agiecs to it. Br. Travers per &c. pi.- 5. cites 26 H. S. S. Br Baillie-.
pi. 1. S. P. For whether Bailiii" or not is not traverfable, cites 26 H. 8 8.
(M. a. 18) By
Fa its or Deeds. 8 1
(M. a. 1 8) By Cefty que Ufe, Truft, Covenantor, 6cc,
iT a THE Tenant of the Land cannot plead a Rclcafe made by Cefty que
j|_ life to the Feoiloe without lliewing the Relcafe. Er. Monltrans.
pi. 6 1, cites 14 H. 8. 4.
2. i\. gives Lcuid to f. S. cud J. N. nvd their Hcirs^ to the Ufe of him- r;,it\\r,on
fclf and the Heirs of his Body, and /or Defuilt of fuch Iliiae to the Ufe 'of Covemmr
B. and his Heirs; A. dies without llfue, B. brings a Formedon; but the with a
C)pinit)n of the Court v,-as Prima facie, that he need not produce the iJecd, ^"'^"n-';'! -
becaufe it belongs to the Fcojfccs, and not to him. JJ. 277. a. Trin. lo //',^ j^,,.^-^^/^,.
Eliz.. Eltoft V. Vaughan. Cro. Car. 441. Stockman v. Hampton. S. P. licmuftiiiew
the Deed.
D. zt;. ^far<;. pi. 5S. ftys it was To Refolved 4. Eli/.. B. R. In pleading the Gr.wt of nn Jd-
%'Cfu;fon after the Statute of 27 H. 3. toOne to the Uje of nnother in 'f.iile, it was held per tot. Cur. that
Ceftv que Ufe need not fhew the Deed, beciuie it belonged to tlie Grantee and not to Cefty que Ule ;
But'tliat he ought to jhe-ii; that it ivas granted iy Deed ; but Walmfley Contra, that he ought to fhew
the Deed, bccaul'e the Grant is not good without Deed, and fo ditiers from D. 2" 7. Elloff's Cafe, Cro.
J. 217. Hill. 6 Jac. B. R. Huntington (EarH v. Mildmay.
In a Cale upon the fame Point, the fame Objettion was made as by Walmfley ; but Relblvcd Contra
for the Reafon above in D. 2-7. and alio becaufe Celly que Trull has no remedy in Law to get PoJfeJJJcn of
the Deed; and alio, hccmkhcis in merely l/y Operatioii of Lai'^ a?id r^ct in the Per. Carth. 510. Trin.
6 W. JM. B. R. Reynell v. Long.
3. Audth.t Court was likewife of the (lime Opinion, becaule the R^t S. P. andal-
iTiainder nnght commence liithoHt Deed. D. 277. b. pi. 58. Trin. ' 10 Eliz'. *° beeauie
t o fi r • I f J the Ejhnc is
pi. 53. a. V^. executed Iy
the Statute of
Ufes, and fo the Party is in h tie La'Vi- ; as Tenant in Dower, Tenant by Statute Staple or Merchant',
who have a Rent-charge extended to them. Cro. C. 441. 442. Hill. 11 Car. B. R. Stockman v. Hampton.
In a .G)uare Impedit, Plaintiff intiilod himfelf to a Manor to which t:i'o. J. 21 7.
I'ather died ; the Defendant demurred. Per Cur. 'tis good j For the Plaintiff Hampton.--
is not Party w I'r/vjjo the Deed, nor has a Remedy to c^jme to it, and u"['^',5'>'
he has the Ellate by the 27 H. 8. of Ules, and now the Deed properly be- if^ff^ P
kngs to the Covenantee^ and fo was the better Opinion in D. 277. and that '"' ' .
differs from the 14 H. 8. 7. 8. and Judgment was given accordingly.
Noy. 1.J5. W'elby's Cafe.
5. In Debt cgainfi Exccutris for lol. the, Plaintiff declared upon an Ob-
ligation Gnditioned to pay 5 1, to A. to tie Ufe of JVJ. his Daughter as a Tune
limited in a certain Indenture^ the Defendant pleads that the Indenture ""xas
made bct'-sjeen her Tefiator and one J. S. by ichich the Plaintiff' enfeoffed J. S.
to the Ufe of the Tefiator and his Heirs^ and that the Tefiator Covenanted to
pay 5 1, to the Plaintiff' ivithin Tivo Months after the Death <f W. R. ii'lvch
/r. R. is yet alive. The Plaintiff demurred, becaufe the Defendant did
not produce the Indenture, but the Court held that the Plea 'was good
Avithout it, becaufe the Deil^ndant was a Stranger to tlic Deed, and it docs
not belong to him, but belongs t'l the Fecff'ces, and flie has no means to en-
force them to produce it, and the Court will not impofe an Impoffibilitv,
cfpeciallv llie being an Executrix ; but the Plairttiff had leave to difcon-
tinue. Lut^v. 481. Trin. 3. J.ic. 2 C. B. Crotch v. Crotch.
[ See Cefty que Trult (F) ] ;
y (Ma 19) By
82 Faits or Deeds.
(M. a. 19) By Corporations and their Grantees, &c.
i.TTF a particular Man claims an Kxei)iption by a Ch^irter made to a Corpo-
\_ ratio//, he mult ihcw it, per Haughton J. fays it has been adjudged.
Roll. Rep 296. in the Gale ot Buckham v. Dundridge.
S P. Ow. 16. 2. Plaintiff' in Ejedtment declared of a Leafe jnade to bun by a College hy
Fp'^d'^B Indenture, without fiying Hie in Curia prolat. it is not good, i Euls.
T huldon's 119- Pafch. 9. Jac. Stjohn's Coll. Oxon \. Ld Norris. aliasClerk v. Hannes.
Cafe. 3. But if a Leafe jor liars had been made ton Corpcratio/i, who cannot
take without Deed, and they granted it over, the Grantee might have in-
titled himfelf without ihewing tlie Deed ; becaufe the Leafe of the
Thing in its Nature might ha\e palled without Jjced, altho' the Perfons
■who took it could not take it without Deed. Cro. J. i ro. cites it a3 fo
faid in Cafe of Predyman v. Wodry.
[ See" (Ma xi) — Corporations ( ) J
(M. a. 20) By Perfons that are in by Defcent.
H
E, who is in PofR'lTion by Defcent, need not ihew Specialty. Br.
Monltrans. pi. 6$. cites 24 E. 3. 52. per Cur.
(M. a. 2 1 ) By Devilce.
Ibid.-pl. 160. i.TN Mortd.mceftor, the Tenant intitled himfelf by Dcvife, by 7!/?^-
cites S. C— J[^ jiicttt of the Anceftor, of whofe Seilin the Detendant demanded,
S. P. ibid.49. ^^^ j.jjjg {jy Cuftom of Devife, and Belk. challenged, becauie he does not
i.perStraiK'c, ^hew any thing of the Devife, & non allocatur; becaufe the Teihmienc
quod non iTc- does 'riot belong to the Tenant, but to the Epiedutors, quod nota bene. Br.
gatur. Monftrans. pi. 102. cites 40 AiV. 2.
(M.a. 2z) By DifTeifee.
l.'T~\TJfeifce cannot plead a Releafe made to the Diffcifor without Ihewing
JL/ iti nor econtra. per Fitiherbert. Br. Monllrans. pi. 61 cites
14 H. 8. 4.
(M. a. 23) By Grantee, Leflee, &c.
1 .^l^ Debt upon Lea fe for Tears by Indenture, the Plaintiff may Count
JL without the Indenture ; For the Leale is the Eriecl and not the In-
denture ; For variance between the Writ and the Indenture lor this
Caule was agreed not to be material. Br. Monllrans. pi. 20. cites 44 E.
3. 42. Ibid, cites 4 H. 6. 7. contra per Babbington. But Brooke lays,
it leenis theLaw is contra to Babbington.
2. Ir.
Faits or Deeds.
8?
2. In /r^f//, 'twas iidmicced thdt if a Man Lea/a for Life, and after by
* Ailenc vi' the Lc/li't; vL^kcs Livery to amthcr in Fa; and the Leffce decs * Orir. Af-
-tr/, thQk'co^iepall h:!VC'iv.'ftasJJig.ncc, without ihcwing the Deed of'Sn^cnt.
Grant of the Reverlion. J5r. Monltrans. pi. 24. cites 46 E. 3. 25.
3. 'Tis laid for Law that \vheic an Ejectment is brought againft
Jhcnee of him in Re-vcrJioH-^ hs-iruiy plead aCokdition without ihewing Deed.
Br. Monltrans. pi. 31. cites 7 H. 4. 16.
4. ^u upuu a L&iijl for 1 csrs. rcndiring Rait with Condition ot Non-pay-
ment; the Reafon leems to be becaule 'usoi aCkntle. Br. Monltrans.
pi. 31. cites J H. 4. 16.
5. li 'Tt/iant- for Tars in whom there is Privity pk:ids a Rc/afv, he
lliall Ihew the Deed. Br. Monllrans. pi. 61. cites 14 H. 8. 4.
6 A Leale was made Z^ J. to J. S. and afterwards A. nhide amtkcr
Leiif to IV. R. to begin nft^r the Dctcrmmatwn of the Lcafe rimde to J. S.^
In fecond ^^liverance brought Exception was taken, that the Plaintitl'
had conveyed to himfelf an Interelt of a Leafe made by h. to \\\ K.
which is made by Name of the Reverlion, and to commence after the
firlt Leaie made to J. S. ended, which is alkdgcd to be made by Deed in-
dented^ and that therefore the Plaintilf ought to fhew the Indenture, and
the rather for that the Validity of the 2d "Leafe depends upon the Validi-
ty o( the firlt Leafe, lo that to make the lecond Leafe good, the Plaintift'
murt Ihew the Firll to be good, and in order to that mult Ihew fuch Deed,
notwithltanding it was made to J. S. and not to him. But the Exception
was difallowed. PI. C. 147. &c. 3 Ma. Throckmorton v. Tracy.
7. F.jetimetit was brought by Leffee for YearSj_ Defendant pleaded a Bar-
gain and Sale made to hiin in f-'ee by Indenture inrolled within 6 Months,
by ivhich he ivasfeifed till LcJJor dijjeifed hnn^ ivho leafed after to the Plain-
tiff. The Plaintiff replyed that tlie Bargain and Saleaw upon Condition^
-iihieh "-joas broken, abfque hoc that the Leffor diifeifed, &c. Defendant
demurred and for Caule Jhewed, according to the Statute, t|iat the Plain-
tiff' in his Replication did not let forth the fiid Indenture^ comprehending
the Condition, and ali:cr good Debate and Confjderation of the Alatter in
Law, it was adjudged ibr the Plaintiff Mich. 35 and 36 Eliz. B. R.
.5 Rep. 74. \\''ymark's Cafe. Alias Dun v. Low.
8. A Man claims from a Grantee of a Patentee of a Hundred, in which
was a Leetihe mult Ihew the Deed, If he avows for -xviAmerciawent in the
Leeu Cro. El. 245. Porter v. Gray.
9. Plaintiff declared of a Leafe 'by Baron and Feme, and Ihewed it not
to be by Deed, yet 'twas held well enough ; For it may be intended by
Deed, tho' no Declaration thereupon ; and tho' it be ^\ithout Deed yet
'tis well enough, at leait during the Life of the Baron ; and 'tis a Leafe
from them both during that Tune. Mich. 27 and 38 Elii. B.R. Cro. E.
438. Bateman v. Allen.
"10. In Trepafs, Detendant, who was under Lefee of the Patentee ofCro. J. ;t:.
part of the Term, juitifics under the Leafe by Patent from the King. Per ^S. C. but
tot. Cur. he ought to have pleaded Hie in Curia prolat. and for this O- ^''':!;^ "''
million the Jultihcation is not good, and judgment pro (.haer. i isuls. 154. p„f,„f^^_
Trin.9 Jac.»Laytieldv.Hellicar.— Sofolthe Lcffeeof Patentec,^cxVtnm-\]. do. E. 715.
but Rliodes Contra, Godb. 112. pi. i%$. Mich". 28 and 29 Eliz. Anon.— S. P Brown-
Sty. 15. P. 23 Car B.R.Jones v. Young, S. P.— But wherethe A7//^<rcwM to ^"^^^yf;.
the LandX en lePoJl, his Grantee need^iot Ihew it, For by Intendment thp g q adjudg-
King had it not. Cro. J. 109. Hill: 3 Jac. B R. Predyman v. \V'odry. cdintheEx--
chequer up-
ca Error jifTigned, that he being hut a Serz:i»t, liis Pica was good. But it was held, that he Aernin? his
<T:tk from the Patentee, pot by Ml m Lann hut Ly lis CvmuiM'J, he mull make Profert as well as one that
cl.iims as Aliif/.ee.- Cro. 1. 560 Rolls v. Boulton, &.P.
t ycnk-;o5. pi. So.— ; 16. pi. 4. , • . 1
PfC 57^ b. per z Jufticcs contra, unlcfi the KingV Grantee vriivts ner all his f/iterej?, by which the
P.itent belongs to the Grantee ; otherwil'e in Grant ut" Parcel only. D. zg. b. pi. zoo. Hill. 2S H S.^
.jiEverv Purc^haibr of the King of Abbsv Lands comes in en le Poll, and he that con:!'s in en le Pefi, ihall
not be' jnforced to fliew the Deed" or ^■^''rili^g, by which he, after -.Nhem he co.mes in, was ^.tfcharged of
I'ides. Are. 2RollF,CD i-ij.
II. One
84-
Faits or Deeds.
1 1. Ciie Poiicircd of a Grand Lcafe makes an under Leafe, miikr Lef-
fec makes a Leaie, and his Tenant Cuveaants to lepai:- ; in an Attion oiCo-
•vtnatit on rhc Breach, he need not let out the original Lcafe or nnaa j^J/ign-
Viients. Cart. 31. Gold v. Earnfly.
[ See Prerog. (Y. c. 2) Que Eftate (D) ]
(M. a. 2.4) By Grantee of a Chattel.
l.T^THERE the Lord of B. and his Anceftors, &c. time out of mind,
Br. Pi-efci-ip- y Y j^^yg j^^(j FoUagc of Steep for their Tenants in B. and he Grants
citesS.C.^' it to W. N. for 4 2'earSy it is good, and W. N. may juftify without Ihew-
ing Writing of the Grant; For he need not [becaufe it isj but a Chattel,
Br. Monrtrans. pi. 166. cites 1 H. 7. 24.
2. A. who was the true and rightlbl Patron granted the next Avoidance
to B. and after B. made C. and D. bis Executors and died. The Executors
granted it to J. S. and all their Interefl in it ; The Church voids and J. S.
brings Qua. Imp. & avers this to be the next Avoidance, but does not
'ihew the Literas Tcftamentarias of B. and itfeems he need not ; Fortho' the
Executors never proved the Teftament, \'et the Grant ot the Avoidance
is good, and is an Adminillration in Law. D. 135. pi. 13. Mich. 3 and 4
P. and M. Smithley v. Chomeley.
(M. a. 25) By Lord by Efcheat, 6Cc.
i.T" ORD by Efcheat fhall not plead a Rekafe made to the DifTeifor by
J_jthe Dilleifee without Ihewingit. 10 Rep. 93. in Dr. LeyHeld's Calc.
2. Grantee of a next Prefentativn ivas Outlaiu'd, and the Church be-
came Vacant. The Lord of the Manor, to whom the Goods, Chattels,
&c. oi' Outlaw'd, &c. Perfons were granted bv Letters Patents,
brought Qua. Imp. and it was Refohed, that the PlaintilF being en !e
Po/?j and not privy to the Grant in any wile need not fhew the Deed of
Grant to the Perlbn Outlawed. Hub. 302. Mich. 17 Jac. Holland v,
Shelley.
[ Sec (M. a. ) ]
(M. a. 26) By Lord, Mcfiie ^nd Tenant.
I TTf THERE there is Lord, Mefne and Tenant, the 7en.v/t may plead
V \ a Rekafe^ made by the Lord to the Adefne without Ihevving it ; for
this amounts to Hors de Ion Fee. Br. Monllrans. pi. 61. cites 14 H. H. 4.
■ 2. So where the Lord or Mefiie has Granted bis Seigniory or Mefualty
over, &c. to which he attorns, and docs not ll.ew the Deed; tor this goes
in his Difcbarge, and it does not belong to him, and he has no means to
come by it. Br. Monllrans. pi. 61. cites 14 H. 8. 4.
(M. a. 27) By
Fa its or T)'^(^ds. 85
'H
( ^r. a. 27 ) By Officers.
E, who jiiffijics tl.v Eritrv into a Houfe as under EcBerdor^ flialf
lliew the Comniiirion, by which the Echeator commanded hun
to do io. Br. Monluans. pi. 92. cites 22. MX. 57.
2. A Sheriff'* or Riuliff' Iworn and hwji-n^ who makes an Arrefi, need nor. *S.P.ibifi.pl.
pe-ic ttslVarriUiT. Contra oi" a Servant of the Sherill^ &c. who is not t,'" ^" p''
I'vvorn nor known. Br. Monllrans. pi. 117. cites- 3. £.4. 16. and 21. Re,'iJ.Q, Y
H. 7. 23. 37. And tlierc-
forc he mnv
do it bv Command of the Sheriff, without a Precept in Writing, and the Party ought toobcy. fblj
pi. 63. S. P. cites 14. H. -. 8.
3. An Under-Collector need not fliew Records, per Choke:. El*.
Monltrans pi. 125'. cites 21. E. 4. 50.
4. Trcfpajs of hiprifoiiment ; xhe Deihnii'xnt jnjtijied trs Servant of -a Jtt-
-fticc of Peacc^ to arrelt th-e PlairitilF, who was making a Riot in I'-'rc-
knce of the Jullice, and good, ■ without Ihewing Praecept in Writ-
ings lor, in p-cfe'dtia Jiijlictar. contra in abfentia Julticiar. Br, Mon-
ftrans. pi. 63. cites 14. H. 7. 8.
5. yind a Sheriff'., who has a Capias, need nozJln-X! the Capitis to the
Party when he arreits him. Br Monltrans. pi. 63. cites 14. H. 7. 8.
6. For he is an Oiiicer known. Nota. Br. -Monllrans. pi. 77. cites 2 r
H. 7. 32.
( M. a. 28 ) By Privies.
I. rTpRefpafs of Goods taken, &c. x.\vi Defendant jiiJiiJieH, beca^fe /^^e S- P:,ci':ed u)
X "iioas Mayer of M. and the Vill has Goods of Oiit/atas by Grant •^[^^^^'^(^a,^'
of the King and he took them as Goods -of rheOutiaw, as Mayor j and ofPartrid<^e
arftcr was removed, and another made Adaym:, |adgment ^ and the Plairitilf v. Strant^e"
demurred, becaule he did not Ihevv the Patent ; and per Danby andMoyle, at;d Crocker,
he need not as here, tor now this Intercji is determined, and the Patent ^aI^^^'^
belongs to the new Mayor. But where the Interefl^ ii determined, and the the Cafe of
Patent belongs to himfclf ; there he fliall ihcw it. And per Danby, heihall Thro<jmor-
l?ievv tlie Deed in the Principal Cafe ; I'herefore cpiere, for ^idjornat. ^'^^ "■'■ Tracy.
Br. Monllrans. pi. 11. cites 35. H. 6' 8;
2. A Man has a Rent for Term of another's Life, and Cejly que Vie dies^
he ^ha^ll li,e\v Patent; contra, -where the Remainder of the fame Rent is
over in Fee ; Eor this belongs to him in Remainder^ Br. Monltrans. pL
II. cites 35. H. 6. 8.
3. So of a Parfon, who has a RetTt in -Fee, and Permutes or Rejighs; For'
t'heDf^'^ belongs to the nrja Parfon. 2>r. Monltrans. pi. il. cites 35. H. 6. 8.
4. He who is Privy as Le [fee for Tears, Feoffee, Sic. can't plead a Deed
^ittiout llicwing it. Br. Monltrans. pi. 61. cites' 14. H. S. 4.
5. A Remainder Man lliall n(>t plead a Re/safe made to the '/enant for Co.Litt. ziJt.
Lii^, witlwut ihewingit; and yet it docs not belong tohnli; nor has he ^. ^ecaure_
Means to come at it. 10. Rep. 93. b. in Dr Leyiieid's Cafe. vi^inEftate
So of a
'Ca'fwuiiion to Tenant for Lite, Rem.iinder to avttl.er in Fee. Litt. S. 57 :. Becaufe he is Privy in Eftatc.
Co. Litt. 51-- b.
[ See Re\crfion. (SJ ]
Z (^I. a. 29)'
86 Faits or Deeds.
, (M. a. 29) By Strangers.
f. A Ga'oz Land to B. in Fee rendering Rent, and to re-enter for Non-
Jf\* Payment; aitcrvviirds B. leafed to C. lor a Term ol' Years reU"
dering R^nt ; The Rent payable to J. was arrear, by ivhiob he entered and
oitjied C. Now C. lliall be dilcharged of his Rene aguinft B. and Ihall fay
that his EJlate is defeated by the Condition as abo\'e, and chat by Realbn
of the Rent arrear he is oufted, and ib his Ellate deleated, &c. without
Ihewing the Deed of the Condition. 45 E. 3. 8. b. pi. lo.
2. He \vho is a Stranger to the Releafe can't plead it without pewing it,
as it ftems. Br. Monftrans. pi. 41. cites Littleton tit. Itates accordingly.
3. j4s in Debt againft N. who laid, that the Obligation was made by
him, and by a Feme who took E. to Baron, and the Plaintilf' by the
Deed which he Ihewed had relealed to E. all Actions, &c. Br. Alon-
itrans. pi. 41. cites 11. H. 4. 30,
4. Formedon, the Tenant laid chat y1. ivas feized and leafed to him for .
Lije, and alter granted ci:e Reverjion to feven, and foi/r cf them releafed to
the other three, and alter, one of the three relealed to the other two, and
Ihewed all the Deeds ; and fo it feems that he ought to Ihevv a Deed to
which he is a Stranger, if he pleads it. Br. Monltrans pi. 42. cites
14. H. 4. 32.
5. In Prweipe qucd Rcddat the T'enant wade Dfaiilt after Delaulr,
A. came and laid that T. was feized in Fee, and leafed to the Tenant
for Lite, the Remainder to him in Fee, and prayed to be received, and did
not Ihew the Deed of Remainder. And the Opinion of the Court, ex-
cept Prilbt, was, that he lliould be recei\'ed without lliewing the Deed;
For he is to affirm the Pofjefpon of the 'tenant, and this by Defence. Br.
Monftrans. pi. 12. cites 35. H. 6. 31. 32.
6 But qusre in Formedon, in Remainder cr Wafl, where he is to re-
cover the Land ; there he lliail lliew the Deed of Remainder. Er. Mon-
llrans. pi. 12. cites 35. H. 6. 31. 32.
7. And the Tenant Ihall have Aid of him in Remainder, u'ithout Ihew-
ing the Deed and a Fortiori here ; lor the Deed appertains to the Tenant
tor Lite during his Lile, and not to him in Remainder. Br. .Montlrans.
pi. 12. cites 22. H. 6. I.
8. And it feems, that he may make title in Affife by fuch Remainder
without fhewing the Deed ; but there the Remainder was e.\eciited. Br.
Monllrans. pi. 12. cites 22 H. 6. i.
9. In Debt upon an Obligation, thatA. /hall ferve the Plaintiff' for fe-
ven Tears, the Delendant faid that A. fer\ed li-om the Day, &c. till fuch
a Day in the feventh Year, when the Plaintiif dilcharged him out of
his Service: and a good Plea without Ihewing the Deecd </ Difeharge j
becaufe the Condition is put in the Deed, and alio the Defendant is a
Stranger to the Service, and was not Servant, but A. was the Servant.
Br. Monllrans. pi. 119. cites 10. E. 4. 15.
Cro C 209. 10. A Feme Ihall have Dozver of a Rent-Charge Avithout Ihewing the
in the Cafe of Deed, becaufe the Deed does not belong to her. Arg. PI. C. 46. in the
Gray V. Fid- Cafe of ^\'imbilh v. Talboys. 55. S. P. Per Moncague Ch. J. Arg.
<^cr. 81. b. S. P. in the Cafe of Partridge v. Strange.
n. Where a Deed is pleaded in Difeharge, and the Party does fiot
^nantin ^jj^j^^, q-jjf^ //W^r it there is no need of Prolat. hie in Curia Mo. 870.
pleid a K,- I^"'\\ n V. Goldlmith.
haje. to her
Barov witliour flicvving it. Ci-o. E. 865. in the Cafe of Brome v. Carr. 10. Rep 95. in Levheld's
Cafe.. For this is an Eltate gained hy J[l hi Latu. 94. b. ibid .— The Tfw^wf h Cm-tefy mn^
fhcw the Relcale made to his VVi'e ; for, tlio ' his Ellate be created by the Law, yet the Deed belongs
to him, and he had it in his Prwer ; For bein_s; made to his Wife, he may detain it during his Lite.
10. Rep. 94. in Dr. Lcyheld's Caic. Co Litt. 226 a.
12. It
Faits or Deeds. 87
12. It is a Maxim, chat where :i Mail is :i ■'■^Uwiger to the Deed, and ->''- J^Ion-
r/tr/'' »o/ rA-?/w the T'hiiig comprized in the Grant, or a/iy Thing out of it ; ""''■ ^^'u''
fior doth claim anv Thing />; Right cf the Grantee^ as Bailijf or Servant ; g "pcr Poi-
there he Ihall plead tite Patent or Deed without ihewing it. la. Rep. 94. lard J. that
Dr Ley Hold's Cale. \vherc a
13. But when he chiiras the 'Thing, or any Right or Interell out of it, ^'""p«r>
orjulHlies in Right of the Grantee, he mult fhevv the lirlt Grant. Ibid. PHvitv^sto
14. As fccond Grantee of a Rent-Charge muft lliew the iitll Grant, arnl tak'cAdvan-
and fo mult his Baily. Ibid. tagc of a
15. Jiui the Grantee of the Rent-Charge ftall not plead the Rekafe of 7^''''^'^' ,?"'^
the DiJlleifee to the Dijfeifor without Ihewing it; lor tho' he claims not the ^^rowpiyl"^
Land of which the Releafe is made; yet he, that hath Rent out of the hcfh.ill-'ilead
Land, hath Right in the Land, which by Releafe ol' all his Right ihall "■ -vvithout
be extinct, and therefore mulllhevv the Deed. Ibid. flicwingit —
' He that is
Part-j cr Pri-
•vy in Eltate or Intercft, or lis tliat juflifcs in the Right of hitn th.it is Partv ov Privv, fliall plead a
Deed. The' he, that is Privy, clainu oiiiy P.vt of tie original Efiate ; yet he fhall flitw tlie original
Deed to the Court. 10. Rep. 92. Dr. Lcyficld'< Cafe.^ — .94. ibid. By juftifying under the Right
or Iinerefl of his Mafier, it fcem.s he mcAdles ivith tic Title, and therefore maft fhew'the Deed, with-
out ivhich. he cannot juiHtv, a::d it iva-s hi.s Follv to judity uudcr one, wlio could not or would not fhcw
the Deed. 9. Jac. B. R. Cro. J. 291. Purficy v. Grimes 2. iSIod. 64. S. C. cited in the Ca!e of
Stubbings v. Bird.
16. If Land be mortgajgd upon Condition, and the Mortgagee (in Pofl
Icflion I'jppolc) kafes the Land for Tears, rcfa'^oing a Rent, and atirerwards
the Condition is perform'' d, and the Mortgagor re-er!tcrs ; the Leliee, in an
Aftion oi Del t lor tt>e Rent, ihall plead the Condition, and re-entry with-
out flieW'ing the Deed Co. Litt. 226.
17. One need not produce a Deed ot Releafe in Pleaaing, ^\here it rras * PI. C. 14S,
to a * Third Perfon, and he f claims not itnder him, nor has any Means to ^ '49- a- b.
'comc by it. Per Le\ inz. J. 2. Show. j,i8. in the the Cafe of Howard v. ", '"S^""''-
I -^ *f ' ton V. 1 rucy.
Denham, jPl. C, 251.
b. D 1-4.^8.
3. Le. 83. Carver v. Pinkney.
18. Bi't, A'lhere a * Ser\-ant jufTifics by Leafe of Tythcs made to his Ma- * r Af _
fer, he ought to make Proiert. Cro. J. 360. Rolls v. Bolton, j],.y„s p] j,
cites 3i.H. 5.
8.PcrMoyIea:id Danby.
Tortfeilor, Avho can't wake Title, may plead a Deed without
lliewing it, per Fitzherbert and Brook. Br. Monltrans. pi.
(M. a :;o.) By Tortfeilor.
-A
61. cites 14. H. 8. 4
(M. a. 31) Mondraus. To whom.
I. TN Precipe quod rcddat againft S. he pleaded that R. was feized, and
X infeoff^d him m Mortgage, upon Condition of Payment ot certain
Money at a Day ; and that R. paid the Money at the Day, and entered.
Judgment of the Writ. Exception was taken, (jecaule he lhe^v•'d no Deed
of the Condition. But Ruled that he need not Ihew the Deed lor two
Reaibns. i. I'hat he ought not to lLe^v^ahy Deed to the Demandant,
becaufc he is a Stranger. 2. k might be when R. paid the Money, and
the Condition pcrfoim'd, that the Deed was Re-haiPd to R. and lo the
Plea was adiudg'd good, and the Writ abated. Co. Litt. 226. a.
■^ OM.a. 32)
83 Faits or Deeds.
(M. a. 32) Profert or Monftrans, Aided or Cured by
what.
Defeidant |. r~|~1HE Wantof Profert may be made s;oodhy the Pka cf thectberPar-
BondaJ'^r- -^ ''■''• ^^- ^- ^^°- ^- 4 ^^''^- '" ""^^ ^^^^ °^' VV^illianis v. Barkley.
f'Mhejiitl -^^ 'n ^^^ Grant ot an Advowfon, where the IJfue was taken on a collate^
and (b Plain- r'll MiitUr. Hutt. 54. Lightlooc V. Brightman.
tif li,i.d fudg-
ment; yet upon Error brought for Want of a Profert the Judgment was reverfed. Trin. 2. Jac. B. R
Cro J 3;. Dawbeny v. Baniller.
2. In Rcplc-vifi, the Defendant juftified as Servant to J. S. as in his
Freehold, and the Plaintiff' convey d as Patentee for Tears Irom the Queen,
without making Profert, and travcrfed the Freehold of J. S. It was held
by all the Jultiees except VV^almlley upon d. General' Demurrer for the
not making Profert, that it was but Matter of Form, and not much
material. For it was tin Inducement only to the 7'ra-vcrfe, and not traver-
fable^ and may be amended : And they laid, that // the Defendant makes'
no Dt^fence^ and there wants an Averment, tlie Words (Hie" in Curia pro-
ht.') may he amended and inferted ; For the Truth of the Matter appeals,.
and in this Cafe tlie Letters Patent are not Ijjnable. But, Periam fiid,^
that if fuch Plea had been in an Avowry when it was ijfiiabk^ it llioukl
ht otherwife, and it was adjudged accordingly for the Plaintiff Cro.
E. 217. Hill. 35. Eliz. B. K. Yautry V. Aplen.
6. C. cited 3. In Replevin, the Defendant avoived for Rent granted 12. E. 2. but did
W t^°h'C "°'' ^^^^^ "-'^^ Deed. The PlaintitF Demtirrd generally, and the Court
c.1^. J. Hob. YitU, that the Want of Hie in Curia Profert is Matter of Subftance,
Sid.' 503. '^"^^ ''<^t ^''^'^''^ b' ^f''^ ''Statute 27. Khz. 3. 5. npon a General Demurrer. Mo.
Mich. iS. 8S5. Trin. 13. Jac. Heard v. Baskervill.
Car. 2. B. R.
Jevons V. Harridge.
4. In Trefpafs of breaking his Clofe, the Defendant juftified, becaufe'
it was the Freehold of J. S. and that he enter'd by his Command.
The Plaintiii' faid that the Place where is Cuilomary Lands, Parcel of
the Manor of D. &C. and demifable by Copy at Will in Fee ; that W.
K. was Icized in Fee according to the Cut'tom, and died feized; and"
that the Land defended to A. and B. tzjo Daughters as Hetrs of the laid
W. R.. and that, at fuch a Court, Dauintis concejfit cis, &c. Habend',
&;c. to them and their Heirs, whereby they are leized in Fee, and de-
miied to the Plalntiif' Iffhe ivas join d upon a collateral Matter, and Ver«-
dift for the Plaintiff^ It was mov'd in Arrell oi Judgment^ becaufe the
PlaintiiF did not fljew the Grant, and that he Ihewing tnat A. and B. were'
i'jized in Fee, without Ihewing the Grant, was not good: And of that
Opinion was all the Court, that the Pleading was not good; but Hide,-
Jones, and Whitlock J. conceiv'd, that it was but a Default in the Form ;
and the Iff'ae being taken upon a collateral Matter, it ixas helfd by the Sta-
tute of -jeofails; whereupon it was adiudg'd for the Plaintiff Cro. C.
190. Palch. 6. Car. B. R. Shepherd's Cale.
5. 16. and If /Car. 2. S. \(tev\exd.iSi, Judgment fiall not be Jla'fd or
renerfed for Default if Alleging the bringing into Court any Bond, Bill or
other Deed mention d in the Pleadings, en- of any Letters T'iflamentary, or
of Adintnijiratwn.
6. The V\x\x\n^ declared of taking, Cha/ing, and Detaining a Coza i^ov
the Space ot S Hours, the Delendant pleaded that /. S. was Patentee of all
the Eflrays within the. Manor of H. by which he was poffefs'd of alf
hjiruys, t^c. and' fo being poflefid, the Heifer [Juvcnca] aforefaid, being
an-
Faits or Deeds. gp
du Efiray, canie into the AJanor^ by which, he, as Servant ofthe (Iiid I. S.
took and chalcd the Heiler [)u\encamj arbreliiid ^ which is the l-inie
taking, &:c. and det.iin'd her till replevied by the Piaintitt! Exception
was taken to the Bar, for not producing the Patent, led non Allocatur ■
becaufe no Advantage can be taken of it but upon J'pccia/ Dtm/jmr. But the
Plaintitl had Judgment tor the Variance between the Declaration, which
was [V'accaniJ and the Plea which was (Juvencani), Lutvv. 1353.
Hi'll. 2. and 3. Jac. ■^. C. B. Mellor v. Bocking.
7. In Dciit on Bonti in the Grand Sellions ol'W ales, the PlaintifFin his ^^Is. aV.
Declaration omitted the making of a Prolert, &c. and judgment was 'u^i'; 1^'"'
for the Plaintiti; This was alligned in Error ^ but the Court held it Mai-'T ild^s
only Matter of Form, of which no Advantage could be taken * after ^\im% the
Ve-.difi, or on a % General Daniirrcr, and therefore affirmed the Judg- J'IS. of this
ment. 2. Salk. 497. Mich 4. and 5. W. ^ U. B. R. Salisbury V. '^^"'f 'j '-^ f ^'^-
.,,-ir ~-' ' ^ -' ter Judgment
Williams. by i>t,uit]
*S.P.CioE.
155. Trin. 31. Elii 3. Lee v. Ciu-veton. ^ S. P. Sid. 249. Pallh. 17. Car. 2. Whiteman v. Miles.
8. Admiuijlrator brought Debt upon a Bond made to the Inteftate let-
ting forth that he was Adminiltrator to j. S. and that the Defendant did
not pay to the Teltator in his Lite, or to him [the Adminiltrator,] lince
J. S's. Death. [The Defendant pleaded] Aw; iji FatiiUii^ and
Verdift tor the Plaintiff; [Exception -was taken] that it did not
appear that Admiuijlration zcas ccnumttcd to the Plaintiff. And per
Cur. that would be a fatal Exception upon Demurrer ; but is help'd hy
yonr Pleading over^ "s hereby yon admit hnii capable to (ue. 6. Mod. 135.
Palch. 3. Annce B. R. in the Cafe of Adams v. the Terrenaius oi' Savage.
9. i\and $ Annx. i(:i. Helps fnch Omiffi ens, unlets tpccially demurr'd ro:
And that al/Statutes of jeofails Jkall extend to Judgments by ConjeJJion, Se.
See more Matter of Monftrans or Proiert of Deeds, tinker the Pland of
Pleadings at the fever al 'Titles throughout the Work.
(N. a) Pleading Ko;^ efi Fatl/iM. E}Mvhat Perions.
I. A Straftger Hiall not fav Nor ell Faaum ; but a Priiy ma v. Br. B'-.Comprife.
/\ Non elt Factum, pi." 18. cites 28. H. 6. 6. ' g- ^ •-'""
2. A Stranger to a Deed may plead Nc Relefapas ; but a Party to the .^r, a Stranger
I")eed mult plead Non elt Factum, it" he has Nothing to plead to avoid m::y iay r',-
his I^eed ; but where he has Mattfer fuflicient to avoid his Deed, he mav "■■' ''•J]''' ^Y
plead Ne Relelfi pas tpeciallv. 2. Buls. 55. Mich. 10. Tac. B. R. ll^,^ I^'--'^^. Br.
Kichardion v. PiltelJ. -pm. pi. i.
crtcs ; H. 6.
iS. 26' Ibid pi. 6. '■ F.ut Contra per Ftrarw. pi. 2:. citev 10. H. 6. -.
A Stranger Ihall not fay Nicr.t Ccwpyife, but Ke e7.fe.fa pas by the Deed. Br. Eftra:iger ul Fait. pi. '2.
cites 28 H. 6 6 .-^So he may (ay * Ke Grai.ta ^.:r, or -f Ke Charga pas by the Deed, an"l fuch like.
Ibid pi. 4. cites 4; E. 3. I. So Ne Der.j p.is. Ibid pi 6. cites 2 H. 4. 20. 21. S-"o Ke Lejfa pas
in C.iie of a Leatc tor LiL- to De'cadant, Remainder m Tail to the Plaintiff. But in the fame Gale
P.i.'ns P.-jfa by tlie Deed v. as held no good Plea as that Ca'e \v;is. Ibid pi. 7. cites 2 H. 4: 22.- S. P.
For r!vo' the Lea'c was without Deed, vet it was j^ood. Ibid pi. 9. cites 9 H. 4. ■;.
• + Ibid pi. i;. cites 24. E. 3. 5";. per "fhorpe. = — 7 Ibid pi. 14. cites 57. Aff. \6.
3. None hut t]:ie Party himfelf^ his Hens, Executors, or Adminilirators -p^i^^ „[; ^^
may plead Non elt Factum, per the Ch. J. and Powell J. Lutw. 662. cites45.E. 3.
Trin, 1 1. ^^^ 3. C. B. Robinfon v. Corbet. i_ — pi. it.
4. A F-eme Covert may plead Non elt 1^'aclum to a Bail Bond given ly '-~"es2oE.4.i.
her to the Sherilf who arrelted her, and it liiall not cllop her. i. Salk. ^ •^!*"^-5''-
7. Mich. 3. Ann^ B, R. Linch v. Hooke. ^ ^•
f See Stranger. YF^ ]
A a- '' (fN. a. 2) Ple.iding
po Faits or Deeds.
(N. a. 2) Pleading non eft Faci:am.^ In what Cafes.
l.T) A'vipnnent of Ward brought by Executors inafinuch as the Anceftor
J[|\_ ot the Inlant held of tlie Telhitor in Chivalry, &;c. the Def ai-
dant Jaid, thjt the 'Tefiator by Detd injeoffcd the yificeJJor of the Infant in
fee, To hold of the Chief Lordi and no Plea per Cur. w ithouc giving Colour
to the Plaintiff; and lb he did alter; and tlien they were at lliue upon
Kut the Deed ol the Teltator ; quad nota, Illue upon a Deed, which
touches Frank-tenement, taken in jidio-n fe-fhna/, which deitia/uk only
a Chattk. Br. Ravilliment de Card. pi. 8. cites 21-1.4.. 23-
2. Debt wab brought c?^^/'///^ an Abbot upon an Obligation oj his Predeccfforj
•where it was doubtfut if he was Abbot or n)t, becaufe he was ekcled by 10
Minks and put m by the Fifitor, and another was eleticd ^j' 14 Monks, and
the Abby palled by Eleftion; ami the Perl'on that was elected by io made
the Obligation ; and it is not there agreed it' he Ihall plead the fpccial
Matter and conclude Judgment li Aitio, or if he Ihall lay Not the Deed
of the Abbot and Covent generally, and give the Matter in Evidence, of
plead the Matter and conclude, and I'o Not his Deed ; For no Judg-
ment. Br. Non eit Fattum, pi. 7,. cites 9 H. 6. 32.
3. Rut it was iield there, that whcie an Abbot or Parfon is induced er-
rcneoujly^ and makes a Grant or Obligation, and after is deprived or de-
teigned jor Prc-contraei , or fuch like, it Ihall bind ; becaule he was an yf^-.
^c/- or Parfon in Pojje(/ion ; but an Lfurper who Ufuips before InftaU.ition, or
Inftitution, or Preientation, where another Abbot or Parlbn is righttully
in PolielTion ; ol if one enters and Occupies in the time of Vacation with-
out any Eleffion ; the Deeds of fuch are void. Br. Non ell Faftum, pi. 3.
cites 9 H. 6. 32.
4. A. is bound to J. S. where there are Two J. S's and the contrary J. S.
gets the Bond and fues it ; the Delendant may fay that he Sealed and
delivered the Deed to the other J. S. and not to the Plaintiff; Judgment if
i\61;ion ; and Ihall not be compelled to lay, Non ell Factum. Br. Noiiiie.
pi. 65. cites 12 H. 6. 7.
5. In Debt upon Obligation under the Covent Seal, Not the Deed of the
Abbot is a good Plea ; and/o of Not the Deed of the Covent ; but Not the
Deed of the Abbot and Covent is double. Br. Negativa, &.c. pi. 31. cites
J4H. 6. 16. 17.
6. In Trelpais, the Delendant pleaded a Releafe bearing Date after the
7refpafs, and pleaded the primo Deltberatum fuch a Day after, Alfque hoc
that he is Guilty after the f aid Day ; and a good Plea; and the Plaintiff
may well fay, Non eji Fail urn, if all be in one and the fame County. Br.
Trelpais, pi. 33. cites 34 H. 6. 5.
7. In Recordare, the Defendant pleaded againll the Plaintiff^ Not the
X)eed of S. ajter titne of Memory ; and 'twas held Negative pregnant. Br.
Negativa, &c. pi. 35. cites 39 H. 6. 7. S.
8. In all Cafes where the Delendant confejfes once the Deed, and after
B"nd'^°De- "'twould avoid it by a Matter, which makes the Deed defeajible and not void,
fendant he ihall never fay. Not his Deed. Mo. 43. pi. 132.
pleaded that
Faiiiim pediB. ivas made and deliiocd 'Without Date, and that afterwards Plahitiff put a Date, and fo Net
Jn Debt on
Lis Deed ; but held ill on Denwrrcr ; Foi- firft he confciTes the Deed, by faying FaBum prediff. and at
tcrwards denies it ; Whereas he might have faid, Non eft Paflum, generally. Adjudged for the PlaintifF.
Cro. E. Sco. Mich 41 and 45 Elii. C. B. Copfy v. Turner.
So where 2 9- As in Debt upon ati Obligation, the Defendant cannot plead that he has
were kiind pnid the Suhi, and that the Obligation was delivered to him in lieu oj an Ac~
jointly in a quittance, and that the Plaintiff re-took it with force from the Delen-
an'd one died dant, and /:' not his Deed; For he has confeffed it before to be his Deed.
s.-nA Debt ivas Br. Non cll Fa£lum, pi. 9. cites i H. 7. 14. and 22 H. 6. 52.
lro:it^ht a-
p.unft the S:trziicr, vho pleaded that he ought not to be charged, becaufe as to part the Obligor had paid
it to the Plaintitf at fuch a Ward in L, and the R^fidue he had himfelf i-aid at the lame Place, at an-
other
laits or Deeds. pi
other time, and which the Plaintirt iiccepted in full latist'iClrion, and delivered the Biil obligatory in th-
]Same of an Acquittance of that Debt to tlic Dctindam, PrsleMu cnjus, thcfaidBHlhiidwI.oUy'.ofiits
force and effect, and that after the Plaiiuitf took it from him by Force, &c. ,i>:d fo the Defendant jnp ih.it
lh.it Bill, i\cn e/} FjH-.mi Jnnni. # ae hb- ponit (e, &c. upcn this the Flaintifl demurred. It was argued b/
2 Serjeants, iitamford and Bromley, tiiat it was no Plea; becaufe, when a Mani)!ead> Pavmeiit in the fame
Clountv, he ought to rely upon the Debet. &c. and alio, becaule no Acquittance was ihcwn of the Pay-
ment, it being a Maxim, that a lingle Obligation cannot be avoided by naked Matter, but by fomething
as High m its Nature as the (obligation is, viz. by Matter in writing ; and a\fo, from the Inconveni-
ence of putting Matters in writing and Matters in fatt upon a Level. And further, that this Bill can-
not be an Acquittance, becaule not made in tiie Name of the Obligee, nor any words of Account. D.
51. pi. 12. &c. Mich. ;8 H. S. Cockerell's Cale, .Hughes's Abr. 5i;S. pi. 5. cites S. C. by the Name
of(!LOttlTir0 (iaff , and fays, it was held that the Re-delivery of the Deed to the Defendant could not
be an Acquittance; becaufe it wanted words of Acijuittance to that Purpolc. And Kels. Abr. fiond.<;
(H) pi. 5. fo. 5!JS. cites S. C. by the Name of eotttrti'sf Laie and fays, the Plea was adjudged an ill
l?lea. But Quaere, if any thing is laid by the Court in the whole Cafe.
So in Coieti.itit agaiijf an ^-/pprentice ti'pp?: Indetitwe, Di!ch:'.rge bv Parol is no Plea ; and it is a good
Conclufion to (ay Judgment Si Aitio; but not. So Not his Deed. Br. Bar. pL 6S. cites 1 H. 7. 14.. per
Vavafor and Keble. So if one pleads ^-^coiiittance ai^ahijl an Oldi^ation. Per Keble. Ibid.- So if
in Debt upon an Obligation, the Defendant pleads that at the time of the making he v/mzvithhi Jge, he
Ihall not fay, Not his Deed ; For the Deed is voidable for this Matter. Mo. 43. pi. 132.
And/ci where avy matter is to cmie after the Delivery. Mo. 43. pi. 132.
10. In Cafe of Dz/ri?/} the Party muft demand Judgment Si Aftio, Br. Barrc.pl.
and cannot plead Non eft Fatlum; becaufe the Delivery of the Deed was ^^„^/ "^"^
not void. Per Montague Ch. J. PI. C. 66; b. in Cafe o'i Dive v. Maning- ^ ' '" ^^'
ham.
11. So in Cafe *oC Infancy. Ibid.— 5 Rep. 119. S. P. in Whelpdale's *Br.B3rre;
Cafe. — A Bond by Infnit, or A'oa Conifos is void ; becaufe the Law has v] ^8. S. P.
appointed no A6t to be done to avoid it, and the only Reafon, why the "^"^^ ^ "• 'i'
Party cannot plead Non eit Fafttim, is, becaufe the Caufe of Nullity is '*'
extrinfick and appears not on the Face oi the Record. 2 Salk. 675. Hill.
9 \V. 3. B. R. Thoinplon v. Leach.
12. In Debt upon an OUigat'.on tht Defendant fiid, that there was a
SclKdnie annexed to the Obligation concerning certain Covenants, the
uhich Schedule is now dilimnexed from the faid Oblig.ation, andfo Not
his Deed. And it was held by all the Jultices, that this Conclulion v>as
not good ; but he ought to fay Jiidgiuriit/i A^io. Mo. 43. pi. 132.
13. Where the Deed /lei'er was his Deed., as where 'tis falfely read, and
fach I'.ke, he Jhall conclude Not his Deed. Br. Non eft Fattum, pi. 11. cites
14 H. 8. 25. per Pollard.
14. Bin where a Deed is made in a dcfcafibk Manner, or wliere it is
az'oidalie by an Mf ex pojl Fa^'j, he fliall conclude JtidgmcntJiatftOi As
in Cafe upon a Bond made by DureCs, or by an Infant, or is ra/'ed alter,
there he ihall fhew the Matter and fhall conclude, [udgment fi A6tioi
and the fame upon Inter// ning after, per Pollard. Br. Ibid.
15. Sir Edward Alhfield was bound in an Obligation by the Name of
Sir AV/wW, and fubfcribed it with the Name ot £^ot«;y/; and in Debt
brought upon it, he pleads it is Not his Deed ; and all the Jultices
inclined, that he might well plead it; For it appears to them, that he is
pot named Edmund, and the (^/V^//.v7/againft him icas. Command Edward^
(tbe-rivij'e Edmund, and this was not good , For a Man cannot have tv\'o
C^hriftian Names; and if Judgment were given againft him by the Name
cf Edmund, and the Shcrilf ihould Arrelt him by a Capias, Falfe Trn*
prifoment would lie againft him. 2. Brownl. 4S. Hill. 8. Jac. C. B. Sir
Edward Afhfield s Caf.*.
16. In aU Cajes, where a Bond rx^as once bis Deed, but before ABion Er.Barre.pl.
brought becomes no Deed, either bv * Rafan, or f ylddttion, or other Jl- ^}- '^"^^ ' ^■
teratwn of the Deed, or by .j: breaking the Seal, the Deieodant may lately 4'i',Rep ^.
plead, Non eft Faftum ; For at the rime of the Plea, which is in the Trin. i2.y.nc.
prefent time, it was not his Deed. 5 Rep. 119. b. thelall Relblution in Pilot's Cafe.
Whelpdale's Cafe. T,^''''''^ '}■
'^ J\ Ian wood v.
Harris, Con-
tra adjudged. — + Cro.E di". Mich. 43 and 41 EHi. Maikham v. Gonaffcn Da! 33. 21. Contra,
3 f.lii. Anon, ■ ± D.il. 15 j pi. jc. S. P. per Southcote and Wray, 15 Eli», Ano.n.
1*:. Ol'ization
92 Faits or Deeds.
Br. (.;blig.,u- jn. Obligation was made /;)■ iTwo, and afcer the ^eal of the one zvns torn
on, pi. 4^ off the Deed ; there, per Brian, in an Action brou2;hc airainft the other he
5. 'liatit was "^-^y ^"^Y ^on elt Factum, as it it had been raded, or interlined ; For a
Ai-f;ut:d,thut Uilchargc to tlie one Ihall ferve both j and alio, when it was his Deed
hc'.vhoicSeal 2 were ot^iised, and now onlv one is, and therclbre not his Deed. ',)i.i3ere.
\vastornotf j^j.. Non eltVattum, pi. 21. cites ^ H. 7. 15.
Hiii^ht plead ' ^ J I J
i^o'.i eft Fac-
tum ; and that Brian agreed that he mi|?;hit ; but iliys nothuig ot" its being held, whether he v.hofc Seal
rcmaiiied might plead that Pica, but only that it was argued, whether he might or not. But in the
Year i3ook the Argument was only, whether he, whoCe Seal remained, might plead Non eft Factum ;
and Biian l;cld, that he might plead it wcU enough, and that for tlie Reafon me.itioncd of 2 being ob-
liged before, and now only one; ib that the \car Book is according to Br. Iton eft Fa(flum, pi. zi.
-^ ■* It fhouldbe 3'H. 7. 5.
D. ?9. pi. 12. iS. In Debt upon Bond, Defendant pleaded Non eft Faftum, and lc~
Fafch. 56andyorc the Day of yippearafice of the Inqaeji, Rats eat the Label!, bv which
" ' " Cuf-
tlie De-
rcr the Iiiue and lb they did. 5 Rep. 119. b. in \\ helpdale's Gale, cites D. 59.
jbin'd the
Seal tuai'piU'd off, the Plaintiff had Judgment ; For the Trial fliall relate to the time of tl;e Ilfue join--
cd. Cro. £, 120. .^lich. 5c and 51 Eiii. B. R. Michael v. Stockwith.
19. If a Deed ivas once the Party's Deed, and after the Duty is extinct^
then he ought to demand Judgment // A^io ■, as ii a Releafe of the Duty
be pleaded, he ought to demand Judgment li x\£tioi For it was once
liis Deed, and therclbre he cannot lay Non eft Factum. Per Montague
Ch. J. PI. C. 66. b. in Cafe o'l Dive v'. Maningham.
20. W. S. was bound in an OLligaticn to A. in "xhich he zvas named J.S.
and J. S, perceiving the JNlifnolmer lealed and delivered the Obligation as
his Deed. Aftervvards, Debt ivas brought upon this Obligation againil
him by the Name of W. S. other'ifi/e called J. S. and he pleaded Noncil
Fa£lum, and this Ipecial Matter was Ibund by Verdict j and by the Opi-
nion of the Jufticcs of C. E. the Plaintilf ihall not recover upon this
Verdi6l. But the better way hud been to ha\e brought the Adion by
the Name of J. S. as named in the Obligation; and then, if heappearerl
and pleaded Non eft Faftum, he Hiould be concluded by the Obligation,
Mich. 10 and 11 Eli/.. C. B. 13.279. b. pi. 9. Shotbolt's Cafe.
5 Rep. 26. b. £1. A Bond was delrcered to A. to the Uje of B. the Obligee ; B. refiifes
It IS laid by toj-^lie it ; now the Delivery has loft its force; and the Obligor, il fued
that perad- ' "P<^" ^^^5 ^'^Y pl^ad, Non eft Faftum ; Contrary to the Opinion in * D.
venture the 167. 5 Kep. 1 19, b. in W'helpdale's Cale.
Obligor can-
not plead Non eft Faftum, becaufe it wss ewe his Deed. Holt Ch. J. cited 5 Rep. 119. b. and laid
the Subfequent Refufal made the Deed %■:'!({ ah ivitio. 1 Salk. 50-.
* D. 167. pi. 14. Trin. 1 Elii. Taw's Cafe. And. 4. pi. 8. S. C. Bendl. 7 5. S. C.
22. A Statute Staple being faed as a Bond, the Defendant may plead,
Non eft Factum, and give in JEvidence, that there was no Delivery. But,
if by his Bar he admits a Delivery, Judgment will be againft him. per
Popham. Cro. E. 495. in Cafe oi^ Alcue \. Hollingworth.
S. P. adjudg- 23. Upon Non eft Faftuni, by lixxial Verdict the Bill was ibund in
cd accord- hiec Verba^ whereb)" it appeared, that the Defendant and another lealed
IM^ 'd^"'^ '^"'^ delivered that Bond, and ivere jointly bound, and that the other is yec
iniHit have ^live ; and if, &c. It was adjudged without Argument for the Plaintiff!
pleaded /« .4'- Cro. J. 152 Hill. 4. Jac. B. R. Stead v. Moon.
hatcment of
the Writ, but could not plead Kon eft Faftum. 5 Rep. 119. firft Refolution in Whelpdale's Cafe. —
I'pon Kon eft Factum, he fhall not have the Advantage; becaufe it is his Deed, and a feveral Deed :
But becaufe the Lien is jcir.t ; therelore it it be pleaded in Abatement, that another lealed the Deed,
who IS )ict thimc/i ii-/:iUj yet liiiiijr. Judgment fhall be againft the PLiintitf Per Holt Ch. J Skin. zSo.
hill. 2. W. and Isl. in Cde of Bouillon alias Boibn v. bandford.
24.. A
Fa its or Y^ttA^. p:^
24. A Fcoffh/ciit niroHed without Ltvcry is cf no ibrce to niAke the Land ■'^ -^""'^ '"'-
pais, but the Inrollment iTi:iv Effr-p the Fcoflbr to lay. Not his Deed, '■f'-^''''^^*'?^
Agreed per Omiies. Poph. 8. Gibbons v. ALdtyard and Martin. Per xMan- pieudXon"
wood B. Obiter. ' e^ Faftum.
Pci- Ko't Ch.
J. Comb. 24S. Pafch. 6. \\'. and M. B. R. in Qi'cof Smavt v. Wi'Iiams.- -2 Le. 6j. i;i bir \\'i!!i.iin
Pclham'i Culc.
[ See Ertoppel (F). InroHmeiit (B) ]
(N. a. 2) Pleadings. Non eft Faftum, Specially or Ge-
nerally, and at what Time.
I.TPVEBT upon an Qhligation^ the Defendant faid, that hi delivered it to
_L/ J- '^- ^^ ^'' Efcrow tipcn certain Conditions to be performed, to de-
liver to the Plaiiitijf' as his Deed; and laid that the Conditions are not per-
formed^ and fo Not his Deed; this is no Plea^ becaule lie does not confeis any
delivery to the Plaintilt, by which hejhallfay^ that the faid J. 61 deliver-
ed the Obligation to the Plamtijf., the Conditions not performed^ and fo Non elt
Faftum ; and then well, becaule otherwile nothing Ihall be entered but
Non elt Fa6\um generally. Br. Non ell Faftuni, pi. 16. cites 18 E. 3.29.
2. The Defendant laid that he was lay, and not lettered ; and that the
Obligation was read to him by Nan/e of H Marks, where it is Si. and lb
not his Deed, &c. and 3 H. 6. 37. is to the liinie Intent, and the PLiin-
tid laid, that His Deed i Prill, &c. ad pacriam. Br. Noji elt Factum, pi.
2. cites 3 H. 6. 52.
9. W a Man Seals a Deed, fi.nd dtlirers it to a third Perfon to keep till a r t? i •
certain Condition ieperjormed.^ and tlien to cklr.er it to the v)bligee, 6cc. pi. i.dtesi-
there \i \\t deliva-s ii contrary to th-J^2ondiiioH^ and an Action is brought ^ H.0.7.
ti>e Delendant may plead this Matter and conclude, and lb Not his Deed,
bc'caule it \vasne\er dcli\ered as a Deed, &c. Br. Non elt Factum, pk
4. cites 9 H. 6. 37.
4. P,Ht contrar\' where it is delivered as a Deed to the third Perfon, to
keep till the. Condition be perlbrmcd, &c. there he Ihall not conclude,
Non elt FaCiUm; and in this Gale a Deed was delivered as aDeed, and
the Defendant pleaded the Truth of the Matter, how he delivered it to ...
the third Perlon as a Deed, and he delivered over the Condition not
being perlbrmed, and i'o Not his Deed ; and the other econtra, and found
hv \ erdi6t not his Deed, vet the Plaintilt' ihall recover ; becaufe in plead-
ing he has confejjed a Delivery ; and theretbre it is his Deed, and thercfirc
when a Verdi tt is found contrary to an /Ic know lodgment by Matter of Record ;
there the judgment Ihall be given upon the Acknouledgment, and not up-
on the Verditt j per Cur. And there it is laid, that where the Matter
precendent as abo\ e, is dnnitfil to the hay Cents, there tihe Con Itifion does
not wave the precedent Matter, and the Jury Ihall not be charged with it
if it be not entered in the Roll. Br. Non ell Factum, pi. 4. cites 9 H.
^- 37' , .
5. When the Defendant comes in by Garnijhment, he caiinot plead Non
eft Factum, generally, but Ipecially. Hill. 9 H. 6. b. per Cott.
6. A Man is bound in 40/. to J. S. where there are Two y. S s and the
contrary % S.^cts the Bond and_ jaes it, the Defendant may fay, thai he
fealed ^nd delivered the Deed to the other ff . H. and net to the' Plaintiff', and
a good Pltti. Br. Mifnomer. pi. 82. cites 11 H. 6. 12, 13.
7. It a AL;n makes an Obligaticn in my Nanie^ I nuiy lay Non eit Fa.c-
tum. Contra, upon Matter of Record . Br. DilLcIc. pi. 17. cites 19 H.
6.44. ' . •
£ b I. If
94- Faits or Deeds.
8. It a Man delivers an Obligation to J. S. upon ccMxain CoinLtioas to be
perfoniied^ to deliver to the Obligee as a Dee /^ and i l' uot tv keep it as an
Eicrcrjo. li the Obligee gets it contrary to the Condition^ and brings Debt, the
other cannot Ihevv this Matter and conclude Judgment li Aclio, but lliall
conclude, and io Non ell Faclum^ For it was an Eicrow, and never a
Deed, by reafon that it wiis delivered to the Obligee, the Condition not
performed. Br. Non ell Faitum, pi. 19. cites 19 H. 6 i. 3S. and 10 H,
6. 25. 26.
9. Confirmation ^^'as pleaded of the Demandant, after the lafi Continuance
in precipe quod reddat, the Dananddnt Iball net fay Not his Deed after the
Idjl Continuance, tor 'tis Negativa prcgnans, nor ll.allhe lav that he made ic
betbre, &c. and not after ; For then he confelles the Deed, :uid Hall be
barred 3 but he may fay that he made it fiich a Day by Durefs before the loll
Continuance, jibfqne hoc, that he made it atxer, &c. and the other fhall lay
that he delivered it after the lafl C^ntintinnce, and fo the 'Time is only in Iffite.,
Br. Non elt Factum, pi. 20. cites 21 H. 6. 9.
Where a lo. Debt upon an Obligation, the Defendant y^?/,-;', that he delivered the
Man pleads fame Obligation to W' N. as an Ffcrciv, upon curtain Aft to be done, to
NothisDeed, (jeliver it as his Deed, and he did deliver it the Act not being done, and
that Scrib'tum ^^ ^^^ ^'^ Deed. Pet Pallqn, by this word (Okl-gaticn) you have acknoia-
pr^diaiim Icdged that is ivas a Deed, by which N'evvton laid, tjiat he faid to W . N.
Honefi Fac- chat, if the Plainti/f did fuch an A&, that then, he in his Name lliould
B^Eft'"" 1 '"^'^^ ^" Obligation and deliver it to the PlaintiH, &c. and he has de-
vl^.citeifo ' li^cr<^d it, the Condition not pertormed, &c. and 'o Not his Deed, and
H. 6. 5p. others econtra Neverthclcfs if he had laid that he had delivtrei the
Writing as an Efcrow then it had been good. Br. Non eft Faftum, pi. 12.
cites 24 H 6. I.
1 1 . Where the Deed is void, and not voidable only ; Defendant pall fay^
avdfo Not his Deed.
12. As Feme Covert ifiall conclude, and {o Not her Deed. Br. Barre.
pi 68. cites I H. 7. 14. per Keble.
Br Barr 1 ^^' ''^'' where the Obligor is not lettered, and the Obligation being
yfj.ci'tes 1 H. with Condition, is read other\fife thnn it is ivritten, he lliall plead Non elt
7. 14. Fa6lum and give the Matter in Evidence. And he pleaded accordingly.
Br. Non ell Fattum, pi. 10. cites 15 £. 4. 17. per Brian and anotlier.
S.C cited i^. y/j in Debt upon an OZ'//^'^-f'i"/(W r/ 20/. the Delendant laid that he
^" z-X r ^^ ^^Yt ^^^ not letter'd, and that it was read to hini as an Obligation of
his Notes on ^°^- "^hich he had paid, and fhcwed an Acquittance thereof, and as to the
Pigot's Caf^. Reftdae Not his Deed ; and held a good Plea. Br. Non eft Factum, pi. 8.
cites 9 H, 5. 15.
S. C cited I j:. Debt upon an Obligation, the Defendant faid that it is indorfed up-
^'' _^','' on Condition, that if he perform all the Covenants comprifed in the Inden-
in his Ob- ^'^''^ made, &-X. that the Obligation llvall be void, and ihewed the Inden-
fervations on ture which contained 4, Covenants, and that he was a Lavman, and not
Pigot's Ca.'e. lettered and that the Indenture "ix^as read to him upon the f.rfl 2 Covenants
only, and alkdged the Performance of them, Sc hoc, &:c. Judgment li A6tio,,
&;c. and per Fitzherbert and Brudnell Jultices the Deed is ^ood in part, and
tn part not, fcilicet the Indenture; and theretbre the conclulion. Judgment
li Aftio, is well; contra per Brook Jultice, and that the Indenture is void
in all, and thereiore Ihould conclude, and fo Not his Deed ; and per
Pollard Juftice, becaule the Indenture is void, thei'efore the Obligacioa.
is lingle, and therefore he Ihould have concluded and lb Not his Deed.
Br. Non ell Fa£lum, pi. 11. cites 14 H. 8. 25.
16. In Debt upon an Obligation the Deieudant faid, that the Deed was
for payment of 20 1. at a ceixain Dav, but at the time qf the Delivery
the Day was not \V rit in the Deed, but a Space w.is left tor inlerting it j_
and after the Delivery the Plaintitf ;«/cr/f^/ the Day, and fo Not his Deed.
Per Dyer, the better pleading-had been to let tbrth the Ipecial Matter, per
quod Scriptum predid. psrdidjt eltectum. Judgment li Adlio. Quod nota.
Mo. 28. pi, 89. _ J
■ 17. Where
Faits or Deeds.
17. Where a Man conj'cfjes a Deed to have hecn oncc bis Dccd, i^un nftcr Dai. ^;. pi
p..c--dis M:ittcr^ by ii-huh 'tis iecciue -voii^ he fiiuil pJe.id c!ie Ipeciai Mactcr r;! *'■ ^^- P^-''
and conclude to the Attion. Mo. 30. pi. 98. Anon. Trin. 3 Eiiz.. Ft," An f
18. But where it appears that it w^s not his Deed at the leginuing^ he Mo. 4; pi.
fliall plead generally Non eft Faftum, per Plonden. Ibid. 1^2. Anon.
19. A Ivnid was' made by A. to fjco OLiigecs, H. and C. — B. dnd, C. --''^■pli:9-
brought Action and declared of a Buidmade by A. to C. It was adjudged ' ""''"
the Deed of A. For tho' it had been better pleading to have Ihewn tnac
the Bond was made to the fiiid C. and B. now deceaied, yet upon this ge-
neral liilicot' Non ell Faftum, it I'hall be leputed the Deed oi A. tlio' it
was made to B. and C. Sav. 92. Mich. 30 and 31 EUi. Paunce v. Read.
20. /// a.'l Cafes -where the Dl ed is voidable^ and fo remains at the time of
Pkadiag; the Obligor cannot plead Non eit Factum ; For it is his Deed
at the time oi the Attion brought, and ought to be avoided by fpecial
Pleading with conelulion ol" Judgment Ji Aifio. $ Rep. 119. Trin. a
Jac. C. B. the fecond Reiblution in \Viie]|. dale's Cale.
21. As it' Jf/fant ivals and delivers a Deed, or a Man of full age by
Di'.refs. Ibid, cites 1 H. 7. 15. a. b.
22. When an Obligation or other Writing, is by A[f of ParliamcMt^ Upon the
efjatJed to be -void, the Party who is bound cannot piead Non eit Faitum, »^!),-y'[i>
but in Conlhuction ot Law, tl^e Deed is to be voided by the Party who kiti. S./oe-
js bound bv it by Ipeciai Pleading otthe Matter, taking Advantaije of the fcndant caa-
Aft of Parliament i For tho' the A£t makes the Obligation, &;c. void, ';^T'^n''.'ft p-
yet to til is the La-'SJ requires Order and jh'a/i^ier, lohich the Perfon Obliged tmj.,. „„^ y^l
mift purfic. 5 Rep. 119. Trin 2 Jac. -C. B. the third Reiblution in on the Sta-
Whelpdale's Cafe. tutc of 2; //.
6.of*Sher:fs
B.):Js, bsi itr
according to the Form prcfci-ib.-d ; For thty are Deeds, fiich as thev are. Jenk. 2qt. pi. 4.5 But
where tlie Rond is not according to the Statiit.-, the Dcfciida:.! (hail plead thi.s jNlatter, and (-(JKiy.-.-.it',
avA fa the Oh'i(ratu>n is ^o'ld, Ju.igri.ei^t fi Mtio, 'AViA fTiall not conclude Mon cit F.ictuin. And the fame
Conclufion fhall be made upon the Statute of UCutv. Br. Non eit Fattum pi. 14 cites - £ 4. c. and
Trin. - £. 6 S. P. ard Tame Cafes cited and held aj^aiuli the Opinion of JMountaguc in ?i.. C i.i
JNlanningham's Cafe, f Rep. 1 19. b. in VVhelpdale'i Cafe.
* 7 JSIod. 151. in Cafe of the <>ueen v. King.
23. In Debt upon as Obligation for letting one go at large upon Mai?i-
prize^ if it is Mtf'id, the Plaintiff' is Shrrijfj the Delendant may plead
Specially, and io conclude his Plea bv way ot Non ell Factum ; but he
cannot plead Non eit Fafium generally, becaule that is Contrariant.
Brown's Analylis. 17.
24. In Debt on Bond for 300/. Defendant, alter a general i.Tiparlance
Demands Oyer of the Bond and pleads Spcciallv, that it was but for 30/.
but it was not allowed after a gefieral hnparlancc j and Defendant pleaded
that it was not his Deed, which was the proper Plea in that Caf.;,
Brownl. 70. Hill. 9 Jac. Anon.
25. All fpecial Pleas of Non eft FaSlum in Cafe of an 'Efrroiv or Ra-
fnrc^ &CC. are impertinent j For thereby the Defendant brings all the
Proof upon himfelf ; wlicreas if he had ple.ided Non ell P'actum general-
ly, he would turn the Proof of whatf^jcvcr is ne^eiiary to make it his
Deed, upon the Plaintiff Per Holt Ch. J. 6 Mud. 217. Trin. 3. Ann.*.
Bulhel V. Pafmore.
[ See (N. a. 2) ]
(N. a. 4) Pleadings
^6
Faits or Deeds.
(N. a. 4) Pleadings in General.
But wliei-e j. A Bare Writing is not a Deed without fe.iling it ^ and therefore the
''!^ 9'""\ JLx. Pieiiding ought to be per Script tun fiimnytgilkit. or Per fad ion
ycYS<:r\lnumf""'"i ^o^ Fii£lum luuiH implies the Sealing and Delivery. Arg. i.
limmconcef- Le. 3 lo. Pafch. 33 Eliz.. Miudwell v. Andrews.
fic,&c.\vitii-
out fayiiif' Sub fii^illo, &c. and this was aflij^ned in EiTor to reverfc the Judgment ; it was difallowed,
becaule it cannot' be Scriptum Abfijue figilio. Palm 1-5. Patch, ly. Jac. B. R. Vulgar v. Higgins
2. A Deed of Lcafe for 99 Years by him in Reveriion expectant on an
Ellate for Life, was made in the Words Danife fct^ and to farm /*r, and
was pleaded in the fime Words ^ yet upon the vviiole Pleading, it was
adjudg'd to be a Bargain and Sail. 8 Rep. 93 b. 94. a. Hill. 7. Jac. Fox's
Cale. But fee the next Cafes in the Reports of which this Cale
was cited.
S. P.perHolt 3. So^ if Tenant for Life by the Word Dcdi grants his Eilare xo him
h '^ r *ri f °'' '^^ Reverliou, this ought to lae pleaded as a Siirrouhr^ as it is by Opera-
pteadino- Yn '^'^'^ o^' Law, and not in the Words ol the Deed. Per Hoi^ Ch. J. Skia.
the Words 570. Wich. 6. W^ and M. E. R. in the Cafe ot Nethertoa v. Jellop.
of the Deed
■would be uncertain and barbarous Pleading. Skin 575. in Cafe of Baker v. Lane. 12 Mod, 401.
Pufch. \z W. 5. per Holt Ch. J. Steer v. Shalecroft.
4. In Error to reverfe a judgment in Replevin, it was afligned that the
Count was that Ji. per quandaia Indent ur am g ranted to the Defendant, and
does not pew hefjoeen ivbat Parties the Indenture was made. But it was
over-ruled i For the Defendant mull neceilarily be a Party, or otherwife
, he cannot take by it. Palm. 173. Palch. 19. Jac. B. R. Vuigar v. Higgins.
4. Mod. 149. ^ Every Deed mutl be pleaded exprefs/r according to its Operation, and
^L P^!l!!l ^'^^ according to the Words at large. Garth. 254. 1>. 3 W. and M.
a Vent'z^j- B. R. Baker v. Lade.
5. C. • — '
Skin- 515. S. C. by Name of Baker V. Lane. ;. Lev. 291. S. C. Per Holt Ch. J. 12 Mod. 55S.
V
* Adjudged 6. As where the Words Give and Grant operate as a Covenant to ftand
r"!!",'"!^' feiz.ed, and will not take Erteft otherwife; there it nmji be pleaded as a
cain^'poj-' Covenant to Jland feized, and io Judgment in C. B. was reverled. Carch.
JexfenCh. J. 254 * Baker v. Lade. 308. S. P. Ofmer y.Sheaf
2 Vent. 166.
S. C 3 Lev. 291.
(O. a) Pleadings. What Deeds are pleadable.
Br. Faits pi. i. A Deed mxAe: before T'i.me of Memory is not pleadable i Contra of .
2i.citesS.C. j^\ Record. Br. Avowry, pi. 45. cites 12. H. 4. 2?.
Br Faits pi z. Iberefore in Avojory, where the Tenant had a Died bearing Date be-
2i..;ita,S C. fore Time" ut Memorv," to hold by kfs Services, he cannot plead it ; but is
put to a Neinjiijle Vexes, or otlwr like Remedy i notwithlhndiag that he
has Confirmaiion of a King, which is M.irter of Record, rec^tin^ tbs
Jirji Grant. Br. Avowry, pi. 45. cicei \i. hi. 4. 23.
(O. a. 2. )
Faits or Deeds. 97
(O. a. 2) Pleadings. Where Deeds refer one to another.
I. T S. was bound in an OlUgat'wH of 20!. to J. Bozara^ with a (2.) to g^ p.^j^^ .
\^» pay lol. at two I'everal Days^ and after, upon Payment ot:' one ot 22. cites 14.'
the bums, the Obligee made an Acquittance in the Name of J Eofam^ with H, 4. 53.
an C^). In Debt brought upon this Bond, the Detendant was compelTd
to fay that f.Bozai/i, by the Name of J.Bojam acquitted him^ i^c. Br.
Pleadings pi. 21 cites 14. H. 4. 31. _
2. In debt upon Obligation the Defendant pleaded Dcfeafame, that if the
Plaiutiff' may peaceably enjoy the Office of Parker ot B. taking 7,d. per
Day^ according to the Deed of Grant of the Defendant, th.:t then, S^c.
and faid, that he bad enjofd tt according to the faid Grant. And per Cur.
this is no Flea withouty/^f^/^r what was the Effect of the Grant in certain.
Quod nota. Br. Pleadings, pi. 105. (^bis.^ cites 16. £. 4. 9.
3. Debt. The Gjndjtion of a Bond was to pay 140-;/. with hiterefl on
fuch a Day, according to the Intent of a certain Provifo or Covenant menti-
ened in an Indenture bearing even Date, &c. and made between the fame
Parties. The Defendant recites a Deed of the fame Date made between
the Plaintiff and Detendant, whereby, in Confideration of \^ool.fecitr'd to
be paid by an Obligation of t Ik fame Date, and in Confideration of five Shil'-
lings paid to the Plarntifi, the Plaintiff afjignd to the Defendant a loth
Share of Lead \\ ork f , fc?c. and faith that he paid the Aioney fecundum For-
rnam Provifion. in Indentura prj-d. mentwnat. I'he PlaintiiF reply d, that
the Defendant did not pay the Money, &:c. Verdift for the Plaintitt; •
It was mov'd in arrett of Judgment, that Defendant had viifiuken the
Deed ^ For there is no pich Covenant in the Deed jlt forth, and therefore it
is a void IJJue, and ought to be a Repleader; and to that Opinion the Court
inclin'd. Holt fiid, that the Detendant is ejiopped to fay, that there is no
fuch Deed; theretbre he Jhould fet forth fi/ch a Deed, or elfe he is gone,
and muft pay the Moneys and that he might have pleaded Payment, fe^
cundum Formam Conditionis, and well ; For the Indi-nturs is but a further
Defcriptwn of the Agreement. Tlie Couniel lor the Defendant ask'd,
what if they Ihould fet out the whole Indenture, and there is no fuch
Covenant ' to which Holt anfwer'd, that it was your fault to fay fo in
the Condition ; and Judgment for the Plaintiti; (Coeteris tacentibus.)
Comb. 377. 378. Trin. sT \V. 3. B. R. Evans v. Powell.
4. If a Bond be to perform Articles in one Deed, and that Deed refers
the Party to another Deed ; In order to difcharge himfelf, he muft Jbew
the Afatter in the j'econd Deed that is referred to from the firfl. Mich 3.
Annae B. R. 6. Mod. 237. in Cafe of Lady Cool: v. Remington.
(0. a. ^5) Indenture. What muft be by Indenture and not
by Deed»Poll, 6fc.
1. Bj'27.//. 8. i6.'t3Argains and Sales to an Ufe of Inheritance of Frec-
.fj hold Jhall be by Deed yi den ted and iur oiled within J.' >i
Months.
2. By 32. H. 8. 28. All Leafes made by Husband and Wile of Lands,
i3c. of the JVifepall be by Indenture.
3. -/^! 7. FJiz. c. i^. Sale of Bankrupt's Ellate' /^C6/7/;//i/^C7;j'rj rf the
Bankruptcy, mujl be by Deed ittdentid and inr<lled.
4. By 4.3. Eliz. f. II. Contracls relating to draining Wjfis, Sc where the
C c G)iiiai^
98
Faits or Deeds.
.^itai^ ho- Heirs a>id Snccejjors^ hath an hitcrejl in [jcb Ji'irjfcs, 6rr. fuch
Conlraiis or Bargains pall not bind them, iinlefs they be iirittcn tn Parch-
ment, indented and certified in Chancery, and the Royal yljjent thereunto Jirji
obtained and fignifed under the Prii-y or Great Seal, when the IVaftes or
Soils are of the PoJJvfftcns of the Crown, but under the Seal of the Diitchj of
Lancajler, and tnrolkd in that Court zvhcn they are of that Kind.
5. Leafes by Ecckjiajlical Perfons muft be b\' Deed indented ; For tho'
the Statutes of i and 13 Eliz. do not appoint the Leak to be made by
W^riting, yet it muft therein and in the other lollowing Properties and
Qualities required by Stat. 32. //. 8. follow the Pattern thereof (C"?;f//;--
rcnt Leafes only excepted). W^atf Comp. Inc. tbl. 429. cites Co. Lit. 44.
( P. a ) Cof?flriici'm2 of Deeds in Equity.
1. TF it be lawful for a Court of Equity in fome Cafes, and upon fome
^ fpeaat Circumjlances, to expound a Deed other-wife than the Letter '
feems to import ; yet this ought never to be done, lb as to make a Deed,
but only to avoid fome Extremity. Hill. 25. Car. 2. Fin. R. loi. Cheek
V. Lord Lille and Harvey.
{ See Grants. ]
(Q. a) Averments as to Deeds in Equity.
I. A Verment by A. againft a Geikral Warranty in a Deed, and fome
^f\^ Proof being that it was declared on the Sealing, that the Plain-
tift ihould undertake ibr his own Act only ; he was relieved. Mich. 14.
Car. 2. Chan. Cafes. 15. Caldcot v. Hill.
See Vendor 2. Averments are not to be admitted in Chancery contrary to the Piir-
and Vendee port of the Deed. Tr. 32. Car. 2. 2 Vent. 345. in Sir William Bever-
^ ^" Jham's Cafe, cites i. Roll. 379.
3. In Cafe of a Surrender made ly a Steward of a Copyhold, if there
be any Mijlake, that is only Matter of Fa6l, and the Courts at Law will
in that Cale admit an Averment, that there was a Miftake, &c. either
as to Land or Ufes. P. 1689. per Com'rs 2. Vern. 98. in Cafe of Towers
V. Moor.
4. The Father purchrfed Land in Name of a younger Son, and another,
who after the Father's Death, difclaim'd; and in the Conveyance the
whole Purchale Money was mention'd to be paid by the Father. It was
Ruled, by the Lord Chancellor, that Parol Evidence Ihould be admitted
to pew the Litention of the Father, that this Conveyance was for the Be-
nefit and Advancement of the younger Son ^ becaufe \t concurred with the
Conveyance, and was only to rebut a pretended refilling T'np : And tho' the
Father took the Profits till«his Death, at which Time the Son was eight
Years old, it can be no Evidence of a 'I'rull for him ; For it muft be in-
tended to have been done by him as Guardian to the Son. V\'ms':>
Rep III. to 113. Mich. 1709. Lamplugh v. Lamplugh.
5. A. a Baronet convey'd to the life vf himfelf tn Tail, Remainder to
B. his lecond Coulin the Defendant ('who was prefamptive Heir to the Ho-
nour in cafe of Failure of Iffue Mile of A.) for Life, Remainder to thejirjl,
^c. Son of B. in Tail Male, Remainder over, with Power of Revocation to
A. who lometime after revoked the old Ufes, and limited new ones upon D.
his voungeft Sifter for Lite, Remainder to her firft, &c. Son in Tail
Mail, they taking the Narne of A. 6cc. A. died, and D, brought a Bill
to
Faits or Deeds. 99
i ms s
ro cltabliih the Revocatiun ; and B. brought his' Bill to iet iilide this Liter
Deed, and to recover fome Legacies given him and hio Children by A's
W'iJ! j B. died, and upon a Reviver ot' the Suit b> the two Intent Sons
of B. the Deed oF Revocation &c. was Tullv pnncd, and cm the other
Side was only circuniltantial Proofs as that A. had exprejlcd his Inten-
tions, that his Eltatc Ihould go with his Honour, &c. But Ld Parker
faid, that '\\''ords can have no \\ 'eight againll a Deed lo Iblemnly executed,
•and it mult therelorc Itand. Wms's Rep. 4S1. Mich 17 18. Shdcs v. Sir
John Barrington.
[ See Averment. ]
(R. a) Supprefled Deeds. Relief in Equity.
I. \ W^s attainted, and it was fuppoied that he was feized of an -^r^
j[\j» Efiatc 'fail. A Bill was exhibited in Chancery, becaufe the Rep. -;2.
Deeds, by which the Eftate was to come to A. were not extant, but were Mich. i-ii.
ilrongly Vufpetted to be iupprefs'd by fome, under whom the Defendants t ^'f»!j'^''t
claimed. And it was decreed by Ld Chancellor, Ld Coke, and Hobei-t, thV^RoHs^
and Mailer of the Rolls, that the King and his Heirs, and his Farmer and faid thar
of the fliid Lands ihould hold and enjoy the Lands, till the Defendants upon Search
Ihould produce the Deeds, and the Court thereupon take further Conlide- 'i'-" ^"und it
ration, and Order: Hob. 109. Trin. 14. Jac. I'he King and Ld Hunf- ^ameofHo-
don V. Countefs of Arundell and Ld William Howard. bert, Attor.
General v.
L 2. Wms's P.ep 6S0. Mich. 17^4. S. C. cited in the Caft of Gowper v. E. Covvper. Per
Jekyl Ma. of the Rolls, who faid that the Decree was drawn up thus. " That the King his Heirs,
" and his Farmer fhould hold and enjoy, till tiic Defendants produc'd the Deeds, therein paiticularly
*' mentioned, and proieii cnre to hn-ve been exi/int, ,uni diiely execni^l. " And makes this Remark, (vii )
that here we fee, that the Exijler.ce of the Deeds tias fKvdamein.il to the Decrer, atid the Prcof of them 0<l/y
atid txf>rrjs!y ejjctted ly the Curt ir. jramhgthit Decree. and Pag. 6S2. he favs, that he does not re-
Ynembcr or believe, that any Cafe had been cited, where there was not foine Prcof made of the Exilt-
ence of the Deed or Writing fuppofed to be fuppreflcd or deftroyed.
2,
_, The Defendant entered into a Bcf:i1 to ka~js his Fclh'-ji-fiip^ and alter
took away his Bond, and the Court decreed him to leave it. Toch. iz'6.
129. cites P. 15. Cur. Holme v. Wild.
3. Torn/or for T<cjrs dVcs latcfratc; Adminiltration is granted to B. who
dies and makes J. S. EKccutor. C. is uidniimfrratcr dc Bonis iion^ and
brings a Bill againil J. S. for the original Lcale^ and it was decreed ac-
cordingly. Hill. 25. Car 2. Fin. R. 59. Preftidgc v. Preltidge.
4. Lpon a Bill lor Difcovery and Delivery ol old Deeds, Defendant
infilled, -that the PlaintifT"'s Claim was under One o^ccntcd for Fcioriy^
whereby his Lands were forfeited to the King, and that Defendant was in
PolielRon feveral Years under that Forfatiiyc. But it appearing that the
Anceltors of Defendant had the Deeds concerning thefe Lands, the
Court ordered tlve Bill to be retained to enable the PiaintiiF and his
Heirs to make ufe of the Depolitions therein at any Trial at Law, and
Defendant to do the fame, and the Plaii'icilf to have Rtcotirfe to the Re-
tords. Rods, and Kvuieuces oj the Adanor, in which the Lands lie, to \-;ew,
•pcnfe and tah Copies, ^pa}'ing for the liimej and ordered tliat Defendant
and his Heirs, Lords oi' the Manor^ Ihould frodiKc at any 'fried at La\tf
fo many thereof as the Plaintiff or his Heirs Ihall at any Time require,
but at the Charge of the Plaintiff his Heirs or Afligns. P. 28. Car. 2.
Fin. R. 249. Draper and Zouch.
5. Lands were decreed, where a Mari;ia.ge Deed o'l. Settlement was got ■\,'\'[i(.re th
back by the Father by a Trick fct forth in the Bill and provedj and by Evidence is
him burnt or cancelled j and the Decree confirmed on a Re-hearing ; and fupprefs'd by
^\•here Deeds are fupprels'd Omnia prKfumentur. And the Chancellor ^ith'-"'' ^^^"^'»
"xuiLi not allow a tryal at La-ua, whether the Father furrendered bis Eltate !ui"v ^^jji-fr
loo Faits or Deeds.
■w3.)'^prefi!nie for Lilc CO enable a Recovery produc'd lor making good tb.e Sectle-
^7i//fagainft pignt by Barring a prior Entail. See z. Ch. Cales 292. 293. Aiich. 28.
P "Sg T Car. z. Gartlide v. Racclife.
umill the E-
videuc} be produc'd. Midi. 32. Car. 2. Fin ll. 471. Lewis v. Lewis.
6. A. gave B. a Statute for 5000I. and B. gave A. a Defenfi'.iice cf the
Statute, which vi'as to perform a TraJ} of a Term ; B. died. The Heir of
B. by Bill, claimed the Term, as being declared by the Defeafmce to be
in trull to attend the Inheritance ^ but A. fupprefs'd or conceal'd heDefea-
fmcej Finch C. decreed the Trufl: tor the Plaintiff! P. 30. Car. 2. Fin.
R. 357. Goodwin v. Cutler.
7. >Vhere a Conveyance by Fine was Voluntary, and without Confidera-
tion, no Money being paid, and the Defendant, who was Heir to her
Mother, and whole Ellate it was, inliiled, that the Fine was gain'd un-
duely, and deny'd the having the Deed, by which the Complainant
claimed, and of which he pray'd Difcovery, the Court would giva no
Relietj but lefi: the Plaintiff wholly at Law to help himielf there as
he could. Hill. 34. and 35. Car. 2. 2. Chan. Cafes 133. 134. Anon.
See Account 8. Detinue of Charters (during the Detainer) is a good Plea at Law in
(L. a.) S. C. gar of an Account ; and fo it is m Equity. Hill. 1688. per Cur. 2 Vern,
more full. 3 3 . in the Cafe of Lady Plymouth v. Bladen.
9. The Plaintiff was a Remainder Man in I'ail in a voluntary Settlement,
and the Bill was for the Difcovery of the Deed ; but it appearing to the
Court that the Entail was dtfcontinued^ the Court would not Relieve the
Plaintiff Hill. 1688. 2 Vern. 35. Kelley v. Berrv. 50. Palch. 168S.
Bunce v. Philips. S. P.
10. A. prefented a Parfon to a Living, and took a Bond to reftgn on Ke-
quefi at any Time with feven Years; A's Houfe-keeper being the Parfon 's
Siller, got away the Bond, and deliver'd it over to the Parfon. A. brought
Bill to difcover, and to be reliev'd. The Defendants demurr'd, and the
Demurrer allow'd. 2. Vern. 242. in the Cafe oi Bainham v. Manning,
cited by Commiffioner Hutchins. Alich. 169 1. as the Cafe oi Mr
Fortefcue.
11. The Defendant fupprefled a Marriage Settlement, whereby -a. Re-
mainder in 'tail was limited to the Plaintiff's Father, and all the prior
Ellates were fpent; on Proof that the Settlement came to Defendant's Hands,
and that he confefs'd it in an Anlv\er to a former Bill, the Mafter of the
Rolls decreed the Plaintiff to hold and enjoy. Affirmed by Ld Keeper
Wright. Trin. 1700. 2 Vern. 380. Evton v. Eyton.
12. A. 'tenant for Life without Impeachment of W^afte, with Power to
tltake a Jointure on any Wife, fwt exceeding lool. a Year for each loool.
brought by her, and fo ratably for any lefs Sum, Remainder to trnjlecs to
preferve contingent Remainders, Remainder to the Jirji, ^c. Son in tail Mate -^
Remainder over. Afterwards ^-Z. married M. hut "whether (he had any or nb
Fortune does not appear. They part by Confent, and a Deed is drawn be-
tiveen A. and M. and the Remainder Man and truftees with Co\enant ta
fettle 30/. a Tear for the Prjvifton of A<f. during the Separation, m Conft de-
ration of which pe is to claim no thirds or any thing out of the Husband's
EJlate under the Statute of Diftribtitions. A. executes this Deed, and fends
it to the Remainder Man in the Country to be executed by him, who did fo,
end returned it to A. who kept it, and did not deliver it to the Trrullees ;
M. apply'd for it, but could not get it; however, .Money was paid her in
Purfuance of the Deed. Afterwards A. cancels the Deed in Prefence cf the
Remainder Man A. dies, M. brings a Bill againftt he Remainder Man to have
the Benefit o{ this Covenant from the Death of A. and fo decreed by the
Mafter of the Rolls, and on Appeal affirmed by the Ld Chancellor, Sel.
Ch. Cafes in Ld King's Time. 75. Trin. z Geo. 2. Sepalino v. T witty.
13. Defendant
Faits or Deeds. i6i
13. Detendunt had (vrtickd to give a Pcitiori in Marriage with his - '\'crn. 561.
Diuighcer to S. and had the J)ecd in his Cultodv. S. fu'd lor the Por- f; ^ ^^ to
tion, and iet forth the Purport of the Articles by his Bill. The Drfoi- n;ent""%ce
dc^rit, in his Aniwer, prctcndvd that the Articles -varied jrom'what the Bill (X, •, w"!' ^
jet /oithy if-ud ajterzvards burnt the Articles. All which being made to
appear, he was committed and continued coiifnd^ till he admitted the Jh'ti-
cles to be as the Bill had let them torch. Mich. 173 1. i Wms's Rep.
733. where Jekyl, Mailer of the Rolls, cites it as the Cafe oi cjaiifoii I),
JSinntfP; and fays that the Commitment was only by an Interlocutory-
Order, and the Caufe ne\'er heard.
14. A. by Deed fettled a Term., fo as that after his arid M. his Wife's
(the Dejendanfs) Death ivtthout Ijffne^ the iame A\-as to come to the
Plaintiff for ^^^ Re/idite of the Term. A. died ;\-ithout IlFue, and M. had
burnt the Decd^ and by her Anfwer did but laintly deny it. viz. That
Ihedid not remember ilie ever burnt or dettroy'd the Deed. T\vo "W'it-
nelfes fwore to the Limitations of the Settlement ; Both agreed that it
was in Trull to A. tor Life, Remainder to M. for Lile^ but diflercd as
to the Words of the Remainder ; One fiying that it was to the Heirs of
their Bodies^ and the other that it was to the Ijfus of their Bodies^ and for
Want of Iffiie by A. and M. Remainder to the Plaintiff. It was inlilled for
the Delendant, that the Remainder o\er upon cither ofthofe Limitations
of the Trull oi a Term w as void in Law j and therefore the admitting
the Deed to be fupprefs'd could not advantage the Plaintiff But the Ma-
iler of the Rolls fiid, that tho' fuch Limitations as before mentioned
were void, yet a Limitation in Trull for A. and M. for their Li\'es, and
afterwards lor their Children, or for their lilue, and for Want of fuch
Children w l[]iie living at the Death of the fud A. and M. then to go over to
the Plaintili", is good ; and that iince a Term might be limited in fuch
Alanner, he would intend it fo limited in the -prefent Cafe; For every Thing
Jhail be preium'd in Oditim Spo'iatcris. But he f lid there could be no
Deciee Jor the PoHellion, nor a,ny preftnt Conveyance to the Plaintiff, it
being only a Remainder ot a Term ali:er the Defendant's Deathj but di-
re6led that the Defendant ofjign over the Terra to TrUllecs, /;/ Trufl for her
felf for Life., and after for the Plaintiff, and britig the Deeds relating to the
Title into Court, and'paj Cojls. 1 Wms's Rep. 731. to 734. Miclj. 1731.
Dalllon \'. Coatl north.
15. What a Court of Equity will look upon as Evidence to prefiime a
Siqpreffvm of Deeds, See 2. Wms's Rep. 678. &c. Michi 1734. Cowper
\ . Earl Cowper.
[ See ("B. a; ('X. 3 } Difcovery fM.; Fraud. Hunt v. Matthc-«-s. ]
(S. a) Deeds dir;^ci:2d by Chancery to be delivered up, or
Cancelled.
I. TN Debt upon an Ohligation, the Defendant fiid he had made it to the
\^ VhnnnA for certain Debts nioich he had I ought of the Plaintiff,
whicn w ere due to him by dtverfe Perfons ; and becaule it is only a Chofe in
Action, of which no Property is alter'd to the Delendant, nor can he
Itie for them, but the Plaintiff may lue lor them, or releale them,
and io he has net quid pro quo, by which heliaed by Subpjena againll the
Plaintili' upon this Alattcr in Chancery to have the Obligation difchc.rged ;
to which the Plaintili" there came and aniwered ; and the Chancellor tor
Doubt adjc'unied them into the Exchequer-Chamber ^ and there it was
debated by him and all thejullices ot both Benches ; . and Held that
tile Plaintili" in Conicience ought to dilcharge the Obligation, in as
much as the Deicndaat has not, nor cannot, have any Thing by this Ubli-
D d gacion,
I02 Faits or Deeds.
o-acion; by which the (Chancellor awarded in the Chancer), tiiat thel-'lain-
tift' bring in the Obligation to be cancelled, or make an Acquittance
or releafe it. And becauie the now Plaintiff rcfuied to do it, he was a- ,
warded to the Fleet, there to remain uiitil iScc. and there he yet reniains,
which is the fame Obligation, judgment, &c. and Held that the Obliga-
tion remains in Force, and therelore no Bar. Br. Barre pi. 45. cites 37
H. 6. 13.
2. Ancient Bonds being put in Suit were ordered to be cancelled. Toth.
88. cites Mich. 16 Tac. Gariord v. Humble.
3. Bonds entered, into by Menaces, Threats and Imprifonmcnts, were
ordered to be cancell'd. Toth 88. cites 4 Car.- Watts v. Lock.
4. Bonds concerning Wares were cancelled becauie of Coftuage. Toth.
88. cites s Car. Otby v. Daniel.
5. Bonds entered into for Fees and Lord's Favours were cancelled. Toth.
89. Lever v. Arfents.
6. Marriage Brocage Bonds were order'd to be cancelled. Toth. 89.
cites F^eb. 17 Jac. Arlefton v. Kent.
7. A Vohintary Bond o^ looo/. entered into for no Conliderafion was
cancelled in the Prefence of tlie Judges. Toth. 89. cites 7 Car. ■\\ right
V. Moor.
8. Bond entered into in 22 Eliz. (being a very long 'firne fined) was
decreed to be delivered up^ it being conceived that the Money was all
paid, becaufe it was not l/roentoried^ mr any Money proixd to have ieen
paid to the 'deflator. Toth. 90. cites Lord Cavendifh v. Forth.
9. A. made a Feoffment to the Major and Burgelies ot Gloucefter to
the Ufe of a Free School and other Purpofes j and a Bill being exhibited a-
gainlt them, and the Plaintiff not proving his Title, it was decreed for
the Delendants and their Succeffors, and that the Plaintiff Ihould by
Chrilbnas then next deliver them ;'iJl the Evidences concerning the fame.
Toth. 120. cites Meflenger v. the Mayor and Burgelies of Gloucclter.
10. A. as Principal, and B. as Surety, were bound in a Bond to C.
The Obligee's Name zvas tfed only in I'mfl for A. one of the Ol-iigors, and
if any Money was paid, 'twas A's Money; but it did not appear if any
Money was lent. B. being fued brought his Bill^ and the Court decreed rh*j
Bond to be delivered up and cancelled, audSatisfaftion acknowledged with
Colts to the Plaintiff See Mich. 26 Car. 2. Fin.R. 127. Launce v. Mar-
den and al.
11. K a. Deed with Power of Ke-vocation is revoked, he, to whom the
Inheritance belongs, may, by a Bill inChancerv, compel a Deli\erv there-
of to him in Order to be cancelled ; Becaufe the Deed of Revocation may
be loft, and then 'tis unreafonable, that the other Ihould be ftanding out.
Pafch. 4 Annae. G Eq. R. i. fays it was fi held in Chancery.
12. A. lent Money on a bad Security^ which his Lawver advifed him was
a good onej he having Notice of the other 'Title, how it itood, (tho' not
knowing the Goodncfs cf it,) or at leall knowing, that another claimed
Title to it, he niuft deliver up all the W'ritings, exjjept the Mortgage
Deed ; But that he may keep, becaufe of the Co\'enant therein for Pay-
ment of the Money. At the RoHs. Mich. 1720. Ch. Prec. 548. Opic v.
Godolphin,
(T. a.) De-
Faits or Yjt^ii'^. \ox
(T. a) DcfcBs in Deeds lupplied in Equity^
I. A Leafe was made to two during their Lives, and after to theUfe
j[^\_ of flic h of the Children legottai by P.R. without any exprefs Con-
clulion, what Child or Children. In this Cafe the Conlh'uttion touching
theUles mull be made, as near as may be to the Alea/itiig oftheParriiS,
■ who convey ed the i'amc toUles. Toth. 191. cites 16. June 36. Eliz. Rum-
ney v. Garnon.
2. TheW'ord (Heir ) was leix out /;/ n CLviCe o( Refcrvrtion^ but fup- it wa^ made a
plied in Equity. Toth. 229. cites July 1606. Baildon v. Church. Qucrtion"
whether
Chancery mij;lit help a Pi.rcl afir of Lands for a valuable Confideration, the Word (H'-'irs) bein"- o-
mitted in the Purchafe I)>:ed ; but the Point was not rc&lvcd. 4 Le. 8. 184. M. 50. Eliz. C. B. in.
Halton'» Ca!e.
3. A. was pcffi^fs'd of a defecli\e Leafe from the Klng^ which the De-
fendant would have avoided by aCompolition made bv him with theCom-
mi/Tioncrs lor defective Titles ^ but he was relieved here. Toth. 192. cites
Hill. 5. Jac. Gage v. Scory. and fays, that any other Eltate whatfoever
would be relieved in like Cafes.
4. A Bond for 500/. by a Mifiake of the Writer, was not good ; but the
Court ordered the Obligor to give a new Bond of like Penalty. Toth.
237. cites 10 Jac. Haddon's Cale.
5. A Conveyance was deteftive, yet becaufe there was a full Intention to
inake better Ajfurance, it was decreed. Toth. io6. cites 2 Car. Cooke v.
Cleere.
6. A Bill being brought to be relieved, as to a Covenant ill penn'd, was
dcmurr'd to ] but in Regard of foine ■precedent yigreancnt^ the Demurrer
was o\er-rul'd. Toth. no. cites Mich. 3 Car. Vanlore v. Eartlett.
7. Chancery will help a Deleft in wSnrraidirr. 12 Car. 1. i Chan. Rep.
108. Smith V. Smith.
8. The AfJignmcnt of a Term lor Years had net Words fiiffidcnt to convey
ail, which was conveyed by the Grant of the Inheritance ; but the Deteft
was made good. Palch. 30 Car. z. Fin. R. 347. E. of Pembroke v. E. of
JMiddlefex ai.d Hawles, and al.
9. K Etil wae brought to liipply a Dcfe[f in a Settlement of Lands on
the Plantift^ the better to enable him to pay his Debts ] hut the Cauie
coming on upon Bill and Anfwer, the Court would make no Order with-
C'Ht a Replication and Pmfs. Hill. 13 Car. 2. Fin. R. 415. Sir John Tuf-
ton V. Hawtry.
10. A Deie6t in a voluntary Conveyance, made as a Provijiou forChil-
dctn and for their Maintenance, lliall be fupplied in Equity. Pafch. 16S2.
\ern. 40. Thomplon v. AtHcId.
II- The not Delivery of a Deed, tho' it wa^ ilgned and lealed, is not
relievable in Equity; by Wright Keeper. Hill. 1704. 2 Vern. 475. in Cale
of Ciavering v. Cluvcring.
12. A Bond being inurlind after Exe"uticn, and lb void at Law, was
endeavouied to be ftiade good or relieved in Equity for lb much Money,
as it was really given to lecure; and that it might be conlidered there as
a Bond. But Lord Chancellor was of Opinion, that at molt, it can be a
Charge by fimple Contract c^nly ; ic being destroyed as fuch by themtelvcs,
and fo is, as if it had never been, and conf quently can be no Bar to the
Payment of a Debt o^ a fupcrior Nature. Scl.Ch. Cafes in Lord K's Time.
24. Trin. 11. Geo. i. Anon.
13. A. made a voluntary Conveyance to B. his half Brother, which proved
detetti\t. A. died without Illlic. B. brought a Bill vu compel the Heir
to
104-
Faits or Deeds.
to make good the Convevance. And Lord K. Wright was of Opinion
that as the Conlideration 'of Blood, would at Common Law mile an UHi,
and as before the Stat. 27 H. 8. fuch Ceily que Ufe ihould have compell'd
•an Execution of the Ufe in a Court of Equity ; ib would this imperle£t
Con\ eyance raife ,w Ufe in Refpctl of the Cor/f deration of Bkod, and confe-
quentl'y ought to be made good tn Lqtiit)
Watts V. Eullas
\\ ms's Rep. 60. Mich. 1702.
[ See Copyhold. — Powers. ]
(U. a) Aided, or relieved at Law^, or in Equity.
I. "y F aMan pleads by Force of an hidentifre^ which is loft, onJffidav!tm^6.t
\^ thereol, the Party fhall be compelFd by the Court to Jbciv his
Coniiterpart, and he to plead thereto ; or otherwile the Court may grant
an hnpavlance. So 'tis, if he will depofe that he never had an}- Counter-
part. Trin. 15 Jac. B. R. Cro. J. 429. Anon.
2 A Vine ilie vvn in Evidence, there being Proof of the Pnrchafe Aloney paid,
was held to be good Evidence, that the Eftate was palfed accordingly tho'
the DeedofUfes isloil. CJayt. 121. Grice v. Beaumont.
3. The PlantifT having only a Copy of a Deed of Feoffiiicnt, under
which ihe claimed the Land, (the Original being lofty) and the Jjeierj-
daot having a Counterpart, the Plantiff pray'd by her Bill, that the Copj
might be compared to the Counterpart, and if it agreed, that the fame might
be alkived in pleading as a good Deed fealed and delivered-^ which uas grant-
ed, and it was referr'd to aMafter to fettle the fiime. Pafch. 13. Car. 2. X.
—So of a Probate of ^ Will, whereof the
ibid, cited as decreed 13 Car. 2. in tlie Cale of
Ch. R. 82.
Poph. 205,
zort —Contra
Noy. 82.
Vincent v.
Beverly.
Contra.
oriu;inal Will was
Gorges
.'oliintary Deed, or an Obligee in
, thev Ihould have Remedy againft
18 Car. 2. I Chan. Cafes 7S. Un-
Griftin v. Bovnton
loft
V. Fofter.
4. It was fiid, that if a Grantee in a
a voluntary Bond, lofe the Deed or Bond
the Grantor or Obligor in Equity. Mich
derwood v. Stany.
5. A Docket or InroUm.ent of a Decree was loft, and ordered to be new-
inroll'd. 19 Car. 2. 3 Ch. R 20. Deta & ah v. Dickenfon.
6. Proof being made of the conftant Payment of a Rent till \z Years
pafl^ the Deeds being loft, the Rent and Arrears were decreed to be pairi,
becaufe it did not appear what kind of Rent it was, and fo no Rcir.edv at
Law. Hill. 20. and 21 Car. 2. i Chan. Cales 120. Collet v. Jacques.
7. K Statute being loft, it was mov'ed to have it certijied, and two Pre-
fidents were Ihewn. But per Finch K. they are Prehdcncs not to be Hal-
lowed, and I will never do it ■ exhibit your Bill againft ail that are con-
cerned in the Land, and Juftice ihall be done you. Mich. 27 Car. 2. i Chan.
Cafes 270. Anon.
8. A Debtor convey d his Efiate to Trujtees for Payment cf Debts, but the
title Deeds were burnt cailially, and the Pcrlon, from whom the Eftate was
originally purchas'd, knowing this refufed to execute a Releafe iov the Sa-
tislaftion of a Purchafor; but he was decreed to join. Trin. 28 Car. 2.
Fin. R. 262. Bennet v. Ingoldsbv and Hampton.
9. An Annuity was granted, but afterwards the Deed came into the Hands
of the Heir of the Grantor ; yet 'twas decreed it ftiould be paid with Intereft.
Pafch. 2vCar. 2. Fin. R. 293. Stokes v. Verricr.
10. A Bi/I (f F..\chaMge being loft after Acceptance, the Drawee was de-
creed to pay the Money to the Plantiitj on giving Security to indemnify
the Defendant as the Alafter Ihall think re;ifonablc, againft any Peribu
that may hereafter demand the iiime. Palch. 29 Car. 2. iia. R. 301. Ter-
cele V. Gerav.
II. A
Faits or D&:(\^. lo^
ir. A Mortgagor, having confeft'd chat hchxdlirnit the original Mort~
gage Dceil^ was ordered to deliver to the Plantilt's Clerk in Court the
Copv ot" it upon Oath, with the Names ot' the W'icnelies. Palch. 30 Car.
2 Fin. R. 352. Corlcllis v. Corlellis.
12. \\ hire Equity relieves in Cale of Deeds charg'd to be fappreiled,
or burnt, orcancell'dj it is TjtrclJarytoproi'e ihat there -Xere fach Deeds. Per
theMalter of the Rolls. 2 W'nis's Rep. 601. cites it ;is fo done in Cafe
of the i.\\\\Z i]i» tl)e COUntCfe of anmncL Hob. 109. and 1 Ch. Cafes
292. in Cale oi Garclide v. Ratclilie — and i Vern.408. Hunt v. Matthews.
[ See Account. J
(W. a) Loft Deeds fupplicd by after-Deeds.
I. rnpiHE Delendant acknowledged aRecogfiiz^-'ure^ which was taken a-
X way privately j the Court order'd that either the Plantilflhould
be paid his Aloney, or that the Recognizance lliouid be inroird. Toth.
267. cites 22 Eliz. Charnock v. Charnock.
2. Obligee in a BonJ /off, hath remedy againlT: a Surety in Equity.
Mich. 18 Car. a. i Ch. Cafes 77. Underwood \. Scaney Arg. Hill 31
and 32. Car. 2. 2 Ch. Cafes 23. S. P.
3. It' an yififitiity is grcvitcd by one to his Hoiifekeeper '■Ji'ith a Bond for Tho'itap-
Payiae/jt of it, and the Bo/hi is hjf E(|uity will decree Payment of the P<^-'>'cd rhur
Annuity j For Service is a good Cofijidir-mofi^ and no 7'iirpis contraiiiis ihall ""^^'''^^''
be frefimed^ unlefs proved. Abr. Equ. Caies 24 pi. 7. Hill. 1700. Light- her. Abr.
bone V. W'eedon-. Eiju. Qifcs
4. If a Fine is levied by Husband and NVife o( Lands, which he has ^3- ^ <■-
in right i")f the Wife, and there is a Deed made at the fime Time to de-
■cl.irc the Ufes thereof, and alterwards this Deed is hjr^ and then another
is inade to the fime Eliecl, and dcHed i^s tlx Jirfl ■, that Deed is iulHclehc
to declare the Uies oti the Fine. Per Holt Ch. j. Mich. 7. Annse. Holt's
Rep 735. in Cale of Pulhell \. Burland.
(X. a) Of infpe611ng Deeds by Order of Court, and at
what Tiiiie.
t. A NEarl liiuirig .a Notion thai: his next -sldell Brother was extra- Lord Mac-
£\_ vagant, and having no IfTlie of his own, cm off' the Entail of his ^''^'^^'^^'^ ''^""i
Kjtdte by_a Reco\-ery, and by Deed and li'tll fettled it on his younger Ero- ^u i.Tt^b-
ther iov Life, Remainder to his lirlt Son fthen in Beingj tor Lite, with done in this
Remainder to Trultees to prclerve contingent Remainders 3 Remainder co f^^fi-'. tiian i.i
the firft Son of that Son inTail Male'; &c. (barging the Kflate tvith 100 1. •\'-"o'""ioji
a Tear only to his nest Brother the prefent Earl^ and died without Iliue. ^-'s"^' ^'^y!.
Lord C. Macclesfield taking Notice oi the Ingratitude to the Crown, uftcrwards^n
to«;ive away the Elhite Irom the Honour, and that here being no Pur- a Cafe where
chafor^ there was noOccafion to bring theCaUle to a Hearing- his Lord- 1'^''^"^'= ^^■''s
lliip, on Bill aud Anlncr, ordered alfthe Deeds and Writings w be brought "j^ X"'""
bv the Delendant, the Dcvilee, before the Mailer; and that the Plant^ti; du- ^Plaintirt"
the prelLntEarl might, either by himfclf or Agents, ha\e the Inlpeition tl.umcd by
of them; fo chat it any Thing 1l'..s llipp^d chcConvcvance, or if the Entail ^'"■tLie of a
be not well dock'd, the Plancili' may have the Benefit thereof 2 \\ inVs i^n''Tail"^''-'"
Rep. 177. Trin. 1723. Eavl of Suffolk v. Howard. I"mntonan
and was Hdr Mxk o'' th; F.vr.il)', ani tU; D^fcmh-fs ryn Hc-a Gencrx'., and Sifters of the Tenant i'ri
^'' Tali,
io6 Falfe Judgment.
Tail, and by their Anfwer fliewcd, tliat their Brother the Tenant in Tail liad fufercd a Recoverv, and
declared the Ui'c to himfclf in Fee, rct"errir.<]; to tlic Deed in tlieir Cultody. Lord C. Talbot before the
Hearing, ordered the Defendants to leave with their Cylerk in Court, the Deeih maUii^z the Tenant to the
Pr.-.i'pr, a7ui declarinir the C'fes of tleReayieyy. z Wms's. Rep. I-S in an Additional the End of tlie Page,
cites about Hill. 17 5 5- Sir Edward Bettifon v. Farrington and al.
2. In the Proofs of a Caufe, Phvitiff' pro'SdaDccd, and the Defhidaf/T,
at Petition to the Malter of the Rolls, got an Order of Leaia: to iufpetl ; be-.
cdiiCe the Dcpojitioii oi the Wicnefs referring to the Deed, made the fame to
Oe Part of the Depjhion. But to diicharge the Order, it was mo\ed thst
Defendant can have no Right to fee the Strength of Plantitf's Caule, or
theE\idence of hi.s Title before the Hearing; and that if this were to
be granted, iiich Motions would be made every Day; lince it would be
every one's Curiofity to try to pick holes in the Deed or Settlement, by
which he is dillnhcrited ; and no fuch Older was ever made in the like
Cafe; and Lord Chancellor diicharged the Order. sVVms's. Rep. 410.
Pafch. 1727. Davers V. Davers.
Falfe Judgment.
(A.) Who flmll hold Plea of Falfe Judgmen!:.
Before "Cn^ I- 52 i/. 3. zo. Stdt. Marlh. 'W"'^XACTS that none from henceforth
making of H 1 (except our Lord the Kmg^ pall
this Statute, B \ hold tn his Courts any Plea of Falfe
\ud"rnent ^ Judgment given in the Court of his
liadljeen gi- "tenants; For fiich Plea fpecially lelongeth to the Crazcn and Dignity of cur
ven in a Lord the King.
Court Baron,
this fhould have been redrejjed in the Court Baron of the Lord next aho'ce him, and Co upwards of the Lords'
Paramount ; which both was an Occafion ot lon^ Delays, and the King had alio ni.iny Times Prejudice
thereby; for that thofc bafe Courts could aflds no Fine or Amerciament to the King; which is to be
underftood, that if the next immediate Mcfne had no Court Baron, the Falfe Judgment could not be
j-edrcffcd in the Court of the Lord next above, for Defiult of Privity ; but then tne Falie Judgment
was to be rcdrellcd in the Court of Common Pleas, or before the JulHces in Eyre ; and now the JulHces
in Eyre being worn out, the oripinal U rit of Falfe Judgment is retorncihU cor.i?n "fiijtitiariis noftrls apud
W'ellm. which arc the Juftices of the Court of Common Plcss. :. Inft. 138, i yj.
(B.) Lies
Falfe Judgment. 107
(B.) Lies in what Cales ; and where Falle JudgmenC,
and where a Writ of Error, or other Action j and the
DiBcaence.
I. T TCTRIT of Falfe Jiulgment lies * f/ot hefore F.xaution fued, and till * 7?.v' it was
y \ the Dcmandunc has entred. Br. F;iux Judgment, pi. 6. cites "^'^"'''^'^'^ ^'y.
M. 18 E. 3. and F. N E. And in FalCe Judgment it was held a good jcnney dwt
Plea, that the Plaintilf himlelt" is yet feiled or the Franktenemenr, and It licst^itli-
A\as lo the Day ol" the Writ purciafed. But Urit vf Error lies againlt outmy E>:c-
him who was Party to the judgment, whether he was Tenant ol: ];he ^'"V''"'"^^''''
,T I 15 r- I J In' r, 1- of Litvd. Br.
Pranktenement or not. r.r. Paux Judgment, pi. 8. cites 38 E. 3. 34. Ym\ luJcr,
me:it pi. 19.
cites S E 4. 19. But ibid, cites \ F. N. B. contfa. Bi-ook makes a Qiisre in Plea PerfoTinl, but lays,
it Icems all one; otherwile 'ti.s ?« .-//f.T?,>rf, by Reaton that the Petit Jurors may die, but it (eems that
the Suitors may live, (.iuaere. ± F. M. B. 19 (A) cites M. 5S E. 5. 15. and S E. 4. 19. accordingly.
That where the Tenant lofes his Land by Falfe Judgment in a V\'rit of Right in a Court Baron, he
fliall 7!ot have a Writ of Falle {udgmcnt hetore the Dounnthuit has entred upon him, &c •)■ Orig.
is (Sur) but in the other Editions of Brook, it is (Sans) which is according to the Year Bjok, per
Jeuncy.
2. Land is recovered in Court Baron iiy Plaint^ where 'tis Franktcnanent^ SoDefendant
and ought to have been by Writ. FalCc Judgment lies, but not -^'/f, ™"'" ''ji^^S
nor Tr^lpcifs; For 'tis not void, nor Coram non judice, but Error. Br. Trcfpafs pi
Faux judgment, pi. 11. cites 22 All'. 64. 25S. S. C.
3. A Sheriff' in the County qiirijlfd the F.ffoin ivithont the Confcnt of the v, ? Ev 4-
Snitors, and the Part\' brought a BUI ag:'.iiiji him in the Eschtqner^ and it tion Sur fe '
well lies. For Fulft Judgmeut di.cs Mot he; hccaiife 'tzvas not the Ati of the ^sfc. pi. -9.
Suitors, who are Judges there; and the P^llbin was calt in Writ of taking '•"'tesS. C.
of Bealts: and fo Note that Suitors are in the Countv. Br. P'aux Judg-
ment, pi. 18. cites 26 Air 45.
4. Note, that of a Jiidgniait gi\'en /// Ancient T>cmefnc of Lands at Can- For Error or
vion Laiv a Writ of Falfe judgment doe.'^i not lie, becaufe it is Coj-am non "^'""^o"' Pro-
judice. F. N. B. 19 (D) in th3 Notes tlicre (C) citei 7 H. 4. 2S. b. !D/J";f'''thc
Parol fli'all
not be rerroved ; For the Party may have Writ ot Fall- Judgment. Br. Caufe a Remover, &c. pi. <.
ckcs 9 H. 6. 54.
5.' 'Tis fiiid that ;'// Falfe Judgment the Parties hai'e Day in Court,
and in a Writ of Frr-jr not. x\nd in Debt belbre the Shei-iiF in the County
the Plaintift" recovered his Debt and his Damages, and the Detendanc
brought a Writ of Falfe judgment, by \vhich the Record was removed
by Recordare out of the Count\' into Bank i and in the fime Court the
PlaincitFin the firft Aftion may pray Execution, if the Defendant rjui/I not
affig^n his Errors ; and aker the riaintiif in the Writ of Palle Judgment,
Avas ncnfiited. Br. Faux Judgment, pi. 15. cites 20 H. 6. 18.
6. Of Error in Court of Piepozvders Writ of Error lies, and not Writ
of Falfe Judgment; which proves that it is a Court c^f Record ; and this
per Littleton, quud non ncgatur. Br. Error, pi. 162. cites 6£. 4. 3. and
7E. 423.
7. P'alic Judgment lies upon' a Jiifiiitcs., and Admcafarement of PafiarCy
and all other Vuonticl Writs. Br. Faux Judgment, pi. 14. cites 7 E. 4 23.
8. A \\ rit of Falle Judgment d(,^es not lie of Error in Affife of Frejh- p -v o „
force^ but a Writ of Error; For Affife of Frelli-tbrce is always in Court ^Ij/'
of Record. Br. Faux Judgment, pi. 22. cites the Regilter.
9. If Falfe judgment be given in a Writ cf Right Ciofe, the Party Te-
nant or Demandant n\.\.\ fue a \\"rit ot' P'.dle Judgment thereupon. F. N.
B. 12. (A)
10. But
io8 Falfe Judgment.
I5r. Faux lo. But Copykolders o^ Land in Ancient Demeihe at the Will of the
Jud-nicnL Lpj.^1 j^^jj ^^j^ [jy gill 1^ ^^g Lord's Court ; and llwU make Proreitation
,_j^H'^'^,"_to fue there in the Nature of what \V^rit he will. But tho' Falfe Judg-
For if u'co^ ment be t^iven, he (}jall not have Writ of Falfe Judgment at Common Law.
pyho'der F. X. B/i2. (B). "Ibid. 18CH).
i^oul(i have
Juch VN'iit,
he flTouId be reftorcd to a Freehold which he rcver loft, but always continued in the Lord. But it feems
the P.ccGvcry is void, and may be avoided by Plea. F. N. B. 12. (B) in the Notes there (b).
II. Upon Falfe Judgment gi\-cn in Courts., holding Pica ly Prsfcriptim
in every Sum in Debt by Bills betore them, Fallc Judgment will not Jie,
but a Writ of Error thereupon. F: N. B. 18 (H).
But it isfaid 12. Where Falie Judgment is given up(in a\\ rit of yujlicies direfted
tiiere in ^ unto the Sheriftj the Party grieved lliall ha\e Falie Judgment, and not
JViarg that It ,^ i^Yj.j^ of Error ; altho' the ludgment be of Debt, or 1 relp.ils over the
, IS contrary it >• ,- r^ k r r, o , 1 i>
thejullicics ^^"n Ot 20 s. P. N. B. 18 CH).
be rewi'ved
into B K. Ly a P^r.e. Br Error, pi ;c S. P, cites 34 H. 6. 4S. and tfj.
But County 13. A\Vr\t of En-oy properly lies, where Falfe Judgment is given in dny
Coi/ft, Hun- Court, which is a Court of Record ^ as in the Common Pleas, or in Lon-
B.iion, &c. ^y t^he King's Charter, or by Frsefrription, in any Sum in Debt or 'I'ref-
.arcnoCoarts pals over the Sum of 4c s. F. N. B. 20. (1)).
of Record;
■and fb a Writ of Error lit"! not, but a Writ of F.il'c JudjTment. Co. Li:t. ii". b. and tho' the Plea
is held with or without V\'tit, it is all one. 6 Rep. 11. b. Jeatlcman's C'al'c.
See Court i^_ If" the Steivard is named in the JLidgmcnt, it makes it a Falfe Judg-
fentrem.in-s"' '"^"'^- ^'^-X' 74" '^^P^^\ "^' 3.^illUji3an li, paWlllO^'C cites I E. 5. 36. aiid
(jafe ' the reafon is becaufe he is not Judge there. Ibid, cites 6 Rep. ii. Jer.tk-
man's Cafe.
[ See (D.) pi. I. ]
(C.) Falfe Judgment tried by whom, and how ; and of
the returning the Writ, and removing the Record.
*UponEr- I. 1 £. 3, 4. Stat. I. TT'NACTS that ivhen a Record cometh into the
roraffign-d £^ Kiu{s Court by Writ of Falfe Judgment, in Cafe
F-dfJ^ud "^ '^'^""''"^ ^^^ ^''-''^y aUcdgith, that the Record is * other-juifc than the Conrt doth
m'cnt given ^'ecord the fame, the f A^Jtrment floall be received of the good Conntry, and of
in the County them which were prefnt in the Court when the Record was made, if they do
of York, in ^ coine with ethers of the Country by tbe Sheriff's Return. And if they com* not,
affum "fit &a ^^'^ /;;?//(/? /.'7// be taken by the good Country.
Quantum
recruit, the Defendant in the F.dfc Judgment, after plcadinj^ to the other Errors, founds a further Plea
upon this Ihitute thus, (vii.) h't tjuod in Pr.imijf. ill. .U.inijijh ell J'ariauo inter LoitueUm pr,idi;i. fuft-
luii retorrint. & hqiicl. in Cur' Com' p«id' fitper tjiiv [udicium Predict" realiter reddit fuit aifdue tix quod
defect, prsd' I'apcnus pro Erroribus alugn' fuerunt vel eorum aliquis t'uit content' in Loi^uela pnd. fu-
per quo Judicium pr.td' in Car' Com' pru-di<tt' reddit. fuit, prout in Cur' inc protextu Brcvis de talib
ludicio prid' fupcrius retorn' recordatur, Et hoc paratus cfl vcrificare undc petit Judicium, (i Curia
hie ud E>raminationem defedl' pridirt' procedcre vefit feu dcbeat, 6ic. Lutw. 957, <^jS. Hill. 13. VV.
3. Buttcrfield v. Sutton And refers to a like Pretident in Hcarnc (,495) ^99.
* In a Writ ot l''allc Judgment on a Judgment in Ancient D^-'mefiie it wa^ laid to be ,-;; Cttri.i Re/^/s
where it fhould bt Refiiitu ; now by thii tlicre is no Record made or reinuvcd but only an Fj'^ti<u, and is
as if the Suitors had brout'ht in tlic Record liitLut a Writ iu <Xitrr.tr.t it. F. N. B. iS. iG) in the
iSote^ there (d). IStit in If r:t of trror which removes a Record if it be aLucd, a .Sptiitil U'tit mav bc
av\ardcd upon the Record ^;.', J rejldtt in Curia., &c. F(»r this was a Record bcto:c the Removal, and the
Julliccs etc B. fray carry it int>^ ii. R, in the-ir Hands ; tho' otherwi'.i; of a Roll t>f a Bait; Court which
is
Falfe Judgment. 109
is not a Record. — -Br. Faux Judgment, pi. i. cizcst 4 H. 6. Fitili. Faux Judgment, pi. 1. B;-. Faux
Judgmem. pi. i. cites 5 H. 6. z6.
I That i.s it rtiall be tried by thofe who were then prefcnt. For the Word Averment, in this Place,
fit^nijic! ii>i .-Icl or Tri.il ; and not an Utfer to juftify tlie Thin;^. N. Lutw. 503. in his Additions to the
Kcport ot" Buttcrfield v. Sarton.
:j: If tliey come, and by other of the Country, &c. Cay',s Abr. Stat. tit. Falfe Judgment.
2. If the Sheriff' returns that the Suitors k'/V/ not record le P/irol (or PleaJ, Jli that arc
a. Sicnt alias Dijtringas lliall illue agaiilll all the Suitors. And if at the lerurned by
Day fonie of the Suitors do appear^ and others do not, the Court here Ihall ||'.*'^ '^•'^''"^ ^°
accept the Record by the Hands ot' thoie that appear; For perhaps, at thctWtBa'^
the Dilhingas licut alias, the others will difavow the Record ; but their ron, and ve-
Ifliics ihall be flived, and theDillringas llcut alias Ihall iflue as well againlt 7'"'' when the
thoie that appear, as againlt the others. And by Hill, if on the firirW'rit J';i'^g"''ent
the Record had been delivered to 4 Suitors, and 2 ol'them had appeared, o^<t/,f)J^"'
and the other 2 made Defiult, the Record had been (well) accepted. See turn ti.df'rit
I E 3. 9. 26. E. 3. 61. * 12 H. 4. 23. And an idem Dies Ihall be given to -'nd not all
them : and if any of them make Detault, the Record Ihall not be receiv'd "ic-ans the
by the Hands ot thofe that appear, but their Ilfucs ihall be laved, and a ^^^">' '^^^ .
new Dillringas ihall go both againlt them and thoie who made Default. "!:1*;T- .^'^ '^^
igas man go Dotn agamit tnem una tnoie wno made Uetault. certified
F. N. B. 18. (E) in ttie Notes there (b) cites 9 Eliz. D. 262. it may hap''-
pen. ' Nov.
74. Vaughan v. Paramore. cites F. N. B. iS (D)and D. liz. * Br. Fau.i; Judgment, pi. 5. cites
i). C. See (E) pi. i.
.3. Note, that Records of a Court-Baron iliall be certified /;)■ all the Sui-
tors upon a Writ ot' Falle Judgment, and not by lome of them; quaeri?,
how this ihall be taken. Brook lays it ieems, bv all r.hofe who pall be m
Court upon the fame Plea, and not bv thoie Suitors \vho ne\'er were preient
in this Suit. Br. Faux Judgment, pi. 16. cites 12 H. 4. 22. and 31 E. 3.
Fit/.. Faux Judgment S.
4. Writs of Falie Judgment ijjiie ord of Chancery, and are directed to
County and Hundred Courts, &c. and are rcturnabk only m C. B. L. P.
R. 529.
(C. 2) The Eflcci: thereof, and how it muft be obeyed.
i. TF a Writ of Falfe Judgment be direfted to the Court of a Lord,
\_ they cannot proceed after ; and it the Lord -KJi/l not hold Court to
alhiw it, Diftringas Jhall ifjne to diltrain him to hold his Court; For the
^\'rit mult be ferved at a Court. Br. Faux Judgment, pi. 12. cites 6 H.
V- 15.
(D) In what Court, and at what Time, and to whom Di-
rected.
I. 'FT^ALSE Judgment fliall iifue to the Suitors in a Bafe Court, and net to w'rit ofFalfc
jj the Bailijfs; For where Bailitls have Conulancc of Pleas, or Au- yudgmcnt
thoiity to hf.ld Plea by Pnefcnpticn, 'tis a Court of Record, and therelore n^s net ba a-
a \\ rit of Error lies there, and not ot Falie Judgment; quod Nota ■'^•'"'V' '''L^'"
Diveriit. & Dubitat. there what Writ ihall lie of Falie Judgm.en.t in ^"{'inADif'
Coait vi' Piepowders. Br. Faux Judgment, pi. 3. cites 45 E. 3. i. inncts i'tda-
tores cdha-
bn:di<m rcitrd' lies againft the Suitors. Br. Fuu.y Judgment, pi. 14. cites - E. 4 4 zj.
F f 2. If
no Fa lie lud^mcnt
Br. FauK
2. It'ci vVrir of Falle judgment be brought againft the Steward and the
Suitors, the Writ fhall abate becaufe the Steward is named. Per Va\ i-
lor Arg. it fcems, 'tis intended, where the Writ is directed to tbcStc-'joard
(ind Suitors. Er. Faux judgment, pi. 20. cites i E. 5. 3.
3. A Man Ihall not liave" a Writ of Falfe judgment, but in tlie Court
iVihcre there arc Suitors; For if there be no Suitors, the Record can't be
certified by them. F. N. E. 18. (H).
[ Sec (B.) ]
(E) Pleading, and Errors in Falie judgment.
I. "I" N Fal(e Judgment 'twas affigned for Error, becaufe in the Precept
\_ of Siihwions^ dec. thefe Words, coram tali, &c. were wa/itif/g ; and
becaufe it appeared by the Record that he had appeared before Jndgniciit.^
therefore he has affirmed the Summons ; and nhcre a Man is ejfoigiu'dy he
Ihall not iay after, that he was not funimoned, per Wyche; and after the
judgment was affirm 'd. Br. Faux judgment, pi. 4. cites 46 E. 3. 30.
2. Error itpou Falfe Jttilguicut given in 1) upon alVrit of Right ; 'tis fiiid
that the Heir pall be 'xarncd as ivell as the •Tertenaiit ; and 'tis fiiid there,
that t!ie Plea of the ^'enant jhall be taken, and not of the Heir : But this
feems to be in Falfe judgment, and not in Error. Br. Error, pi. 42. cites
8H.4. 18.
- 3. Falie Judgment upon a Jiijlicies directed to the Sheriff' of D. viz.
Tud'-mcnt J- ^ '^"'■^ ^^ Under-Sheriff\ viz. N. T. held the County-, and gave the
pi. g! S. C. 'Jiid'i^hicnt of the Sum of looo/. contained in the Julticies; and the Dc-
icndant brought Writ of Falfe judgment, and aifigned it fir Error; and
that they made the Record that the Plea ivas held before J. B. named in rhe
jurticies, ichere inFatJ he it'as alfent ; quod Xota. but the Plaintiff was
nonfuited, and fo no Determination j but it feems to be Error: For by the
Writ of Falfe judgment the Sheriff is Commiffioner j and Commifhoner,
nor Judge can't make a Deputy; and fee here, that he Jhall tallify the Roll;
but it feems, that he lljall not fiy fo, if 'twas in a Court of Record. Br.
Error, pi. 78. cites 21 H. 6. 43.
4. Falfe Judgment upcm a Reco\ery in a W^it of Right in a Court-
Baron, the Falfe Judgment was alliga'd, for that the Roll was, Placita
coram Senefcallo S SetJatonbus, &c. where the Steward is no Judge, but
the Suitors; and therefore Error, per Chock and Littleton. Br. Faux
Judgment, pi. 13. cites 6 E. 4. 3.
*n' (A ^" "^^^^ by Fitzh. for clear Law, that in a Writ of Falfe Judgment,
cord ") but in ^'' ^^^^^^'^ £/^ Erratum, is no Plea; For they Ihall join Iffue upon lome Mat-
tUc otfier E- ter in Fact certainly alledgcd by the Party, and fhall be tried per Pais ; For
ditions it is 'tis not a * Record, contra in Error. Br. Faux Judgment, pi. 17. cites
(Record). ]vi 23 H. 8.
6. In Falie Judgment, if the Plaintiff aflign the Errors, he flialJ not lliy
^' s'c' \ h ''*' ^"^ P''"'''^-^^''''^ ^fi-) but he fliall f;iy, nnde qiieritiir divcrftmodo Jibi falfum
ihcaftcr Ad-J''^"'"'"^ f'^'^"'^^ P'^/I^'t j^"^'^''"'^ ''^''^- '^^ ^'^'-'■y ^^'- Note the Diverlity be-
ditions, vi/.. tween Error and Falfe judgment in this Point. And note, that upon the
uuatuor. Writ of Falfe Judgment, the SherilF returned, q:/od acceptis fecum 4. Le-
I qujtuor. gahbus militibus de Coni f'tio accefjit, Sc & record um illtid hahco coram, i3c.
f'iibStgillo meo S Sigillis Prjtdi&orum * vitlitiim, and held the Return not
good ; and that the Record was not removed by it. For t;he Return
Ihould be fub Sigillis f ex his qui Recordo ilk intcrfnerunt, and not of 4
Knights. And lor this Caule the Court could not proceed. Trin. 6
Eliz"^ Mo. 73. pi. 198.
7. A Writ of Falfe Judgment was brought in the Common Pleas of a
falfe Judgmea: given in the Court oi Ancient Demcfne, iq a Writ of
Right
♦
Falfe ]udgment. 1 1 1
Rioht-CIoie pmlccutcd there in the Nature of a Writ oi' Jiel ; one of
thePJaintilis, who had belore appeared, vsas nonfuit and ievered, and the
other Suitors would not lend the Record to the Sheriff ^ whereupon a I3i-
ll:rins;as iliucd ai^ainli: thenij upon which they brought the Record into
CouiT, and there alligncd many Errors in the Record oi the Judgment,
1. Becaufe in theStUe of the Court no mention is made before --dc hat fudges.
2. There is no Officer named in the Aioard or Return of the Summons. 3. No
Day frefixid to the Tenant in the Summons, bat ad froxnn. Curiam. 4.
Tenant made Attorney -xithin Jlge. 5. No Warrant of Attorney entred for
the Plaintiff'. 6. No Naines of the Siimmoiie"s returned. 7. Tenant with-
in Age, and in h\ l^xicQnt cnjled of Jge. 8. Rejtifal to receii'e Demurrer.
And upon non fum intbrm' the Court proceeded to the Examination of
Errors, and reverfed the Judgment ; and awarded that he Ihould be re-
ftored to all vshich he had lolt by Reafon of the Judgment albrefiid;
but no Colts or Damages j and the Suitors were amerced to 7 /. I'rin. 9
Eliz. D. 262. b. pi. 32, 33. Anon.
8. The Writ was defc6tive as it feems, becaufe it was Recordari facias
loquel. qitj; eji in eadem Curia ; whereas it Ihould be fait. Mich. 9 and 10
Eliz. D. 268. pi. 17. Herfbrd \^ Windc.
9. Exceptions were taken to a Writ of Falfe Judgment in a Court of An- ^ •yvrit was
cient Demefne, beuiufe the Writ was afftimptis tecum qiiatnor Militibits de fuhSigUU im
Comitatu tao, £jV. and in the End, per 4. legale s Homines ejufdem Cnrue. & Si/^ilUt 4.
Butdifallowed, foritistheForniof theRcgilter. Mich. 22. &. 23 Eliz. ''"■?'''""".''!-
D. 373. Pf 13- demCurU;
where it
fliouW be //(/; Sigilh tifo, ©= fer 4. legates hmines ejiifiiem CiirU, &c. and alfb in the End of the Writ,
Lcfore the Telle, it wanted tlie Words * & aliini Brca ; and the Defendant refufing to confcnt to tlic
amending^ the Writ, the Clourt doubted v,hat to do. Trin. 4 and 5. P. and M. D; 1(^4. pi. fS. and
cites 4 H. 6. 4. that where the Writ wants Subftance, the Plaintiff may have another Writ out of Chan-
cery, to the Juftices of C. B. reciting the Matter and commanding them to proceed to difcufs the Er-
xors contained in the Record, ijuod Penes eos rejidet. Nota Bene.
* D. z68. in Cafe ot Herford v. Winde.
10. if a Judgment in an inferior Court is erroneous, no Advantage pall
le taken of it upon Pleading, buthyWrit of Falfe Judgment ; and the Judg-
ment iliall be intended good, till it be a\oided. Hill. 24 and 25 Car. 2.
B. R. 2 Lev. 8r, 82. Doe X. Parmiter.
11. An Aftitui was brought in the Court of Leiceller, lor an inartiti-
■c'ial cutting of the PlantilFs Sow. The Defendant demurred. Plaintiff
joined. And upon the Demurrer Day was given ad Proximam Curiam
without mention o^ any Day certain j and this was held to be incurable.
But then it was moved that it appears to be a Court of Record, and then a
A\ rit of Error lies, and not a Writ of Falfe Judgment, if there had been a
■Compleat Judgment which there was not, there being only a Writ of In-
quiry of Damages awarded, and ib nothing further was done. Mich. 3.
Jac. 7. C. B. Lutw. 951. to 954. Bufliird v. Bull.
12 An Infant brought Trefpafs in an inferior Court for taking of a
Cow, and alter a Verdict and Judgment Ibr tlie Plaintiff, it was alligned
for Error, i. That tn the.Ventre. facias thoWord fcire &cc. w^as inferted
hijlead of fciri, &c. 2. That the" Plaintiff in the inferior Court, did fwt
declare by his Prochei'iuimy. 3. Becaule it is laid in the Record, that the ^
Jury eletf. 'Triat. 6? Jurat, fuenint per Cur' where the Jury is to be tried
:ny Triors, and for thefe Reafons Judgment was reverfed. Lutw. 954. to
■957. 3 & 4 Jac. 2. \\ illbn v. Leathat.
£ See (B). — Error. [(J. c)— K. c)&:c.] See more in Townfend's
Tables 153. aad Cornwall's Tables 173, 175. ]
(F.) How
1 1 2 Falfe Jiidgmeiii.
(F) Hou" the judgment (hall be.
i. XN a ^^>it of Falfe Judgment, if the Judgmcnr be reverfed, theSui-
J[_ tors arc amerced ; and the Court Ihall gr^e the Ibrmer Judgment
'xhich the Suitors oiipht to have 9iven V. N. B. 18. (A.) a Koce there.
tS \i '^' ^' ■'^ a^^'^i'it^ "*^ Right-Clofe, it the JFw/r o/" the DemiVidant be abated^
lail Edition whereupon he brings Falle Judgment inC. B. and there the judgment is
favs, thut it reverfed, and the Writ awarded goodi then he iliall hold Plea in C. B.
wiisheldiic- and a Jtidiciai M'rit Jball ijf'uc from xhc Cojumon Pleas, in Nature of Pro-
cordiiiply, in f^iJ^jfiQ^i made in the hrll Writ^ and if the Protellation were in Nature of
liusvy^irp ^^^^^^^ oi Mmdanctficr, the Jultices Ihall dire£l a. Writ unto the Sh'-riff' to
lv.H\\\.b\\' . fiiinjnou the Jurors to comeo//? of ylncient Demcfiie thither, and all the Mat-
-; B. R. by tcr ihall be tried and determined in C. B. And altho' the judgment be
Holt, and the (riven of the Land in C. B. vet the Land IhiU be Ancient Demelne. Quod
D^r— "dc- ^■'^'^ ^^- 3- ^- 3- '^^ ^'^- ^'^^^ Judgment. F. N. B. 19. (D.) cites 4 1 nit
nicdjbecaufe 270. _, . .
not warrant- 3. Tenant i'lTaiJ kvicd aFine n/' Land, \vh\ch was j^ncient Demefie, with
ed by 34 All Proclamations ; a Formedon was brought of the Land \vithin the Court of
^°' Ancient D^mefne, and the Defendant pleaded the Fine in Bar of the Es-
tate Tail by the Culh^n, and Judgment was given there accordingly.
Whereupon a Writ ot Falfe fudgment was brought in the Common Pleas,
and it was a Queltion in that Cale, if the averring of the Cullom for bar-
ring of the Eiiate Tail there was good againft the Stntute de Donis Con-
ditionaHbiis, which was made within Time of Memory. Ld. Dyer makes
u Nota, that if the Judgment iLould be reverled ibr that Error ^ ^■et the
Judgment given here can be no other, but that the Party lliall not have
Judgment to recover Seilin of the Land which is Ancient Demelne, but
*See(E) only that he pall be'^ reflored to his Adwri, &c. which will be adjudged
pi. I. there according to their Cullom. Mich, zz and 23 Eliz. D. 373. a^ b.
pi. 13. cites 37. All" 4.
(G) Execution awarded ^vhe^e, and how. And of Scire
Facias.
I. XT was fhewn to Thirning, that a Man had recovered Land inAticieni
I
Demefie, and before that Execution fued he, -who lort, brought a Writ
of Falfe Judgment, fo that the Record is in C. B.. and the Plaintiff' does
not parfiie it, and the Demandant cannot M'ju have Execution in Ancient De-
ruefne. And Thirning faid, he raay pie Eseaition as ijjeU by Scire Facias as
upon a Writ of Error in B. R. For when the Rsccord is there, they will
award Execution. Br. Faux Judgment, pi. 6. cites 12 H. 4. 23.
2. ""Twas agreed that jf the Plaintiff' upon Scire Facias ad Afjignand.
[Aadiend''] Error es appears, the Court (hall proceed to the Examination of
Errors ; but if he viakes Default, the Defendant pall have Execution ; For
the Court is fwt bound to examine the Errors, tho' they are apparent, unlefs
at the Alfignipent of the Party j and that a Man cannot bz nonfuiced in a
Writ of Error j For he has noz Day in Court ; contrary in a Writ of Falle
Judgment; but in the Sci. Fa. upon Writ of Error, he may be non-
fuited; quod non negatur. Neverthelefa 'tis not cxprelly ruled. Br. Er-
ror, pi. II. cites 20. H. 6. 18.
3. The Original is determined by the N'cnfnit of the PlaintilT in Falle
Judgment, per Afcough ; and thcietbre, per Pallon, Execution ihall be a-
"wurded in Bank prefently ; and lb fee that the Record lliall not be re-
manded
Falfe Judgment. 1 1 3
mantled into the Country, but Execution fhali be made in Bank. B. Faux
Judgment, pi. 15. cites 20 H. 6. 18.
4. In Fall'e judgment J. T. recovered againlT: R. S. in a Juftlcies di-
refted to the Sherirt' ot'D. loob /. which Recovery -icas removed into C. B.
at the Suit of the Defendant, by Writ of Falfe Judgment returnable i^
Hill. 21 H. 6. at which Day ^. T'. appeared^ and R. S. was mnfiated ; by
which y. 7! brought Scire facias to haic Kxcciitiofi^ returnable 15 Pafcli.
and the Parties appeared, and the Plaintirt" [in the Court below] pra}ed
Execution. Yclverton objected to it, and liud he could not have Execu-
tion ; andjkeiveda Writ oj Falfe J ndgraeut^qnod coraiu vcbis re/id. t returnable
15 johis. and prayed Proccfs againlt J. 1'. and tendered iurety to fue with
Eriecl:, and aj/tgucd Error that the JulHcies was directed to the High
Sheriff^ and the Under Sheriff held the County and the Plea between the
Parties, and the Record was entered as beibre the High Sheriflj where in
Faft it was beibre the- Under Sheritlj and lb the judgment Coram nonj.u-
diccj and becaule both Parties appeared 'twas held m vain to award anv
Procels againlt the laid J. T. upon which J. T'. faid that the [aid J. S.
ivas otherwife nonfmted in another Writ of Falfe Judgment^ therefore Judg-
ment li Adtio. Per Palton J. if a Record be removed out of this Court ()f
C jB. into B. R. by Writ of Error, and Scire facias is brought againjl the Party^
and ajter the Plaintiff in the Scire facias is nonfuited, and the other briii-rs
Scire jacias to have Execution ; and the other peivs l> rit of Error, quod penes
ilhs rejidet, and affigns Errors ; jxt the other ought to have Execution
without anfvvering to the Errors. Br. l:''aux Judgment, pi. 9. cites 21 H.
^- 34- . , . .
5. But if he will /^;;/? fue a 'Writ oj Error, and pray Scire facias againll
the Party, and alter is nonfuited ; there, if the other lues Scire facias to
execute, the Parrv, who was nonfuited ih.ill have a 'Writ of Error, quod
coram vobis relidet, and allign his Error, Contra in the Scire facias ^ per
Palton, J. Enid.
6. uifid lb there feems a Diverjity ivhere he fties Scire facias and is
Konfaited, and where he prays Scire facias and docs not fue it out ; and
therefore, if in the firlt Writ of Falfe Judgment no Procels was fued,
then 'tis ut fupra. ibid.
7. yhtd lb it feciTis that Nonfait aficr Jppcarance and Procefs fued is per- Br. Nonfair.
pnptcry, and e contra before Appearance j f or if he does not fue out Pro- P'- -''■ "-"'ks
ceis upon it, then it cannot be * after Appearance, ibid. ^' ^o''",*^ ^'
^ ' ^^ per Pallon ;
but Br.makcs
aQuri-e as to tliis in Fallc Judgment.—* Ori£..[Prirc] but it feems it fliould be [Puis.]
8. j^nd io it appears by this Cafe, that if the- Record cotnes into a more
High Court, and Execution- is awarded there, the Record fhall n-ot be remanded^
Ibid. _ ■
9. If a ^^ rit of Falfe Judgment be brought in C. B. of a judgment
given in an Inferior Court, by which the Record came into the Bank i
yet this is not of Record to have Execution, nor otherwife ; but whether
the Judges (tffi-nn or difaf.rm the Record, fo that they meddle therewith,
then 'tis of Record; and then Execution lies, or a Writ of Error, and not be-
fore, per Prilbt. Br. Faux Judgment, pi. 10. cites 39 H.6. 5.
ID. When the firJJ- Jnd'yinent is reverfcd bvW^rit of Falfe [udmnent, nl -p^^^,,,;
the Plauitift In the V\ rit of f afi'e Judgment may have a Writ of Scire fa- ons. pi. 114.
cias HI Bank againlt the Party to have Execution in the Writ of Falfe cites S. C.
Judgment. Er. Faux Judgment, pi. 19. cites 8 E. 4. 19.
II. ^^'rit of Falfe judgment was brought of a Judgment given in the
County Court upon a Plaint there affirmed in an A6tion upon the Caie
for an AlTumpfit to the Damage of 39 s. and colts to 10 s. xVnd to delay
Execution of the Cojls and Damages the Writ was brought. And the Re-
cord was removed, and theA^rit lerved, and the Plaintiff was nonfuited;
upon wliich the Defendant prayed a Scire facias againlt the Plaint iff to
have Execution. And h-y good Advifement the Writ was granted; for o-
G g thervvife
i/j. Falfe Latin. Falfe Oath.
therwife he ihall not have any Judicial Writ to have Execution. For the
Record (hall not be remanded into another County, &c. Mich. 15 & 16
Eliz. D. 329. a. b. pi. 14.
12. See the like Point, 20 and 21 H. 6. But there was a pe'-jo Writ of
Falfe Judgment directed to the Jultices of C. B. quod coram vobh reftdet ;
and Error thereupon Alligned, in order to prevent Execution in the Scire
Facias i Et Curia avifare vult, &c. D. 329. b. pi. 44.
(A) Falfe Latin.
F
*
ALSE Latin does not overthrow Indictments^ if by any in-
tendment the Indiftment can be made good. Cro. E. 108.
Mich. 30 and 31 Eliz. B. R. Bricket and al. Mich. 2. Jac.
B. R. 5 Rep. 121. b. Long's Cafe, S. P.
I iKep " 2- F^I^ Latin lliall not deitroy * Deeds nor Pleadings^ the' it will abate
b. Hill 7 Jac. \ Writs. Sti. 302. Arg. in Cafe of Tailor v. Webb.
in Auditor
Curie's Care. S. P. by Coke, Trin. 12 Jac. 2 Buls. 241. in Cafe of Mardiam v. Jolly. \ And that :#
only iir/ewM/ Writs; but judicial Writ.s, or Fines, fhall not be impeached for Falfe Latin, 5 Rep. 121.
Long's Cafe. 4 Mod. 160. 4 and 5 W. and M. B. R. in Cafe of Bennet v. Prcfton. 10 Rep. 139. a,
^icR. 1 1 Jac. B. R. Osborn's Cafe.
3. In Debt on a Bond, if the Obligation be ftlfe Latin, the Declaration
ought to be good Latin; as if the Obligation be Wiginti, the Declaration
ought to be Viginti 3 and then the Court is to conltrue it'it be a Variance.
2 Show. 155. Hill. g2 and 33 Car. 2. B. R. Anon.
4. Falle Latin does not abate an Jppeal. 4 and 5 \\^. and M. B. R. i
Salk. 328. Bennet v. Prefton. 4 Mod. 159. S. C.
5. Falfe Latin was held to he cured by a Verdicl. 8 Mod. 380. Trin*
1 1 Geo. Cambridge v. Lea.
[ See 4 Geo. 4. 26. at tit. Latin. Inf. J
(A) Falfe Oath.
I. ^1" j|-— \^ILL the Statute 3 and 11 H. 7. which gives Power to exa-
■ mine and puniih Perjuries in the Star Chamber, there was
H tiot any Punijhment lor any lalfe Oath of any Witnels at
.iB Common Laiv j and now there is a Form of Punillimenc
provided tor Perjuries by the $ Eliz. yet before the Statute 3 H. 7. the
King's Counlel ufed to Aflemble and Puniih fuch Perjuries at their Dif-
cretionj and there was no Puniihment for Perjury at Common Law but in
Cafe oi Attaint; as appears D. 272. But in the Spiritual Court, pro Laelione
fidei, they ufe to puniih them. Cro. E. 520. Mich. 38 and 39 Eliz,. C. B.
Damport v. Simpfbn.
2. If one makes a Falle Oath, the Party is punilhable for it by an Ac-
tion on the Cafe, if it be not Perjury for which he may be indifted ; there
is a Differance between a Falfe Oath and Perjury ; For one is Judicial the
other is Extrajudicial. And the Law infli6ls greater Puniihment tor
a Falfe Oath made in a Court of Juftice than elle where, becaule of
the Prefervation of Jullice. Per Roll. Ch. J. Trin. 1652. Sti. 337. in
Cafe of Howell v. Gwinn.
3. At the Common Laiv one may be indifted for a Falfe Oath in an Af^
_pda-vit. Per Roll. Ch, J. Trin. 1652. Sti. 374. King v. Troes.
(See Perjury.) Falic
Falfe Plea. Falllfying Recoveries 1 1 5
Falfe Plea.
(A) The Effect thereof, and how Dilcountenanced and
Piinlfhed in Law and Equity.
I. m 'N Precipe quod reddat cgainft Tkvo, if the 0?!e ccmes and takes the
H entire Tenancy upon hnu^ upon which they are at Illue, and it is
■ foHiid againji the Tenant, by this he iliall lofe his Moiety ; For it
_" "is tound againlt the Tenant lor his part, becaufe it is tryed per
Pais upon IfTucj contra of Plea to the \\ rit by I)eniurrer. Note the Dil-
ference. Br. Peremptory, pi. 73. cites 8 E. 3. 17.
2. Plaintiff^ in a Suit \nChancery againlt wn Executor, fliall have the fame
Advantage thereof^ as if the fime Plea were found Falfe by Verdift at
Law ; and fliali have ail the fame Conrequences here as follow on a Falle
Plea at Law to all Intents. Mich. 26 Car. 2. 2 Chan. Cafes 201. Parker
V. Dee.
Faliifying Recoveries.
(A) At Common Law.
T Common Law^, ii"one had fuJiered a Recovery in any
Real Action againlt him by Default, (ifhe was !a-jjfiil!ySiiiu-
vmnd and no Error was //; the Precluding,) he had not fthe
. Cafe of an^ Infant only exapted, lor the Tcndernefs of his
Age and deleft ol" Iutclligence,J any Remedy but by W^rit of Rio;ht.
And this was the Rcalbn that Tenant in Tail,' Tenant by the Curtely,
Tenant in Dower, or lor Lile, after a Recovery by Default, had no Re-
medy till the StatLKe of IV. 2. cap. 4. ga\ e them a Writ ot' .^lod ei dc-
jcrieat. Nota per Coke. 6 Rep. 8. b. in Ferrer's Cafe.
2. \\'here Ltjjcefor Life was. Remainder tn Fee, if a Stranger had re-
covered againfl^ the Tenant for Life before the Statute of Welt. 2. he was
barred ; and if it were b}- Teuit ABion, and after the 'Tenant for Life died,
he in Remainder was barred ^ becaufe he never had Polidiion of the Land
to maintain an Aftion Eat if he in Rcvcrjion had entrcd upon Tenant
for Life, and t)ijfeifid him, and aliier the Tenant for Lite had re-entered up-
on him and died, he in Remainder might have had a Writ ot' Right a-
gainlt him who recovered; becaufe the AJife wjs joined upon the meer Right
of the Thing which was in Demand, ^vhich of them had meer Right,
viz. the Demandant, or the Tenant, and riot whether he has Right
to the Poircllion upon that which w as defeated by tli« Entry of the Te-
nant lor Lile ; For if he could ha\c gotten P(Mleli!on to convey an Aftion
unto hiin, altho'the Pollellion aifcerwarda did lail him, yet in Tiial his
Right did not lail him; but it ihall be found that his Right is Eigne,
but a Right "iz-itheut a PcJ/tf/mi gi\ es no Ac^tion. But yet" at Common
Law, it was laid, he Was not without a Remedy before the Statute ; be^
caule he might have hitd a Fornicdin in Rcinanidtr, tho' he never had any
PolielTion bya Recovery in a Mortdanceltor ; and, it was laid, that if Te-
nant for Lite upon a Recovery had againlt him, hat! died before Execu-
tion, he in Remainder might lallity the Recovery in a Scire Facias.
Hughes's Abr. 916. pi. 11. cicci ic E. 4. 21.— [But 1 do not find it there ]
3. If
1 1 6 Faliifying" Recoveries.
■3. If 7hui!it for L'fey where the Reuicindcr was ovei- //z Fcc^ had iulicrcd
a Recovery, he in Remainder was without Remedy at Common Law,
And the Rcafofi of the Stril3 fiefs of the Covtmon La-X'^ was to present mul-
tiplicity of Suits, Trials, Recoveries and .Judgments, in one and the
fame Cafe. 6. Rep. 8. b. in a Nota of the Reporters.
(B) Falfifylng. What Things may be Falfifycd ; in what
Cafes, and how.
.p.
\R.fcipe quod Rcddat againfi Two, ivho made Default, and at the Grand
Cape they appeared and Waged their Lavo of Non Summons, and at the
Day one came and the other not ; there if the Demandant recovers the Moiety
•-jchere the other is 'Tenant of the Whole and is 0/iJied, he Ihall have Affiie ;
f per Stone. QuserCj For he mighthave taken the whole Tenancy ahfque hoc
that the other had any thing, and have Waged his Law, &c. Br. Afiife,
pi 470. cites 6 E. 3. and Fitzh. Saver Defiilt, 67.
2. In Formedon the Tenant vouched one, "who came, and joined Iffuewith
the Demandant, and a Venire Facias IJJiied; and lejore the Day of Retiira
the Vouchee died, and [fo] did not come at the Day j by which Fetit Cape
iffued, and fo the Demandant recovered by Default ■, this Judgir.ent may be
reverfed by Aft ion of Difceit; per Cur. but not by Afjife; and therefore fed
that the Judgment is voidable, but not void. Br. Aliife, pi. 139. cites
8 All. 32.
Jo if the Be- 3. In Affile if a Man recovers by Verdi ff, and before Judgment the Tenant
mar.dant in ggfs a Rekafe of the Plaintiff, he cannot plead it; but: if he be Onfed, he
Pr^dpe ^uod ji^^ii Yyxx^ Affile, per Tank, to which there was no Anfwer. Br. Affile,
readat re- . . , . ^ .\j, ^ '
hafeshis pl- 366. cues 43 All. 19.
Right mefne
het-iiieer. the K'fi prias /rnd the Day in Bank, and recovei""!, and enters ; the Tenant who loft ihall have JJp/e
by the Keleale, per Townfend. Br. Aflife pl. 37S. cites 5 H. ;. 40. -S. P. ibid. pl. 404. cires M 6. R.
z- and Fit7.h. Aff. 70. S. P. ibid. pl. 492.
4. If I Grant to you Proximam Ahocationem, and after I firffer the jid-
vcrjofon to be recovered agMn&. me by Writ of Right of Advcdofon ; you may
in Qua. Imp. liillit\' this Recovery. And this was at Common La-w, per
Fitz.. 26 H. 8. pl. 8.
5. Cejly que tfe in Tail, before the Statute of Ufes, fullered a Recoverj''
againft him upon a P^eint Title and died, the Feofiees could not tallify it
in Af/ife by way of F.ntry ; but they ffiall have Writ of Entry ad Terrni~
nmn qui Pratenit, or Writ of Right, and Ihall fiiUify it by this Aftion.
Br. N. C. pl. 153 cites 30 H. 8. 147.
S. P. per Do- 6. In all Cales where a Man Ihall not have Error or Attaint, he may
deridgeJ.Cro. fallify. Godb. 27 1. Hill, 15 Jac. B. R. adjudged, Plott's Cafe,
I.466.S. C. ' '
Holford V. Piatt.
7. Chirograph of a Fine fhall not be falfifyed by any Parol Evidence.
Admitted. Arg. 10 Mod. 42. Mich. 10. Anns. B. R. in Cafe of Ld Say
and Seal.
8. Nor by the Date of the Concord j the' that be matter of Record.
10 Mod. 43. 44. ut fup.
9. Whenever a Recovery is falfifyed, it is by Writ of Error, or by
Pleading; and in fome fpecial Cafes by Motion. Pig. ofRecov. 166.
(B. 2) By
Fa 1 1 1 f V ing ReG0^^er ies. 1 1 7
(B. 2) By Entjy, &c.
l.K^Efjvit is brought agaUifi J. -who diened to S. pending the JJ'rit, and
\_j thti Den/niid^uit took the Rent and Homage vf S. pending the H'rif^
end after had Judgment to Recover ; the belt Opinion was, that the laid b,
ihail "avoid the Recovery by this Acceptance ^ Qusere, inaliiiuch as it was
not pleaded betbre Judgment, fo that it is matter in Fact ; but per Stone
by this Acceptance the Writ was abated, and the At'tion extinft. Br. Ac-
ceptance, pi. 3. cites 21 E. 3. 18. 19.
2. W^iere the Demandant in Precipe quod Reddat enters upon the 2l'-
fiaiit pending the JFrit, and the 7'enant lofes the Land by Default after ap-
pearance by Petit Cape, upon which he cannot Aver this Entry by way of
Plea betbre his Det'iult faved; by which Seilin of the Land is adjudged,
and a Prctcjhition is entered of this Entry made by the Dnnaiidant to fave the
Jjffife of the Plaintitt'i and to fee that o'i this Entry he Ihall have Alfife
againlt him, who hath reco\-ered the Land againlt him by Judgment al-
ter the Entry, per Cur. Br. Alfile, pi. 17. cites 40 E. 3. 42.
3. In Scire Facias. A. brought Pruxipe qiwd Reddat againji B. and pend- Br. Brier p!.
ing the Writ J. N. entered, and A. recovered and brought 6cire Facias agatnji pcitesS. C
ban, isjho entered to execute the Recovery, and the Tenant pleaded, that he ivas
feifed till by thcfaid ti. diffeifed, againji in: horn the [aid A. brought the Precipe,
pending ivhicb Jlrit the no'-.v Tenant entered ; and by the Opinion of the
Court 'tis no Plea ; For he ought to allege elder Title, or that there is
■Covin befxeen the Demandant m the Precipe and the Tenant, quod nota.
Br. Fauxif de Recov. pi. 2. cites 3 H. 6. 34.
4. IVherefore the Tenant alleged, that betbre B. had any thing J. S. Br.Bricf.pl.
vos leifed in Fee, and enteoffed him, by which he was feifed, rid by the 9- cites S. C.
faid B. dilleifed by Co\ in, againft whom the laid A. brought the Precipe,
and pending the Writ he entered, and after he emitted the Covin and
pleaded ut liipra'; and fo 'tis admitted there, that elder Title of Entry, than
the Tenant has upon whom be enters, fufjices, tho" it be not elder than the Title
of the Demandant in the Prxcipe quod Reddat ; For there 'tis agreed that
luch Enziy pall abate the Writ. Ibid.
5. ^0 it the Lord enters upon his Villain, or the Mortgagee upon the
Ilhi-fgagor pending the Writ. Ibid.
6. Contra, if a Alan Diffeif'es the Tenant pending the Writ, this n:iall not
abate the \\ rit, and thereibre this is no Caufe to tallifv; and per Marten
there the Matter lupra is good, but yet this ts no Plea in S'cire Facias,
which is Ibundcd upon a Recovery ; But the Demandant Ihail have Exe-
cution, and the -other Jball be put to an AJfife, and faljify there, viz. by
way of A^ion, and by an Original, and not in Writ judicial by waycf de-
Icating Qusre inde ; For concord. 7 H. 4. Ibid.
7. ia Pru:cipe quod Reddat ; %e; here For medon is brought againp C. and / Br. Brief, p!.
enter pending the Writ, and the Demaiidant recovers after -y tnere the R.eco- 182. cites S.
very lluill bind us both; contrary if 1 had Title betbre the Writ of For- ^■•- '^r-
medon ; and thereibre 'tis ufual to bring the Writ againlt the Mortgagor -l^'^K^ P' 3'-
and the Mortgagee, the Lord and the V lilein ; For a lawful Entry, ptndni^
the Jf'rit, frail ab.'He the Writ. In thefe Cafes, and fever.al others, the law-
fal Entry of a Stranger Ihall abate the Writ, quod nota, and by fuch En-
cries the Party, who entred lawfully, fhail lalfify the Recovery, per
Markcham. Br. Entre cungc.ible, pi. 34. cites 21 H. 6. 17.
8. It tenant for Life be impleaded, and prays in aid of a Stranger, he in
Re\erlion may enter; but if he dees not enter, till the other has recovered,
then he cannot enter, but is put t(J his Writ of Entry ad termim.ra.qn prer
teriit, or Entry at Common Law, and ihall ftllify the Rccoserv there.
Br. Forteituvr de Tcrres. pi. 87. cites 24 H. 8.
[ Sec Error TB) — Remitter (G.-2) ]
i i h (B. . ) In
1 8 Fallifying Recoveries.
(B. 3) 111 what Cales. In rcipe6i: of the Place where.
i.TN Scire Facias againjl the Heir iipcti a Recoi'cry in Jffife by Dcfaa.'t. a-
\_ gainit his Father, he fi'-id, his Father had nothing the Day 0'' the
Brit ot' Alfife, }ior at any time 'pending the ^ffifc, ^'^'^ J- ■^''- ''^'^■'O "is^as fafed in
Fee, who fe EJtate he has. Judgment, &c. and by all the Jultices he fhall
ha\'e the Plea, bccauie he claims bv a Stranger and not by his Father;
and per Choke the Father himfelf ihall have this Plea in Scire Facias up-
on a Recovery by Deiault, quod quaere. Br. Contefs and A\oid, pi. 6.
cites 33 H. 6. 21. And fee 33 H. 6. Fitih. 20. it is agreed there alfo,
that Recovery by Default may be avoided as above. Ibid.
2. Affile was brought in Sullex by B. and E. his \Mfe againlt J. F. and "
'twas adjorncd into the Exchequer Chamber, and the Plaint was of 8
Acres ot Land, the tenant pleaded in Bar that a Stranger -iuas feifed and
€nfeoff"'dhim and gave Gs/o//;-, &c. the. Plaintiff' [aid that, at another timet h'e
Feme brought Writ of Dodder againjt a Stranger, and demanded her reafon-
able Dower of the Franktenement \\hich was J. F's late her Husband iii
3 Vills, and the m-it ivas ferved, and the Tenant made Default, and the
Demandant made her Demand of the third Part of the Manor of D. and S.
of which Mcnor of S. this Land in the Plaint is Parcel, upon which. Grand
Cape ilfued returnable, &c. and the Plaintiff' recoi'cred by Default and had
Fxecnt'ion and this Land (^inter alia^ /)«? in Execution, by which he was
feifed till by the Tenant difeifed ^ to ^vhich tTie Tenant faid that 4 Acres of
the Land Parcel of the laid Manor of S. arc in W. w hich is one oi the
Cinque Ports where the King's Writ runs not, and fo the Recovery liille
and laint in Law, and demanded Judgment, and the Plaintiff demurred.
per Fortefcue Ch. J. if the Reco\ery was void of the Land in the Cinque
Ports, yet it is good as to this, which is now put in View; by which he
awarded the Aflize, quod nota; and quere, if this was becaufe the Plains
tiff did not make Title, or becauie the Recovery is good of Land in the
Cinque Ports, if Exception be tiot taken ; it leeins to be for both Points,
* On<^. Qiie and lb it feems the Recovery good ; but fee * that fit may be confilcent or^
poitelloier Hand together, becauie all was not in the Cinque Ports, nor does it ap-
ove. pear, what part was in the Cinque Ports. Er. Fauxif de Recov. pi. 15.
cites 36 H. 6. 32.
3. A Recovery of Land iti the County of E. which lies in the County of H.
is void. Ibid.
4. So of a Recovery of Land in Ancient Demcfne which lies not in th$
y^fe«or of Ancient Demefne; For this is co)-<.7w «o«/w//a'^. Ibid.
But fee Fines ^ ^^^ ^ Reco\ery in Formedon in B. R. or a Fine levied there, is good
'•^^^ enough, per Fortefcue Ch. J. Ibid.
(B. 4) How. By Plea.
I. A Man fliall not avoid a Judgment given aga'infi his Anccjlor in an Acfi*
jf\^ on realpajjed by Trial in Jury, by faying that his Anceltor had no
thing in the Land at the time, &c. Contra of a Recovery by Default, there he
may fay, that his Anceflor had nothing at the time 6cc. but J. D. whole
Eftate he has ; by all in the Exchequer CluuTiber. Br. Judgment, pi. 95.
5. cites 33 H. 6. 17.
2. And 'twas faid tliere that he, who pleads a Recovery hy Default, aught
to aver the Tenant to be Tenant of the Land at the time, ^\:. Coinra^ where
he pleads recovery tn Aifio?i tried, by all in tlie Exchequer Chamber. Br.
■ Judgment
Fairifying Recoveries. T19
,^. ■!■ , . I...— . .11 >— —- 1 ,
Jiid2;nienr, pi. 95. cites 33 H. 6. 19. So of a Recovery in J)[]ife
agiUiifi my Aiuejtir. The luir.e Year, fo. 19. in Scire Facias, per Judicium
Cur. ibid.
3. In Scire Facias tipoji Recovery of Lnnd (tgainfi A. the Tenant f-'id^
th't A. ivas not Tenant of the Franktcnemeni the Day -jf the Writ fnirchafed^
tier ever after, hut B. zvas Tenant ivhofe F.ftatc be has, and a good A\oid'-
ance o'i the Recovery. Er. Conleis and Avoid, pi. 49. cites 14 E. 4. 2.
4. If Judgment be given in the A4arjhaJfey ktivcen tii'o^ivho are not of
the King's houfehold, it is void and Coram Non Judice, and the Dclendanc
may avoid it by Pka, or have Writ of Error. Br. Judgment, pi. 123.
cites 20 E. 4. 15.
Sec (G. 2) — Error (A).
(C) Fallifying Recoveiy. In ^vhat Cafes* In the Point
tiycd.
i,TN Annuity, per Fortefcue where a Man hath JJj'iie a Son by one Venter He 'nhcfin-
\^ and a Daughter by anotloer^ and the Land is entailed to him and his '■<'* --ittcnt,
fecond JJhe, and he loics by lalle Yerdicl, and dies ; the Attaint is given ",'^"'p^i n*^^ '"
to the Son; and therefore the Daughter may faljify the Recovery in the ^,.^,-j^ y,.
iame Point, that was tried. Br. Faux. Recov. pi. 12. cites 22 H. 6. 28. Faux.Recov.
Qiiserej For Tempore H. 8. 'twas held, that the Attaint goes with pl-29cites
the Land, as a ^\'^it of Error Ihall go, and that the Daughter ihall have ]^^-f ','*;
Attaint, and ihall not fillify. Ibid. pi. 50. sTp cites '12
2. So where a Man feifed in Borough Fjiglijh hath fjuo Sons, and lofes by E.4. i^&iy.
falle Oath, and dies ; the Attaint is given to the eldell Son, and there-
fore the youngeft Ihall filJifv in the Point tried, quod Yelverton omnino
negavit. Br. Faux. Recov.pl. 12. cites 22 H. 6. 28.
3. If a Recovery be had againll Tenant in Tail, and the Title is Tri-
ed againlt him (fcilicet) c|uod Ncn dedit, 8\C. the Ilfue has no Remedy
but by Attaint; For he Ihall not fallily in this Point ; but if the VerdUJ be
upon other fpecial Matter, and n'jt upon the Title, cr it it was a Recovery
I y Default; in thefe Cafes, the //«V /« 7}w/ may fillify the Recoyef y. Br.
Faux. Recov. pi 4. cites 34 H. 6. 2.
4. So the SiicceJJor of a Par/on fliall fliliify upon a Recovery by Default^
in li.ke Cafes, where the Title was not Tried. Ibid.
5. ^'r; upon a Recovery by Default againjl Tenant for Life who dies, He
in Rcver/ion may fallify j and fo it feems here, that a Man fhallnOt fallity
in a Point once tried. Per Prifot and Moyle. Ibid.
6. A Feme may falilfy /';/ Dozver, where a Recovery is pleaded againll
her Baron bv Aftion tried, viz. in another Point which was not tried ;
but not in the fame Point which was tried. Br. Faux. Recov. pi. 7^ cites
Trin. 36 H. 6. in Fitzh. Tit. Faux, &c. 27. per Fortefcue.
7. II Tenant in Tad m-xkes maniimi/^on TO his VilleiH zchom he has in d. r/i ,
Tail, and after the Villein brings yf/Z/O/vagainfthim, and the Tenant iti Tail pi'."ifis°c^[e^-
pleads Villeinage againft him, and he fays, that Frank, &c. and lb to IJfne, S. C
which is found a^ainfi the Tenant in Tail, who has Ilfue and dies ; if the
Vtlkiii brings Atiion againfi the l([i'.c, and he pleads Villeinage m the iiiid
"Villein, and the other EJlops him by the Trial againji his Father, there, per
Littleton julHce, the Ilfue in Tail ought to plead the Matter, and con-
iefs and avoid the Trial and Record ; bccaufe his Anceltor had made to
him Manumiflion. Br. Confefs and Avoid, pi. 49. cites 13 E. 4. 2.
8. Where Trial of Frank paflcs againlt the Ancejlor in Tail, who ^^^^
Alleges the Villein to le regardant^ the iieir in Tail Ihall not by this be
Ellopped
a.r:i-T»y»— -Y-f— •
1 20 Faliifyinii^ Recoveries.
Eftopped to alledge that he is, and ivas Villeiii in Grojs to him and to his
Father, c\:c. by the bell Opinini. Ibid.
9. A 'fcniior^ who is received upon a Reccnery given againft his Leflqr,
may tallity in the Point of the Writ and traverie it j For othcrvvife the
Covai will not aid the Termor, if it h^e upon a true Title ; quod noca bene,
per Pollard and Fitzherbeit. Er. Faux Recov. pi. 48. cites 14 H. 8.4.
A Recovery lo. Where it is laid in the Books, that Privus lliall not lallitv in the
IS not io i;i- J'lijii^ Point tryed ; the meaning is, that they Ihall not fallily in Scire Facias
it"m-iv"Ve '^ "^°" //-'i'T^/w^; Judgment, or in any other Writ of the fame Nature; but he
fulfificd :ts "'^v bring Action of a higher Nature, and fo try the Alatter again.
■well in Point 6 Rep. 8. 40 and 41 Eliz. in * Ferrer's Cafe.
cj Retozery,
for tie 7iiii.g, as alfo betwixt the fame Parties, per Doderidj^e J. Cro. J. ifi6. •*■ Pig. of Recov. 160.
cites S. C.
II. There is a Difference where the Parties have net the alfc.'ute Fee in
them, as Parfons, Prebendaries, &c. there the Succellbr is not bound, but
in Action vi the lame Nature he may iallify, or have Juris Utrum-; but
where, by the Common Law, they ha\'e the mere Rigfit, as Billiop, &c.
there they can't fallity. Pig. of Recov. 160. cites 6 Rep. 8. a.
[ See (G. 2) (H) ]
(D.) Falfifying Rccov^eries by Termors.
In the Eve ^- 6 £. I. II. TTIT-^-'' a Man leafes his Tenement in London, and be
of tlie Law V V '^^ Reverjwn or Remainder canfes himfcif to be im-
any Eft.itejor pleaded by CoUufion, and to make the Ttrnwr loje his Term, lofes by Default, or
^'J^^^ ^'^'^^''S. gives It up ; in this Cafe the Mayor and Bai/ijfs may inquire by Inquejf,
Freel'io'ld a- ''^'hethcr J'uch Plea ivas moved upon good Right, or by Covin; and ij it be found
g.dnft wliom that it ijvas upon good Right, Judgment Jhall be fort iTji'ith given; but if it be
a Precipe found by Fraud, to caufe the Termor to tofe his Term, the Termor Jhail enjoy
quod reddat "^^j Term, and the F.xecution of the Judgment for the Demandant Jhall bs
hijrher'^ancf ftfpcuded until the Term be expired : In like AJanmr Jball it be of Inquiry
g«<i/cc Ertate before the Jujiices, if the Termor challenge it before the Judgment.
than a Lcafe
for Tears, tho' it be for a Thonfand or mere, which never are without Sufpicion of Fraud, and
they were the lefs valuable, for that at the Common Law they ivere fubjcft unto, and * anker the
Power of the Tenant iif the Freehold , the Learning whereof Ihmdeth thus, and it is worthy to be known.
When Littleton wrote, if a Man had made a Leafe for Years by Writing, and he th.it had the Free-
hold had fullered himfelf to be impleaded in a real JBion by ColhiftOt:, to bar the LfjJ'ee of his Term, and
made Default, &c. the Statute of Glouc. gave the Lefiee for Yeans (bme Remedy by way of Re-
ceipt, and a Trial, whether the Demandant did move the Plea' by good Right or Collufian ; and if it
were found by Coilufion, then the Termer fhould enjoy liis Term, and the E>:ecution of tlic Judg-
ment fhould ftay till after the Term ended. But this Statute c,v;t7..-ipf/.i ra? to five Gales. lit If the
Leale was * without ff 'riling, for the Words of this Act are, (!o th.it the 'i'ermor may kive Recovery
by Writ of Covenant) 2d. It extendeth only to a Recovery //v Default, zd. Tiie Termor could
not be relieved by this Statute, unlcfs he knew of the Recoz-cry, and was recei'-jed. 4th. By the better
Opinion of Hooks, it extendeth not to j Tenants by SlUhIc Merchant, Statute Staple or elegit. 5th.
Not to Guardian. But now the Statute of zi H. 8. doth give Remedy in all the faid Cafes, feni!:g in
the Cafe of the Guardian, and giveth them Power to failify all Manner of Recoveries hud a^aiiill the
Tenants of tiie Freehold upon feigned and untrue Titles, Sec. Co. Litt; 4.6. u.
*6 Rep. 5- Bredimari's Ca'e. 9 Rep 155. in Aicou^h's Cafe. Per Dcderidge J. 2 Rolls
R 222 ^Per Holt C'l J. 7 Mud 42 » P;g1 of Recov. 51. j Pig ot Recov. 51.
Br AiTifepl 56;. _
This Statute which cnafts that a Termor may be received to fililfy, -^ requires .1 Deed, and that the
Termer fooiild pew it L^jore Judgruent, &c. as above , and i:tends only to t!ie C r.fef:a: of the Ten.nt, ard
to his Default after Default : It does w/ extend to feint Pitadir.frs ; vcr \vhc:-e J'ldgment is gt/en upo.l
the Detau.'t of the r.uchie ; For the Stat g6?3 only to the Default ot" the To rant. It aids the Tenant
by Statute and Tena it by Elajt- The Termor and Tena.t by Stature and Elegit after Judgment .ajainit
the Tenant may talfify a Recovery h.id a<^ainll any of tlicui, by the Stat, of 21 H. S. c. i 5. The St.«.
of Gloucefter i^ aicd at th;. Da/ fj.' a Terinor ; If h.; has -a Deed, tind coin;s befjre Judjiuenr, he
may
Fallifying Recoveries. 121
■ — _ _ — _ — ^
n ay be received to maintain his Leafc upon Averment of Colludon, and otFcrin^ i<> maintain tlic Leafe
of tlie Lellbr. Jenk. 200. pi. 19.
By this Statute LclVec for Years in London, may fallify a comnioii Recovery; whereSv the Tud,"^-
ment is not to be ftaid, but the Execution fufpended during; the Term ; And thisi^ dor.c by lU tit
; De Incjuirendo filter Stat. Glot:c. and try'd hi the Hiifhigs. Pig. ot Ke>."ov. 5 1 .
. 2. A. ^/tm.e impedit is brought againll the Patron and Incumbent to .f'^^perFit?.-
prefent to a Rectory, ot nhich tht; Incnritbuit has lUdde a Leafc for I'cars '"•'■''"-"rt. If
to B. by Deed. The Patroh ot' the Incumbent coHfelJcs the Jldion : The y,'.*", • ^''^!' ^
-. . I'll 11)1 l-xi I >0>lfilAtU
Leiiee lor I ears is not relie\:ible, altho he come bclore Judgment, and Pr.:jh,tatio~
ihews his Leafe, and Ihews Title of his Lelior, and the I'raud and C'ol- w»/, and af-
lulion j For a Parlon incumbent may, when he will relign, his Re6lory, tcHurtersthe
and avoid his Leale^ and the Ablencc of a Paribn lor the Space of 3o bcrecovci-ed
Days in a Year Ihall avoid the fiid Leafe; alfo, if he will iuiier a |udg- u-rjinft him
anent and Recovery of it againll him, fuch Recover)' Ihall avoid the fiid by Writ o?
■Leafe. "Yhc Statute of Ghnc^/ier is to be underltood of Leales made by ■'^^'s''^ ?*
fuch Lefli^rs, as could not defeat llich Leafes by their own A6ls. Jcnk^ t],gi^°*\]"e '
iOO. pi. 19. cites 26. H. 8. *23. . Crantecihall
liave Quare
impedit, and falfify the Recovery at Common Law, who is not in cfFeft bat Termor. Br. Fauxif. de
Eecov. pi. I. cites z6. H. S. i. *ltfh.ou'd be 2. pi. 3.
3. A Woman brought Dower againfi her tivo Dartgbtcrs and another,
and in Truth the third was but a \tcrmcr^ and the \V ile had no Caife of
Do\ver; but this was only to make the Termor to lofe his Term ^
for they ail vtade Default at the Grand Cape, and now the termor frayed
'to he received, and fliewed Caufe that the Husband made a Leafe for Years,
and after the Leffe levied a Fine to the Leffor, and they granted and
rendered back again to the Leffecfor the fame Tears, rendering the fame Rent j
it was argued that the Statute of Gloucelier is, that if the Farmer have,
ijc. that is, if he may have Covenant as in the 19 E. 3. and here he may
haye Covenant, and prayed to be received, and Ihewed his Plea. Ander-
Ibn Ch. |. held that a Tenant may fdiily by the Common Law. And
it being infilled, that the Leafe is after the Title of the Dower, Peryam
f. laid, that altho' it be after, yet if he h.2.\-t Matter -ivhich gccth in the
Dcfintchon of the Do'xer, he Ihall fallify well enough, as if ihe ha\e Title
of Dower and live Years pafs alter the Fine levied. And Anderfon and
Peryam laid that the Statute of Gloucelier was made, that a Termor
ihould not be put out of Polieffion, but here the Termor is named; Ideo
quaere ; and alter, at another Day, Shutdeworth mo\ ed it again, and
frtid tiie Termor Ihali 7iot he received, bccaufe he is named in the Writ, and
the Court was of the fime Opinion then; but they l^iid that he might
•plead fpecial Non 'Tenure. Goldf 87.pl. 12. Pafch. 13. Eliz.
4. M. and his Wile brought Dower againll E. To parcel, he pleads N'on
Ti-niire, and wtheoth.eTPd.rce\.,N'c iinq.'fcSeiy/e que Dower, which goes to the
Trial i and tliere the Tenant makes Default, and upon that a Petit Cape is
a\varded,'and now, at a Day in Bank, one Lunibard prays to be received
upon the Statute of Gloucelier, to fa\e his Term, &c. but Hendon al-'
ledged to the contrary. 1. That Statute is not to this Purpole in Force.
By the Common Law Tenant tor Years cannot falhfy. 6 Rep. |^Cr(iinV0
Caft. Then, bccaulc it was hard, that a Recovery ihould be had b}- Covin,
and the Lclleo lor Years without Rem.cdy for his Term the Statute of
(iloiiajler was made, which gives a Refccipt for the Lcffee for Tears ^ after
the Statute zi H. S. was made, which g!-ves the Lejfee Power to fal/ify.
The' common Experience of the Court i.s, that if an 'habere Facias Sei/inam
iifue, there is not any laving of the Term of Lefiee for Years. Hill. 39
Eli/., in 031(13 Cnfr, a Relceipt was moved and denied. For if the Lellee
li.id a gvi^d Term, he migb.t have Trefpafs lor Entry upon him; tho'
Litilcton lays in hi.s Chapter of Tenant for Years, that he fliall be re-
ceived. Hutton laid, the Statute ot Gloucefler aids them only, -who knew
and had A'otict-cf the Recoviry-^ -but 21 H. 8. elds them who had notNoticeof
" li h
122 Faliifvinc- Recoveries.
It. And it is better to pre\ent MilLhielj than to remedy it after, and as
to that a final Ear ^ that he was oi Couniel in Ibme Gales,' where the Leffee
was received. And it" the Leafe be not good, the Leiibr may avoid ic
by Plea Scil. Traverlc, or Demurrer: y\nd he remembered the "Iliue takea
upon the I'erm, and found againlt the Termor, in the Cale of JfuHjaUl v
^CDCnnt l)nrri0. Sed adjoumatur. Hetl. 144. Trin. 5 Car. C. E. Moor v!
il.\eray.
^ 5. Jffife is brought d^ainfi the 'Tenant of the Franktenement and the
1'crnior^ who pleads and loles j but the Termor is acquitted of the Dillei-
lin. The Termor is without Remedy to have Attaint ; iox he loft nothino-
neither the Franlvtenement nor Damages j neverthelefs Ibme hold contrary'
and Adjournatur, quaire if he Ihall not fallify. Er. Faux, Recov. pi. 41!
cites 43. Afl! p. 41.
6. Note by all the Juftices that, of Error in a Recovery, none fhall have
Advantage but the Party or bis Heirs ; Ibr a Stranger Jball not jaljify for
Error., nor by Dilatories, but by that which dilprovcs the Caule of Adion.
Br. Error pi. 89. cites 9 E. 4. 13.
7. Tenant by Elegit or Termor Ihall not falfify a Recovery of the
; Tranktenenicnt by the common Lawj for they cannot have the Thing that
is recovered; fofthe Recovery is of theFranktenementand the Term is only
a Chattle, per Danby contra Litt. Br. Faux. Recov.pl. 14. cites 9 E. 4. 38.
8. Where Termor, Recognizor, <?cc. are received in Default of the Te-
nant of the Eranktenevient^ there the Demandant pall have Judgment
againlt the Tenant of the Franktenement, lath a Ceffet Executio dur-
ing the Leafe or Extent. Br. Faux. Recov. pi. 25. cites 7 H. 7. 10. per
Aiordant.
The Keafon 9. 21. H 8. 15. Ejiaffs that a Termor for Tears mayfalffy a feigned
Tor^rtnsZls ■^"°^^''-y ^-'^^ ^£^"'J^ tf^"" '« Reverjjon., and fhall retain and enjoy his
ejieemed in '^""'^ agaiufi his Recovcrer, his heirs, and Jjjigns according to his Leafe.
Law to be <i
hfs Efi.ue thari a Fieehold for Life is this. In former Days all Aftion were real, and Lands being leafed
for long Terms, and Fines taken for fuch Leal'es ; it was uCual for the Leflors, or their Heirs to fuffer
common Recoveries, and by that Means the Lcflees were evicted ; becauic they could not f.^^'ty tliofc
Recozeries, till enabled by tUs JH. But in thofe Days, the Terms for Years w'ere uliiallv'o-i-iimcd for
a Ihort Time ; For no body would take long Terms, 'becaufe the Tenant of the Freehold could deftrov
them, ad Libitum, by fuffering a Common Recovery, as aforefaid : Therefore thofe Ellates for Years
jvere accounted theleaft, and next to Ellates at Will, per Cur. WkK h Geo. 9. Wod. 102. in Cafe of
TJieobald v. Duffoy.
The former At\ of 6 E. i. 11. extended only to London; but this Aft extends to all Leafes out of
London ; and by this Statute the Leflee fhall be received to falfifv the Recovery before Judgment,
and it fhall fufpend the Execution; but then he muit not onlv aver 'the Colluhon, but plead (bme har
to the Plaintift 's Title ; and this Statute extends to uU thofe (Jafes where the Vouchee or Tenant lets
Judgment go by Default. Pig. of Recov. 51.
IV Rep. 6. 10. Where the 21 H. 8. 15. in the Preamble, fpeaks of Leafes made for
^lich ^Tac ^^'^^^ Fines for the Incomes, and the Provilb is. That -Alfich Termors Ihall
C Bin For- <^^ m.ay fallifyj It has always been taken that the Statute extends to
terandRo- Leafes either for a fmall Fine or tbr no Fine. 11 Rep. 33. b Trin 12
thertcr-iCafc. Jac. B. R. in Poulter's Cafe.
S.P. ''
SC^'i^"^!" .11. Tenant in Tnil acknowledged a Recognizance of lool. and
Reafbns^or ^'^^^- ^ '^"''^ ^^'■'^^ '''"^'^ brought againjl 'the Ijfue in Tail, who
the Judg- i'anging this Scire Fadias, made a Leafe for Tears of the Land in C)t'eftion
went. 1. Be- to the Defendant, and pleads to the Scire P'acias, that he had Runs per
v''"'^ ^'^ 8 ■^^'fi'-"'^ ^^ ^^^ limple from his Father, and that he was not the Tq-
I amends to "^"'^ ^C ^^^ ^^"^5 *^'l which was jound agarnfl htm, that he was Tc-
Kecoveries nant _ot the Freehold, and that he had Land 'by DiJcent from him in
by Covin ; Fee limple, all which was put in lllue, and hanging this, he made the
lor the Pre- Leale to the Defendant. Judcment vvus given againft the Iliue in Tail
^K'cZJL iy ^"^'^^ ^^'•^ ^^''"'^ ^^""^*^ ^^ liable" to this Recognizance, the Leafe it-as made
CWt,.Y, M"'<^ Ja^gmef't to the Defendant, the Defendant being the LefTcc, pleads
which this is all. this Matterj and in the Ipecial \ crdiiil this is all found : The Plain-
tiiPs
FiiilitVing Recoveries. 12-^
tiii's Tide was under this Rccogni/.ance, and the J udgment given againll not. 2. Be-
the llliie in Tail: The Deiendant's Title under tnis Lcale for Vears "u'e the
made unto him bv the lliue in Tail. The whole Court \\a,sclearofOpinion, ^''^•^'■^'^'''^the
becuule this n-as afur Verdicf, the Leliee here ihail not be received to \l^ thTr'T '^
tidlity ibr his Term. Afterwards, at another Time, it was clearly agreed M,im:ey'l"'tije
by t!ie whole Court, that the Leliee lor Years lliall not tallify, and fo ^enar.t of the
the fame v.as pronounced bv Montague Ch. j. and accordingly by the ^'•'''^^'o^'t
Rule of the Court Judgment was given for tlie Plaintilf 3 Buls. 245. //'"ForTl'l
Mich. 14. Jac. Crawley v. Marrow. was made for
tlie Debility
of his Eftate ; Bin in the principal Cafe, the LefTee Pendente lite could not avoid it, nor the Lellor
Jiimfclf-, and ib the Tenant of the Franktcnemcnt could not .ivoid it, and therefore neither could the
J-eliee. Bridgm. 64. S. C.
12. Tho' by the Statute H. 8. a Termor may fdlif)-, vet it mujl le
the 'Tcrtunr biiufelf, and not another for him. 1 Salk. 291. Mich. 8. Ahnce.
in the Cafe of Lady Lindfev v. Ld Lindfey.
13. 34 <?W 35. i/. 8 20. Is that it pjall not extend to ■prejudice the Leffee
tr Lcjjees^ of any •tenant in tatl of any Lands^ &c. whereof the Re\'erlion
or Remainder at the tnnc of a Feigned Recc-jcry had, jhalt be in the King,
made m Writing indented of any Adanors Lands, ^c.for 21 I'ears or three
Lives, or under, whereupon the accufionied Rent or Rents is, or Jhall be yearly
rejer'jcd during the fame ferni or Terms; but the fame. Leffee or Le^'ces jhall
enjoy his or their Term or Terms, according to the Stat, of ^2 H. S. 28. t/.vs
jift notwithfandiiig.
14. In Reple\'in, the Cafe \\-xs, a Difjcifor infeoff}d a Stranger, and
after the DilJeiJle brought an Jjfife againji the Dijjeijor only; and the Fe-
cffee^ pending the ^^ffife, let the Land to the Plainti'f. The Dilleifor pleads
to the Alfifc Isul Tort, nul Dilfeilin, &c. and found againtt him; where-
upon the Dilleifee recovered. I'he Qiieltion was, if the Termor lor
Years Ihould fallify this Recoverv ; that is to iliy, that the Defendant in
the Allile Ne Dilieifa pas. And it was agreed by the Court that he
might ; For the Termor here did not claira by him agatnji whom th» Re-
cr-vtry was had, and there is no Doubt that the Freehold, out of Avhich
the Term is derived, is not recovered, and the Freehold is not bound by
it. And the Doubt at Common Law was, if the Termor might fallity,
>vhere the Recovery was againll the Lellor ; but it was never doubted,
but that, where a Reco\ery is not againfi the Re-verjioner but againft a
Stranger, who had nothing in the Land, the Leliee might tallify /;/
the Point tried, and fo is i H. 7. 19. Cro. E. 284. Trin. 34. Eliz. B. R
Flower \-. Rigden.
15. Jnd it is a Rule, that evc;y Stranger to a Recovery may fidlify ; for
he cannot have Error cr .dttaint, if he came not in pending the Writ by
him againfi whom the Recovery was, for then he is bound ; and afterwards
it was fo adjudged, that he might Fallify in the Point tryed. Cro, E.
284. Flower v. Rie;dcn.
16. Tenant in Tail made a Fcoff'mcnt in Fee to his own Son, A\'ho was then q^.^ £ ,
of full Age, and afterwards he diffeijld him, and then levied a Fine ; but s. C. and P.
before the laji Proclamation, the Son entered and made a Feoffment ; then all astothcFine,
the Proclamations were made, and afterwards both the Father and the ^""^ Reports
Son died; then the Ferffee o^ the Son made a Leafe to W. R. and died "he'Lelfr**
fei/.ed, and the IJliic of the Tenant in Tail Lroiighf a Formedon againfi the Xcls. a. Sm
Heir of the faid Keoffce, who was in by Defcent, and lecovered againft pi. :.citc.<iS.
him by a fVmt Defence if his Title; and then he turned the Lefice for C. and lays it
Years cut 'of Polieliion, who thereupon brought an Ejectment: The ^\^^,"'^-''^J^8"
Court thought that he might fdlify the Recovery h.id bv the Iffue in j^es not ap-
Tail ; becauic the Court alio thought, th.it the Ellate Tail ^vas bound by pear in the
thi;! Fine ; but liecaule it appeared bv the Pleading, that the i-'/w was i>ookoutof
levied by ilie Father to that very Perfui, to whom the Fec^te of the Son had ^^ []";') ^^
granted this Leaj'e for Years, and "Abo was uov.' Pkintill, and it not being
averred
124 Falfifying Recoveries.
averred to be levied to any other Ufc; therctore /?« Leafe n'as extingmpd^
and he was incapable \o ialjily the Recovery obtained by the Tenant in
Tail. Mo. 391. Hill. 37. Eliz. B. R. King v. Hunt.
B;(/bvBrid"-- I?- ^- ^'<^'''-^"'M for Lifc^ Remainder in 7'ai! to B. Remainder-man leafes for
-TO.in Serjeant Years, to begin alter the Deceale of the Tenant lor Lite. A. lullers a
turned into have dellroyed all the Remainders and Reverlions thereupon dependingj
Prjffjp or, for and all the Eftates deri\cd out of fuch Remainder ; but Tenant for Lile
he amnot j^^g j^^ jy^.|-j Power. And the Recovery is had againfi 'Tenant for Life -Vjith
la.iify uith jr^^^^i^^.^. ^r q'^„^„j ^^ j'cul. Mich. 41 and 42. Ehz. C. B. Cro. E. 718.
out ^1iUiO?J.f x-» I 1 J T 1 •
and he can ■ Plcdgard V. Lake.
not have Ac-
tion till then. Arg. 2 Roll. R. 4c<). in the Cafe of Afcue v. Butts.
[ See Recovery (C. a. 3) ]
(D. 2) By Heir, Reverfioner, or Remainder-man • and Howv
"A
Recovery had againll Tenant for Life was falilfied by the Re-,
_ verlioner, becaule the Ancejfor of the Rccovcror in the Scire Facias,
had Rcleafed his Right before the Execution of the Fine, which was
pleaded in Bar to J. S. then 7ertenant ; and fo the Execution falie and-
teint in Law. Br. Faux. Recov. pi. 21. cites 29 Alf i.
Br 'Si. C. pi. 2. If a Man recovers againll Tenant for Life, he in Reverfion Ihall not
56. S p. and falfify by Entry ; but (hall have Ait ion of ad Terniiniini qui prateriit^ or Writ
Tenlnt fbr''^ 0/ Righty and iliall filfify therein j But if Tenant lor Lite praies Aid cj a
Life praying Stranger^ he in Reverlion may enter before Judgment^ but atiier Judgment
Aid of a he is put to fallify. Br. Faux. Recov. pi. 44. cites 24 H. S.
iitranger, the
Reverfioner may enter ; becaufe it is a Forfeiture, cites i H. 7. 22. 10 H. 7. 20. per Keble. 25 H. S. 70. —
Br. Entre Cong. pi. 115. cites 24 H. S.
52H. 8. ;i. 3. 14 ii//x. 8. EnaBs that all Recoveries had or profcciitcd (by Agreement
extended not of the Parties^oT by Covin) againjt Tenants by the Curt efy ^Tenants in Tail, after
ries where fojjibility of Iffiie estinif, for term of Life, or Lives, or of Ejlates determt-
Tenant for nable upon Life or Lives, or any Lands, Tenements, or Hereditaments, "vchere-
Life came in of fuch particular Tenant is fo feifed, or again fl any ether, with Voucher over ■
as Vouchee, ^- ^^^y p^^jy particular Tenant, or of any having Right or Title to any fuch
therefore particular E/tate, pall from henceforth (as againfl the Reverfioner s, or them
that Adt is in Remainder, and againji their Heirs and Succejfors) be clearly void.
* Repealed •
by this Aft of 14 Eliz. 8. and full Remedy provided for Prefervation of the Entry of them in Reverfion or
Remainder. But this Statute extends not to any Recovery, unlel's it be by Agreement or Covin. Co
Litt. ;62.a. * Bendl. i;i, nz.
52 H. 8.51. Pro-jided only for the Prefervation of Reverfion, or Remainder upon Efi,xte for Life, Szc. and
rwt upon Eftaie Tail ; and fo th.it by this Statute , no Provlfion was made for tlie Prefervation of the Re-
verfion, or Remainder expeHant upn Efiate Tail. 10 Rep. 44. b. 45. a. Trin. 5S. Eli^. B. R. in Jenning's
Cafe.
Where the 4. This AB pall not prejudice any Per fen, that f/:}all by good Title recover
Provifo of ^}iy Lands Sc. without Fraud, by Reafn cf any former Right -jr Title ; alfo,
f ^'^^"^ a e-very fuch Recovery had by the AJfent and Agreement of the Perfon in Rever-
^jTentof Re-^oa or Remainder appearing of Record in any cf the ^leens Courts pall le
cord by him good againfl the Party fo affiinting.
in Reverfion,
or Remainder, it is to he m-Jerfiocd, that fuch an AfTent mufl: appear upon the fan'.e Record, cither upon
z Voucher, aid Praier, Receit, or the like; For it cannot appear of Record, unlcfs it be done in
Courfc of Law, and not by iViy Extra.]:'d:ctal Er.ty\, or bv Memorandum. Co. Litt. 502.
[ See Error' B) J
(F.) Falllfving
Faiiifviii^- Reco\ erics. l2^
(E) Falfifylng Recov-crieSi By other Pcrfons than 'leniiors.
By Frivics, or Srrangers.
i.T) le/verfioucr I'llliliod a Recovery had againll Tenant lor Life. £r.
J|]\_ Faux. Rcco\. pi. 2 i cites 29 Alt; i. Even tho' the Tenant
pr.iyed in Aid ot him and ni.uic Delaak. Er. Fau.x.. Recuv. pi. 24. cites
4 H. 7. 2.
2. If Precipe quod Raidat be brought ^gaiiiji Fo/ir, and 'Three ccafcfs tbe
J5iof!^ or make JJef.iii/t, and the Fourth deiiuuids the * Viav^ and the i>>t- ♦Oi-/^-. Lica.
mandaiit recovers 3 Parts ^ there if the i'ourth be Tenant ut the W hcle,
and be oulted by Judgment againlt the Three, he ihall have Alfifej i^'or
hejl-iall not be bound by Jndgnunt a^ainft Strangers^ ivhere he hinifclf is Ji/e
Tenant^ perSkrene. Br. Aliile, pi. 58. cites 12 H. 4. 19. and T. 4 H. 6;
26. accordingly.
3. A Stranger may filhiy a Recovery in the fame Point tryed^ per opti-
nian opinionem ; and per Babington, he may do io upon Plea in Bar, but
'not upon Plea to the Writ. Br. i<aux. Recov. pi. 3. cites 9 H. 6. 41.
4. h' aM^n purchafes pending Jfritj and the Demandant proceeds, and He,thatr.»«^
recovers, the Purchaibr ihall be bound as well as his Feonor^ and Ihall r,: hy Hw ,1-
•not lallifv, tho' he be a Stranger. For he comes in bv him, who is bound •^'"'f, '"''''''"
and under his Title. Br. Faux. Recov. pi. 15. cites 36 H, 6. 32. per ,.y \^^ fl,.,n
\\'angford. ' rotHiIiltV.
Sec Br. Fau>:.
Recov. pi. 42. As \? A h:fe.-'ff B. to re-hifWff A and B.fujfers a f^'j'e Rerov.'n'; ;Kow if /?. hilroffs ./ A.
is bound; i:<t if A. ei:fers upor B. before five -'jtiDn w itiiout tuking Ellate, he fliall falfify -3i-. Ellop-
pel. pi. 90. cites ij H. 6. as held lb by ail the JulHcjs and vS£rjcar.t.s.
5. /// y^l/ife., a Recovery is pleaded againll a Stranger, and the Poiief-
lion of tlie PlaintitF melne between the Title and the Wiit brought,
there the Plaintiif mav fillity ihe Reto\ cry, as to /ht\v that the lenant
might have pleaded a RcLaJe^ cr that the Tenant died pending the Writ, or
that the Tenant had mt atiy thing in the Land pending the ffrit ; For .thele
prove the Recovery void, or without Title^ and theref>re a Stranger
may tullify, per W anglord and Fortelcue Ch J. Br. Faux, dc Reaiv.
pi. 15. cites 36 Ff. 6. 32.
6. So where he proves the Recovery -void, cr the Title NiiJ, per Wangford
and Forteicue Ch. J. Ibid.
7. But where a Recovery is pleaded againft a Stran^/r, and the Title of
the Plaintiff' Mefne, Sc he cannot lalfily it /« Title -^ For he is its weil
ejiopped as the Tenant himielf Ibid
8. But every Stranger may have Allegation to prove the Title Nul, cr the
Recovery void. Ibid.
9. ^ndili Praecipe quod Reddat be brought again ft hirn.^ inho has noth
vniz.
*»
and he appears, and pleads, and lofes, he il.all be eltopped for ever ;■ became
he was privy. Ibid.
10. But his Heir may have thereof VV'rit of Error, or lliall flive it by
way of Anfvverj quaere inde. Ib;d.
ii. He who hath a Rent out of Land may i-xlvxs- "^Recovery of the
Land, as 'tis fud. Br. Faux. Recov. pi. 14 cites 9 E. 4. 38.
12. If two Coparceners piakc Partitiai, /.iv.^ one is napkaded and prays
Jid of the other, who is SimnioHed, but dcts tictante in, and the other (te~
rcigus the firjl Warranty paranwiuit as it the)- had joined, and io the other.
Ihall have Pro Rata, and [yet] the other ihall never fJlity the Recovery,
perKeble. Br. Faux. Recov. pi. 24. cites 4 y.-.,7i 2. ....
13. A. had L-and.^ dcfcended to him \n Ancient Deniefne extended by u'^.'""''^''', .
Statute Mcnhant; B. purchai'cd the Land^, and had a Recovery by Su.icr- ^ ^•^'^^'■P--)
ance in the Court of Ancient Demtfue upon a Voucher, and otiikd A, "
then A. brought aSubpsena, and it was holdch that A. could not lidiity
K. k the
126 Fali'ifyjng Recoveries.
the Recoverv, and therefore Ihould be reftorcd to the Polieflion by th:
Chancery; for he bi'd no Remedy by LiKv. WRere, notwithltanding a double
Judgment, yec the Judges diretted them to the Chancery, loch. 185.
cites 7 H. 7. 10.
14 It' a Man gives Land in Tail, Remainder over in Fee, and the
^cno.'iit in 'Tail dies ''without IJfue^ and a Stranger intrudes^ and Remainder-
Vikui in Fee brings Formedcn in Remainder, and recovers by Dfan/t^ and
after makes Feoffment in Fee j and atterwards the Intruder brings .dtiwn of
Dijleit and reverfes the Recovery ; in this Ca(e he in Remainder ihall never
have any Remedy nor Aftion, but it lliall go in Advantage of him ■v\'ho
intruded. Br. Barre. pi. 76. cites 9 H. 7. 24.
15. 21 H. S. 15. Enaffs, that no Statute of the Staple, Statute-Merchant,
or Execution by Elegit Jha/i be avoided by fiich feigned Recovery, but fuch
Tenants pall alfo have like Remedy tojaljifyfiich Recoveries as is here provided
for the Leffeefor 2}ars.
16. Quaere, if a Man impleads the Feoffee upon Condition, and the Feoffor
enters for the Condition broken ; it feems there that the Writ ihall abate,
theretore it is ufual to implead the Mortgagee and Mortgagor, and the
Lord and the Villein ; and fo lee that the Entry of a Stranger Ihall abate
a Writ and avoid a Recovery. Br. Judgment, pi. 31.
17. Debt was brought againft J. S. as Executor, cud pending this kSd-
on, J. D. brought Debt againll him as Admintjhator, for a true Debt,
f whereas in truth he was Executor) J. S. conlelled the latter Atlion, and
pleads this Recovery in Bar of the firft Aftion : And it was refolved to
be no good Plea 5 Firll, becaufe the Recovery was had againit him as
Adminillrator, and fo is void, altho' this had been only a Plea to the
Writi and a Stranger lliall not fdfify that which is only to the Writ j
2dly, he, that firll lueth, lh;ill lirll be lerved, and the Executor might
have pleaded the tiril A£tion againft him, that brought the lecond. Trin.
27 Eliz. C. B. Cro. E. 41. Anon.
18. The Rule, that onQ Jhall not falftfy, where hitnfelfis Party, has three
Exceptions, ift, If I can ihew by way of Replication, that this Reco-
very is void in Law, I may fallily it in an Aliife, as 36 H. 6. 32, 39 All'
pi. 6. and 6 E. 3. 54. 2dly, If a JVIan recover againll me certain Tenements
in B. and they lie in yl. and I bring an Aflife ot my Frankrenement in A.
the Recovery in B. Ihall not Bar, 20 E. 2. Faux. Recovery 12. sdly.
Where the Recovery by Default was upon a Writ abated ■, as if an Allile
were brought againll my Father, and he died hanging the Iffue, and
Judgment is afterwards given againll him ; in this Cale becaule the VV^rit
was abated defatio, I may lallity the Recoverv per Doderidge J. Cro. J."
466. Hill. 15 Jac. B. R. in Cafe of Holtbrd v.' Piatt.
19. An Infant brought an -^ffife in E. R. lor Lands in Middlelex, de-
pending which the Tenant in xh& fume KiMt brought an Jfftfe for the fame
Lands in C. B. which lalt Writ bore Date, and was returnable after the
iirlt Writ ; and the Demandant in the lecond Writ recovered againfl the
Infant ly Default by the Alfife, v,'bo found the Seifin and DeJIei/in ; and
upon a Plea in Bar of the firil AlTife of that Recovery, the Inlimc by"
way of Replication, let tbrth all the Ipecial Matter ; and that the De-
mandant at the Time of the lecond Writ brought, was Tenant of the
Land; and prayed that he might tallify the Recovery; and it was adjudg-
ed that he might tallify the Recovery ; For in all Ca'les where a Man Ihall
not have Error, nor Attaint he may fdfity. But in this Cale he could
not have Error nor Attaint, becaufe the Judgment in C. B. was not given
only upon the Detault, but alio upon the \ erdift. And it fhould be in
vain lor him to bring an Attaint, becaufe he lliall not be admitted to gi\e
other Evidence than what was given at the firft Trial ; alio he Ihall fallify
the Recover}', becaule it was a Fraifice to deleat and takeaway the Right
of the Infant, and to leave him Avithout any Remedy whatloever. Ffill.
I J Jac. in B. R. Godb. 211. Plot's Cafe.
(F) FallilVing
J^'allifving" Rcaneritrs. 127
(F) Falliiying Recoveries. By other Perfons than Ter-
mors. In relpecl: of Covin.
i.TN Aflife the T'enant pleaded a Recovery by himfelf /;; F-n-medun c.gairift
J^ A", and the Elhite <^t the Plaintilt'melne, the PlaintilF laid, that
pending the j'i[ftj'e cigatnfi the •teiic.nt^ and the iiime N. the Itnaut e}ifeo(fid
iV. and alter hrGiightthc Foriuedof/ againlt him /')' confatt and Covin between
them, and demanded Judgment; and a gixid Plea; and the Plaintiff re-
covered in AHife. And 'tis laid that il he was Tenant the Dav ol" the
Writ purchared, and the other had entred upon him of his Allent, and
he had brought a Formedon and Recovered, that yet the Plaintirf Ihould
recover by the AlFile Br. Faux. Rccov. pi. 17. cites 25 Afl^ i.
2. Il Feoffee upon Condition faff Its one, "X'ho has good Right ^ to recover by a
Fcdfe IVrit^ as it he brings ad 'Icrminuni qui ptceteriit, as llippoling the
Leafe made to A. where it was to E. and where his Entry was not lawful,
Feoffor inay Enter and lallify the Recovery. Br. Faux. Recov. pi. 5,
cites 44 E. 3. 8.
3. &) a l-e;ne^ "who demands Dozver, may fitlllfy fuch Recovery; quod
nota; For Ihe may fav', quod non Dimilit prielato A. Modo &z Fonna, 6zc.
Ibid.
4. In Formedon J the Tenant confeffed the Ait ion ^ by which Proclamation,
was made^ if, any could lay any thing why the Demandant Ihould not re-
co\'er, and a third Pcrfon canie and alleged Covin to toll him of his Entry,
where he had infeofied the Tenant upon Condition broken and the Te-
nant, [lliewed CaufeJ (Sec. by which judgment was Hayed. Br. Judgm.
pi. 18. cites 7. H. 4. 19.
5. In pleading Reco\erv to be I] Covin theCanfe of Covin rniift bcflnfjjn^ ^^' (G)S, P.
per Cur. Br. Faux. Recov. pi. 3. cites 9 H. 6. 41. Fui-thcr v.
6. Nota, 'twas fixidlbrLaw in Attaint, and not denied, that where ^'''*'^-
'J. IS dtjjeifcd by W. and a Stranger recovers agaiiijl hint bonajide^ or !j Covin
'ly 'Title^ which is younger than the I'ltle of J. there J. may enter upon the
Recoveror, and plead this Matter, and the Recovery itlelij &;c. and a
good Plea. Br. Entre Congeable, pi. 4. cites 34 H 6. 44.
7. Contifee of a Statute may fdlity a Recovery had againll the Conufot; f^cc'D) —
and it was agreed in a Manner b)' all, that if the Conulee has no Re- '^'''"■"' h
mcdy by the Common Law, then he Ihall be njlored by Equity. Br. \'i^''l^ f"'
Faux. Recov. pi. 25. cites 7 H 7. 10. Grahue of
his In;crelf,
may have Aflife and falfify Recovery Iiad by Covin againft theConufor. Br. Faax. Recov. pi. 4S. cues
21 E. 5 I. Ibid. pi. 5;. cites 19 E. 5.
B. If one be onfted by Covin, between the Demandant and him that
oufts the Tenant, and the Demandant brings an Allile againlt the Party
that oulted the Tenant ; tlie Tenant may have an Allile; and on the Ipe-
cial Matter Ihewed, Ihall avoid this Recovery. Pig. Recov. 156, 157.
[ See Executor (P. a. 4) — Fraud. J
(F. 2) Falfifying Recoveries. Barred by Covin, notvvith-
ftandins; a true Title.
1. T^T He re a Man />fW/«5-^« yf/^/t enfeoffs another, ox fuffers him to
V \ enter upon him. by conlent, and to recover by Formed on by an elder
Gift, this i]i:dl noi hindcfihi F/aintiff'in Jj/ife^huzthAihGjiall Recover.
Br. Coilulion, &:c. pi. 28. cites zs All. i. ...
2. A Man had Ink ot Jction, and caiifed J. N. to enter., againjl -o^hom hv
recovered ; there by this Covin the Tenant, who was oulled may lallify' '
the Recovery, xiotwjthihnding that the Title was true, and he Ihall not
have Affile, and he, ili.it iccoTered, ih.iil not be by this remitted ; quod
nota
12 8 Faliifying ilccoveries.
noca bene, where the DcriLTiidant hinifcif u prhy tv the Ckh,i ;
wile, it feems that, the Covin is no Pleii in another Cafe without <f//tY/^///_g-
Xaitfe of the Covin in delhuction of the Title of the Party. Er. Faux.
Recov. pi. 40. cites 41 All! 28
.■?f where a j. It v/as held cleaily by Parfhay, Tank, and Kirton, that \{ o}ie h:ith
\\ Oman has ^(f^^^ to certain Larid^ m^ by his J/Jhit, and Covin the Tcfiant be Oiificd^
and cluiis""' anfl >^'^') «'^'0 •'''•-»■ -■i^i'^^f'-, brings his Action againfi the DiJJeifo-r^ he, Vvho was
].>;." to en- Oulted, Ihall h-ave Afiile, and the Pofleliion of him, who recovered, Ihall
tcr, and to YiQ adjudged by Abatement a2;ainlt him, and not by Recoverv , becaufe
fhrtcr her to jjg ^y_^g .^ oiiieifor, 44 E. 3. 46. pi. 63. Br. Collulion, pi. 10. cites S.C.
g-imirinm, ibid. pi. 3 I. cites S. C. and 41 All. 2.
the Tenant
ivhoisouftcd thcreBy, fhall have Mfe aRtthifi her and f.N. and fhall falfify this Recovery by Uish
Covin, tho' the 7'itle he true. Br. l-aux. Recov. pi. 43. "cites 44 AiT 29.. ;Rcp. 5 1. in Coulter's
talc.— 8 Rep. 132. b. 15V a- in Tumor's Caic.— PI. C. Arg. 51 cites Fit?., tit. Dower, pi. 42.— So fee-
that a Man may falfify a Recovery, tho' it be iipoii true Title by reaj'oi of the Covin. J?r. Fau-c. Recov. pi.
6S P. Br. Judgmt. pi. 154. cites 25 All' land 2" Afl". 74 and M. ;? E. 5. accordinj^ly. 5«nf a Man
V'ho has a defe^JiLle Title, prants a Rent-ih.irge, and after is imple.ideil by htm, who h.is 'Title, aud cenjeffes
the JHien, the Demandant iiiall recover, and he fhall hold difcharged, tho' the T'eti.wt airreesto the lofs of
the Land , For m thefrjl Cife, the PoffeJJl'or: 'icas altered by cirrupt Means; contra in the other C.^fe.
4. In Do:oer the Tenant faid, that he hmfelf dijjeifed J. N. ivho rc-
(ntered pending the Writ, and prayed judgment oi" the Writ; and a good
Plea. The Denuiiid-mt f.iid flat f. N. re-entered bj Covin to abate the fTrit,
and no Plea ; For where his Entry is Lrsful, it cannct be Covin. But
where a Man b<is Title ot Formedonj or a Feme Title of Dower, and
makes another to enter, againlt whom he or iihe recovery, it may be a\'oid-
ed by Covin ; For the Entry was a NN'rong, and a Man may do a \Vrong
by Covin, but he cannot do a Right by Covin; quod nota, per Littleton
and Cur. Br. CoHulion, &:c. pi. 20. cites 15 E. 4. 4.
5 A Man granted a Rent charge, or fuch like, where a Stranger "-jc bo had
good title, brought a Writ againjt the Grantor, and he confeffed the Aifioit
to the intent to defeat the Rentcharge 3 there the Grantee hath no Re-
ined)', nor he cannot tallify it by this Covin, becaufe the Title is true. ■
But Where a Man avIio has Title, caufes another to enter and after he brings
an Atiion again ft him and recovers, 'tis otherwife; nota the Divcrjity. Br.
Faux. Recov. pi. 46. cites 5 H. 7. 40.
6. Covin may be, where the Title is good, and the Title Ihall not give
benefit to him, who has it, lor caufe of the Covin; ¥ ox t\\'^ Mixture of
good and til together makes all ill, and the truth is obfciired by the Fal/ity, and
the Virtue is merged in the Vice. Per Mountague Ch. J. Mich. 4 E. 6. PI.
C. 54. b. in Cale of W'imbilh v. Talbois.
■ ■ 7. As where G. T'. feifed in 'tail to him, and the Heirs Male cf his Body^
difcontiniied, and retook to him and E. his Wife, and to the Heirs of their fivo
Bodies, and had IJJiie t. and W. and died, and E. his Wife Carvtved. and
S^. had Ifftie E. and died and after W. by Covin of E. his Mother hrcnght
Formedon upon thejirfi tail againfi his Mother, and Ihe appeared at the lirlt
Day, and \W recovered per Nient ded ire, and E. the Daughter of T. the
eld'efi: Son and Heir of G. entred by the Statute of 11 H. 7. the Entry
•was adjudged lawfull by the lame Statute, which fays, that the Recme-
ry is void, and need not fay that the Recovery ivas executed ; For fmce 'tis
void it never Ihall be executed; and E. the Heir averr'd, that llie ua>s tha
iiime Perfon, to whom the Reverlion belonged, and did not ihew How
Ihe was Heir to it, and yec well, per Molineux and Hales Jultices, con-
trary Browne and Mountague Ch. J. o'i C. B. But all agreed that it was
a Recovery by Covin, notwithlbnding that it was upon true Title and
*Wimbifliv. good, tho' that Ihe did not Jhciv caufe of the Covin, quod nota. Br. Entre
Tklbois. Cong. pi. 140. cites 32 H. 8. and * PI. C. ib. 42.— Br. Collulion, pi. 47.
cites Tempore H. 8. VVimbilh v. Talbois,
(G) Fallilying
s. p.
Fallifying Recoveries. 129
(G) Fallifs idg Reco\cries for Dilatories.
i.T^ THERE 11 BuDii lofcs by Dilatory, which does not difliffirm his
, \f Y Polleliion, as A^oure/iure^ Afifaofineii- of the Villi, Sec. and dies j
the i'enic Ih.dl have \\'ric of Do'-juer, and lallily the Recovery, per
Wichc quod non Negatur. Br. Faux. Recov. pi. 8. cires 50 E. 3. 9.
• z. A Man lliall not lidlily in Dilatories, as in Ut/aiary^ Excoinnie/ige-
vient in the Demandant, and tlie like j nor by entry of the Ueniandant into
the Land fcndviig the Urity nor, becaiilo the Land was in nficieiit Dcweffie,
and the like ; For thole do not difprove the Title of the Demandant. Br.
Faux. Recov. pi. 15. cires 36 H. 6. 32. per Fortellue Ch. J.
, . 3. An lExec/itor ih.all not tallify for variance befween the Will and the
Writy per [ennev. Br. Faux. Recov. pi. 13. cites 9 E. 4. 12.
4. A Stranger ihall not tldiify a Recovery tor a dilatory Matter. D. 67. \^^^^^'^''^
pi. 16. Obiter. S. P. as to fiiy that a Feme Demandant tctok Baron pending the ]ie may in
Writ. Br. Faux. Recov. pi. 15. cites 36 H. 6. 32. that which
goes hi eie-
pruB'miof the'fuk, or JBioti; For a Stranger fhall not plead Afifnofmer nov Jointenancy, but he may-
plead Konleni'.re. Becaufe iu ("uch Cale tiv.; Recovery is void where the Tenant had nothi'ig, per Garcia
hv. Br. Faux. Recov. pi. i;. cites 9 E. 4. i;.
Per Anderlbn and Beaumont, a Stranger cannot falllfving a Recovcrv for 'Jointenar.cy or tionUnar.cy^
or bv Tuch Dilatories, \t\\x formatter of isuhjlame v)iJy .Cro. E. 471. (bis) in Cafe of Further v. Further. — ■
Ste S. C. at larg Inf
A StMnger Aall not falfify in a Thing which proics tie Jf'rit ahateA, as by the Death of any Party ; but
otherwilc of a Thing which proves the V^'"rit abat.ibti^ as if a Feme Plaintiff takes Baron pending the
Writ, &c. Br. Faux. Recov. pi. i ■; . cites 9 E. 4. 1 i. per Choke. Eat in Debt upon an Obligation
agninft F. md 5 others, Jdmuullrators of J. S. who pk.ideHy that one J. D. had brought Debt in B. R. upon
an OWig.ition of 100 i. againit one of the Adminiltrators, at:d recovered by Nihil Dicit, and that tliey
had Ricns in fcs mairs to fatisfy over and ab.>ve the fiiid Debt ; and it was thereupon Demurred.
Glanvill moved, that this was not any Plea, for in regard the Defer.d.xt.t in the frfl .-foiion rr.ight haie a-
lafed the Bill by faying tkit I'e kid Ca-Jdwiniftrators not ftAmed, this recovery fliall not bind any Stranger;
this Recovery is alio covenous being by Default, and in Proof thereof. See 9 Ed. 4. 12. But Andcr-
fon and Eeamond J. held, that it was a good Plea Prima Facie ; For a Stranger cannot falfify a Recove-
ry bv rcalbn of fomtenancy, or Nontcnan;v, or by fuch Dilacories, bat only for matter ot Subftance ;
and, if the Recovery be for a true Debt, it is not realbn, but that the Adminillrator might fufter it to
paf.s by Default ; and it is realbn^ it iliould bt; allowed to all the others ; and if there be any Cp-Jn it is
to be averred by the Plaintiff; for Prima Facie, it ffiall not be fo intended, but that it is true ; and if
there be any Covin in it, he may falfify it for that caufe ; and a Recovery againft one Adminiffi-ator
fhall bird him and all his Companions, and therefore it is reafbn it fliould bind all Strangers • and of
that Opinion Ou en and Walmlley liiid thev were ; but they would be advifcd, &c. Cro. E. 4-1 rbis)
Hill. 5S. Eliz. B. R. Further v. Further — Br. Faux. Recov. pi. 94. cite^ ;i E. 4. 23.
(G. 2) By whom. For or againft Succeflbr of Paribii.
i.^^Ompc/ition was mad^ between an Abbot and Dean for Tenths to the
\^ Dean, and Annuitv to the Abbot ; and after the Abbot brought
\\'nt ot Annuity and Recovered ^ the ]")ean died, and the Abbot brought
Scire Facias againll the Succelibr of the Dean, A\'ho pleaded that the
Compolition was made by the Dean "-xithoiit the Chapter.^ which cannot
chaige but for Term of Lile; and a good P-ea^ and lb Ihall fUlifv by
Plea., per Finch, becaufe }ye cannot hai-c Jkrit of Rigct in this Caic ; quaere
of the Fallitying ; For Belknap held the Cont ary. Br. Faux. Recov. pi.
52. cites 39 E. 3. 17.
2. Judgment given againli a Par Con of a Church upon an Jbfion tried
llrall Bind the Succelibr, tho' the Predecellbr did not ^rr^' ^//^ before of
the Patron and Ordinary ; For the Succelibr may have Wnx. oi^ Error, cr
.^ttainty and not fallify the Recovery. Br. Judgment, pi. 102. ci:es
811. 6.25. per Strange.
LI 3. A
i:^o Fallifving Recoveries.
■ ■ ■ ■■■ ~ ' ""' ■ ■■— ■ ■■— —— ^— ^^
See 6 P.ep.S. 3. A ALm recovered agaiajt a Parfu/j by Dcfdiih in CcJJd-jit de Cantarin
a m Ferrer's j]-,^ P;;rfoa died, ;ind the Plaintiff" brought Scire Facias againll his Sue-
'^''^' cellbr, who p-aycd Aid of the Patron and Ordinary^ and chcy would noc
join; lo tlic Defendant pleaded Non (]cllavit; and per Cur. he Ihall not
liillily in this manner, but Ihall be put to his Jiiiis Utriiin^ quod nota.
Br. Faux. Recov. pi. 53. cites 10 H. 6. 5. r
Br Barrc 1 4' ^^^''fi''- ^''^ Patron in Writ of Annuity traverie the Prefcription,
arches S.C. which palled againll them ; the Succellbr cannot traverie this agaiii, and
rallii'y the firlt Verdict, inalmuch as the furors are ail dead ; lo that he
cannot have Attaint j For it was the Folly of him, or his Predeccliur to
fuller the Time to expire. Br. Faux. Recov. pi. 11. cites 19 H. 6. 39.
5. If an Abbot had confcfsd the ABion in AJJij'c brought againll him,
the Succellbr Ihould not tallify; and lb it was oi' a Fine acknowledged by
Abbot. Br. Faux. Recov. pi. 28. cites 10 E. 4. 2.
See 6 Rep. S. 6. The Succellbr of a Vicar or Parfon cannot fdlify in the fame Pointy
a. in Ferrers ^yhjch was once tried -^ becaule he may have Attaint j hut in a collateral
Annuity a- ^'^^"^ ^^Y "^^V f il'^'^y i ^"i" t:hey have not the Fee Simple, and therefore
gainft a far- Cannot ha\e \\"rit of Right, hut only Juris utrum ; Contrary of an Ab~
/j>!,\vho prays lot, who may have Writ of Right. But Succellbr of a Parlbn or Vicar
"^'h o^r '"'^ mav tallify by Rclcafe net pk:ided, or by Condition broken not pleaded^ but he
rv -who ^^'^° cannot have Attaint, may fallify in the Point tried before. Br.
TadktDef.iult, Faux. Recov. pi. 29. cites 12 £. 4. 16.
and the Par-
fon iwj the 'fitle, and Icfes ; this binds the SucccfTor, and lie fliall not filfify the Recovery in the Point
tried, tho' all the Jury be dead, fo that he can't haw Jttaint. Pi", of Recov. 15S, 159. cites 54 H. 6.
a. b.io. Br. Faux. Recov. pi. 4. cites S. C. per Prifot and Moile. [But I lind no Notice in l>rooke,
or in the Year Book, as to the Jurors being all Dead.] But lee fup. pi. 4.
7. Patron and Parfon join in Annuity brought againll them, and lofl'.
The Succellbr Ihall fallity, /or that another -ivas Parfon the Day of the IVrit
purchaled, and that he, againll whom the Recovery was, was Not ia
then, vel unquam Pollea, pending the Writ. Br. i^'aux. Recov. pi. 33.
cites 21 E. 4. 7.
p „ g. In Annuity by a Prior againll a Parfon he counted by Prefcription,
j).iyg,.j. ~' the Parfon prayed Aid of the Patron and Ordinary, who were Suhuwnn.iy
Towniend and made IJeliiuk, and the Parfon confeffed the Atiion ^ the Plaintitf re-
and Fairfaif, covered, the Parlon died ^ the Prior brought Scire Facias againji the Snc-
^'^^ ^i"lff^°'' f ?/7o>*, who prayed Aid again, and they appeared, and traverfed the Prc'
anYHuiley' fi'i'iptioH ; and therefore the Prior demurred ; and by Award they lliall noc
and Brian the tallify, nor Traverie contrary to the firll Record, notwithllanding that
aCh.Juftices the Recovery was upon Confellion j becaufe the Aid was granted and
and the Ch. jhey were fummoned and came not. Br. Faux, de Recov. pi. <i. cites
Baron e con- IJ q
tra, quxre. 12 ri. o. 7.
Br. Faux.
Recov. pi. 24- cites 4 H. 7. 2.
In Scire Facias at^ainft an .^/;i(i^ on a Judijmcnt in an Annuity h.id as^ainfl his PrcdccelTor, the AbbotI
pleads, that his Prcdeceflor confefled the Jtidmiicnt, when he h.id a l^eleafc of the .\nnuitv ; and per
Cur. he fliall not thus avoid the Recovery ; tor his Predeicfor had the Fee Simple, and not lilce a P.irjhj:
•who is (^iiodammodo Tenant for Life, who fliall avoid it, where his ■niithoiit ^■^id prayed of P.ilioi\ And
Ordinary. Pig. of Recov; 1 58. cites 30 H. 6. 45, 415.
9. If a BiOiop or Parfon ceafes, by whicli the Lord brings Ce/fdvit, and
recovers, it lliall bind the Succellbr. Br. Forleiture de 'Ferres. pi. 102.
cites Do6"l:. and Stud. lib. 2. fo. 123.
10. So of Alienation in Mortmain. Br. ibid. — But Brook fays, it feems
not to be Law i For a Feme Ihall have Cui in viia of kich Alienation
made by her Baron. Ibid,
[ See (C) ]
i-
- . (H) By
Riilifyiiii;" Recoveries i:i^i
But if he Ses
(H) By whom. Tenant In I'ail.
i.TN Affife the Tenant pleaded a Recovery by Defliiih in a Writ of En-
j|[ /■;■)' Sur Di[Jci/i/i yiuvic to his Grandfather agamfi L. Mother of the
J'tji/itijf, to which the PlaintiH' /.'.'/(/, that A. li'as fcifcd in Fee, and gave
to N. his Father and L his Mother in Franbnarriage, and K. died, and L.
iurvivcd, and died, and ive entered as Heir, jihfqac hcc, that the Grand-
father 0^ the 'Tenant^ who was I'uppoleil to be dil'ciled, liadever any thing,
I'lill, 6:e. and lb it ieems that thcIlUie in Tail mav tiillity the Recovery ;
but it feems by this that he cannot faljify it agaiiijl hnn that is to execute
the Recovery ; For the Illue ^\•a3 taken if the Reco\ery was fxtrwft'^/ ( r
not. Br. Faux. Recov. pi. 19. cites 28 Afs. p. 32.
z. In Allife, the Feme recovered in a W'rir of Dcjver againft Tenant in
Tail ly Nient dedire, the Tenant died, his Iflue cntred, the Feme brought
Jffife, and made her Title by the Recovery ; now the Illue in 'Tail (aid,
that nc iinques accotiple and Iblallified the Recovervj quod mirum, ivitboiit
Action brought of Formedon to rcco\'er the Land. Br. Faux. Recov.
pi. 20. cites 28 Air p. 52.
3. If a Man recovers againft Tenant in Tail by f ilfe Recoverv, and
dees not fiie Execution, but dies, the Ill'ue enters, the otlier ouits him, the ^^Jteri'ujT-
Ilfue ihall have Afjife, and if tlie other pleads the Recovery, the Illue ment ami'be-
Ihall fdlify it with Allegation of the continuance of the Folfjfwn, but \i (ore Execv.ti-
exccution had been fued it is otherwife , For then the Illiie is put to a ^j^',''"'^ ^'^^
Formedon, and lliall fulJlfy in this. Br. Faux. Reco\'. pi. 10. cites 7 H. bHn.t^s Scire
4- 17* Facias a-
c;ain{t tlie
Heir; he ma\' falffy w the Sc'm F.-.dr.s. Rr. F.itn: Rccov.pl, 5S. cites Litr. tic. Remitter,
4. Formedon is brought againft Tenant in Tail, -wlio pleaded that Ne
dona pas, where be had a Releafe from the Demandant to plead, or a Deed
of his jncejlcr ivith Warranty and Afli'ts defccnded in F'"ce ; and "tis tried
for the Demandant, by which he recovered; the Tenant in Tail dies, his
IHiie brings Formedon ; the Recovcror pleads the Recovery by Action
tried ; there the lliue in Tail mav lallifv bv the matter lupra, per Fortel- ^^ c p r-
cue, w hich Pafton and Afcue Jullices utterl\- denied ; For lie Ihail not fd- ,.„. 3,. por.'^"
lify in the fame Point ivhich was tried ; hecaufc be may have * Attaint, noca. mcdonpl.;,-.
Br. Faux. Recov. pi. 11. cites 19 H. 6. 39. citcsS.'C.
5. Tenant in Tail, ivho is not the eldeji Son, as where he is Son by a
fecond Venter, lliall lallify ■ becaufe he cannot have Attaint. Br. Attiant,
pi. 124. cites 22 H. 6. 28. per Forrelcue.
6. If a Recovery be had againlt Tenant in Tail, and the Title is tried
.againft him, viz. quod Ntn Dedit, &c the Illue has no Remedy but by
Attaint i For he Ihall not Fulfify in this Point. But if the Vcr'duJ be up-
on other fpecial Matter, and not upon the Title, or if it was a Recovery by
■Default, in thefe Cales, the Heir in Tail mav Fallify the Rcco\ery. Br.
Faux. Recov. pi. 4. cites 34 H. 6. 2.
7. The Illue in Tail cannot iali]fy in the fame Point "Sihich was tried j
but Reddition orConfeJfton Ihail not bind the Ifli:einTaiI from his fillifying;
and nof.vithjlanding Recovery in Value fippofed, vet tlie Heir lirall fillify in
the Point, fuppojlng that his Ancejlor was net Tenant at the Time, Sc and
fo the Recoi'ery void, per Choke j. and per Brian, fuch Recovery Ihail
not bind the Tail, but where the Tenant was leilcd by force of the Tail
at the Time of the Recovery, &c. and when the Heir of the Donor is
vouched. Br. Faux. Recov. pi. 30. cites 12 E. 4. 14. But'if ^tref^
8. The juftices were of Opinion, that, if Iliue palled by Jurv againft T-'f' l^e
Tenant in Tail, and he has J/Jjte and dies, and all the petty Jury 'die, yet ^^^f-]ff
the Uiiie in Tail Ihall not Falfify in this Point which was tryed. Quod "jlueticln
nota. Br. Faux. Recov. pi. 31. cites 13 E. 4. 3. Tan ar.A J.
eir^a B. and it
}a^ci /i''a!?!p tiem, if Tcnar.t in Tvl Jieu and J avd B./iiriioe, the Heir in Tail ITiall not be eilopped
tft faUify ;« //(. fn.-e Point ; For tlie Attaint is gi—.n to the furvivor, (.^iicrc. Br. Elioppcl, pi. i(58.
cites 13. E, 4. 2 and 3.
1^2 FalfiiVing Recoveries.
qRep. 5S. b. 9. A. Tenant tor Lite, Rem-.^inder toB. in Tail. .-/. Icafdh fcr ]l:rrs ; a
S.C.bvNunie Recovery is had agaiufi B. living A. tiie Recoverors enter, and ouit the
ot Lincoln Lelice for Years ^ the Son and Heir of B. Rclcafcth ivitb Warranty to him
"And "-■^~ ^^ whom the Recoverors have allured the Lands; xhc Lejjee enters-^ B. di-
KC.by'Karne tth ; the Releafor dietb^ &c. It was holden, that the Entry of the Leliee
of Cli'ani- before that the \\ ivrranty had attached upon the PollcHion, which palled,
bcrlainc v. }^^^ a\'oidcd the Warranty. And the Ld. Anderlbn concei\'ed, that the
t\ U™c^— R^^o^ery lliould not prejudice the Illue in Tail, but that the liiiae ihould
Mo. '255. S. Fallify the lame. Mich. 10 Eliz. C. B. 2 Le. 58. Ards v. Smith.
C. by Name
of Bricot V. Chambcrlaine.
10. A Praecipe is brought againfl Tenant in Tail, who prays r,i Aid of
a iitr anger as I'cHant for Life, who enters into the Aid, and bars the Deman-
dant, and afterwards the Tenant in Tail dieth ; his Iflbe is at large to
claim the Eitate Tail, altho' the Mouth of his Fatlivr \s as eltopped as to
it. 2 Le. 27. in Cale of Ards v. Smith.
11. Tenant in Tail, brought n .^lod ei deforce^t and counted upon an ef-
pccial tail, ithereas in truth it -was a general Tail, and reco\ercd and
died i the iaiii Recovery Ihall not conclude the Iliiie. 2 Le. 57. in Cale
of Ards V. Smith. cites 33 H. 6. 18,
tcvAi S.C. 12. A. Tcnaut for Life, Remainder to B. his Son in T'.-il. A. entered
Kayni. 19. S. into a Statute and dies. The Conuiee fued a Scire facias againji B. The
C. — SMod. Sheriif returned Scire feci, &c. and thereupon Execution was had without
113. cites S. ^^^y Yley. pleaded by the Heir, and the Heir, being oiifled by the Esuution,
brought F.jctl-ment. It was adjudged, that B. was bound, and that he had
no Remedy by Ejeftment, Error, Aud.Quer. or anyW'av, but againlt the
Sheriif^ in Cafe he made a lallc Return ^ But Windham J. thv)ught B.
the Heir might iullify this Recovery /// Atiion of a higher Nature, but not
in this Aftlon of Ejectment, becaule it is o'i a lower Nature, according
to ifcrrcr'^ Cafe, 6 Rep. Butl'wifden J. doubted if he toald llillify in
any Attion, becaufe u. is no more than a term. Mich. isGir. 2. B R,
Sid. 54, 55. Day v. Guildtord.
[ See Recovery Common. (C. a). ]
(H. 2) By Infant or Feme Covert.
1. "TF a Man recovers againji a Feine Covert ivithoitt namisg the Baron
JL /';/ the Writ, the Baron and Feme Jball have Affife, per Shard and
Stoulf. Br. Judgment, pi. 147. cites 12 E. 3. and Fitzh. Allife 147.
2. But if it he not reformed in the Life of the Baron, but he dies j there
the Feme ihall be barr'd by fuch Recovery, and is put to her VVrit of
Right, per Shard and Stoull' Ibid.
3. Brook lays the Cafe is briefly reported, but he believes that it is
intended of a Recovery hy Ad ion tried-, and by Appearance of the Party^
For if it was upon c. Recovery by Defutlt, it feems to him that the Feme
Jhould have Writ of Error ^ For hfantjhall have a Writ of Error of a Re-
covery had by Detault againll; him j and fo "ivvas uled in the Time of
H. 8.' and Anno 2 M. i. Ibid.
^ 4. Allife by Infant i the Tenant pleaded Recovery of the fame Land in Af-
^6-'''dtes S •'^^'' '^'^'"^"^^ ^^'"^ f'"-"'^ Plaintiff; to which he faid, that at the Time of the
l^f_ gr. " Recovery he ■■ji;as '■joithin Age, and the Affife was taken by Bailiff, and at the
Judgment. Time of the Recovery A J^eld it for Term of Life, the Reverjion to the noiii
pi. bf,. cites Plaintiff and his Sijler • and the Opinion of the Court was that the Jnlant
^^- Ihall well ha\e the Plea ^ qufere caufani, whether becaule he was an Inlant,
or becaufe it was taken by Plea of the Baililfj or becaule the Infmc was
not Tenant; for it Icems by iSAlf 16. thwt Recovery upon Appearance
canuop
Falilfving Recoveries. 133
cannot be contelled and a\oidcd in Pleading, contrary of Reco\erv h'
Difciult ; For- there the Pleader Ihall aver that iie was Tenant at the Time
ol' the Recovery, to which the other ihall have Anfwer. i5r. Contels and
avoid pJ. 33. cites 26 All! 6.
(I) At what Time.
1. XN Aflife, a Recovery is pleaded againfl: the Plaintiff^ and he hath
\^ Canfc to faljily it, and does not, but tr.kes IJJiie upon another Pointy
•which IS agc'.iuji hnn^ and he is barr'd by Judgment; there if he brings a-
nother Action, and the Recovery is pleaded againlt him, he can't failify
it, becaufe the Judgment, Itood in Force ; and the Plaintiff might have:
taicen this by Plea at firll, quod Nota, by the Opinion oi the whole
Court. Br. P'aux. Recov. pi. 39. cites 40 All! 4.
2. Debt by a Prior; the Defendant pleaded xhtCnftom of Londofi at large
of Fm-eign Attachment^ and that one H. brought Debt againlt the lame
.Plaintilt,which was returnedNihil in London, and thereupon this Debt was
attached in the Hands of this Delendant, and 'Lo the Plaintiff recovered.
Judgment li Aftio; and the now Plaintiff /rf/W. that the Recovery iMas by
Covin ; P"or he laid he did not owe the laid Sum to the laid H. which was
by him demanded in London Modo & forma prout ; and per Laicon
he iliall not have the Plea to tallify the fiid Recovery in London noWj
becaule he might have come tnto London ivithm the lear, and have pleaded
and * difproved the Debt, and have barr'd the then Plaintiff, and becaule ♦ Orig. Re
he did not, there tore, wow he hath pajfed his Time and cannot fallity it. prove.
Er. Faux. Recov. pi. 16. cites 39 H. 6. 19.
3. \i Tenant j or Life iliffers a Recovery, he in Reverlion may fallify
daring the Life of the Tenant for Lite, or after his Death, Pig. of Re-
cov, 165, 166.
[ See Trial (B. 2). ]
(K) By Warranty and Aflets*
X. "VTOTE, that where Tenant in Tail difcontinues with WafranrVj
j^^ and leaves Allcts and dies, and 2 by Con/piracy caufe E. to enter
and Dttft the Jlienee^ againfi 'whom the IJfue ('within AgeJ of the Tenant in
Tail recovers in i^ctre facras upon Fine of the fame Tail ; that in this Cafe
he who loll Ihall have Aftion and talfify the Recovery by the VV^arranty
and Alfets. Br. Faux, Recov. pi. 18, cites 27 Aff 74.
(L) For want of Jurifdidion.
I. 'X'X was admitted, that a Man may fillify a Recovery had dgainji
\_ himfelj for a Point, which proves fuch Recovery to be void, as be-
caule it WAs'Coram non jfudice. Br. Faux. Recovery, pi. 38. cites 39 Alf.d.
2. InTrefpafs, it was not denied, but that it' a Fine be levied of Land in
Ancient Demefne at the Common Lrw^ and after a Recovery is had in the
Court of Ancient Demefne, that this Recovery is feint in Law; by which,
he fdl'ilicd it. Br. Judgment pi. 17. cites 7 H. 4. 3,
Mm 3 In
1 Q^^ Fali'ifying" Recoveries.
Ri". Fauv. 3. In Alfife Tenant pleads in Ear a Reciv. cry /// JJ^ict/-; l-'laiiititr" re-
Re:ov.pl.i5. pJies, chat the Lands demanded are in the Cinque Forts, L'bi breve Do-
jiiini Regis non currit, and the Plea held ill ; For Judgment ■xtJVcJhnh!-
Ji^er fcr Lands in the Quqnf Ports is go'jd ; Aliter of Lands in /r.-'/ci. Pig.
oi' Kecov. 159. cites 36 H. 6. 6 323 32.
■r
(M) For Prior Right.
F I am fnifecl by Title^ and A. oufis r-n\ and / ye-ou/i him^ ;ind A.
__ •ec{}~JCYS againfi 7ne hy ji(ftj}^ I may have Attaint or Aliiie oi mv linl
Polielfioni and therefore it the Kecoverv in the Ah'ile lie pleaded, ihe
Plaintiff may contels and avoid it, becauie his Aliiie v/as Lit" Elder Pollcl^
lion. Per Parning. Quaere inde, the Judgment ul' the Aliiie being in
Force. Br. Aliiie. pi. 186. cites 13 All. i.
Br. Barre \\. 2. Note, 'twas laid ibr Law in Attaint, and not denied, that nhere
9. cites S. C. J jj dijjcifcd by II . and a Stranger recovers t^gainji' him Bona Fide, ur by
Covin by 7'itle^ which is younger than the 'Title of J. there J. mav enter
upon tUe Reco\eror and plead this Matter, and the Reco\cry Melhe, &c.
and a good Plea. Br. Entre congeable. pi. 4. cites 34 H. 6. 44.
Tir. Faux. 3. Writ of F'orcible Entry ; the Plaintitl" makes Title by a Recovery in
Kecov. pi. a Writ of Right againft the Lejfor ot' the Detendant; the Defendant pleads
y). S. C. j.j,j^;f. af'ii-)g Time' of "the Writ of Right brought, his Ltffor had alien d the
Reverlion to A. to whom he Attorned, and held good. Pig. of Recov.
159. cites I H. 7. pi. 7.
4. li A. has Title by Formedon or C^ui in A'ita and enters, and B. rero-
I'ers againft him-, A. is remitted to his tirll Action. Br. Judgment, pi. iir.
cites 23 H. 8.
5. Biit^ if B. )Yforer.f againft A. ^j /^///^ T/Z/s by Aftion tried, "xhcrc A.
is in by ?ood Titk^ he Ihall then have Error, or Attaint, or Writ of Right.
Ibid. "
(N) For Feint Pleading.
B- F ^' A ^^-^fi"^^^^ a Leale for Years, and afterwards in a Jj^iiare. im-
Kecov. pi. I. A*- f^^'^ brought againft hm and the Patron they pleadeJ leintly ^
S. C. Lellee Ihail nor fallify, becaufe if the Parfbn had rcligned, the Leafe had
been gone. Pig. of Recov. 159. cites T. 26 H. 8. pi. 3.
(O) Pleadings.
I. TN AfTife, the Tenant pleaded Recovery in Mortdanceftor againft N,
\^ and the Plaintiff /I7/V/, that N. againji -xhovi Sc ivas not Tenant of
tie Franktenementi and it was admitted a good Plea. Br. Faux. Recov.
pi. 37. cites 19 Air 4.
2. Where a Recovery is pleaded againft my Anccjlor, I may fay, that my
Anceftor had nothing in the Land at the Time, ^c. •sithoiit/ljewifig tcho -^-as
T'enant thereof; contra in Avoidance of a Fine. Quaere, if it Ihall not be
intended a Recovery by Default ; For it feems to be contrary upon a Reco-
very upon Appearance. Br. Judgment, pi. 24. cites 14 H. 4. 33.
3- In
Rili^fving' Recoverit^s. i'^^
3. In iVirn-.ajty of Charters^ the ])eiendant m^- fiy^ thctr the Plaintiff' in
the Jiyfi -i(.iioii aittrcd u^on the Phiiiuiit then 1 ciumc finding thcHrit^
which Matter the Hluintirt" might have pleaded and did not ^ Or that the
Plai!uiii"in this A6tion had nothing in the Laud kjt by the fir.fl jici ion ; and
A go(;d Plea, per Arden in a Praecipe quiid rcddat, quod non negatur.
Br. P'aux. Recov. pi. 45. cites 21 H. 6. 49.
4 in Affile, if the Tenant makes a Bar at hrrgc^ and the Plaintiff mahs
Titie by Reio-vaj, and the 'Tenant dejiroys the Reiovery by proving it to be
void; 'tis no Plea without making Title to hiink'lt ; For if the Plaintiii'
■was in bv a void Recovery, this is no Relcirt to the Tenant ; For 'tis not
lawful tor the Tenant to enter upon him, it he has no I'itle; and lb lee
that the Tenant ihall not a\oid the Title of the Plaintilf without making
Title to himfcif Br. Aliiie. pi. ics cites 36 H. 6. 33, 34.
5. A. pending a Writ of Kntry fur J3illeiiin againll him, recovered by For-
vtedon again/! his oa"« Fiojfee The bell Opinion was that the Traveri's
Ihall be oi the DiJJeiJtn and not of the Ferffmcnt. Br. Faux. Recov. pL
27. cites 7 E. 4. 19.
6. A Man recov ered Land, and brouglu Scire facias againji IV. N. dnd
after he brought Scire tacias againji J. Tertenant., who faid that W. N'.
againji whom the Recovery was had, 'ecas not Tenant of the Franktene-
ment the Day of the ,firjl Scire facias^ See. nor ever after ^ but one A. 'xhofe
FJhite he the now Tenant hath., &c. and lb the Recovery void ; and thi3
was held a good avoidance of the Recovery ; and yet Nontenure gene-
tally is no Plea ; and it Icems that this Recovery wus by Detault ; For it
is laid eliewhere that apon Recovery by Default^ the Tenant may fay that,
he was not Tenant the Day oi the VVTit, &c. nor ati;er; For /;/ pie 'ding
luch Recovery, the Party rnuji aver that the Writ -x'as brought againji fiich
a one, then Tenant of the Land ; but he who appears and pleads and lofes,
fhall not do lb. Br. Faux. Recov. pi. 32. cites 14 E. 4. 2.
7; Note, by the julHces, that the Termor may fallifv a Recovery a-
gainll his Lellor being in Reverfion at the Time of the Recovery, as he?
may of a Rent which the Lellor fuHered to be recovered againlt him ^
and per Brian and Townfend, he Ihail lay that before the Writ brought a-
gainjl his Lefor, the Lejlor granted his Reverjion to \V. N. to whom he
Attorn d before the \\'rit brought, and /o was not Tenant at the Time of the
"N^'rit brought, and Recovery had. Br. Faux Recov. pi. 23. cites 14 H,
7. pi. 59. cites I H. 7 9.
8. Prsecipe quod reddat Sur DilTeifin in the Poll ; the Termor for Years
hy the Statute of Gloncejhr prayed to be received, and faid that this Reco-
very is by Covin to make him lofe his Term, and traverfed the Dilleiiin ;
and per Pollard and Fitzherbert he cannot do otherwilbi For the Covin is
not material ivithoat traverftng the Point of the H rit. But per Port, if the
Tenant in Tail makes Difconttnnance., and the Difcontiiiiiee makes a Leafe for
Tears, the Iffuc in Tail brings Fcrmedon by Covin of the Difcontmuee to make
the Termor lofe his Term ; there the Co\ in is only material. Per Pol-
lard the Termor is without Remedy in this Calb; for the Heir in Tail
Ihall be remitted ; for by them where the Recovery is upon a true Title, the
Covin IS not material. Br. CoUufion, &c. pi. 21. cites 14 H. 8. 3.
9. In Precipe quod reddat the Tenant pleaded ut ylbatement of the
Writ, that one A. alter the lall Continuance had brought an Ajjij'e againft
him, and recovered by Atlion tried, viz. byVerditt; and the Demandant
fiiid that this Alhle was brought by Covin bctw cen the laid A. and the
Tenant to the Intent to abate his Writ ; and there 'tis granted by all the
Court, that this is no Plea without Jhe''s:ing Caufe rf the Covin. PI. C. 46.
b. Arg. cites 9H. 6. 41. — And Plovvden laid he agreed the Law to be lo j
and the reafon is becauie the Title was tried bv\' erditt of 1 2 Men, and thea
the Demandants laying that 'twas by Covin, can't be intended true agcunjl.
theVerditf. ibid. '
10. hilt where (as in the principal Cafe) the Recovery was by Default.^
in which Cafe there is noTiial; but the Def lult oi the Defendant -ccvfi-
the
1 0.6 Falfifying Recoveries.
the Caafe of the Jtidgiiioit, by which in this Cafe, and wliere the Recovery
is by Detaulc, a Man lliull aver that it was by Covin generally^ and I'j the
Diveriity- Arg. PI. C 46. b. in Cale of \Vimbilh v. Talbois.
11. By the 21 H. 8. 15. the Lelieo ihall be received to fallify the Re-
covery beibre Juds;mcnr, and it ihall iufpend the Execution. But then he
mult not only aver the CvHitJiofi^ iat plcjj fomc Acf to l\rr the Plaintiff's Ti-
tle. Pig. of Recov. 51.
12. Sotwithltanding the Statute of Gloucefter, and the 21 H. 8. it
never lay in the Mouth of a Teiijnt to the Praecipe to plead a Leafe lor
Years, or to Itop Execution upon any fuch Plea. If an Jl/ife be brought
aaiiiji Tenani jor Life^ he cannot lay tliat there is a Leafe for I'ears precc~'
ilcnt to his Right, tho' the Tenant tor Years himfelf may talfify a Reco-
very againll him in Reverlion. Trin. i Annae. B. R. 7 Mod. 42. Per
Holt Ch J. in the Cafe of Smith v. Angell.
(P) Bar. Plea in Bar to the Falsifying.
I. \ SSISE by A. againft the Lord C. of Land in T. in the County
Jf\_ of E. the Defendant pleaded in Bar, that at another Time he
himjelf recovered the fame Tenements againjl the Plaintiff' in the County of
W. and the Plaintiff filed to reverfe the Judgment in H. R. affirming thent
to be in the County of IK and had Judgment and Refhrution, and after the
Tenant brought A(Jtfe in the County ofW. agatnfi the Plaintiff-], and recovered
the Land tn the County of IV. judgment if the Plaintiff who fued to reverie
the firlt Judgment, aliirming them to be in the County of W. Ihall now
have Affile in the County of £. For he ought to have brought Allife and
not to have fued to reverie it ; For it was liiid, that where a Man reco-
vers Land in a Bale Court, which does not lie within the Jurisdiction of
it, .and brings NVrit of P'alle Judgment ot it ; he Ihall not have AlBle af-
ter, becaule he affirms that it lies within the Jurisdiction ; quod Nora, by
Ibme ; but here the Allile was taken, becaufe it cannot be intended to be
of the lame Tenements which are in Plaint. Br. Judgment, pi. 58. cites
10. AIT 25.
2. In Mortdcnceficrr againft the Baron and Feme and S. the Baron dif-
claimed for himfelf and his Feme, and S. vouched the Baron, "ivho came and
pleaded a Recovery by Affion tried by himfelf againft one S. byDura fuit infra
atatem, 'where m Truth he recovered againft S. named in the Writ pending
this Aaion ; and faid that the Eft ate of the Anceflor of the Demandant, of
whofe Seiftn he demanded, was Mefne between his Title and his Recovery j to
^vhlch the Demandant faid, that S. was feized, and enteoff''d this fame S,
with Warranty, of which Scifin S. was feized at the Time of the Judgment
given,and fo the Recovery £iile and feint in Law, Judgment, and prayed the
Affife, and the Vouchee demurred thereupon ; and becaufe by the Demurrei?
all the Points of the Writ are conlelled, therefore the Demandant rekafed
his Damages and had Judgment to have Seilin of the Land immediately.
Quod Nota ; and fo good Caule to fallity, becaufe the Feoffment and l\ ar^
ranty were not pleaded in the ft'rft Acfion. Br. Faux. Recov. pi. 22. cites
30 Air lo.
3. A Man cannot fillify, unlefs he makes himfelf a Title to the Landj
For tho' the Recovery be void, yet when the Recoveror is in by it, it irf
not lawful for the Plaintiff to enter and oull him without Title, and
theretbre it is no Plea without making Title ^ For where -the Tenant in
Allile pleads a Bar, the Plaintiff mult make a Title to himlelf before hff
can avoid the Bar. Br. Faux, Recov. pi. i j:. Per Fortelcue Ch. J. cites
36 H. 6 32.
4.. In
I
Faiiifymg" Recoveries. i 37
4. In jinnuity by the Abbot of C. c.gahiji the Vuar of'T. and counted that
he and his PredcceJJors 'Time cut of Mtnd have been feifed of the yinntiity in
Right of his Church ot C. albrcluidi and xht Defendant traverfed the Fre-
fcrtptlcn, and 'truas found with the PlaintijUj and he reco\ered ^ and after
the Annuity zvas Arrear at another time, and the Abbot brought Scire facias
(igainjf the Sncceffbr of the Vicar, who faid that the Abbot and his Predecef-
fors have been Parfons of 'T. and held it in proper Ufe as Parfons Iniparfonee
in Right of their Church of C. Time out of Mind, and that the faid
Abbots have claimed the fad Annuity as Parfons, &c. and that the liiid Ab-
bots and their Predeceliors were feifed of t\\Q f'ud Annuity o///;' as Parfons
of the faid Church as he has allcdged, and lo the laid Reco\ery void and
null in Law. And becaule he does not fay ^ that the Predecejjors of the Ab-
bot have been feifed of the liiid Annuity in Faft as Parfons, &c. nor has
traverfd, that the Abbot and his Predccefiors were not feifed of any o-
ther Annuity, therefore the Plaintiff recovered, quodNota^ but by feveral
the A-Iatter was good Caufe to have filliiied, &c. For otherwile the Abbot
might ha\ e two Annuities, the one as Abbot, and the other as Parlbn j and
this fdfifying goes to the Aftion j and vet if it had been pleaded in the
firllAclion, he mult have concluded to the Writ. Br.Faux.Recov.pl.
29. cites 10 E. 4. 16.
5. In Annuity, one outlawed of Itxafon brought a "Writ of Errcr, and
had Scire facias againfl: the Lords mediate and immediate, who are re-
turn'd warn'd, and made default, and the Utlawry is reverfed by Impri-
fonment. In Alfife brought the Lords, cannot aver that he was at large and
ihall not fillifv the Recovery ; For thofe who are fummoned are bound tor
ever. Br. Faux. Recov. pi. 24. cites 4 H. 7. 2.
6. In Afftfe againll Tenant in Fee Simple the Plaintiff" recovered by De
fault j he can nev cr fallify, tho' he may ha\ e VVrit of Right, per Keble.
Ibid.
(Q.) Other Adlon. In what Cafes after Recovery againft
a Man by Default, he may have other Action, and what.
I. 13 i^. I. 4. re- Y"^T//treTj hcforS Ttwe, if a Man had lofi his Land
cites that, \ y by Dejault, he had none other Recovery than by
a Writ of Right, which was not inaintatnabk by any, that could not claim of
meer Right as Tenants for Term of Lite, /;; Free Marriage, or in Tail, tn
which hjiates a R ever/ion is referved.
. And provides, that from henceforth their Default fJsall not be fo p: ejudicialy ■
lilt that thty may rciover their hji ate by another JVrit than by aWrit ofRighty
if they have Right j And that.
For Land in Free A^airiage kjl by Default, fuch a Writ pall he made.
2. In Affife the Defendant pleaded m Abatement of the l\ rit, that fending
the Writ J. N. had recovered againfi him by Dum fuit infra atatem oj elder
Date, and was by nient dedire; and notwithrtanding this the Aflife was a-
wardcd, quod Noca; qusreCaufam, whether, becaule that the Tenant did
not fay, that he, who recovered, entered; or becaule the Recovery was by
Kient dedire, and not byA£iion tried. Br. Brief pi. 278. cites z-zKfC.
3. Per Mordaunt, Wood, Townfend and Brian, It' Tenant Jor Life be
impleaded, and prays Aid of liim in Reverjion, who is fummoned, and makes
Default, and the Tenant lor Lite conleile.s, or Icfes otherwile, yet he in
Reverlion may have Writ of Right, cr ad Terminum qui prteteriit, and fliall
fallify the Recovery. Quod Nota Bene. Br. Faux. Recov. pi. 24. cites
4 H. 7. 2.
[ See Bar. (D) ]
1^8 Fallifymg Recoveries.
(R) Other Action. In v/hat Cafes a Man may falfify by
other Action.
t. TTF fuch partici/hrr Tenants as Tenants in Dcxcr^ ^r. lofe hy Aclion
\_ tried tn anal AUwu, it feems, that at this Day they themlelves uie
without Remedy, per Coke. 6. Rep. 8. b. and fays that with this ac-
cords 50 E. 5. 7.
2. \( Tenant for Life be impleaded, and prays Aid o/him in Reverfion^
liiho is fummonedy and makes Default^ and the Tenant tor Life confelles, or
lofes otherwife ; Yet he in Reverlion may have alVrit of Right, or ad Ter-
miniiin qui pr^teriit, and Ihall talfity the Recovery, quod Nota Bene ; per
JMordant, Wood, Tovvnfend and Brian. Br. Faux. Recov. pi. 24. cites
4H. 7. 2.
3. If a Man lofes in AJ^fe, the Tenant is not put to his Writ of Right,
but may have Alfife of .M}r/^^W£/?or, per Coke. 6 Rep. 8. b. cites 5 All! i.
4. So Recovery in Aliife is no Bar in Hri?iedon in Reverter, per Coke.
6 Rep. 8. b. cites 6 H. 4. 2.
5. Real Aclions, as Writs of Right, Writs of Entry, Sec. and their
ieveral Appendages, as Grand Cape, &c. were feveral great Titles in the
Year Books, but now much out of Ufej Foe in molt Cafes at this Dav
the Entry of him that has Right being lawful, JVlen choofe to recover
their Polleflions by Kjeffinent, excepting that in common Recoveries the
Form of fuch real Actions is preferved. And fbmetimes, the' rarely a
Writ oi Dower orFonnedon ; becaufe ordinaril\',where an Entail is fulpected,
a Common Recovery is had. And fometimcs in the Grand Sellions ia
Wales they proceed by a ^lod ei Defurceat. Ld. Hales's Prel! to Rolfs
Abr. pag. s-
(S) Equity.
t, A Had Land extended to him in Ancient Demefne hy Statute Mer-
Jf\» chant, and afterwards B. purchafed the Land, and recovered by
Sufferance in the Ancient Demefne Court upon Voucher, and entered and
oiijied A. who brought Subpoena j and it was Held, that A, coiM not t'al-
y?/_y the Recovery, and therefore pjotild he rejlored byChancery ; Becaule there
was no Remedy at Common Law. Br. Confcience. pi. 8. cites 7 H. 7 i r.
Fdther
i ather and Son, &c. i ':>9
Father and Son, or Child, 8zc. Or Parent
and Child.
(A) What Anions a Father, Sec. may have on Account
of his Child.
T
1. Jf^' ^ "^RESPASS qtitrn Filiam yHurrerfem fiiam raptiit & abduxit
lies for the Father, but not lor the Mother j For the Fa-
ther of Common Right Ihall have the IVcrd of his Son
or Daughter J per Catesby. Br. Garde, pi. 55. cites 9 E,
4- 53-
2. Father fhall not have A£^ion againft a iMafter for beating his Son and .p. ..
Heir Apparent, and laming him fo as he is difparaged as to his Mar- ^^^f^^^^y^^
riage Le. 50. Palch. 29 Eliz. B. R. Gray v. Jelfes Father, tho'
'twas objeft-
ed that he was at the Charge of curing his Son of hi> Wounds, Becaufe he was not compellable to it.
Cro. E. 849. JKippOn V. i^OrtOll. But 'twas admitted Arg. that Aftion might have lain for the Fa-
ther, if he had fhewn, that the Son was his Sewant, whereby he loft his Service. But alleging Lofs
of Service, without alleging that the Son was his Servant, is not fufficienti Cro. E. ut fupra.
3. ir the Son marries -x'ithout Confent of the Father, the Father has no
Remedy. Le. 50. Gray v. JelFes. See 5 Mod. 222-. King, alias Michel
V. Thorp.
4. The Father fhall not have Aclion/or takiftg any of his Children ex-
cept his Heir ; and that is, becaufe the Marriage oi his Heirs belongs to
the Father, but not of any other his Sons or Daughters: And the Father
has no Property or Incerelt in the other Children, which the Law ac-
counts may be taken from him. Cro. E. 770. Trin. 42 Eliz. B. R. Bar-
ham V. Dennis. — But GLmvil J. contra. Ibid.
(B) Inter fe ; as to Legacies, 6Cc. to the Children by
Others.
I. "TyONDS rekafed by the Father, which he had taken in the Names of
XJ his Sons, being Infants^ thought good and allowed. Toth. 88.
cites Hill. 20 Jac. Simonds v. Lomley.
2. Th(i Grandfather de-vifed Lands to his Son to pay lo /. per yJnninn to
the Son's 3 Daughters, the Father gives 200/. in Marriage -wit hone, whe-
ther the 10/. per Ann. fhall be included in the 200/. or not? 'twas de-
creed that it Ihould be included. Toth. 141. cites Mich. 13 Car. Kir-
rington v. Ally.
3. The Father received a Legacy of 100 /. and another of 50/. left to
B. his eldcft Son by the Grandtathcr and Grandmother ; afterwards the
lather gave Bond to pay his Sen, whom he had dijinherited, 6000 /. 'Twas
inliiled
lAo Father and Son, 6vC.
inljlted that the Bond included the Legacies. But Ld. Jciieries, in Favour
of a dilinheiitcd Heir, would allow no more than what they could prove
to have been a6tually paid towards S2tista£tion ot thefe Legacies, and Eo
Nomine as in Part ot the Legacies, and the rell to be paid with Interelt
MicH; 1687. Vern. 480 Sir VVm. Cann v. Lady Cann.
4. A Legacy ol" 150 /. to the Daughter of £. was paid to B. who after,
on her Marriage with [. S. gave her 1000/. Portion, .rr/A'/ leciled a Church
Lecjfc upon her, ^'Jid mamiained her and her Hitshaiid 14 lears at his own
Houfe. The Matter ot" the Roils decreed the Legacy with Colts, but
frjd, tho' he would not difcharge it, hedillik'd the Suit. Hill. 1703. Ch.
Prec. 228. Sir George Chudly v^ Lee.
5. Children not deinandiug their Legacies of their Father when they
come of Age, or after, is no J3i (charge of them; And the P"ather is
bound to maintain them during their Minority, and their Portions givca
bv a Stranger are nothing to him more than if they had not any ; and
•where they lived to be ht \.ox'$)tx\\c&7iTA ferved their Father ; tneir Ser-
vice was more worth than the Interell of the Legacy (which was 50/.
a piece) and ^o Interefi was allowed. But where one o'i the Daughters
married, and She and her Husband had a Tears Board after Marriage^
the Father mult be allowed tor it, unlels an Agreement be proved to tfte
contfary. Palch. 7 Annde. 3 Ch. R. 168. Strickland v. Hudfon and Ma-
fon.
[ See Devife (L. c) ]
(C) Allowances to Parents for Maintenance out of Chil-
dren's Fortunes.
I \ Devifed 250 /. to his Son, and made his Wife Executrix, who
j[~\^* married another Husband. On a Bill brought againit them by
the Son for the Legacy, the Defendants would have difcounted Mainte-
nance and Education i but the Court would not permit it fo as to dhnintp
the principal Swn ; For it was fiiid that the Mother ought to maintain the
Child. 2 Vent. 353. Mich. 33 Car. 2. Anon.
2. But a' Sum ot'Money paid for the Binding him out an Apprentice was
allowed to be difcounted. 2 Vent. 353. Anon.
3 . And the Mother was decreed a reafonable Allowance for Maintenance
of her Son from 2 Years of Age, when the Father died, to 1 8, when the
Son died j flie having received the Rents of 33/. per Annum defcended
from the Father on the Son, as Heir at Law. Palch. 7 Annae. 3 Ch. R.
164, Wallis V. Everard.
(D) Coertion. What Ads done by a Child fhall be fald
to be done by Coertion, and lo relieved againft.
I. A Father prepared a Bond conditioned for Pajinent of 120/. a Tear to
Jf\_ him for Life by his Sun, to ivhom a -very large FJi ate had been devifed^
and upon propofing it to the Son, he refufed to execute it, laving it was
more reafonable that the Father lliouid depend upon his Honour. Upon
which the Father left the Bond with the Son, faying, if he ii:o;t!d not /ign
it he might let it alone. But afterwards in the Father s Abfence the Son figned
/■/•, jult betore he went to tra\-el, and direffed, that it jhoitld be delivered to his
Father. Ld. C. Parker faid that thofc^\'ords migiit bo fpoke lb, as to
amount
Fealty and Homage. iai
amount to ;i Threatning and to intimidate ; but it might alfo be othernile
and the Father leemed to acquiefce under the Son's Anlwer. And that
for aught appeared it was his iree Aft, and what he thought hiniicll' ob-
liged m Honour to do, and therefore without any Proot'to impeach it,
it lliould not be let alide in Equity. \\'mss Kep.' 6oc. 607. HiJl. 1719.
Blackborn v. Edgley.
2. It it ih(3uld ever appear that the Poiver of a Parent over a Child has
hem abiifcrl, as by his gaining a Rcleafe of tlie Child's Orphanage Fart by
7'hrec.ts, &c. a Court of Equity wiJi ceitainly let alide a Relealethus un-
duely gained, per Ld. C. Parker. Falch. 1720. Wms's R.cp. 639, 640. in
Cafe of Elunden v. Barker.
(A) Fealty and Homage.
I. 17 E. 2. \, * NJCfS that 'when a Freeman doth Homage to his Lord
Pi of '■johom he holdeth in Chiefs he pall hold his Hands
letzveen the hands of the Lord, and fay thus :
I become your Man from this Time forth, for Life, for Alember and for
Ivor Idly Honour; and pall o'weyoa my Faith for the Lands that I hold of you^
faving the Faith I owe unto our Lord the King, and to mine other Lords.
When a Freeman doth Fealty to his Lord, he pall hold his Right Hand
upon the Book, and pall fay thus :
Hear you my Lord R. that J. P. will he to you both faithfid and true, and
pall owe my Fidelity to you for the Land that I hold of you, and laivfully
pall do fuch CAtftoms and Services as my Duty is to you at all 'Terms aligned.
So help me God and all his Saints.
2. Seijin (^Homage and Fealty is fo inellimable in Law, that no Di
r
trefs lor them of any Goods or Chatties of whatever Value, is in Judg-
ment of Law excelfive; and tho' the Lord diltrein oftentimes for them,
that the Tenant cannot manure his Land, yet the I'enant fhall not have
ylj/ife of Sovent Diflrefs as he Ihall have tor Rent or other Profits. 4 Rep.
8. b. Mich. 17 and 18 Eliz. C. B. BeviFs Cafe.
3. Fealty gives Seifin of ail annual Ser\ices fufficient to make Scilin in
Avowry, but not in an AHife; but of accidental Services this gives Seilin
in Allile. per Omnes J. 2 Brownl. 99. I'rin. 9 Jac. C. B. x\non.
4. A Dijlrefs is a good Demand of Fealty, but the Lord cannot avow .r r
for Fealty upon a Demand made after the Death of the Tenant. Mo. 883. pe'iL ^/.^'"
Trin. 15 Jac. C. B. Kingfwell v. Crawley, manded,arid
refiifed Te-
n.-M dies, the Lord may diftrein after his Death for it per Hobarr. Noy. 24. Crawley v. Kingfrnill,
5. If a Man holds Land at Will rendring Rent, Fealty is not incidejit to
it ; For it is but a Rent diitrainable of Common Right. Co. Litt. 37. b.
6. One within Age may do Homage, but he cannot do Fealty ^ becaule
that is to be done upon Oath. 2 Inlt. 11.
7. Homagium is either Ligeum or Feodale. Vaugh. 279. in Cale of -j^he^g g^^ ^
Craw. V. Ramfey. cites 7 Rep. 7. Calvin's Cafe. kinds of Ho-
mage, Sove-
reign and Feodal ; Sovereign Homage is due to the King only in Right of Sovereignly; and this com-
monly is called Liege Homage, from Lig-if^do, be^au'e it binds the Subjeft to the King; But To alio
wjs the other anciently, becaufc it likew il'c binds the Terant to his Feodal Lord. Spclm. Glofs. \'erbo
Homagium. 2<(6.
0 o Fee
142
Fee - Farm Rents.
(A) Notes in General.
■45 E. ;. 15. "f~^EE-Farmj or Feodi Firma is when any one^ of the Gift or Grant of
b. per Finch- jp another, holds to him and his Heirs rendering either the half or-
lief~pl''s. ^~ the third Part, or at leaft the fourth Part of the true Value. And fuch
titcs S. C— Tenant is bound to no Services, but what are contained in the Charter
pi 5.citesold itfelt^ except Fealty, which all Tenures are liable to. Spelm. Gloll^
Tenures. — Verbo Feodum. Page 22 i.
This kCt of By 22 Car. 2. 6. Seif. 4. Letters Patents granted by the Kiug of certain
Parliament fee-Farm Rents., before the 24th of June 1672. are confirmed.
\vas votvecef- ^^^ Purchafors may buy and enjoy the fame Rents, notwithftanding
Lxry to enable ^ ,-». ■ ■' ■' J y J 3 o
//;/ Ktne, to any Statute ot Mortmam.
makeaGrant ■ • n. rr- .
of thei'e Rents, hut to encourage Purchafers, and to n'lvcfiich Pri-vileff,es to the Subject, which the King coidid
transfer irithont AB of Parliament, and to cure and fupply the Defeft of Nonrecital or Mifrecital ; And
the Aft itfelf is an Authority that the King mi^ht alien; For the Aft declares the Letters Patents
Pood which \vere granted before, per Holt cTi J. Mich -. W. :;.B. R. Skin. 606. In the Bankers
Cafe.! Fee Farm Rents will merge iti the Inheritance, per Parker C. Mich 10 Geo' i. 10. Mod.
526. Atchcrky v. Vernon.
(B) Conveyances thereof. How di relied to be made by
the Truftees.
22 Car. 2. Cap. 6. Seff. 6. Enaffs that the Truftees and the Snrvi-vcr vr
Survivors of them., fhall execute to Purchafors.^ indentures of Bargain
and Sale containing a Conveyance of the faid Rents., and raiting the Conjide-
ration of Money paid, which Ihall be enrolled in any of the four Courts of
Weft7ninfler, within fix Months after the Date thereof.
Seif. 12. InfiruHions to he olferved in the Sale ofthefe Rents, yet fo as the.
Non-P urfuance of them fhall not weaken Purchafors 'titles.
1. Contraifs for Sales pall hefigned by the Lord treafurer or Qoiinni(ftoners
of the 'Treafury, or two of theiu.
2. the Trtifiees pall co7ivey to fuch as hy Order from the Lord Treafurer
X)r Commifftoners ef the treafury, or two of them, they fhall he dtretJed.
3. Every ContraCler fhall at or before feali^ig his Conveyance^ pay one Moity
ct leaft of his purchafe Money into the E.xchequer ; and before he receives hts
Conveyance give fuch Security as t/je Lord treafurer or Commifftoners, Sc.ftjall
approve for the other Moity.
4. Such as pay down their whole Money, pall be allowed for pnfent Pay-
ment of their fccond Moity, not exceeding i o/. per Cent.
5. hirmediate Tenants liable to pay any Rents, fhall be preferred in the Pur-
chafe of it before others, fo as they tender t hen f elves to ihe Lord treafurer cr
Commifftoners of the treafury, to contratt within fix Months after paffing the faid
Patent y and Notice thereof puhliped by Proclamation, and perfeif their Con-
trail, and pay or fectirc the Money within fix Alonths after, at fuch Rate
asjball be agreed, not exceeding 20 Tears Purchafe.
6. If
Fee-l^arm R^nts.
143
6. If the i7nmcdtaU T'enant^ or fojiie on his Behalf do not tender and per-
fect his Contrati^ all Benefit of Perfcnnance to be loff.
7. The Pun ha for may have his Conveyance in the Nlrmes of any Perfon he
pal! dcjire.
8. If any Rent be charged-with an Inctnnbrance^ConJideration pall be had of it
aud Reprize allo'xxd ^ and the Pttrchafor Jhall covenant to take upon him f neb
Incianbrance.
9. T'he Triiftces p^ill hold the Rents to the King's Ufe till Sale.
10. 'The I'riijlees pall covenant laiththe Ptirchafers againji their cimi A^s.
22 y 23 Car. 2. 24. Se^. 9. Impozvers the •Trnjlees to convey the Jaid Rents
to Pmrhafors either by the \Vorcis exprclicd in the Letters Patents, or by
Particulars to be made by the Auditors, or by the original Grants from the
Cprsjn, faving the ^iiee-ns Right to the Rents hereby vejied.
(C) Purchafbrs indcmnlfyed and favoured ; and how en-
abled to fue.
22 Car. 2. 6. <SV/7. 7. Efiaifs th'at Pttrchafors (hall hold the fame difcharged To encou-
of any Breach ofTrnJl, which may be pretended to be committed by the Tnif- |1''S^ pu^ha-
tees^ and may recover the fame as the King mighty excepting the Prerogative ^^.^ Rcwk
Procefs out of the Exchequer. thisAct gives
Scft. 9. Piirchafors of Rents referved by aiiy Letters Patents of Lands the Pui-cha-
a/id Tenements J ^c. and fold after the pajjing of this Aif, foall enjoy them ; p ''^ ^^J ff^^
any Cancelling, Avoidance, or Determination of fuch Letters Patents not- ft°d?noton-
•mthjlanding. 'This Afi pall not be conflrtied to avoid any Covenants or A- \y on the
greements on the Kings Part, in the original Rejervation of fuch Rents ; nor l-^nd out of
Decrees in the Court of Augmentation or Conn of Exchequer before the Z'i,d T}^^'^^ ^'^"^
of Otlobcr 1642. or ft nee 2()th of May 1660. whereby Fee Farmers were to Rg^'j [ff™,
be difcharged, and Allowances out of the /'aid Fee-Farm Rents to be made. but on any
other of the
Lands of the Tenant as the King had. Hill. 1-15. 2 Vern. 715. Att. Gen. v Mayor, &c. of Coventry.
F'ee-Farni Rents, when granted by the King, became Re/'t Seek, and therefore not to be extended.
Arg. y. Mod. -2. cites Cro. E. 656. Fee-Farm Rent is eMetiMle upon an Elegit, and yet the
Words of the Statute, which give the Sheriti" Authoritv, are only Land, viz. MedietaUm T'eria. Are.
10. I^Iod. 526. . > / . fi
A. claims a Fee-Farm Rent under this StatutCt and there is a Sei/ueflratkn on the Land, out of which
the Fee-Farm Rent illucs ; the f^ourr cannot order tiie Sequeftrarors to pay the Arrears out of the Mo-
ney in their Hands, but declared the Grantee might take his Remedy at Law, notaithftai/ding the Seqtie-
firation. per Cowpcr C Hill. 17 1 5. 2 Vern. " 13. Att. Gen, v. Mayor, S:e. of Coventry.
The Court lett him at Libqrtv to dirtrsin for his Rent at Law, without incurring any Contempt iti
Riuity, and that no Lcafc or Effate deriv'd under the Sequeftracors fliou'd be made Ulc of in Evidence
againrt the (Claimant of the Fee-Farm Rcrit, to prevent the Diftrefs. VS'ms's Rep. 508. S. C].
Tho' the King might diflrain on any other Lands of his Tenant, as well as on thofe out of which
the Kent ilUies ; ver, if the Tenant Jlien Dei^ife or Leafe txt (fill only his other Lands, the Crown can't
dirtrein on thofe Lands, Hill. 1-15. Arg, 2 Vern. -14, Att, Gen. v. Mavor, &c,of Coventry.
5. P._ Held by Cowper C, aflifted by the Ld Ch. J. Parker and King, Wms's Rep, 307, Hill, 17 1 y. S.C.
6, if there be an Extent upon av Elegit of fuch other Lands, the Goods or Ch.attels on the Premiffes
fo extended will not be liable; For this is a greater Eft.ite than in Eftate at Will, per Cowper C.
adifted by Cii. J, P.ir.ker and King, Wms's Rep. ;;c-. S C,
As to the Cafe of the Att, Gen, v, the Mayor of Coventry, the Reporter iav,s, that afterwards Ch, J.
Parker informed hiir, that he thought it might have been proper to have determined, that the Seouef}>:7t!cn
ii-as as tl e Hand of tie Court upon the Effate, and where a Uiti;ht to a Fee-Farm Rent appear'd to be
prior and indifputable, the Court might reafonably enough iiave order'd Payment, elfe A. for ou.n-ht
appear'd, would be in a worfe Condition, than if there had been noSequeftration ; For till the Sequeffra-
tion, the Corporation paid the Rent voiuntarilv, and now are difabled purely Hy the Se.iuellration; and
puttirg A. to diftrain wa.s putting the Charge of the Suit upon the Eftate ; whereas nothing appear'd to
the contrary, but that the Corporation was fenfible of A's Right to the Rent, and defir'd it might be
paid, Wni/sRep, 30S, ;;<;.
By 22 and 23 Car. 2. 24. .SeH. 2. All Ptirchafers thereof arc to be kept
bannkfs from all Incumbrances made by the Trujhes.
(D) Extent
144-
Fee-Fanii Rents.
(D) Extent of the Aft, as to the Power of the Truftees,
and what they might Convey.
22 Car. 2.Crp. 6. ScrJ. 9. EnaBs that Rent not t'.fuaV.y pr'id by the grCiiter
Space of 40 Tears laji pajf, jhall not be infer ted in fihh Letters PcUefits^
and T'ehants (hall hold their Lands difcharged of my Rt/it, referved by Virtue
of any Patent of Cvnceahnent^ cr Cominifflo nof dcfeBive 'Titles, not ufti ally paid
hy the greater Space of 40 2 ears, until the fa/ne Jhall have been recovered by
due Courfe of Law. And by
Seif. 11^ So much as is due for any Ufes out of the Premiffes to be fettled
upon Trujlees pall continue to be paid; and the Trujtees are hereby authorized
to convey^ for Performance of fuch Ufes, fuch of the faid Fee-Farm Rents
Sc as Jhall amount to the Sums charged, after which Conveyance, the Piir-
chafors of the Rcfidue to be difcharged thereof.
(E) How to be ordered till Sale. And liable to what
Payment or Allowances.
By 22 and 23 Car. 2. 24. Se[f. 4. Ttll Sale of the faid Rents, the Receivers
of the King's Revenue Jhall gathtir the J'ame.
9 and lo W-' 3. 8. SubjcCJed Fee- Farm Rents to Payment of Taxes.
7 Geo. 2. Cap. 7. S. 5. Enacied that Lands, &c. fttbjcii to Fee-Farm
Rents, Sc if fuch Rent amounted to zos. per Ann. or more, the Landlord,
may dediiCf the Taxes; fuch Dedulfions to be allowed by the Perfons intitled
to the Rent without Fee or Charge for fuch Allowance.
S. 26. Receivers of Fee-Fann Rents to allow 2 s. per Pound to the Parties
without Fee on Penalty of 20 /.
(F) Pleadings by Purchafbrs.
22 Car. 2. Cap. 2^.SeB. 8. AllPurchafors may make <? general JuftificatioHj
wiih lit producing any Letters Patents, by faying that the Trultees were
feiz-cd in Fee, and fo granted to them. And by
10 Anna. 18. S. 4. Where any Fee-Farm Rents, intended by the ASfs of 2Z
Car. 2. and zzand 23 Car. 2. to be fold, and which are foldpurfuant thereunto^
fioall be named and defcribed in any Deed or Fine, Declaration, or other Plead-
ing, by fuch or the like Names or Defer iptions, as the fame were defcribed in
the Indentures of Bargain and Sale made by the Tnifiees for Sale thereof ^
fuch Names and Defcriptions may fervefor conveying or pleading the Title to
fuch Rents from and under the Truflees.
Se[i. 5. Provided, that this Ad Jhall not give any Benefit in Pleading^ cr
deriving a Title to any Rent, which hath not been paid or levied withm 20
Tears, next before the Time of fuch Pleading or deriving a Title.
H5
* Fees.
(A) Fees of Sheriffs. ' MtwasrSe
ylncitnt Lain
I. TX TFjlm. I. c. 26. '^Cljilt na ^\)ZM or OtI)Cr Minifter of tI)C tK\\\^ 'L^Zehav-
' V V tai;c no t^cma^o for tjoirtit fcis ©fficc, Imt be palo of tbnt '"^ "«/ ^^#'^
tol)lcl) tljcp XM of tUc l^iim; anH !)c uiijo njall do fo, fljall rcnUfr tOe X-"T '/"
Boutjlc tu'tljc I31aintiir, aiiQ fljall be puiuflien at tljc i©m of tijc Umu, J^f'ppZ
jhculdiakea»y
Fee or Reward of any Subjeft for tlie doing liis O/Hce, to the End he might be free, and at Liberty to
do JulHce, and not be fettered with Golden Fees, as Fetters to the SiippreiTion or Jjubvcrfion of Truth
and JulHce. 2 Inft. i-(5.
Here are underltood Efdentors, Coroners, Bailiffs, Gaolers, the King's Clerk of the Af.irket, Jiilnatrer,
and other inferiour Alinijlers, and Officers of the Kint^, who<e Office do any Way concern the Ad-
minilhation, or Execution of Juftice, or the common Good of the Subject, or for the King's Serviee ;
That none ot the Kinj^'s Officers or Minillers do take anv Reward for any Matter toucliing their Of-
fices, but of tlie King And ibme do hold that the King's HerauUis are within this Act ; for that
they are the King's Minillers, and were long before this Statute. 2 Inll. 2^9. See 2 Inll -4.
A Prcnwter of the King brought an Action upon this Statute againft J. B. Under Sheriff for takin^
20 (^. over his Fee contra Formam Statuti, of a Prifoner in his Ward, &c. the Defendant laid that he
did not take contra Formam Statuti, &c. and the Defendant gave in Evidence, that he and all Under
Sherirts there time out of Mind have ufed to take of every Prifoner taken for Sufpicion of Felcny and ,ic-
<jjutted, which were in their Ward, lod. when they are acquitted, called Barr Fees, and that the Prifo-
ner was ill his II- ard lor Siijj>icicn of' Feloty, a!:d before Jiuh Juflices, iir-c. was acijtutted of the Felony,
by which he toolc zod. for a Barr Fee, &c. and the Plaintitf demurred upon tlie Evidence, &c. and
by the Opinion of all the Jufticcs-, this is out of the Cafl- of the Statute; For the Intent of the Statute
is, where he fo takes of them, tluit be in W^ard, to eale them, but here, when he is aoiuittcd, he is no Pri-
foner, for if he elcapes, the Sheriff fh.iU not be charged of the Efcape, and this Fee was afjletied by.
the Court for a Barr Fee by their Difcretioa in Ccj:(ideration of the ^reat Charge, wl.ich the Sheriff has
in keeftnir, bringing, and cao-r'/ir.g htti'k the Prifi.ers, ard tn keeping the Kumier of Servants to carry them, and
in Jttcndance for fear of IT.apes ; and lb the clear Opinion of the Juftices was, that the zod. for a Barr
Fee is out of tlie Cile of this Statute. Br. Fees, pi. 6. cites 21 H. -. 16.
Jnd if a Sheriff" takes of the Prifoner his Cloaths, or Money out of his Purfe in fpite of his Teeth, 'tis out
of the Cafe of this Statute, becaufc Trejpafs lies. iJr. ibid. Br. Prefcription, pi. 36. cites 21 H. 7.
15. S. C.
The Common Law giving no Fees to Sheriffs, m.^de them backwards in executing Writs, by Reaion
of the great Danger both m taking defpcr^ate Men, by Realbn of Refilfance ; and alfo in detaining
them, <\)r fear of Efcapes, fo that thev would lia/e great Rewards, or otherwife would do nothing.
Whereupon the Parliament thought fit to ftint their ]!e.hi, as in the 29 Eliz. 4. per Dodcridge J. Lat.
l5. in the Cafe of Walden v. Veley.
2. Capituk Jufliti. in Magna Charta_, Fol. 155. Articulo 99, of Sheriffs
and other Baihrts and Minjltt-rs of the King, taking Gifts or Reward
tb-r executing their Oiiiees. See alfo there Article 121.
3. A Man was arraiprfd of fJio Feh»ies, and p.iid but for one Deliver anu ^'f- ^orone
1 /^ J v: I I- I n • ' ^ « ii- •' pi lOJ.CltCsS.
only, (^uod Nota. br. hees, pi. 8 cites 26. AH. 47. C.perShard.
4. In Replevin, the Sheriff' prefiribed to hjsce ^os. per Ann. of J. N. Br.Officeard
and his Ancellors, tor holding of hts Tourne at D.fm- the Eafe of the De- Off. pi. ;i.
pendant and his Itn.nits, lor which Sum he diltrain'd j and per Cur. he"^""^-^' —
cannot prefcribe^ For he is an Officer removeablc yearly, and therefore ^; ^ j'^S*
the taking of die laid Sum \s Extortion. Br. Fees, &C. pi. 18. cites 42 E. 3 4. 9*] cites 40^!
^. 4. but
fhou'dbe 42 E. 5. 4.
5. He, who renders himfelf^ and has Siiper''edi(!s lefore he in arrefied by
Capias in Debt, Ihall make an Artorney in tank at tlie Day, and this tho'
Cepi Corpus be returned, and Ih.dl pay no Fees upon the ipecial Matter
returned, tho' he does not pe-x- the Superjedeas to tloe Sherijf till after the
P p taking
1 46 Fees.
taking, if he renders himfelf to him before the taking. Br. Fees, pi. 4.
cites 21 H. 6. 20.
6. It was held, that a SherifFcannot take Money ibrFees, upon Delivery
of IVarrants Geuo-al to his ovfn Ii:'iliff's, but mull Hay till the Money is
levied. Bat in Cafe of fpecial Bailiffs of Plaintiif 's own naming, the
SheritFmay take his Fees prelently. Ciayt.79. i5Car. Baynesv. Robmlbn.
7. If, upon a Statute, one Sheriff' takes the Body, and aw-the,- :he Goods^
per Cur. both lliall have their Fees. And whereloever the Sherilf hath
double 'trotille, he Ihall have double Fees. Comb. zia. Mich. 5 SV. & M.
B. R. Pope V. Haman.
(A. 2) Fees by Sheriff upon Executions.
dmh onr^ef ^' * ^^ ^^'^- AT?^'^^^, ^^^^ itjhallmt he lawful for any Sheriff, Under
tend to their" Pi Sheriff, Bailiff, ofFranchife, or Liberties in any of their
executing Offices by Colour of their Office, to receive or take of any Perfon, directly, or in<^
of Writs of dire[fly,forferving and executing any Extentor Execution upon the Body, Lands,
Execution in Cxoods,orChattelsofany Perfons, more than \zd.for every zos. "iuhere the Sum
mhiGtjej ^^'■^ ^'^^ exceed 100 /. and 6d. for every 20 s. over and above the Sum of 100 1.
and thei-e ' which they pall fo levy wr extend, and deliver in Execution, or take the Body
they :ire al- />/ Execution for, upon pain that every Sheriff, &c. and every their Officers,
lowed 1 2d. -uuhichpall dtrctJly, or indae&ly do the Contrary, Jball forfeit to the Party
for the firft gi'l'^'^id ^is treble Damages, and (hall a Ifo forfeit the Sum of 40/. one Aioiety
100 1. and 6A. to the .^leen, and the other to the Profecutor.
in every
hundred afterwards. But then they ought to pay their own Bailiffs out of their Poundage Money for
their Piins But of late, the Shcrifts of Cities do demand the fame as Sheriffs of Counties have ; and I
have heard they have recovered it L. P. R. 598. * The printed Book of the Year of this
Statute is falfe, and by the Parliament Roll, it appears to be the 28th. i balk ;5 [. in Cafe of I3rCi0kU)Clt
V. %Qi^. Trin. - W. 3. B. R. Skin 364. accordingly, Mich. 5 W. and jsl. B. R. in Cafe of Pope v.
Hayman.
Itwasrefolv- 2. Provided that this A£i do not extend to any Fees to be taken for any Ex-
ed that the ecution in any City, or 7'own Corporate.
Provilb ex-
tends to a City Corporate, when Judgment is there given within their Franchife, and Execution upon that,
and not when Judgment and Execution iffiies out of Superior Courts ; For in the firlt Cafe, the OlTicer is not
at tliat * Grand Care and Peril. But as to the Sherift' of a County, his Travel and Labour is all one,
be it in the Body of the County, or in a Franchife ; but if that ^oiun be a Qunty of it/elf, there the
Sheriffs fhall have their Fees according to this StcUute. And now Judgment was given for the PlaintiflF
Noy. -6. Waldcnand Gefner v. Veafeley.
♦ 5 Mod. 97. Brockwell v. Lock. Becaufe he is at lefs Trouble, the JurifdiStion is narrow and the
Sheriff not fo much in Danger of an Elcape ; but where in the principal Cafe the Jurifdidtion beinp; the-
Palace Court of the Bifhop of Rocheller, and as large as the Diocefs, .and fo was infilled not to be within
the like Reafon. But Non allocatur.
In an Inforra.ation on this Statute againft the Sheriffs of Gloucefter, for taking above 1 2d. in the
Pound for executing Procefs upon a Judgment in C. B the Defendants pleaded the Pro-mfi in the Statute,
wherein all Cities and Corporations, and their Officers are excepted, upon which it vras demurred ; for Owen'
Serjeant, moved that this Provifo extended only for fcrving Executions upon Judgments in their Courts
but not upon Executions of Judgments in other Courts ; and fb it may be collected by the Preamble and
Body of tiie Aiit. But all the Court Contra ; for it fhall be Expounded as well for ierving Kxe.'utiois
upon Judgments in other Courts, as in their own Courts. Cro. E. 263, 264. Mich. 53 and 34. Elii. G. B.
the Sherifis of Gloucefter's C.ife.
And, whereas it was (Ibjefted, that the County of the City of Glcu.efler extends four or f.ve Mtles fur-
ther tha'i the City, and that this Execution was not in the Ctty, but within tlie iJounty of the C>itv ; and lb
is not within the Proyifb, the Court laid, that if it had been lb Pleaded, per-:}dvpnture it fliould be
otherwife ; but as it is Pleaded, it appears not to the Court ; and thereupon it was Adjudged f.ir t ic De-
fendants. Cro. E. 264. the Sheriffs of Gloucefter's Cafe. — Lat. 19. 52. S P per 3 J. j \V.ilde:i v. V'elVev.
t S. C P.ifch. I Car. P.dm. 399,
3. The Sheriffs of London brought Debt againil A. upon the St.iturc of
28 £//.3 4. for the Fees there allowed lor the making (jI' an E.\.e>;ution.
And upon A'lhil Debet the ipecial Matter was tbund cf the .Stauice,
which W(is that the Sheriff Jhouki not take Ultra &c. I'a.h a Sum lor nuking
of
Fees. I ^7
of an Executicm ; and all the Qmrt thought, tliat this nuflyeil^ that they
fi:mld take fo t///tch, which is not Prohibited ^ and tho' the Statute gi\esoa
Attionlbr this, yet becauie it is a Duty, Action is given olNecelfit) by the
Law. Therefore Judgment was given, that the Sherilis Ihould recover the
12I. which were demanded. Mo. 853. pi. 1166. Palch. 14. Jac. B. R.
Proby and Lumley v. Mitchell.
4. No Fee is due to the Sherifl'lor executing a Cjp. Ufhii. or lor a \\'ar- , ci a-
rant to execute It, or lor a Return oi it, per tot. (-ur. Met. 52. Mich. 3. QwihHied
Car. C. B. W ildlhire's Cafe. to tie J hct
tor taking
2'^s. for a ^^"arra^t on a gericral Caf. Utiag For all the Juftices held, that he fhall not take any Fees
for makiri; of a Warrant or Execution of that Writ, but w./y ts. 4<f. which is (rivei: by the Statute 23
/-/. 0. for it is at the Suit of the King Dul upon Ci/' f '/.'.(?•. !n:Je (cvlk'ihi ejc, which L alter Judgment
'tis othcrwilb. l»lich. ;. Jac. i. 2. Brownl. 1S5. Shentfs ot tisi-k{\nvc\ Cafe.
5. There was much doubt upon the Words of the Statute, and the *Per :;. JuO.
ourt divided
in tiie Pound
Court divided upon the Point, whether the Sherilf ihould not have icd. ^j-'in't <-^iew
I lor every Pound to 100 1. and alter that 6d. or whether he [:, h-Z ,,
Ihould have but 6d. lor every Pound when the Execution is more than 1,^^^ is. in
100 1. Nov. 71, 76. Waldenand Gefner v. Vealely. the Pound
for the firll
lool. and 6d. for what is over lool. Poph. 1-5. S. C. Welden v. VcI'V. Poph 1-6. cites the Cafe of
CT'lli^HOll V. 15a(l)l'r(i, \v here two JulHces Contra one held, that, where the Sum exceeds lool. he
fhould have but 6 d. for levying of every 20 ,s. of the hrft 1 00 1. but that Judgment was given upon other
Points, (^but adds) that all the (^ourt fcenicd to be of ( )pinion, that he fliall have 1 2d. f n- every 20s. of the
firft lool. and 6d- for every 10s. of the Rehduc. — Hcldaccordir'glv upon the firll Argument on a De-
murrer. J-ed (^ua;re, iniia adiornatur. Cro. H. ^^5 Gurncy v. Somes ^ — Per Hobcrt and Vk'inch J. the
^heritf fhall iiave6d.onlv if the Sum exceeds lo'I.Micti 20 fac. C. B Winch. 51. in Ca'eof Emplbn v.
Eathurif * Lat. 52. accoi-dingly, Walden ar-d Golntr v. I'rly, S. C. S. P. adjudged and affirmed
in Error. Cio. C. 206 Lifter v. Bromley — Jo 307. Mich. 8 Car. B. R. S. C.
6. Per Glyn Ch. J. There are no Fees due to the Sheriff fcr cxecut'mg an
Habere jacias PolJeffuAiem ■, and lb let it be declared, akho'they have ulual-
Jv taken Fees for executing liach Writs. Palch. 1659. in Cale of i')cnC v-
|3f0l3ltL. P. R.J97.
7. In an Aftion againlt a Sheriff lor his Fees it was Objected, that this
was a Ca. Sa. the which was not a Sacislaction, and the Statute does not
give any Fee to the Sherill, but only permits him to take a Fee not exr
ceeding fuch a Rate. But per Cur. the Ulage has always been llnce the
Statute of 2§ Elix. to take a Fee upon a Ca. Sa. and fuch a Fee is allow-
ed to the SheiifJ" lor his Trouble, which he had in the Execution ; and
therefore, if there be njkcud ExatUwu, he ought to have a F~ee for that
alfo for his Trouble, as well as for the firft ; and per Holt Ch. J. an uic- * Comb 220.
Tion uould lie for his Fee i<ir the Ij^.-^* firvuttini him to taken, makes it S.C.andP.
a Duty. Skin. 363. Mich 5 W. and M. B. R. Pope v. Hayman.
8. It was held by the Court, that the Statute extends to all Jtidgiuents
in Weflniihfler, and that, v.hechcr the Sherilf executes them in a County, or
a P'ranchile, he Ihall have his f ee.s within this Statute, viz. is. per Pound
for the firit 100 1. and 6d. per Pound for every other lool. and lb it is oi
the Bailiff of a Liberty, when he excutes any Execution on a Judgment
given in the Couits at V\ eftniiniler within his Liberty ; but if the Bailiff
or other OfSccr, executes Procefs on a Judgment given /// a Court cf a
Corporatio//, or LiLcrtj, he is not entitled to Fees within this Statute.
iSalk. 331. Fafch. 7. W. 3- B. R. Brockwcll v. Lock.
9. It was refolved, that the Statute 29 Eliz. 4, does f/ot extend to real
Executicf/s, but only to Executions in Perfbnal A&ions, therefore it does
not extend to an Habere facias Seijiinmt, or I'ojjiJJiOhi'in. Pafch. 8. \\ . 31
C. B. 1 Salk. 331. Peacock v. Harris.
10. Nor does it extend to Execurion.=^ upon Statutes-Merchant^ Re-,
cognizances , &.c. for the A£t is to be undeiltiod of Cafes \:i;here the Judg-
ment Redditur in inz^itum, and n(;t by the \ oluntarv Conleflion ot the Par-
ty. I Salk. 332 Peacock v. Harris.
14-8
Fees.
11. Upon a Capias ad Satifac^ the Sheriff Ihall have his Fees for the
whole Debt, i Salk. 331. Paich. 8. W. 3. C. B. Peacook v. Harris.
12. Powell JLin. J. iaid that it was the Opinion oi Holt Ch. J. that the
Sheriff Ihould have Fees lor cxeciiTiug an Ekgit, but he f;iid he doubted of
that ; bccauicit would be unreaionable when the whole Debt is 500 J. and
perhaps the Land extended but 20 1. per Ann. that the Shcriif Ihould have
Fees tor 500 1. Treby Ch. J. laid, that he iLould have Fees according to the
6iun levied, andnot according to the Debt recovered, as upon a Fieri Facia";.
To which Powell anfwered, that that could not be ; becaufc the Party
might detain the Land till he was fitisHed the entire Debt, and the
Plaintiff is, by having made his Eleftion, barred of all other Execution?.
I Salk. 332. Peacock v. Harris.
13. If an erroueous Writ be delivered to the Sheriff, and he Execute* ir,
he Ihall ha\e Fees, tho' the Writ be erroneous. 1 Salk. 332. Pafch. 9
\\. 3. B R. Earl v. Plummer.
14. For Fees of fx^a////;^ an Elegit, Debt lies. Extent generally is tlie
Word of the Statute of Eliz,. and that an Extent upon an Extent upon
an Elegit was an Extent within the Statute, as well as an Extent upon
the Statute, i Salk. 333, 334. Mich. 4. Annse. B. R. Tyfbn v. Paske.
(A. 3) Fees of other Officers.
2 Inft. 4(j2, Wejim. 2. 42. Q^Everal jificient Fees of Marpals, Chamberlains, Porters nj
465- ^3 JufiKf^s tti Eyre and Serjeants, bearing Verge before the
Jiijtices at W eltminlter. '
2 Inft. 4157. 2. Wefi}ii. 2.44. Porters bearing Verge before the J tijtices of the Bench
468. fft the Circuit, poall take for keeping a Jury only 10 d. for the Bills, nothing ;
upon a Recovery without a Jury, nothing ; upon a Recovery againji many by
one Writ, i\.d. For Homage done in the Btnch they Jhall have their Upper Gar-
ment ; 'f Great -Ajjifes, Attaints, Juries, and Battel Waged, the Fee is 12 d.
for the Pleas of the Crown the Fee is izd. the Dozen ; for every Prifoner de-
livered j^d. the Chirographers Fee is /^s. the Clerk's Fee J or "xriting Originals,
for every Writ 1 d.
(A. 4) Of Coroners.
— *^r" 'ic ^- 3 ■^- ^' ^°- ^^y^'"- ^T^' AOfCTS that they frail take nothing of any Man
PI C.cap*6S. r J to do the Office of Coroner, in patn of great
S. 5. 2 Forfeiture to the King.
Kawk. P).C.
cap. 9. S. 46. — zinft 1-6. (ays.that this Statute was msAc in j^ffrmavce of the Common LctVt^ls otAy is added,
t)ur p.»ine dcgreve forfeiture al Roy, and this Statute ftooJ in Force until the Statute made 3 H. 7. 1.
2. Coroners, who had taken half a Mark at divers times of the People
contra tbrmam Statuti, were thereof ;W;<?f^, and put into the Grace ot
the King and made Fine. Br. Fees, &c. pi. 9. cites 27 Alf 14.
4 Inft. 2-1. 3. 3 H. 7. I. Gave him a Fee of 11 s. 4//. upon the View of the Body,
— 2H.iwk pi. cf the Gods of the Murderer, ^c.
cup. <,.£.47. ^ \ Coroner received id. of every Vifne when they came bef-^re the
Judges in Fyre, as belonging to his Office, which was neither againft the
Common Law, nor this Statute ^ for he took it not for doing h/s Office, hut
a Right due to his Office, which might have a reafonable Beginning, viz.
tor and towards his Travel, Attendance, and Charges. 2 luih 170.
2 Hawk. pi. 5. I // 8.7. F.naHs that, 'xhere any Pcrfon Jball le Slain ly Mifad-
Cap. 9. S. 4S. r:entiire, the Coroner fhall not take any thing for doing his Offiue on yam of'4o..'.
Ihc Jujliccs of J(hTe and Jujiices of Pe^ice are i?upcii;ercd to hiar and deter-
mine the f aid Oft nee.
(:-))By
Fees. 149
I 1IW1 iiWi >
(B) By Officers in Court. [Ddnimr of the Bodj' till pj'iJ,
J/fiifhible hi nx)hat CnjcsP^
S. p. Br Of.
I. A Gaoler ttiaP retain a Prifoner fd? due Fees. |5* 14 CiU, 03* R* Hccand Otf.
x\ acrccn pet Cur> in Icnningei'ss Cafe* p ,4'- ^'tes
But a (jjaOleC can not retain a ^^rifOnCr for* Meat Drink, or Lodo;ino;; * s p. Br.
fo2 tljerc are not of jQeccffitp fo,2 \)\\\\ to proliine* p* 14. Cttr. in X% ^^^^'^^ -^nd
r; per cur. aijreeti. ^ Jf^^s'^^: ^ ,
2. 3f due Fees nrC tlUC tO an Officer anti upon a Habeas Corpus he ^"^^ v'^
fends the Body charged with his Fees ; ItfCCni0 tljat DC OUlXljt tO DC t!C--
taineu till tlje Jfees^pain> a Ciueffion ni tljc faio Cafe of Icniuniiis.
[ See Gaoler (C) (D) Warden of the Fleet (B) j
(C) In Courts. [Mirfiall, &cJ^
I. 2 ]^. 4. JOnniCrO. S^nriM JFee^ of tljC -MarHiall of the Mar- + rj^.^ .^
X ihallie of the Kings Houfehold, nuU [.r.uitl-rs &
JbitiCm -f^limCrO. 55- l^pon Praver of the Commons tljilt tljC $13ar^ d'^l
fl)aU of tijc lAmg'0 'Bendj, anD * otljcrs, nnn tljc ilBanicn oftijc jf Icct ^^•^--'^^^<^
fljatl not taUe otijcr j^ees ttjan fljati lie inniten m x\m parisauient,
unncr pain to lotfe tijeir Officesi, ann to render trciile Daniaije^. '<Ka
Itiijicl) It IS Anfwered, tljat tljis ]i)etition i£i comnnttcii to W Coun^
cil, to call to tljcm rije Cfjanccilo? ano Jntliccs to Cramine it, ann
©,}5ain Hue Kemcnp, as to tijcm fijall fccm [ijooD] bp ^utljo,ntp of
Iparlianieim
2. in Attaint^ the Plaintiff' iv^rs Nonfitited^ by A\'hich Judgment was
given, and every one oi the Petit Jury paid \zd. to the Fee of the Mcvr-
Jhall, and went quit, and fo it feems that 'twas in B. R. Br. Fees, (5k;c.
pi. 7. cites 19 All! 13.
3. J3j)' 2 H. 4. 23. -The Fees of the Marpall of the Kings Hotife paJl he as
in times pafi^ and no nwre^ 'viz. for him that comes in by Capias 4d. and if
he be bailed 2d. more; of the Defendant in 7'rcfpafs that Jindeth Bail to
anfwer the Suit 2d. for e^-ery Committment by Judgment 4d./oi" eirry one
delivered of Felony, and of a Felon bailed /;j //^tf Cw/r? 4d. Jndifthe
Adarjha//, or his Officers take more, theyjhall hfe their Offices, and fay treble
Damages to the Party; and the Party grieved grieved Jhaii have his Suit
before the Stc^'ard of the fame Court.
Here a Ser\-er of ^\\h jbal! take no more than id. for e-very Mile diJJant
from the Court to the Placi ivhere he doth his Office ; hut when he fcrves a
Venire Facias, or -rz Diltringas, he pall have the Double ; if fiich an Officer
talces more he pall be imprilbned make a Fine to the King at the Difcrctiou
of the Stezcard, and be from thenceforth forejudged the Court.
4. The Marlliall cannot detain any Perlon after that he is difchargcd of
the Court, /or any thing hut for Fees of the Court, and jwt for Eating and
Drinking, and other Things, which he had bought of him in Prifon, and
if he does othcrv/ife, perhaps he may be indttled of Extortion. Br. ¥cis,
&c. pi 15. cites 8 E. 4. 18. t ^ n
5. Gloves were demanded by the Courr/ov themfehes and Officers, before ^-^^10^^**/^"
they would allow the Reading of a Pardon. Pafch. 22 Car. 2. B. R. v^ic riven to
Sid 452. the King v. Webiler. the (.itficcrs
in B R. for
allowiinco of Cliarter of Fai-don for Felony. Br. Fce% pi. 14 cit;,s 4 E. 4, ic. Br. Appeal pi. 92. cites
S. C Kejing 25 S.P 2 Jo. 50' in Ld C's Ca'e. 2 .Hawk. PI. C. 599. S. 7 1. fays they may do fo
Q^q (C, 2) EcckJiafiicaL
I ^o Fees.
(C. 2) Ecclcfiaftknl.
I. M. 17. E. 3. B. R. Rot. 20. XUratores prcfentant quod Rayniondu=;
J Procurator Archididconi Buck, com-
muniter capit pro Acquietancia Tcllaineht. taciend. de aliquibus 2 s. &
pro aliquibus 4od. ad opas priedicti Archidiaconi. Ideo prieceptum clt
V iceconiiti, &c. qui venic& Prolcrt Breve de Superlcdendo ufque proxi-
mum Parliamentum.
2. P. 3. H. 5. B. R. Rot. 15. Pardonatur Archiepiflopus Eborum pro
Extoriionediverfliruni pecuniae Summarum de diverjis, &c. pro probatione
teftamentoruni. Ec in Rotulo. 16. Pardonatio ejus lequellrationum pro
conlimili.
3. Rot. Parliamenti i H. 5. Numero 23. The Commons pray tl)ilt
iuljeve lip tljc LaU) of enslanti in time of pour j^oblc J^ropnito^gi,
it iua0 £)^tiaincti, tljat no £>;t!inatp of DoId Cijnrc!) of tlje Kcalnie
fljoulD UU of anp Creditors of tijc Ccftanient of tljcic Ccftato^ss
f02 proving the faniC Tcltament, and lor the making an Acquittance in tIjIlS
phrtp, Mtzs. 6d. annhoiutI)Ci>'uiintaHe rool. annuimetimcsi4oi.
20 1. otc* prai), tfjat if tijcu tal^c to? it mojc tOan 2 s. 6d. tljcp fljall iofe
ten tinicjs ais miidj ass tljcp fo tafte, j c*
Anfwer. '
I. [4] The King has charged the. Lords Spiritual toOrdain due Remedvj
ant if tl)ei> no not, tOc l^mg luiit tja^c it tocU in C^enio^p, ano caitte
it to ht anientieri in '^ime to conic» tEOc lifec 2 b. 5 tccono part,
jSiimfaej: 2. 3 1), 5. j^umlicr 47- toijcrc tljip i^ mane an ^vc fo? a
^car»
2.[5]Rot. Parliamenti 45 E. 3. Numero24. Complaints againll Extorti-*
ons of the Ordinaries in Fees for proving of Teltaments.
*0w^. 3-[^J ■"^o'^- Pi^rliamenti 46 E. 3. Numero37. Complaints ofthc Ordina-
Cheincs. ries tor taking from Executions, the Seals, and *Chainsol the T.eltators, or
Fines and Redemptions for the faid Seals, or other wife they will not de-'-
liver Adminiitration of the Teltator's Goods, &;c.
Anfu er.
[7 ]Let the Prelates and other their Minifters have the Seals and Chain^
of thole who will give them willingly, ^o that none be cdnitraincd to
give them again ft his Will.
8. -Bj' 31 E. 3. 4. hipops jhall rctcwi their (Officers from taBngExceJJive
Fees for Probsts of 'teji anient s^ in Fain to have them Ihd'iEied before the
JitJUces for Extortion^ as hath been heretofore 11 fed.
9. Where a Bijbop affs as Judge, he iliall have his Fees 3 as where the'
Church is litigated, he is not bound to award a Jus Patronatus, unlcls
ree^uired by the Party, or his Clerk and at their Colts. But where he
atis as an Officer only, as where the Court writes to him to cerciiy Baftardy,
Matrimony, &c. it Ihall be at his own Cofts. Br. F'ees pi. i. cites 34 H.'
6.38.
If a Man 'o- -^J' 21 //. 8. 5. Nothing flj all he gi-ven fr the Probate of Wills, or Coin-
m.ikes his miffion of Adminifirat'wn, when the Goods of the Dead exceed not 5 /. fa-ve on-
■Tertaraentin lyff^l to the Regi/er. Neverthe/efs the fudge pall not refafe to pro^jc fuch a
J'^%'' iv"iied ^'P^i'ii^^h being exhibited unto him in Writing, vjith Wax ready to be Seakdf
of Goods and ^'''^ Proved Communi Ibrma, but Jh all difpatch the Party ^jjithont Delay.
Chattels a- For the Probate of a Will, and all other 'Things concerning the fame, when
bove the //j^ Goods of the Dead exceed 5 /. bat not 40 /. the fudge's Fee is 2s. 6 d. irs
A X° ^ before, and the Res' i/lers 12 d. and ivhen they exceed 40/. the '^ttdzcs Fee is
and the Ey:t- J ' . i r > l -n ■ a ■< # i n ■ n •' '^ ,■ r i ■
ciitor has the ^^- 6«. ^s before^ and the Kegifter s as much., or the Kegifcr may refti/e the
1'cftamcnt 2.f. 6d.
Fees.
151
2.f. 6d. and take a Penny for 10 Lines of the Will, eath Line betfig conceived trarj'cribecihi
tox'Mtain 10 Inches in kngth ; and for thcfe Fees they Jhcdl.difpatch the Party Pardmenf, ''
'inthontfriifratory delay. ' u"'^i '"''"^' * ;
Nothing Jhall be given fo-r iMters nf Adminifl ration, ivhen the InteJ\ates o°di,!".''-&-I
Gvcds exceed net 5 /. and ''xhen they escecd 5 /. bin not 40 /. the Officers Fees are «, be pro\-ccl|
Ci'.'y 2S 6d. 'liMit the E-
'Ihe Fee of the Copy either of the Will, or Inventory, is the fame ivith that J'-'Ctionof the
above alkvced for Regi.fr ering of the Will, or elj'e the kegtjier may take a Penny ^J\^^{i'^^f'-\^
for every 1 o Liies of the length as aforefatd. ^^ il i |,ut .{^^
'fhe Officer, that takes more than his due Fee, fl.^all fcrfeit that Excefs -to tl:^ teal andPio-
Party ^r/eved, and be/ides icl. to be divided letivist the Ki/iz and the /.".w/t- •t'ate to the.
Partygrieved. . IlSrai':'
■ This A[f pall not alter the Ciifiom "iaihere Icfs Money hath been for Prdate ^^{^x ; byt .
of T'efl anient s. wliethei- ,he
} ut thcin Ki^
the One oi- the Other, there can be taken of tlie Ex-ecutor &c. but 5 s. only vk. z%. CA. to the Ordi-
nary, &c. and his Miuitters, and ;s. 6d. to the Scribe for Regilb-inj; the lame ; or cUc the faid tcri^e
may refulc tlie 2s. (id. and have for writing every lo Lines of the fame Tcrtament, wliercot every
Line to contain lo Inches, one Penny. 5 lull. 149, i 50. — 13 Rep. 24. 2.5. Hi'l. 6. Jac. Neale v. Rovtie.
If flic Exeaitor deftres, that the jTeftamcnt in Paper inay be tranfcribed hi Piinhniej-.t, he niufi ap/ee
ivith the Parly for the tranfcribing ; but the Ordinary, &c. can take nothing for it, nor for the Exami-
nation of the Tranfcript with the Original, but only zs. 6d. for the whole Duty belonging to him.
3 Inft. 150.
V\'here the Goods of the Dead do not exceed loos, the Ordinary, &c. fliall take nothing, and the
Scribe to have only for writing of thejProbate 6d. fo the faid Tcltamcnt be e?;hibited in writing with
Wax thereupon affixed, ready to be fealed. Wh.ere they do amount to above the ,Vaiue of loos. and do
not exceed 40 1. there fhall be taken for tlie whole but 5 s. 6d. viz. 2S. 6d. to the Oixiinary, &c. and izd.
to the Scribe for Regiilnrg xbt fame. 5 Inft. i 50.
Where bv Cuftoni lels hath been taken in any of the Cafes aforefaid, there Jefs is to be taken ; ard
where any Perlon 1-equires a Copy or Copies of tiK: Tcftamentfo proved, or, Inventory lb made, the Or-
dinary, &c. fhall take for the Search, and ip'iking of the Copy of the Teitament, or Inventory, if the
Goods exceed not iocs. 6d. and i2d. if the Goods tvceed iocs, and exceed not 40 1. and if the Goods ex-
ceed4cl. 2s. 6d. or to take forevcry lo' Lines thereof, of the' Proportion aforeijud, a Penny. 5 Inft. 150.
'II. Moil of the Fees in the Spiritual Court are appointed by Coiifiituti- ^- C. cited
'cns PnvinciaL and thev pro\-e them bv 'em. Mich. 2? Car. 2.C. B. Mod. ^''S-^Io'i-
•167.' per Vaughan and W indham in Cafe of Horton v. Wilfbn, ft isCuifom
and not the
Authoritv of ConRitutions which intitles Prodors, ^c. to take Fees, for which an Aftion v/ill ly at the
.Common Law, and Rule was to decl.nre upon a Prohibition. 4 ^Mod. 254. Hill. 5 W and M. B. R.
Johnfon v. O.xendcn.
12. A Prohibition was. granted to a Suit for Fees in the Spiritual * g^ ti,en
Court by an ylpparitor upon a ^I'ggeflion, that there •were no fitch Fees due by it ought to be
Ciificrn. For that i.s triable by Law, and not by a Declmaria, or Vjcena- determined
via Prafcriptio, which is allowed in their Courts ; but, thev may fue there "tLaw.whe-
■for their Due, and * Cnjiomary Fees. Mich. 23 Car. 2. JB. R. Vent 165 Pe'eMas Cuf-
■Anon. tomary, or
J_ ■ , Not ; and for
want thereof a Prohibition was gninted. Mod. i^;. fiid tohave been laxely d,one in B. R. inCafe of a
Proftor for hi^ Fees.
[ See Prohibition (F) ]
(D) PunlHiment for taking more than ufual Fees.
I.
IF any Officer or Judge take more than the ufual Fees, he is pu-
nifhable at ths Common Lru;. Per Chamberlain J. 2 R,olUK. 263.
•in the Cidc of Smith v. Mall.
[ See Coroner (H). Extortion, J.
(D. 2) It
1^2 Fees.
(D z) In what CaCcs they may not iniift, and Punlfh-
ment of Officers iniilling, on prompt Payment, before
they will do the Duty of their Office.
S p. and To of i. TT is no Return for the Sheriff to fay, that he did not execute the
Officer or ■ j^// becaufe the Party did not give him his Fee or Colts. Br.
Bifiiop. ir Fees. pi. I. cites 34 H. 6. 38.
the like. Br.
OlSceand Off. pi. i. cites 34 H. 6. 3S, 59.
Twa.-; mov- 2. The Sheriff may refiife to make Execution, until his Fee be paid
tf'n^^sh ""(T ^^''^^ ■^"'" ^^^^ ^^^ '^ ^ "^^ Sheriff be made * before the old
nir^ht^ attend ^"^ ^ad made Execution, what Remedy now hath the Party j And it
for"refiifing feemed to me, that he may have an Account, or an Aftion upon the Cafe
to execute ii in Nature of an Affumplit. Noy. 76. Walden and Gefner v. Veaieley.
^•\\\\%V{ ^^^^ Sheriff fhall not have his Fees before the Liher.ite. Pop'h.
line-Pence ' ^7^- ^^'^'^^ ^^ ^^ refolved. M. 19. Jac. C. B. Enipfon v. Bathurlt.
was paid. But
the Court would not grant the Rule, but (aid it wa.s Extortion, for which he might be indi^e.^. I Salk.
551. pi. 5. Hill. :• W. ;. B. R. Anon. * The Book is iand before that.]
3. Upon a Hab. Corp. the Officer ought to bring the Prifoner to the
Court, and his Refufal to bring him, unlels paid his Fees aforehand, is a
Contempt i For the King's Writ mult be obey'd, and the Court will tax
the Charges, and compel Payment, it the Officer and Prifoner cannot
agree, or Payment is not made according to the Agreement. 2 Jo. 178.
Mich. 33. Oar. 2. B. R. the King v. the Steward ol' .
4. An Under Sheriff retuled to execute a Capias ad Satisfaciendum till
he had his Fees ; and upon Motion againll him, the Court faid, that
the Plaintiff might bring an Ativm againll him tor not doing his Duty,
or might pay him his Fees, and then indibi him Jor Extortion. 1 Salk.
330. Mich. 6. W. & M. B. R. Helkott's Caie. cites Noy. 75.
(E) Fees granted, and aicertained, how.
J. A LL new Offices erected with new Fees, or old Offices ivith new
Jf\_ Fees are ivithin the Stat. 34 fl. i. Stat. 4. for that is a Tallage
put upon the Subject, which cannot be done without Allent by Act of
Parliament. 2 Inlt. 533.
2. If the King grants an Office '■xith a Fee, it is void; becaufe the King
cannot Charge the Subje£t. per Rainstord J. Hili. 15 and 16 Car. 2.
Hard. 353. Veale v. Prior.
3. The Queen grants an Office of Regijiring Policies of Infurance^ and
afterwards 43 Eliz. 12. direfts, how the Office lliall be regul-.ited. The
Patent was void; but what Validity it ha-:, is derived from th, laid Sta-
tute ; but there being -no Fee li7uited, it was objected, that there was no
Office at all. But it was anfwered, that tho' there v\'as no certain Fee,
yet the Party mult have zvhat he reafonably deferves, as e\ery cne mult
that does any Thing for another at his Requelt. Now the Policies mult
be entered by the Statute, and the Law will allow a reafonable Matter
for entering them. And Ufage, lince the Statute has no-.v lectk-d ic, if not
as a Fee, yet as a competent Recompencc (or his LjbuHr; as Labourers
Rates, tho' not Fees, yet are .Quantum jVLrmts. per Hak^ Ch. B. Hill.
15 and 16 Car. 2. Hard. 355:. Veale \. Prior.
4. No Court has a Poivcr of fettling the Fees of its Officers, io as to
conclude
Fees. i 5 3
'conclude the Subject; but thus kr they may go, as p)j!(Jgi ivk-n ir,e na-
fnid'le Fees. Hilh 13. W. 3. 12. Mod. 609. Ballaid v. Gerard.
5. A. was libelled againil in the Ecclelialtical Court tor P'ees, and upon s P and by
Motion a Prohibition was granted ; For no Cuttrt h:is Pcivcr toelhiblilh Holt c;h. J.
l'"ees. The Judge ol"a Court may think them reafonablc, but that iy not j^;";'.''"'?'^^''''
binding : But if, on a Quantum Meruit, a Jury think 'em rcafonailf^ then ,.e.jf-,'|^_jij|^^
they become eftablilhcd Fees. Mich. 3. Anna;. B. R. i Salk. 333. Gil- nuybcgood,
ford's Cafe. butnotcon-
clulivc Evi-
dence. And lb of the I'uLle of rfii.il Fas of a Court not newly created. 12 Mod. 609. cites i j Cur 2.
Vcale V. Prior.
(F) Prohibitedj or due, in what Cafes, and how much
to Officers in Courts.
I. 2 //. 4. 10. 'Y7Nafis, that ivhn divers Perfons are jointly inctided cf This Aa is
JQj one Felony or one 7'refpcifs, and they all plead to any made in Af-
Iffuc as not Guilty , the Ch-k cj the Croivnjhall not take for the Ventre Facias, ^^m'-'Ji'^e of
nor for entering oj the Plea^ kit one Fee, viz. 2s. j or them all, and hot federal L^v^TlnfT
Fees for each Perfon. -^^^^s^^ if
one Man be
indicledcf twofe-iiral Felonies or Trefpaffc;, and is acquitted, he fludl pay but for one Deli.crance A
Inft. :4-
2. I Jac. I. 10. Enaffs that none pall take any Aloney, or p-omife for
the Report of any Order or Caufc referred unto them by any of the Kinfs
Judges or Court, diretfly or indtre^ly, on Pain of 5 /. and to Ivfe his Ojfia
or Place in the fame Court. But
Not to prohibit the Clerk from taking for his Pains in 'writing the Report
izd. for the firfl Sheet, and id. a Ptecc for the refl.
3. If a client, *vhen his Bulinefs in Court is difpatched, doth ref.tfeto
p.'ry unto the Officer in Court the Fees, which arc due to him for doing
hisBufinefs; the Court will upon Motion grant an Attachment ■^'S;x\vA
the Client, to have him committed, until he pays the Fees due. per Roll
Ch. J. 1650. For the not paying the Fees is a Contempt to the Court,
and the Court is bound to protect their Officers in their Rights. L. P.
R. 598.
4. It feems clear, that it is no Excufe for not obeying a Writ of Ha-
beas Corpus ad fuhjiciendam, that the Prifoner did not tender the Fees due
to the Gaoler. Alfo it feems to be the better Opinion^ that the VVant of
fuch a Tender is no Excufe for not obeying a VVrit o± Habeas Corpus ad
Faciendum t? Recipiendum ^ however, it is certain, that if the G.ioler
bring up the Prifoner by Vertue of fuch Habeas Corpus, the Court -xil^
not turn him over, till the Gaoler be paid all his Fees, nor, as fome lay, till
he be paid all that is due to him for the Priloner's Diet ^ for that a
Gaoler is compellable to find his Prifoner Suftenance, but this is denied
by others. 2 Hawk. PI C. 151. S. 21.
(F 2) Determined by AccciTion of other- Office. •
I. 'KJTOtelor Law, that if a Man has a Fee of a Lord, and after is Br Office and
^^ h:ade a -Jujhce, this P'ee is not void by the Law ; but alter the Ort" pt. 47.
f I' making him juftice, he is not to take any Fee, unlefs of the King. Br. '^"^ S C.
K C.V9 H. '8. pi. n6,
R r . 2. So
154-
Fees.
Br. Office 2. So of him who has the Office of Ste'Uiard^ and aiter is made -a Ju-
and 0!i. pi. ^j^,c_ Ibid,
*■ '^offi 3- -^^ ^y feveral, where a Man is £^//;;^" o/ -^ Manor hy Pmnt, and
fnd (^%\. ^^^^^ " '"-'^'^'•' ''^leward of the [aid Manor, ^ both Patents aie good ; i-'or the
47. cites S.C. Suitors are Judges, and not the Eailitf. Ibid.
(G) Adlons, and Pleadings in Aciions for Fees.
iiio.C^^Sap I. "TF A. deliver'd an Execution to the Sheriff at his Suit againft B. and
ludgment j|^ Jn Conlideration that the Sherilf without any Fee will execute ic,
yvas leverfed j^^ promifed the Sherilf to pay him a certain Sum^ which '■uoas the faim as
diequlr, but ^^^ Sheriff was allowed to take by the Statute of 28 Eliz. Glanvili J.
was ended held the Conlideration not good ; For at Common Law he ought not to
by Compofi- j-^j^e ^ny Fees, but it was Extortion, which tlie Statute is only to dif-
tion.Vid.Ta- f^^^^Q ^[^g Sheriff from j but the other Jullices and Barons held it to be
men. - a good Conlideration, and were of Opinion to have affirmed the Judg-
ment. But another Error being alfigned, viz. That the Tales de Circum-
altntibus was returned by the Plaintillj wiio brought the Aftion by the
Name of Sheriff of the fam.e County, and therefore Judgment was re-
verfed. Cro. E. 654. Hill. 41. Eliz. E. R. in Cam. Scacc. Stanton v.
Suliard.
AdjudR'd 2. The Sheriff may have Deht en the Statute for his Fees, and there-
that Debt ^jj-g having taken a double Bond f'o>- Paynient of his Feet, it was refolved
lies; For j^,^^. ^.j^^ g^nd was Void. Poeh. i'}6. cites it as refolved M. 19 lac. C. B.
■when a Sum j^ r v> ^u ix o / ^ j
is given by Lmpfon v. Lathurlt.
no A<ftion is mentioned or appointed, yet Debt lies. Cited per Jones J. Lat 51. as the C.ife of
Probv and Lumlee. Noy. 75. cites S. C. Bccaufe it is a Duty, an Action is of KecelTity
Mo S';". Pafch. 14. Jac. B. R. Proby and Lumley v. Mitchell. ■ Lat io, Empfon's CuIL- Winch.
20. 51. Emplbn V. Bathurft.
Raym. 360. 3. Cdfe was brought by 9. Sheriff againji the Graiitee of a Hundred for
S. C. Tears for Fees, and had Judgment. 2 Jo. 194. Pafch. 34. Car. 2. B. K.'
Cole V. Ireland.
4. For Fees oiesecuting an Elegit^ Debt lies, i Salk. 333. Mich. 4. An-
ns. B. R. Tyfon v. Paske.
5. In the fettling a Difpute, whether the Warden of the Fleet might
return a Non eft Inventus whereupon to found a Sequeftration, or that
fuch Return muft be by the Serjeant at Arms before a Scqueltration could
go, Ld Chancellor ordered the Regilter to look into Precedents, and cer-
tify him, how the Practice had gone. But laid, that if the Serjeant at
Arms was intitled by the ancient Courfe to a Fee by the Caption in fach
Cafes, tt could not be altered without an Aci of Parliament. Mich. 1720.
Ch. Prec. 551. Jephfon's Cafe.
(H) Actions for Fees, in what Court.
I. A Demurrer put into a Bill for Fees for foliciting to difcharge a
jTj^ Tenure, and which was difcliarged accordingly, j-et the De-~
murrer to ftand. Toth. 85. cites 12 Car. Read v. Gilbert.
2. A Bill for Fees w.is dtfmiffed. Toth. 84. cites 15 Car. Harding v.
Ted well, and Moor v. Rowe.
3. Regijter of Spiritual Court cannot fue there for Fees. Mich, iji
W. 3. B. R. Salk. 333. Ballard v. Gerard
4 There is no fuing in the Court of Admiralty^ or Court of Honour for
Fees, per Eyre J. who faid that a Prohibition was granted by all tha
Judges
Fees. Feigned Accion. 155
~ — J
Judges ol' England, in the Gde ot'DonlJIIl and £)tlltil)» Mich. i. Geo. i.
10 Mod. 264. in the Gde of Clerk w Lee.
5. Pratt ). laid, he law no Reafon why Fees in the Sfiritual Court may
not be rec-overed at Common Law, as well as Fscs in Chancery. lo Mod.
264. in the Cale of Clerk v. Lee.
6. Whether a Pro//yj- mav fue in the Spiritual Ciurt for his Fees, is a 2 Roll R. 59.
Matter much litigated, and Relblutions both Ways per Parker Ch j. 10. '^thathcimy
. Mod. 264. Clerk V. Lee. . Wed Mod.'
16;. Mich.
25. Car. 2 C. B Hoiton v. Wiifon .Pi-oliibition {^ranted, and a Rule to declare upon the Prolii-
■ hition. Hill. 5. W. & M. B R. 5 Mod. 254. Johnlon v. Oxccdon. 5 IMod. 241. S. P. debated,
but Adjouinatur. Johnfoti v, Lee.
7. A Prohibition was mov'd for to the Conllftory Court of the Bp of
.London to Itay Proceedings in a Suit cortimenced there by a Panjh
Clerk, for his Dues, according to a Rate agreed to by the Parilh. Againlt
the Prohibition, it was fiid, that he is to be chole by the Parfon, and
that his Oflice is Ecclelialtical, and conlcquently his Fees are of Eccleli-
allical Conuiance. On the other Hand it was urg'd, that, whoever has
the Nomination of him, his Office is merely Temporal, and the Profits
of it mult be lb like wife, and efpecially in the preJent Cafe, where they
are demanded purfuant to a Rate. Per Cur. the Queltions, who has the
Right of Nomination, and what Eftate the Clerk has, whether at Will
only, or for Lile, are quite inmiaterial in the prcfent Cafe. The Law is
certain, that his Office is Temporal, it was fb determined in aKrownl. 38.
And if fo, his Salary, or whatever is given for the Service of that Office,
muft of Confequence be of Temporal Conuiance. But whether his Office
be Temporal or Spiritual, if the Matter in demand is Temporal, the Ec-
clelialtical Court can have no |urifdi£lion. Now here the Demand is in
Purfuance to a Rate agreed to by the Parifh; and theie is no Doubt but
he may bring his Action upon that Agreement: And accordingly a Pro-
hibition was granted. Hill. 12 Geo 2. C. B. Pitts v. Evans.
[ Vide (C 2). Prohibition (F). ]
For ntore of the Head of Fees, fee under the Heads of the
fc-jeral Ojficers.
Feigned Action.
(A) Feigned Aftion, or Iflue, in what Cafes.
I. "T A^'fuch Cafes, %shich are merely local, and the Venire can't be al-
\_ ter'd, they \\\\\y upvH good Reafo?i; make them try it upon lei gned
Aftion, and if no Conlent be, they will grant Imparlance, Per Pembcr-
ton Ch. J. Pafch. 34. Car. 2. B. R. Skin. 44. in the Cafe Ld of Shafts-
burv V. Grayham.
2. Jnd Dolben J. remember'd the Cafe of JLtJ (SOrarll Of BrOnt-
1C2
1^6 Feigned Action. Felo de fe.
\Z\> null ^pCnCCC in the Exchequer when Hale was Chief Baron, who, /ipoK
yfffltfa-vit^ thdt the Plaintiff' had lived long in Laneajkire^ and kept great Hofpi-
tality, and bid every Body welcome, &;c. and the Defendant -juas a Southern
Gentleman, and lately come into Lancajhire^ Hale did not futier them to
proceed in their Kjeilnient in LancalJiire, but made them try it in five
leigned Aftions by a Jury of Herttbrdlhire. Skin. 44. Pafch. 34 Car 2.
B. R. ut fup.
3. On a Motion for a Mandamus to the old [Chiirch-Wardcns to deliver
the Parijh Books to the new Church- Wardens, &c. 'twas afterwards
Ihewn for Caufe againft the Motion, that 'twas new, and the like had
never been made before in this Court. But 'twas inlilted on, that the
old Church- Wardens had a Right to keep the Parilh Books, and fo the
Rule was difcharged. For a Contejt between Parijh Officers^ which of them
ought to keep the Books ^ muft be tryed at Law by a ieigned Iffue. 8 Mod.
98. Mich 9 Geo. i. the King. v. Street and Stroud.
Felo de fe.
(A) How confidered^ and what Perlbn may be fo.
1. T) EING a Felo de fe is not Murder within the Exception of
_|3 Murder in a Pardon. Mich. 12. Car. 2. B. R. i Lev. 8. the
King V. Ward.
j^ p 2. Homicide againft a Man's own Life brings him under the Notion
a b "°T a h' ot" Felo de fe, if at the Time he were of the Jge of Difcretion and Co-
P.C.28.Dah' vipos Mentis, i Hawk. PI. C. abr. 72. cap. 27. S. 2. i Vol. in Fol. 67. S.
p2.3Inft.54. I. cites as in the Marg. *
.p
(B) Forfeiture of what.
^EIo de fe iliall not forfeit his Lands, but his Goods, Chattels,
Leafes and Debts. Bacon's Ufe of the Law.. 39.
2. Goods of Felo de fe ^vc forfeited before Inquijition. 1 Lev. S. Mich.
12. Car. 2. B. R. the King v. Ward.
\a^^u "°' 3- •^- ^'^^ indebted to B. in soool. B. is Felo fe, and Inquifition re-
Car^ 2 S^C. turned. An Aft oWblivion is pafTed, by which all Forfeitures, &c. are
by Name of pardoned. Yet there being no Words of ReJIttniion in the Aft, the Ad-
TomVics V. miniltrator of B. cannot recover againfl A. — Nor the King neither ; For
Ethcrington. the Pardon operated only to the Benefit of A. i Saund. 362, 363. Mich.
167. Mich 21. Car 2. Toomes V. Ethrington.
I 5. Car. 2. S.
C. And the Year in i Saund.. Teems to be miftaken. For tho' it cites the Entry of the Cafe Pafch.
18. Car. 2. in Page 5 55- yet ir. Page 362. it fays, that Judgment was given for the Defendant, in
Mich- Term. 15. Car. 2.
4r. A
Fclo de ic.
I
57
>i.. A P'clo de fe lorteics ail his Chattels whatever /;; rcJIiffk'H, and alio ♦^S, P.C. 189.
all perfo/ial Chojes tii Aclioii^ which he has folcly in his own Right j and ^ p,^''"' >■
all Chattels real^ which he h ilds, cither jointly with his W'ite, or in her p,' q' ^^^\
Right, and all iitrfon.il Things r,t AtlibU ^ and as ioiT.e liiy, entire Chattels };. pfc. iSsV
in Pollellion, to which he is uititled jointly -'x/th tuwtho- on any Account, x Cmm. 51,
'except Merchandize: But he tbrleits nothing, that he has as Executor or Ad- ^- '^J^^^^J-
miniltrator ; and as lome fay, -x Moity oiAy of fitch joint Chatties as may ie o,^, ^^ ^
fevered. I Hawk. PI. C. abr. 72. cap. 27. S. 5. 1 Vol. in Fol. 68. S. 7. Ravm -. pi.
cites as in the Marg. * ^- 245. -y),
5. Neither is his Blood corrapted or his Lands of Inheritance forieitedi '-^•
nor does his ^^'ite loie her Doiver. 1 Hawk. Pi. C. abr. 73. cap. 27. S. 6. T ,1 ''*'»
cites as in the Marg. * 1 Vol. in Fol. 68. S. S.
(C) What ILall be faid fuch Offence.
I. TN fome Cafes a Man may beaFelo de fe by Conji ruff ion of Law, zvith- *p.j, „„„,
J_ orit any Intention againjl his ozvn Life; as, where one is killed by the 44 E.V 44"
breaking of a Gun, whicli he difcharges at another with an Intent to iMur- 44.\lT 55 Br.
der him ; or by tailing dozvn on a Knife, which a Perfon itruck by him to ^^r. 12, 14.
the Ground, happens to have in his Hand, i Hawk. PI. C. abr. 72 cap.
27. S. 3. 1 \o\. in Fol. 68. S 4. cites as in the Marg. *
2. But if a Man be killed by hajlily running on a Knife or Sword, *s. P.C. kT.
which a Perfon allaulted by him, and driven to the Wall, holds' up in a lo.H. P.c.
his Defence ; he Ihall not be adjudged a Felo de fe, but the ether Ihall be ^^' 2-9- Pult.
judged to have killed him Se Defendendo. i Hawk. PI. C. abr. 72. cap. ^V^, init*?4
27. S. 3. 1 Yol in Fol. 68. S. 5. cites as in the Marg. * contra.
3. If a Man be killed by another on his czvn Requcff or Co7ninand, vet ♦!.-]. ^^r
is he not a Felo de fe- but the other is as much a Murderer, as if he had a. Mo. -54,0].
atled merely on his own Head, i Hawk. PI. C. abr. 72. cap. 27. S. 4. 1041.
I Vol in Fol. 68. S. 6. cites a.s in the Marg. *
(D) Relation. To what Time the Forfeiture fhall relate.
I. ^TO P'lr'^ of ^ Fc''"* ^^ fs's perfonal Eftate is veiled in the King, *5Rep. no.
_|_^ before the Self-Murder is found ly fome InquiJitivJi ; and therefore ^,|,j"j {\,
the Forleiture is faved by a Pm-iw; before the Inquilirion. Butif tliere be sld. 150^62.
no Pardon, the whole is forfeited immediately after the Inquiiition, from 2 Mod. 55. 5
the Tt}ne of the Wound, i Hawk. PI. C. abr. 73. cap. 27. S. 7. ^i 'Vol. ^^o^-. '-^o.,.
in Fol. 68. S. 9, 10. cites as in the Marg. * i+''' ^■^'^■
•'' ° t.ev. S. con.-
tra. Keb.6-',
6S. PL C. 160. H. P. C. 29. 5 Rap. luJ
(E) Inquiiition, by whom, and how to b: taken.
T"F the^* Body can be fiund, the Inquifition ought to be taken by ♦H P.C 29.
the Coroner ////'6'/ ///.'/,// Cc//)0/7.f i and it was a :|; Qiiellion, whe- 3 I'lt. 5,-.-
uicr an Inquifition {o taken be trjverfiuk r But if the Body cannrt \ le If}^'^}^^^'
fmmd.^ the Inquiry may be by Jullices of Peace, or by the King's Bench, ^ j^^^. j_f''
if the Felony were in the Count) v\here the Court lie; ; and ftich an In- — jrNuTra-
S f q lilitioQ
1^8 Felony under Colour of Law.
vcrrecanbe quiljtion is certainly traverfable. i Hawk. PI. C. abr. 73. cap. 27. S. S.
takentomake 1 Vol. in Fol. 68, 69. S. II, 12. cites as in the Marg. *
a Man Felo
c fe. per Hale. Vent 259. Hill. 24. and 25. Car. 2. B. R. Anon.
^^L^v'. 140. 2. All Inquilitlons of this Kind ought certainly and particularly to fet
2 L " I °° forth the Circuinjlances of the Faff, and in the Conclulion to add, that the
Salk. 577.' Party in fuch Manner Felonice, Sec. murdered himfelt! * And it' the Pre-
contra.— milles be infnfficient, as if they fit forth the Faff in a nonfenfical Manner:
4: Sid. 225, As that the Party flung himfeli into the Water, and Sic feipfum emergit :
"^i ICeb ^'" '^' '"• "^^''^ ^^^ ^'"''^ Mardravit, &c. it Ihall be quafhed: % But if it be
007. Saund. f^^^ '^1 Subftance, the Coroner may be ferved with a Rule, to amend it in
273. Form. I Hawk. PI. C. abr. 73. cap. 27. S. 9. 1 Vol. in Fol. 69. S. 14,
15. cites in as the Marg. *
Felony under Colour of Law.
'A
Man came to Smithfield Market to fell a Hor£', and a Jockey
_ coming thither to buy a Horfe, the O''joiier delivered his Horfe t«
the Jockey to ride up and down the Market to try his Paces ; but inllead of
that, the Jockey rode aiuay with the Horfe ; This v\'as adjudg'd Pelony.
Keling 82.
S. C. cited 2. Coming into a Houfe by Colour of a IVrit of Execution, and carrying
Raym. 2j<). away the Goods is Felonv. 2 Vent. 94. cites F'arr's Cafe. Sid. 254.
PalLh. 17. Car. 2. B. R. The King v. Farr.
if. 5 Inft. 108. 3. A. comes into a Semllrefles Shop and che.ipens Goods and runs away
cites Pafch. yjiffy jj^g Goods oiit of the Shop, openly, in her Sight, this is Felony. Raym.
■'l-.Eli^— — 276. Chiller's Cafe. So, under Colour of Outlawry, to take a Man's
the Cafe of Goods, when the Officer knows there is no Outlaw ry, is Felon\-. So
the iking v. t Suing a Replevin to get another's Hurle, and then running away with.
;Jfarr. S. P. the Horfe. So by Fjcffmeiit falfcly obtained getting into Polfeffion of a
accordTnef '^ Houfe, and converting the Goods. Pafch. 3 1 . Car. 2. in Scucc. Kaym.
in'rimeof 276. in Chiller's Cafe.
Popham Ch.
J. Raym. 276. cites Dalt. Off of Sheriffs. Cap. 121. Fol. 4S(?.
But when 4 ^ Special Trujl prevents the Felony, until fuch Special Truft is de-4
that'TrulUs termined. Pafch. S.Geo. 8 Mod. 76. King v. Mafbn.
determined,
the Party may be guilty of Felony. As where a dm^T c.iiivejrCjiWi to the Place appointed, and after
takes them away, and d/fpo/es of them, this is Felony ; becaufe by bringing them to the Place ap-
pointed, theB.u-g.iin for his bringing them is determined, and the PoU'elTioii ii then in the tirft Oivner.
Keling 83. cites i 5. E, 4. 9. b Sn, if cne delivers Goods to a Porter i?i London to carry to a certain
Place, and he takes them and carries them away to another Place, and there opens and difpofes of them ; this
is Felony, which leems to be warranted by the 13 £4. 9. Ibid.
Feme.
,iJ,i^Ji,„^,ji^si^
159
Feme.
(A) Capable of what.
I. r I IHE Office of Reaper or Mower of the Manor of D. was granted
JL to a Feme with a Fee of 20 Quarters of Corn yearly, tor ex-
crciling the faid Office lor Term of her Lite. Br. Grants, pi. 127,
cites 30 Air 4.
2. A Feme Ible may be a fi.7/7r, and chargeable in Account, as Rccep-
trix Doiariorumy & ut Balliva. Er. Account, pi. 43. cites 19 H. 6. 5. ■
Ibid. pi. 68. cites 4. E. ^. 25.
3. Sifters of an Holpital incorporated, may by Cuilom together with
the Brothers cboofe a Majler. Br. Action fur ie St-itutc. pi. 9. cites 34,
H. 6. 27.
4. A AVoman may be a Commif/ioner of Sewers, and the Ordinances and
Decrees of Sewers made by her and the other Comniilfioners of Sewers
are not to be impeach'd for the Caule of her Sex. Callis of Sewers 1:01,
202. cites Countefs of Warwick's Cale.
5. Ciijlody of a Cajile was granted to a Feme to be exerciled Per fe -vcl
D '.put at urn fu am and held, thatit may be good, tho' it was objefted, that it
appertains to the W^ir, and to be executed by Men only. xMich. i. Jac.
B. R. Cro. J. 18. Lady Rullell's Cafe.
6. A Woman was appointed by the Juftices to be Go'vcrriefs of a Work-
honfe at Chelmstbrd, and it was mo\"ed to qualh the Order, becaule it was
in the Nature of a Houfe of Corre£lion, and io the Office was not ftdt able
to her Sex. But per Cur. abfente Holt, 'tis a good Appointment, and flie
may be capable of executing the Office, either by her ielf or Deputy ; as
the Lady Broughton did, who was Keeper of the Gatetotife at Weitmin- .
Iter. 3 Salk. z- cites Mich. 2 Annae. Anon.
7. In an Alfumpfit tor Money had, and received to the PlaintifTs Uie,.
tried in London coram Lee Ch. J. the following Cafe was made tor the
Opinion of the Court of B. R. (viz.) that upon the Death of Robert
Ely, Sexton of the Parijfj CJmrch of St Borolphs without Aklerfgate, tu o
Candidates offered themJeives to be elefited in his room; viz. the W idow
ot the Sexton deceased, and the Plaintiff; That upon calling up the Books,
the Plaintiff appeared to have a Majority of Afak Votes, but that alter-
wards, the Widow polled :^o Womcfi, and then Ihe had the Majority ; that
the Widow, and all the Female Voters were Hoafe -keepers, paying Scot and
Lot, and to all Parilh Rates and Allellinents. And the firlt Queition \vas,
whether a Woman was capable of this Office. (2dly) Whether \V omen
cou'd vote in flich Ele6tion. After three Arguments at Ear, it was re-^
folved, that the Office of Sexton was no pubUck Office, nor a Matter cf
Skill or judgment, hut only a prrjate Office of 'Trufi i (viz.) to take Care
of the Church, the Vellniencs of the Mmifter, and the Books, Szc. of the
Parilhioners ; aiul thereiore a Woman was very proper to execute it, ami
if there was any Thing to be done, in this Purilh by a Sexton, not pro-
per
1 60 Feme.
per lor a \\'onian (as in every Place the Office varies in fome Refpeft or
other) the Court laid, the Cafe was defective in not letting it forth.
Trin. 13 Geo 2. B. R. Olave v. Ingram.
8. And lecondl)', it was refohed, that being a Matter of no publiclc
Concern, but only relating to themlelves and the relt of the Parilhioners,
Women have likewilea/?;^^? of Eieifiort of fuch Officer j For they have an
equal Interell in the Church, &:c. as the Male Parilhioners, and therefore
ought to have an equal Right to appoint a Perlbn to take Care oi it.
Trin. 13 Geo. 2. B. R. Olave v. Ingram.
[ See Barretor (B). J
(B) Feme Sole Merchant. Who is ; and of her being
a ieparate Trader in General.
Litt R. 51. ^- TpE^^E Sole Merchant is, where the Feme trades by herfelf in one
S. C. Het. 9. X^ Trade, with which her Husband doth not meddle, and buys
S. C. Bewett and fells in that Trade; there the Feme fhall be fued, and the Husband
V. Lang- named only for Conformity, and if Judgment be given againll him, Ex-
JVlod. 6. ecution fhall be only againlt the Feme. Cro. Car. 69. Paich. 3 Car. C. B.
Anon. S. P. Langham v. Bewett.
— But if the ■
Wife ufe the fame Trarle, that her Husband does, 'twas adjudged, tho'not reported by Croke, that fhe was
not within the Curtom. Mod. 26. Mich. 21 Car. B. K. Anon.
S.P. for Debts 2. Such a Feme mav fue an ABicn "without her Htish.'Did^ per\\^ray. Cb.
0^^'in.^toher T p.^^^j^ £||^ £ '^ Le. 131. in Cafe of Chamberlain V. Thorp.
•within the Ci- ■^ •> -' _ '^
ty. But for thofe due to her cllcwhere, the Hubband muft join. JMich. S Anns. B. R. 11 Mod i;--;.
Mrs, Poole's Cafe.
3. Every Feme Sole, which tradeth vci London, is not a Merchant.
Cro. C. 69. Langham v. Bewett.
4. In a Writ of Execution the Sheriff returned, that the PlaintifF.
brought his A^ion in the Sherift's Court in London agai'nji the Defen-
dant and his Wife as a Feme Sole Merchant, and had a Verdift ; and how
that by Cullom in the City of London the Lord Mayor is Chancellor, and
may call Caufes before him out of the Sherilfs Court, and rule them ac-.
cording to Equity ^ and fhews how that the Lord Mayor had called this
Caufe before him, and ordered the Plaintill' Ihould have J udgment, and.
that the Defendant Ihould pay Coils within 14 Days ^ and that llie Ihould.
pay the Debt by 50 j. quarterly, or elfe that Execution Ihould go; and
that this was the Reafon why he could not malce Execution: The Court-
held the Return fufficient, and the Citjlom reafunable, tho' it had of late '
been abufed. Skin. 67. Mich. 34 Car. 2. B. R. Barns v. Barns.
*Twas argu- 5- Cafe was brought in the Mayor's Court upon an Indeb. AlE for 5-7/.
edforDcfen- according to the Cuftom of the City. The Evidence was lor Goods lold .
dant, that to the Det'cndant's Wife in her Life, the Jury found, thatDefendanthad been ;
facl?Tnid" ^ Freeman, but left off his Trade 20 Years before, and turned dillenting.-
need not be Teacher, but the Wife lived apart fiom him within the Liberty of the.'
inaShopi City, and exerciled the Art of making Gimp-Lace, and the Husband no.
For that VV^ays intermeddled ; that fhe paid her ov\n Rent, kept noShol>\)'dZ work- i
Sel^Sex- ^'^ '" ^^^ Garret; that fhe had Goods of the Plaintiff to carry on her .
crcifed in Trade, amounting to 57/. And that after her Dearh the Defsndint prQ- :
Sliops, and luifed Payment ; Judgment was gi\en by Rider for the Defendant, and he .
particuLirly declared, thatTrebv was of the fame Opinion. Mich 2 W. and M. Show. >
fowiTMr'''^ 1S3. Fabian v. Plant. The Reporter who argued this Cafe for Delen- .
Phuiips's ,^- "^j makes a Quxre, and fliys it deferves Conlideration, if fuch a Fenit; 1
Rt.adingon bole
Feme. Fences. 1 6 1
Sole Trader dies, and leaves an Ellare, and the Husband poilelles hiaifcif ^^1''^^'^'^'^'"
ot it, if he lluill not be anAverabie tor her Debts. ^^]^lf^ ','= j
feen in Mr. Lightfoot\ Cuftoi*y. Ibid 184.
6. ir the Hiifhaud relinquiOi, or become Ruib-upt, or be ov^r J)>7, or
oi' another Trade^ or never intermeddle urth her Trade, Ihe is within thd
Cuitom. Show. 184. in the Cafes of if flbtau H* [^lailt. cites Het. 9, 10.
Or if both estrafe the fame Trade ilijiiiitily by themfelves, and not
intermeddle with one another, Het. 9, 10. Fafch. 3 Car. C. B. Bowet v.
Langham.
7." A \\'oman, \vhoie Husbmid had left her ahcve 12 Tears before, had
carried on a Trade in her own Name as a Widow, and gave Receipts in her
ow/i Name^ being fued for a Debt contra6"tcd in the W'av of her Trade
gave Coverture in E\'idence, and gave Evidence of her Husbands having
been lately alive in Ireland ; and Hole Ch. J. direfted the Jury to find for
the Defendant, and ^o they did. 12 Mod. 603. Mich. 13 \W 3. Anon.
8. A. Widow and Adminiltratrix of B. uied to deal in Tea in B'sLife
Time, and bought 4 Tubs of C. at fo much per Tub, one oi^ which A.
paid tor and took away, leaving 50 /. in Earnell for the other 3 ; Ruled at
Guildhall, per Holt. Ch. J. that the Husband -juas liable on the Wife's
Contract, becaule they co^i^^/W. Pafch, 3 Annse. iSalk. 113. Langfort v.
Adminiltratrix of Tiler.
Fences.
(A) Who muft make them : and agalnft whom j And
where none were before.
I. TF I am bound to Fence againft Land, and I piirchafe that Land ^ I
J[^ am not bound to make a P'ence againll my own Land. Per New-
ton. Br. Curia Claud, pi. 2. cites 22 H. 6. 7, 8. Sir Geo. Sackvill v.
Milvvard.
2. A. feifed of 200 Acres oiCommon A'loore^ enfeoffs R. of 50 verfus Eo- + p^j. ■^f ^^^
ream. — The Purchaler is bound to e/iclofe or * keep the Bealb w ithin the 50 Bcaib of ei-
Acres, and fo ought A. to do of the Rdidue for his Bealts, and adjudged ther, efcupc
accordinirlv. Mich. 22and 23 Eliz. D. 372. pi. 10. Arg. cited 2 ELoU. mtothe
„ „ ^ -^ ,- i- IT 1' u \\- Land ot the
R. 289. ui Cale ot Holoeech v. v\ arner. ^^j^^^.^ f^^r
fafi lifs, the'
wi'd Dogs drive the Beads of the one into the Lands of the other. F. N. B. 128. (zyS) in the
Kotcs there cites RaJl Ent. 6zi and 2t E. 4. 10.
3. A. having zClofes adjoining, fc'ls o«f of them, per 2 Jull: the Vendor
Ihall make the inclofure, but per other 2 Jult. the Vendee Ihall make it.
Mo. 775. Trin. 2 Jac. Doyly v. Drake.
4. By Unity of PoJJeJJton'^ a Duty of Fencing may be extinguifhed, and
(hall not revive^ tho' the Cloles alter come into lev era! Hands. Vent. 97.
Hill. 35 Car. 2. B R. Polus v, Hanftock.
T t (B) Cifos
1 62 rences.
(B) Cafes of Trefpafles through Fences; or, where no
Fences are.
I. XF .^. has Laud adjoining to his o'-jon Park, and it belongs to him to
J[_ Fence his Park ; \e.i he is not Loand to Fence aiainfi his cxv/ Land.
per Newton. Ch. J. But by Pafton e contra. Br. Curia Claud, pi. 2.
cites 22 H. 6, 7, 8. and Brook fays, that he is of Opinion with New-
ton.
2. If A. has Land on one Side of a very large Field, and ought to Fence a-
gainil it j and B. has Land on the other Side, and ought to Fence againft it ;
if the Bearts of A. enter into the Field, and thence into the Clofe of B.
and for Detault of the Fence of B. yet B. may have Trelpafs againft A.
and fo Vice verfa. Br. Curia Claud, pi. 2. ut fupra per Newton.
3. If A. be bound to inclofe againfi B. and jB. againfi C. and Beafis ef-
Clofe next* ''^■P °'^^ ofC's Land into B's Land, and thence into the Land of A. In this
the High- Cafe A. ihall not have Trefpafs againft C. But if A. be bound to inclofe
■way, and againft B. and B's Bcajls efcape into A's Land, and thence into the Land
Beads come qj gfi^ J), a Stranger, there D.pall have 'Trefpafs, and B. be put to a Curia
HighwaAn- Claudenda againft A. F. N. B. 128. (298) in the Notes there, cites 10 E.
to the Clore 4. 7, 36 H. 6. Bar * 68.
of A. and
thence thev ,?o into a Clofe of B. adjoining, and which B. ought to fence ; There in Defiult of Inclo-
fure, &c. 'tis a good Plea againft A. but not againft B. or another Stranger, &c. Noy. 10-. ^^arOP)' v.
<!0iulfiOlT cites- 56 H. 6. Barr. 16S. Jenk. 161. pi. 5. cites 22.E. 4. 49. but if fcveralC'lofes of A. lie-
contiguous, and the Bcafts go into all the Clofes of A 'tis no Trefpafs. — * It fliould be 16S.
4. If Cattle break in at my Fence, I cannot punifli the Owner ; But
if after Notice he ftrffers them to continue there, he Ihall be puniftied, tho*
it be thro' my Detault. 2 Le. 93. Arg cites 22 E. 4. 49.
5. A. and B. exchanged Lands, whereupon A. agreed to make the Fences
and maintain them. — ^A. did not make them, but for Want thereof, B's
Beafts break into A's Ground. — A. brings Trf//.^?/],-. Per 3 J. againft Popham,
this Agreement is no Bar to Trelpafs, tho' by Deed ; but his Remedy is by
an Action of Cafe on the Promife, if without Deed,. or on Covenant, if
by Deed. Mich. 41 and 42 Eliz. B. R. Cro. E. 709. Nowell v. Smith.
6. One cannot ha\e Trefpafs for breaking another Man^s Fence ; but if
he be damnified by the breaking of it, he may have AiStion on the Cafe
againft the Party that broke it, per Roll. J. Mich. 24 Car. B. R. Sti. 131.
in Cafe of Sir A. A- Cooper v. St. John.
7. A. fells to B. a Piece of Pafiure lying open to another Piece of Pafture
of Vendor's iB. muft keep his Cattle Irom running into A's Piece. So of
Dung, &c. per Cur. Mich. 3 Annse. B. R. 6 Mod. 314. in Cafe of Te-
nant V. Golding.
D'
[ See Confequential Lofles. — Diftrefs (B\ — Improvement (E. 2) — Rent
(P-c).— Trefpafs (I. a).
(C) A6i:ions for want of Repairing Fences.
I. f~T^RESPASS on the Cafe lies for not inclofing againft the Land of
JL the Plaintij}^ by which Defendant's Cattle entered ad Damnum,
&c. For in this Action he recover Damages only. Br. Curia Claud, pi.
5. cites II R. 2.
2. If A. and B. have Lands adjoining, where there is no Inclofure, and
the Beafts of the one efcape into the Land of the other ; Trelpafs lies;
and the Writ fhall be .^tiare Claufnm frcgit. For it a Clofe in Law . F.
K. B. 128. (298) in the Notes there, cites 22 H. 6. 9.
3. A.
Fences. 16'^
3. A. :ind B. had Land.? conciuuuuj, and the f 'cncecj were always njade
by thole who had the Lands ot ii. 'The Ecajls of B. cfcjpcd into the Lands
of A. lor want ot" B's rcparing his Fences, and thence into the Lands of C.
lor wliieh C. brought Trcfpafs agiunjl A. and recovered; whereupon A
brought Cafe again]} B. and had a Verdict ^ but it was moved in Arreit; ( t'
Judi^menc I'or want of good Pleading, & adjornatur. Hill. 20 Jac. B.
K. Cro J. 665. Holbach v. W^irncr/
4. A ifrit fr.r one ViU againfl <://70//-'n- ^'ill, to make them repair their
Fences, was granted i but per Cur. it ihall be but in the Nature ot a Sci.
Fa. retornable in this Court. Sti. 26. Patch. 23 Car. B. R. Anon.
5. A. was p'fjefled of a Clofe adjoining to a Clofe of B. the b'ence between
the faid two Clofes had Time out ot' Mind been repaired by the Tenants
and Occupiers of B's Clofe. The Fence was not repaired, io that B's
Cattle came into A's Clofe. A. brought an Aftion on the Caie againlt B
letting torth this Matter, and had Judgment in C. B. and upon Error
brought in B. R. this Judgment was alKrmedi and per Cur. either Trefpaf's
or Cafe lies • Trefpals, becaule it was the PlaintiH's Ground and not the
Delendants ; and Cafe, becaule the firlt Wrong was a Non Feazance, and
ncgleft to repair, and that Omillion is the Gilt of the Aftion^ and the
Trefpals is only confeqnenttal Dajnage. Mich. 9 Annse. B. R. i Salk. -yii.
Starr v. Rookesby.
[ See {K) (B). Confequential Lolles. ]
(D) Curia Claudenda,. In what Cales it lies, and lor
whom, and "ivhen.
I. |<~1URIA Claudenda lies to iaclole betzjccn Honfe and Hoife, and
\^ Court and Court ; and by this Action the Defendant iliail be com-
pelled to make the Inclofure. Br. Cur. Claud, pi. 5. cites n R. 2 per
Richill. and Fitz.h. Barre. 36.
2. If A. has -i. Clofe adjoining to a Clofe of B. w'hichB. is bound to make
the Inclofure between the two Cloles, but he dcfcs not make it, a Curia
Claudenda lies. Br. Curia Claudenda pi. i. cites 2 H. 4. 11.
3. \i A. bs bound to inckfe again]} B. who has 20 Acres adjoining, and
A. purchafes one Acre contiguoully adjacent to the Inclofure ; A. ihall not
be compelled to inclofe. F. N. B. 12S. (299) cites it as reibhed *. 21 *TIiisrcems
H. 6. 3. 22 H. 6. 8. tobsniif-cic-
ed, and
fliould be 21 H. 6. 5. oi- 33 Sackvile v. Mihvard.
;;/
the
3° . - -
pafs tor this Entry, A. Protettando that he^, &c. had not uled to make ^<reorLand
the fxid Fence pro Placito laid, that one C. is fcifed of 10 Acres., lying be- ""''f*''''"'
tiveen the faid 10 Acres and the Park ; and becaule B. by pleading as abo\e, ^„J ;,^^ f^^f^f
had conlelled theTrelpals ; A. had Judgment ; For the Replication is good ; f„re 'u-ith U-
Becaule A. is nut bound to Fence tut again]} him., Knho has the Land next "'Hj, &c.
his Park, unlefs in a (fecial Cafe. Br. Curia Claud, pi. 2. cites 22 II. 6, ^"''=that
7, 8. Sackville v. Milward. ^^,„^,, Land,
ll-ail not j»f-
tiif for Default of Irdcfitft. F. X: R. I iS ( jqo') in the Notes there, cites it as rcfblved. + 1 1 H 6. 3 und
ii H. 6. 8." 1 'f !ii=' flioukl be ;i li. 6. ^. or ;, 3.
S.As
164-
Fences.
FortheGiw;- 5. yls it B. or another had Commo}/ in the 10 jicres; but then rhii v.i^ht-
wccriAs r,i- fgig Ihc-sai. Br. Curia Claud, pi. 2. ut lupra.
ierefl hi the •' _ _ '^ *
Land by Rea'bn of his Common, tho' he is not owner of the Land. Ibid.
A Conw.pner 6. He, ivho has tio Land adjohnn'r, tho' grieved, fli'all not ha~ji Csiria
in the Land Qa/idd/dj. per Newcon. Ch. 1. Er. Curia Claud, pi. 2 cites zz H 6
adjoining „ '^ ■' ^ -.^ >*. v..
may dillrain 7> "•
Damage fea-
fant, but he ftiall not have a Curia Claudenda for the Damages fuftained hy liim ; For the Writ Tip-
pofes ad Nociirnent:im hheri T'ej.enieiiti ; fo that the Plaintiff ought to have tlie Soile. F. N. B. 128. ^C-.
F. N. B. 128. (B) and in the Notes there (d;.
F. N. B.jiiS ^. Curia Chnidenda lies only where a Man ought to inclofe by Py^fcrit-
^^)- tion; For if he is bound to it by Indenture, or'Compoiition in Writing,
then Writ of Cow/w//r lies, and not Curia Claudenda. Br. Curia Claud.
pi. 2. ut fupra.
1\Y\U^^'' ^' ^"^ '"^y ^^^^ ^ Curia Claudenda bejore he is damnified, and fhall
<■ )' SI'S- furmife Damages ; For this is not traverfab/e. Br. Curia Claud, pi. 3. cites
5E. 4. 118, 119.
9. In Avowry, the Plaintiff faid that the Land adjoined to the High
Way, and was open in Dejatdt of Inchfiire of the Tenant, and he chafed thi
Beajh into the Way, and they efcaped in, and the Defendant took them, and
the Plaintiff' made frefh Suit ; and did not alledge Prefcription, that the te-
nant ought to make the Hedges, and yet wel! ; the Defendant faid that they
•were there for tiiJO Nights, and no Plea without a I'raverle of the Eflap'e,
or the frefh Suit; For one of them ought to be tracer fed. Br. Avowry, pi.
135. cites 15 H. 7. 17.
It lies only ^°- -^ Curia Claudenda lies not for 'Tenant for T'ears. Fin. Law. 8vo.
for a Tenant 276.
in Fee ; For
it is a Writ of Right. Mich.9AnnE. E R. iSalk.33<J inCafeof Stair v RooLsbv.—F. N. B. 128. (B'>-
(E) Curia Claudenda. Pleadings, &c. in that and Tref^
pais.
I.
TRESPASS of a Clofe broken and Grafs eaten ; Yeherton plead-
ed, to theVi &Armis, and the Entry guilty ^ and, to the relt, w e
arefeifedof an Acre of Land in £. which is adjoining to your C/ofe in F. and
we put our Cattle in our Acre for Failure, and there is a Hed^e between the
Land of the Plaintiff' and our Acre, which the Plaintijf, and all thole, ^\'hoie
Eftate he has in this Land, have iifed to make time out of Mind ; and be-
caufe the Hedge was open, broke, and walle, our Cattle entered into his Land,
and did the Trefpafs, &c. which is the Jaine Trefpafs, of which the Plain-
tift brought his Writ, &;c. Judgment li Aftio, and a good Plea per tot.
Cur. Br. Trefpafs. pi. 129. cites 19 H. 6. 33.
S P ibid pi ^' ^^^^^f^ ^^' ^ Clofe broken, and Grafe eaten, the Defendant faid
145.' cites 21' ^'^'^^ ^- '^ fiifi^ if (I Clofe in D. containing 100 Acres, and E. is leifed cf
H.6, 55. and another Clcje adjoining, containing 30 Acres, and the Plaintiff' and thofe
ft2 H. 6. 7. whoje F.Jlate, ^c. have a fed, time out of Mind, to make the Hedge between
them, and the P hunt if abated the Hedge, and B leafed his Clofe to the De-
fendant for 10 ?1ars, &:c. and he put his C\ittje into it, and they entred
mto the Clofe of the Plaintiff for Default of Inclofure, and eat the Grafs,
Judgment, &c. Per Yelverton this is a good AnfV/er to the Depallure,
but not to the Breaking ; and per tot' Cur' the Acl of the BeaH.-; is the
Aft ot the Defendant, and the Entry of them is a breaking in a Manner,
by which they an-ardcd the Plaint'ilf not to anfvver, quod Nota Br
Trefpafs. pi. 136 cites 21 H. 6. S-
3. Trefpals
Fences. 1 6 ^
3. Trefpafs ot" a Clofe broken and Grals eaten, the Dejaichnt [aid Br. I'leicnp-
that 7'. P. was fcifed of a Clofc containing 7 Acres there, and leafed tt to the ""'■"-pi' M
Dejendatit for >] Tears ^ the Term commenced, &c. during, &c. and tbe'"^^'^'
Plaintiff was feifed of another Cloj'e adjoining^ in which the Trefpafs is I'up-
pofed, and that the Plaintili" and all thole whofe Elkte, &c ha^ce ufed to
make the Fence time cut of mind, and the Defendant put his Cattle into his
Clofe, and they entered into the Clofe oj the Plaintiff for Default of his own .
Liclofiire, iBc he ought to Jhew agamfi whom he ought to 7nake the Fence,
&c. and lb he did ; and that the other Defendants, as Servants of the De-
fendant, came in Aid to pat the Cattle into rhe Land, &c. and no Plea ; but
/ha/I fay Not Guilty for them ; For they did nothing but put the Cattle in-
to the Land of their Mailer. Er. 1 rclpafs, pi. 155. cites 22 H. 6. 36.
4. Contra, where they Jujlify for Ctnuiwn rf their AJafer ^ Fcr tkcru they R.-, Prercrip-
conjefs that they put the Cattie into anothers Soil which is 'Trefpafs, unlels it nm, pi 25.
be excufed j but in the firlt Cale, the Mailer only is the Trelpaflbr with ^-i^sSC.
his Cattle, and not the Servants. Ibid.
5. .4nd for other Cattle, the Defendant jujlifyd, that they efcaped into the The Defen-
Land of the I'laintilt, and eat his Grals, and he J ri.jhfy retcok, and no '-'^^1^"^.^
Plea, but is a ConfeJJion of the 'Trefpafs, by vvhi*.h heprejcribed in the Efcape, V,,'JrJ ',,„/';,
as appears. Ibid. tiill^Uj^
ffdte, Qpc.
have iifeti to h.Tve Efcape hi the Clofe of the Plaintiff, and that for the Efcape the PlaintitT, nor any of
thole whole Ellate he hath, ought to have Satisfaction, or Amends, it they are trcfhly re-taken, &c.
but per Port, this Prefcription does not lie in the Mouth of the Tenant for Years, but he ot/ght to fay,
that the f aid 't. F. his Lcffor, and all thoje whofe E/lats, E"^''. for them atid tl eir Tenants jor fJJe, for years,
and at Will have had fuch Ciiflom ; by which he plc.tded .iccordingly : And per tot. Cur. it is a good Pre--
fcription ; For it may have lawful Commencement, as by Grant of thofe who were fcifed ot the Land,
where the Trefpafs was, 8cc. Br. Prefcription, pi. 25. cites S. C.
6. Curia Claudenda may be in the Right, (viz.) /;/ the Debet, as ^^•cIl where the
as in the Debet and Solet. Br. Curia Claud, pi. 3. cites 5 E. 4. 1 18, 1 1 9. Queftion is
as to the
Right of Inchfing to charge the Inheritance, the Title fhould be fliewn in the Debet and Solet, but not
where it is in Excufe of Trefpofs only. Yelv. 75. Mich. 5 Jac. B. R. Faldo v. Ridge Ibid. -6.
fays, that this Judgment was reverledin the E.'cchiquer Chamber. [But does not iky for what ]
7. If in Curia Claudenda the Defendant fays, that it is vcell inclcfcJ,
the Plaintiff lliail recover immediately j P"or by this Bar the Aljtter is
confejfed, per Keble. Br. Barre. pi. iii. cites 16. H. 7. 9.
8. The Judgment in Curia Claudenda, is to recover the Inchfarc and
Damages for the Non-incloi'ure. Br. Barre. pi. iii. cites 16 H. ". 9.
per Fineux.
9. The Declaration mully?fW the Certainty of the Land, 'which the ^^^^^ ap,-ce
Plaintiff hath adjoining to the Defendant, and the Certainc) of the Land Amx F. N. .S.
which the Delendant hath there adjoining, which he ought to indole ; i2S.(2(;.S)in
and to allcdge a Prefcription of the Inclofure'. F. N. B. 128. (E). the iNotes
10. \f As Beajls efcape into the Land of B. where B. ought to inc'rfe, A. '"''''^'
Ihall have no Advantage thereof on the general Ilfuc; but ought to plead
it fpecially. F. N. B. 128. (298) in the Notes there cites 18 H. 8. 6.
11. It is a good Ilfue to traverfe the Prefcription ; P\ir if the Plaintiff
be not bound to Inclofe (tho' he has voluntarily Inclofuf) it will be to tio
Purpole. F. N. B. 128 (298) in the Notes there.
12. If the Defendant pleads that heis feifed in his Demcfne as of Fee of
the Clole of D, the Plaintiff may reply, that J. S. was feifed, Jbfjne l-oc,
that the Defendant was feifed in his Demefne as of Fee, and lb caufe the
precife FJlate to come in Queltion. Bitt if Defendant had pleaded generally
that he was feifed of the Clofe adjoining, or that the Clofe adjoining was * p ~r>': -ih
his Freehold ; there rhe Plaintiff ff\a\\ reply, that he had nothing in .he pi.-;', 3,,
Clo''e adjoining at the Time, &:c. and this ihall make the Ill'ue. F. N. B. iMich.2i3nd
128. (298) in the Notes there cites D. 365 *Sir Francis Leak's Calc. -^ Eii/.. s.C.
13. In Cfe, the Count was, that J. the Plaintiff was poffcjjcd of a Clofe 2 Roll. R.
30 ALir. 18 Jac. called H. in JF. and that B. the Defendant was pojifed of aS^- S.C. and
U u ., P-'l'"5 5i-
1 66 Fences. Fens.
SCtiidthcy ^ C.'ofe cjlkd G. in W. and that Oinnes PvlJe£hres of"' the Clofe called G'. had
b-ith Report, ^^r^,| ^^y^,^ laheri'of]^ ^c. to make the Fences hetwixt^ osjcfo as the Caitle m the
b^^-^'a^nTv-as Pl'-t'i'^'tf'^- Cloftijhoiild not coute tnto the Defendant's Ciofe, and that for De--
oTihtf.i'mc'' fct.'tlt of Fences, the Dcjendant's Cattle imnt out of hts oivn into the Plaintiff's-
Opinion and from thence tnto a Clofe of J. S. who fiied and Recovered againfi him.
fcription was pinioii were Doderidge and Houghton J. but Lea Ch. J. Contra j becaufe
Infuificicnt. jt .^^,13 in Aftion on trie Cafe. And adjornatur Cro. J. 665. Hil!. 20 Jac.
S«*k^^|V ^- ^- Holbach v. W^arner.
Mich. 9.
AnnsE B. R- in Cafe of Starr v. Rookciby.
14. A. was Poffcffed of a Clofe adjoining to a Clofe of B. the Fences be-
tween thefaid tno Cloles had, Time out ot JVlind, been repaired by the
Tenants and Occupiers of B's Clofe. The Fence was not repaired, fo
that B's Cattle came into As Clofe ; A. brouo;ht an Action on the Caie a-
gainll B. fetting forth this Matter, and had Judgment in C. B. and upon
Error brought in B. R. this Judgment was affirmed; and per Cur. the
Plaintilf has made himfelf a lufficient Title in his Declaration, by fl'c-jj-
ing the Defendant bound to this Charge by Prefcription, whicii Prelcription
*Cro T (J6^ '^ fufficiently alleged; For by * uenentes is meant the Owners ot the
Holbach V. f ^e Simple, and by Occapatores thofe that come in under them That
Warner. Tenentes is io taken, appears by the Writ de Curia Claudenda, which is
a Writ of Right, and lies only for a Tenant in Fee ; and as this is a
Charge upon the Land, which runs with it, there is good Reafon, why
every Occupier Ihould be bound ; and it is fufficient tor the PlaintilF to
Charge the Tenentes, and Occupatores ; becauie it is impollible, that he, who
is a Stranger, Ihould be able to know, and fet torth their particular
. Ellates, Titles, and Interelts ; but the Prefcription is annexed to the Te-
nentes, that is to fay. Tenants of the Fee ; yet, on a Traverfe of the
Prefcription, it would be good Evidence, that the Tenants tor Years have
from Time to Time fenced, and repaired ; For perhaps the Ellate has not
lince Time of Memory been in the aftual Occupation of the Owner of
the Fee. 1 Salk. 335, 336. Mich. 9 Annae. B. R. Starr v. Rooksby.
[ See (C) J
Fen<
(A) Contrafts relating to Draining them.
I. 43 Eliz. II. Enaffs that all Contraffs, or Bargains made of part of
fiich wafis Commons, or fcveral Grounds, flying in or near the fame)
as are ftibjeii to farroiinding, between the Lords, Commoners, or Owners .
thereof, on the one Part, and the Drainers on the other Part, pall be gocd
in Law according to the Mcnner and Forms of fiich Contrath, or Bargains.
Where the ^ueen, her Heirs and Sacceffcrs, hath an Interefi in ftwh
Wi'fles, l^c. facH Contrails or Bargains, Jhatl not bind them, tinlefs they be
written in Parchtnent, indented and certified in Chancery, and the Royal
yjffent thereunto Jirfi obtained and ftgnified under the Privy, or Great Seal,
when the Wajtes or Soils are of the Pqfjejfions of the Crown ; but under the Seal
of the Dutchy of Lanca/ler, and enrolled in thai Court, when they are of that
Kind.
'fhii
Fens. Feoffment. 167
'this yi(i fhall net ivipair^ or t^kc aivay the Iiiterejt of fiuh LorJs^ Cow-
Mouas, or Oiviurs t>i miy Part of the Re fid tic of the IVaJles or Convmus not
AJpgncd to the faid Drainers., or any Fraf/chi/e^ or Lil'ertr, but that the
fame way be l/rjj fully iifed, as if this A(fj or fiich Coittraif^ or Bargain had
not hfcij made.
'This Jtf not to be prejudicial to Ports, or Havens, neither (hall it he put in
Execution within 8 Miles of Tanmuth, or 6 Miles of Lynn.
Feoffment.
(A) Livery. [Or fwhat is a Feoff}?ient.'\
I. A JfCOfFinCnt properly is, tDljCte t!}CrC I'tJ t\ Tranfmutution of Pofief- Br. Feoffint.
j\ lion from one pcrfon to anotijcr. 1 1 1)» 4. 33- ^ J^ "''''"• p'-
2. A Feoti'ment properly Ih tokens a Conveyance in Fee, tho' ibmetiincs p^^f^j.^. jj
'tis lb called, when a Freehold only pailes. Co. Lice. S. 1.9. ritur .]ui,
teodum Sim-
plex feofatorio confert ; Dov/tre qui feodum Talliatum. Spelm. Glols. Verb. Feofare, £cc.
3. A FeofTment is by the Feudifts, called an Jnvejlitiire. See Spehn.
Glofs. verbo Feoiare.
4. If a Man nuikes a Deed of Feoffment to another, and delivers the
Deed to him in the Lattd, or upon the Land, 'tis a good Feoffinent, by all
the Jullices in C. B. Br. Feoifmcnt deterre pi. 74. cites 35 H. 8.
5. A. leiied in Fee leafed to B. for Years ^ after A. made Deed of Fecff-
inent to Lejfee of the fame Lands in Fee, hy the Words, Dcdt y Cjut'lft,
ivith Letter of [Attorney, within the fame Deed, to make Li-very to Le\fee.
The Deed ot Feoffment was delivered to |. to deliver the fime to B. who
delivered the fame accordingly. — (LelTce may take the Coincyance as a
Feoffinent, or Qn/irviaticn) Leflee dcliverea the fime to the Attorney
named in the Deed, who made Livery accordingly — By Acceptance of
which Livery B. has determined his Eleftion to take by Feoffhient. 2 Le.
192. Trin. 28 Eliz C B. Lennard's Caie.
6. \i Tenant in Tallin: diffeifed, and vmkes a Deed o^ Y comment, and Ow. i.s. C._
delivers the fame to the Dijeifor, who delivers the fame to the Attorney ^y^ Name of
;MOTf(/ in the Deed, who wA;m Z.'wrj' accordingly i this is a good Feoli- Stephens *^'
ment and Diicontinuance, per Andcribn. 2 Le. 192. Lennard's Cafe.
7. 'Tis not a Feollhient without Livery and Attormnent. Cro. J. 637. Kotwitli-
Palch. 20. Jac. B. R. Smith v. Meller. ibndinc^ a
Confide rati-
on express "d rlie I'fe <}ial! not chanp;e, nor any Eftate ^\\\\ ^afs b*, it but at will, urtill t'le Livery be
madetliercuj^on, per Pophain Ch. J.and a<;rccd by all the Jufticei Foph. 49. in Cale of Colbrd v. CoUard,
[ See (B. 2.) ]
(A. 2.) The Force of a Feoffment. And what Is Extin-
guidied by it.
i.TF my Fntry he taken away, and I oull the Tenant, and after Enfeoff
X him by Deed, he is remitted, and 1 ihall be Barred ; For this is a
good Confirmation. Br. Feoffincnt de terte. pi. 84. cites 11 H. 7. 20.
2. And if a Feme who hath Title of Dv^jjer, enters and Enfeoff's the Heir
by Deed, her Title ol' Do',\er is determined ; For "tis a good Conjirvution
and
1 68 Feoffment.
and difchargeol the Dov\cr, and e contra, without Deed. Br. Feoiimcnt
de terre, pi. 84. cites 11 H. 7. 20.
SccCV M 3. Future Rvi^htj and Right of Aciion^ is gone by FeofTment. Arg. 2.
Roll. R. 3^3. cites 9 H. 7. 24. Per Trevor Ch. j. Gibb. 234. in Gale
of Arthur (alias Archer) v. Bokenham.
4. Pffwer of Re'vocattoi! is extinct by Feoffment. Arg. 2. Roll. R. 337.
cites 1 Rep. Diggs's Gaie.
5. Pollibility to he 'Tenant hy the Curtefy is gone by Feoffiiient ; fo of
Jttawt; and fo of Writ of Deficit. Arg. 2 Roll. R. 337. cites 9 H. 7. i.
4H 6. 38 E. 3.
*Arg. Godb. ^ \ Feoflhient excludes the Feoffor of all Right, Entries, Aclions,
;_oi. ;2o. q',jks, PoJ/ibilitits, and Conditions, per Jones and Hutton J. Jo. 72. — ■
?ii Albany's It * Barrs of all prefent Rights, and all ajter Rights ariling to the liime
Cafe,— See Parties by Caufes betbre the Feoflrnent, and that without Rclpet't to the
Co.Litt.S.1.9. Lofs of Strangers. Hob. 337. in Gale ot" Sheffield v. Radcliff — Per Ho-
bertGh. J. 2. Roll. R. 506. in S. G. 1 Rep. 174. a. S P. — 'Tis a Bar
to a Writ of Error. Arg. Godb. 320. cites Barton v. Ewers.
[ See Fines (C. 2) — As to barring Entails fee Ertates (X. 2) &c. ]
(A. 3) Ufes Vefted, or Changed. In what Cafes by a
Feoffment.
"lull'x.oi'hz^ and 'twas the Opinion of tlie Court, and of all except Shelly, that he may
Deed,««- alter his Will in this Gale; lor where this ijcord IVill is exprejfed in the
taimngthe Deed, OT Schedule, he may a!tcr his Will notwithilanding the other
Ufc, he cin- \\^qj-^s ^ bm; where the Ule is declared upon the Livery without this word
"heUfca? Will, there he can't alter his Will. Br. Feoffinent, &c. pi. i. cites 19 H..
terwards. Br. 8. 1 1.
Feoffments al
Ufes, pi. 4:- cites ;oH. 8. ^ '
So if he exprejfes the Ufe hi the Drccf of FcofFment. But contrary where !ie declares the U(e iv JForcts.
of a fflll, vi?.. I wiil, that my Feoffees fhall be feifed to fuch a Ufe ; there he may change ihc Ul'c, be-
caufe it is by Will, Sec. Br! Feoffments al Ufes, pi. 47. cites 30 H. 8.
4Le. 166 2. The Lord Audley made a Feoffinent to B. G. and others, and atter-
210. S.R. D. wards by Indenture rccttingthe [aid Fecffhunt he declared, the fa?iie w.is made
ffiVitiii. ^° ^^^ intent his Ftqff'ees Jhotild perjorm his Iqff Will, 10 ihkE\&t\ (\'\z.) my
S. C— 324. ^^i^^ i^i ^^^^ ''''}' Feoffees pdlljland feifed, &c. to pay all my Debts, and afler-
b. pi. 37. wards that they make an E/late of the Lands to me and Elizaltth my lUfe,
Pafch. 1 5 ^fi^ fo fijg Heirs of our Bodies^ with divers Remainders over ; the fiid Lord.-
D 1 8S 1 - ^'^^ ^'^^^ ^y one Wile a Son, and by another a Daughter ; the Feolfees
15 Elii.in '' made no Eftate to the Lord and his Witcj adjudged, that, by this FculF-,
Ejeftment, ment and Deed, no Ufe was changed ; For tho' the Feorfees lliall be feil'ed.
fays, it was j-q ttig Ufe of the Feolibr and his fieirs (tor there was ho Conjideration, lor
Tjf'* ^'.'*V^Y which they lliould be leifed to their own Ule) yet the fame can't make a
ed prefaitlv^ new Ufe to the Lord and to his Wite in Tailj neither can this Writing
Mo. 51 5. 516. take Etleftas a Will; becaufeit appoints an Ellate to be made to the Lord,
cites S.C. himfell, and he can't take by his own Will. 2 Leon. 159. 21 Eliz. in
Ganc. Ld Audley's G.ife.
3. If a Feoiimcnt is m.ide, but no Li'rcry, and Feoffee enters, he is be-
come Tenant at Will to the Feolibr ; hecauie he enters by his Goni'enc ; but
Feoltbr may oult him when he pleale. Go. Litt. S. 70. pag. 56. b.
4. A Feollinenr to a Man i/pon Condition, that he '-j:tilkili B. ihall be go id ;
but a Bond with fuch a Gondition void For in the one Gafe, leit the Man
Ihould have any Temptation to do the A&., the Law fecures him the
Poifelfion of the Land without pcrtorming the Condition ^ and in the
other,
J'eoflment. 169
other, frees him from the Ponalry ol:' the Bond ; ih that the Law has the
/ame End in \':c\v in making tiie Feotliiient good, and the Bond void,
viz. the Prevention of the Fatt; per Parker Cii. J. in deli\eiing the Opi-
nion ot the Court. Hiil. ii Annse. B. R. loMod. 134. in CafeotMitcliell
V, Re)'noIds.
[ See Ellate (i. 6) Jointenants (L) Ufes (A. a. 4) ]
(A. 4) The Difference between Feoffinents at Common
Law, and Feoffments by the Statute i R. 3.
i.r I "HERE is a Difierence betvi'ixt a FeofFmcnt at the Common Law, 2 Roll. R.
Jj^ and a Feoffment according to the Statute ot'R. 3. which Operates 5 "4- S. p.
Sub modo. Feoffinents are the Ancient Conveyances ot Lands ^ but Arg. inS.C.
Feoffments according to the Statute of i R 3. are Upltarts and have not
had continuance abo\ e 150 Years. In Cafe of Feoiih^.ents at the Common
Laiv the Feoffor ought to he feifed of the Lands ut the time of the i-'eoff-
menr, but it a Feoffment be according to the Statute oi i R. 3. in fuch
Cale the Feoffor need not be in Poffellion. Feotiinents at the Common Law,
give away both EJiatcs and Rights, but feoffments by the Statute of R. 3.
give the Eltates, but not the Rights. Jn Cale oi feoffment at the Com-
mon Law, the Feoffee is i//, ui the Per, \i/.. by the Feotlor ; but in Caie of
Feoffments by the Statute of R. 3. the Feotiees are in, in the Poll, viz. by
the hrlt Feoftees. So a Feoffment by Celty que Ule by force of the Sta-
tute of I R. 3. will not fallen upon any thing but what the Statute re-
quires. Godb. 31S. Arg. Palch. 21 Jac. in Cafe of the Ld ShiCiiield v.
Ratcliff. cites 5 H. 7. 5. 21 H. 7. 25.
(B) Livery. In \vhat Caies, [^m/d of vjbnt Tl.i?fgs~\ a
Lheiy is Nccejjarj. Upon what Conveyance.
i.y ESSEE for Life map furrender to him in Reverfion, USttljOUt SHil= But if h-
J_j kmg iinj) lilicrv, 44 aiL 3- Curia. gr^r,ts to him
it! Reierftcn
</;/w.',c f^-^ Life of the Lejfrr Renikri>i7 Rent during his Life, thii Leafe is not good v.-ithont Livery. And.
. pi. Si. Pafch. S Eli?,. Brown v. Kitig.
'5
3:
2. By Exchange a if ranl%tc!ictnrut map par^ luitljaut lilicn). Co. - saik. do.
ILltt. 1'. 49- " \- "°^^ ^''•■■
3. W a Houfc or Lanti appertaines to an Office, t!)I0 ma? pafg bp" -^ '
(jrant of tlje ©fficc luitljout Litittp. Co. litt. 49-
4. 3f a ^poule or Cijamticr appertaines to a Corodv, ft \v,m pafjS
l3p c=rant of a Co^^cBp iuit!)OUt li\)crp. Co. litt. 49.
5. A Freehold may, hy Cnjiont, ie farrtndered without Lis'erv. Co. Litt. ,
49. a.
6. 'Twas held by all the Juflices in the Exchequer Chamber, that if
the King makes Feoljment of the Land^ "whLch he hath by the Diitchy of Lan-
cafer, in Fee, or for Life, he muit make Livery as well as a common Per-
fon, if it be not of the Lands within the Coii/ity Palatine j for they pafs
bv Letters Patents of the Dutchy without Livery ; but a Leafe for Years
of them, or of other Lands ought to be by Deed, quod nota bene, and
qusre it the /\cl ot i E. 4. which annexed it W) the King and his Heirs,
Kings, was remembred. Br. Feoffment de terre. pi. 51. cites 21 £. 4. 60.
7. If a Man makes P'eoilinent to the King by Deed, 'tis good without
Livery, if he mroll the Deed, otherwile Not, quod nota^ I'cr the King
cannot take but by matter of Rccoid. Er. Feoffment de terre. pi 6y.
cites ."Q H. S.
8. If a Deed be inrolkd in London, it binds as a Fine at Common Law,
bui not as a Fine with Proclamati(ms j and Livery of Seilin is not rcquilJte
X X upon
I JO Feolii'ment.
upon fuch Deed ; and it is Dilcontiauante without Liverv ^ and bccaule
the Cultom there is liived by diveile Atls oi Parliaments, it liiall bind as
n. Fine. Br. Fines, pi. no. cites 31 H. 8.
9. Gift of Liiid^ Reifory^ and Tythcs in Fee and no Liverv made, the
Tythes do not pafsj tho' words ot Grant will pals them witnout Liverv.
Alo. 496. Arg. cites Pafch. 24 Eliz.. Bofome's Caie.
10. LeJJcc for Tears leafes for Lijc without Livery ; the Term lluiU pafs.
Mo. 423. Paich. 37 Eliz. Buckler w Harvey.
HosiGirt ii ^^' '^' '^ ^-^^11^^'^ '^^ AF///, Lellbr leafes to A. for Tears., Remainder td B.
V;.//, Qpc. to i" Fee ; 'tis good tho' no Livery be made ; For *Po[fcfiou coiintervatis iJ-ve-
thc Leflee at ry. D. 269. b. Marg. pi. 20. cites Pafch. 38 Eliz. C. B. Cooper v. Calambil.
Will, or Te-
Vit7it nt S:<ffe)\it!ce, is good without Livery of Seifin, becaute of the Pofleflion which countervails Livery
per Waliiiflev and Beamond J. Noy 56. Coov^er v. Columbcll. • cites D. 61. * D. 145. b. pi. 65.
Patch. 3 £c 4 P.and M. Litchfield (Bp.) v. Fifher.
12. Grant by Deed of all my 'trees grffiving vithin my Manor of D. to A.
and his Heirs i A. Ihall have Inheritance in them without Livery and
Scilin. II Rep. 49. b. Mich. 12 |ac, in Litbrd's Cafe.
13. Inheritance in Land may be granted without Livery, tho' the Land
itfelf cannot, as Vefimam ferriS per Morton, J. cites 17 E. 4. 6. and.
Fitzh. Praecipe. 55. And Windham, J. fiid, that ib may 7rees^ which are an
Inheritance in the Lund. Lev. 171. Tfin. 17 Car. 2. in Cafe of Jeinmot
V. Cooly.
14. A. leiled in Fee of a Trujf' T.ftate^ and having two Daughters B,
and C, conveyed the lame to B. and her Heirs by Deed in Nature of a
Feoffment without Livery andSeilinj and held that the Trull palled tho'
the Deed was not executed by Liverv, and that 'twas fulHcient to declare
the fame, which as the Law then Itood might be declared by Parol. N.
Ch. R. 86. Cranburn v. Delmahoy.
15. Where Grants are made for Life or Lives in purfnance of a Pcxer^
Livery and Seilin is not neceilary , becaule it it onlv the Execution of art
Authority, yls in Caie of Leafes f ir 3 Lives made bv bare Tenant lor
Lile who has fuch Power ; and fo ot a Sale ot Land by Executors bv
Virtue of the Will. 12 Mod. 201. per HoltCh. J. in delivering the Opi-
nion of the Court. Trin. 10 W, 3. in the Cafe of Saunders v. C)vven.
(B. 2) What amounts to a Feoffment.
I. Leafe and Releafe countervailes a Feoffment, Br. Feofljnent de
T^eafe * foi- terres. pi. 5. cites 44 E. 3. 3. Leafe for Years and Releafe is good
Kei/jfe'lftcr Fcoflment, becaufe Franktenement paifes by the Releafe, per Cul-
to Leflee/w P PP^r f^id to have been fo adjudged, per Belknap. But Culpepper laid.
Fee is, in ^ if it was of a Grant of a Reuerjion after the Death of Tenant for Life^ it
manner, a- -yvould be otherwife, as he thought, ii H. 4. 33. a. b. — Br. Feotiinent
i'eoffment^^ de terres pi. 10. S. C. adds, that it would be otherwife, if it be vnthWar-'
per Fitih.' ranty.
Contra to
Ingham. But it feems thiit Leafe /sr Life, and Releafe in Fee, countervailes a Feoffment, but is not a Feoff-
ment in Fad: ; For the Fee and Franktenement do not go uno Ftatu as in Cafu fupra. Br. Feoffment,
de terres. pi. 50. cites 3 1 All 25. — In Formedon, the I'enant in Do^zver grants his Efiate tolF. N. and after
he in Keverfon releafes to Inn in Fee ; this is no Feoffment, and yet this countervailes Feoftnient ; but if
the Iffue be taken, if the Heir cnt'eoff'd iiim, this is no Feoffment ; tjuod caveat placitand. Br. Feoffncnt
de terre pi. 44. cites 5 E. 4. 5. ♦ Ibid. pi. 58. cites 21 H. 6. 8. Per Pafton. Co. Litt. 207. a.
For Frank- 2. Releafe to Dijfetfor is Extinguifliment ofthe Aftion and R.ight, and'
tenement j,gj. ^ Feoliinent. Br. Feoffment de terres. pi. 10. cite.; 11 H. 4. J.3. per
bv aReleafe! Hunktbrd. And per Thirning, Feoffment is, where there is aTranlinu-
Ibid. pi. 5S. tation of Polfelfion from one to another, which there is not upon a Re-
cites 21 ^.[6. leafe by Dilieifee to Dilleiibr. Ibid.
a.I-'crPaffon. ^ ^ made a Feoflment to the Ufe of himfelf in Tail, Remainder to
B: his Son in Tail. A. died. B. entredj and bv Indenture bargained i'tid
fold
t'eolt'ment. 1 7 1
fold (without unv Words of Dedi & conceHi) the Lands to the Ule of
J. S. tfi fid, and the in Ind nture was a Letter of Attornev to make Livery
■v\hich \v;is made accordingly. J. S. by the laid Indenture covenanted,
that if Jl betore" fiich a Day paid 4o.f. tlien J. S. and his Heirs
Vk'oidd (find ieifed, &:c. to the life of B. and his Heirs ; and //' E. did
not p.'.y, &c. Then if the /aid J 6'. did not pay to the j'nid B. witnin tour
Days alter, lo /. that J. S. and his Heirs fbould thenceforth he ftifed to the
Uje of the fiiid B. and his Heirs, Sic. and B. covenanted further, to make
fuch fjrrher Alfurance, as the Couniel of B. liiould advile ; /wth failed of
Payment ; B. levied a Fine to f. S. ivitkoiit anyConJiatration ; 'tu'as adjudi^'d
a good FeoiTir.ent well executed by the Liverv, notwithltanding the
\Vords of Bargain and Sale only, and that the Covenant to be leiled to
the ne-'oJ Ufes conditionally upon Payment and Nonpayment being in one
and the (ame J3cedy Ihould raife tlve Uf.> upon tlie Contingency according
to the Limitation of it. Trin. 26 EUz. B. R. Le. 25-. Benicombe v.
Parker.
4. Where one, who hatli a Freehold in Poffel/ion, ]e\'ie5 a Fine come ceo,
Szc. this enures a.s a Fecffment ivith Livery on Record ; but where he hattl
but a Reverjion or Remainder, it enures only as a Grant thereof, without
Tort preilimed or done to the Potiellion ot' n Stranger, who h.ith the
p'reehold. Arg. Mo. fol. 629.
. 5.. A, feifcd m P'ee enfofjed B. his Sen in Fee, to the Ufe of the faid A. D. ;5S. pi.
for Life, and alter to the Lie of H. m Fee ; and after this to the Intent 4S. S C — ■
that A. ihcuild be able to make a Leafe to B. fit 60 Years ; B. without, any ^'-i'^}-^ ^88..
Writing Feoilavit Ditlum A. de Tenementis prsedittis habend. cidcm A. f>a(^i, .gf
& hteredibus fuis. The Court held the Feoliiiient good, and in this is s. C.
implied, that A. Ihall ha\'e the Land to him and his Heirs tor the Ufe in-
tended. And. 51. pi. 126. Lancaltcl v. Alien
6 A Bargain and Sale wa.s made to J. S. and his Heirs by Deed in- BuxFfofivi'Kt
dented but not inrolled, and the Bargainor w,?;/? Z/v'r;j of the Land, le- "'"•'i"^ ''^"1'-
cundum Formam Charts, &ic. This was Held a good FeofiiTicnt. 2 r\nd. not of any '*
68. Denton's Cafe. Force to
make tlie
Lard to pafs ; but the Inrolment may e/fopp the Feoffor to (ay Not his Deed. Agreed per Omnes. Puph,
S. Gibbons v. M.i!tyard 4nd Martin. .Trin, 26 Eli,-,. B. R. S. P. Le. 25. Beniconib v. Parksr.
(B. 3) Void ; what fhall be laid a void Feoffment.
I. I R. 2. 9. Every Gift of Feoffment of Lands viadc by Fraud, or Alain- Tlic Pve^im-
tcnance pall be void, and the Dijfeifee (notii^ithftanding fuch jilienation) b'f recites,
fhall recover againjl the Jirfi Dif/eifor both his Lands and double Damages ; p ''\,7^'"]'''
provided he commence his Suit %'ithin a 2 ear after the DiJJeifrn, and that fuch i„V Ri-in
Feoffor le then Pernor of the Profits. and juTi: Ti-
tle to Lands
and Tenements, are wrongful Iv delayed of their Right<; and Aftion,^, bv Gifts and FcofFnents made, &c.
and alio recites th.it m.iny diiTeire others, and made Feo.^fmcnt to Perfons unknown, &c. And ovdairts
and enacts, tliat the Dillei'ces fh.'.U have their Recoveries acjainlt the DilTeifors who are Pernors of the
Profits, (which is as much as to lay, that they are CclHcs c^wa Ufc,) lb that thev commence their Suit
uithin 3 Year after the UiiTeifin done. And fo th.e Prc.tmble declares, that theMiichiefs which the
Makers of the Att intended to remedy, was to tlicfe who had rii^h.t and juli: Title, or were diflci'ed ;
and tlic Purvcvv pivc.s the Remedy only to Dijfe'tfees, and o it rmijl be a Di£eijfin in KjH, and after this Ule
made ; in which Cafe Remedy is given to fuch Uilfeifee againll Cefty que Vie, and a Recovery againit
him fhall bind him and the Feoffees-, and fo thi^ Act makes no other but Cefty que Ufe able to lofe the
Land of the c-'eotfees in a juft Action brought by the DilTeiiee, but does not make him able to lofb
the Land of the Feoffees in a feint Action brought again It him. P!. C, ; b. Pialfet and Mor-
gan v. Manxeli. alias Manxxll's Cafe. By this Statute, Feoffments made to Great Men for M.iinte-
nance, are declared 'voirt ; But this is ai to * Strnnpers, but j.ot iet'^veryi the Feoffor nv.i Frofe;. Br. Feoff-
ment de tcrre. pi. i. cites 2? H. S. 2;. per Fitzherbert. S. P. and that Strangers flia'l have Action
agninfl the Pernor of the Profits. Ibid. pi. 19. cites it as Held bv Fitz,.-J.<mes Ch. f. and Eglefreld J.
and divers Others.- — And fuch Feoffment would not make a Retniitir in Prejudice of a third P.ir!bn, a<;
itleems. Ibid. * Co, Litt. ^iy Hawk, pi. C 265 H. 3,
2. Where
iy2 FeoirlTient.
2. Where Baro/i and Faut; being Ctjiy que Ufa m Right of his Wtfe^
make aFeoJiment, and the ii^rc/; dies ; this heohnient is not void ab initio,
but is now determined. £r. FcoHnient de terres. pi. i. cites 27 H. 8.
23. Per Fitzh.
3. A Feoifinent ly a Feme of her Jointure made by her firil Baron in
Pollellion, or in Ufe is void' b)' the Statute of 1 1 H. 7. as to the Har, but
fiot as to all. Per Fitzh. Br. Fcuiiinent de terres. pi. j. cites 27 H. 8. 23,
(B. 4) Good. In what Cales a Feoffment may be good,
where a Grant is not good.
I. If a Grant be 7imde to B. ly the Nmne of Knight., Avhere B. is m
Kuf^ht, it is a void Grant. But Contra ot iuch ijeed oi" Feoliiiient,
by Reafon of the Livery of Seilin. Per Rolf and the bell Opinion. Br.
Grants, pi. 50, cites 4 H. 6. i.
[ See Grant (D). ]
(C) Of what Thi//gs it may be mads.
I. A jfcofFmcnt cannot lie ninne of incorporate Things i istcmifk
jt\ no tinz}^ can hz of tl)cm. Co* jLitt* 49-
contfa It 2. Si jfcoffnieiit cannot be mane ot an Advo vvion in Grofs ; 'Bccaufc
niay be of an ttO MW^ Can tZ Of It* COUtf a 1 1 lp« 6. 4.
AdVowfon,
ly Livery of the Door of the Church. Inf. (Y) pi. T. cites 4; E. 5. 1. b.- — See (Y) pi ;. ^aimcl v.
i'DD^fon. S P. Br. Grants pi. iS. cites 43 E. 5. 1, It may be. Br. Feottrae it dc terres. pi. 4y. cites 23
E. 4. 15. per Fairfax. Arg. Bridgra. ^5.
R P o- ^. a ifCOffmCntantllitJC^P map lie mane in an Upper Chamber i JFO|
Sentde ter- ^ ^^H luap Ijaijc an Inheritance ni itj nnn it LcCo^poieal. €o. jLitt*
res. pi. -I). 48. U.
cites 5 H. 7.
9. accordingly. But cites 21 H. <>. Contra.
4. F'eoffment by T'enant in Common is £o^d c/ his Moiety., thd' andrcided^
and not in Se.eralty. Br. Feoffment de terres, pi. 75.
5. No Livery can be made of a running Waiter, becaiife it is fugitive.
^QCMSoiWater in a Jl aiding Pool. 4Le. 238. pi. 385. -Mich. 6jac. B. R.Anon.
6. Livery cannot be oFa Reverjiou. Arg. Brigm. 96.
(C. i) What amounts to a Livery upon the Land, or in
Law.
9Rep.i^-. I. If lllyrds may amount to a Livery within View, much more it fliall
' h' el's" "P'^'^ '■^^ Land, as / am content yvu /hall enjoy this Lund, &c. according
Calf. ^°° * ^-^ ^^^ Deed, ^c. Co. Litt. 48. a.
2. But bare deli'uering the Deed upon the Land amounts to no Livery
Cro. E. 482. Qf j.j^g Land ; For it has another Operation, (\ iz.) to take Elicct as a Deed.
Sharp— 0 ^^^ '^' ^^ deliver the Deed on the Land in N.vnie of Seijin of all the Lands.
Rep. 137b. contained in the Deed; this is a good Livery. Co. Litt. 48. a.
2n}oroufill-
gCOD'0 Cafe, Per Popham. Ch. J. Poph. 49 in Cafeof Collaid v. Collard.
But this bv 3. So Delivery of any Thing upon tlie Land in the Name of Seilin of
■^^ ^I'^'i'^'j^^ that Land, tho' it be nothing concerning the Land, as a Ring of Gold, is
Zpturalm- go^d. Co. Litt. 48. a. lliys that it had been lb rcfuh ed by all the Judges.
propria. •
Spelra. Glofs. Verb. Feofare. — 9 Rep 1 38. Thoroughgood's Cafe.
4. Exchange amounts to a Li\erv. Co. Litt. 51. b.
s. If
FeofI'mcnt. 17'^
5. ll a Feoriment be of di-vcrfe Liuids, and an Hoi/Jl; in which the Feot- V\ here i
lur dwells, and dclrjers the Feoff mmt in the Hoafe, bin fays nothing of tke Tenants in
Ldud; Net 'tis good lor all. 1 or they having an Intent to give and take ^Ho'u''''-"d
Livery,' 'tis a good FeoHiiicnt; For thev allembled there ior that Pur- Lund rivMe
poic. Cro. E. 142. Tr. 31 Eliz. C. B. ^lll«5 v. S)nO'l!;l)alU— Ow. 44. Paint'ion"
S. C. 'Tis good Livery if Feoltor intended to make Livery. — Bcr Le. "■ithin t!ic
201. ftates this Caie thus; it" a Feoliment be of' a Hoiife- and the Deed is , "ll^'' ''*
delivered in the Ho life without other Circumllance; the ianie does not a- and Liii-d by
mount to a Livery of Seilin. , But if he docs any yiif^ by which the Intent Parol with-
of Feolior appears, that the Feoriee lliould ha\e Liverv ot Seilin, as // out Deed,
the Parties ^0 ofPi/rpofe to the Place intended to pals, to the intent theDcvd {|,]^''''.^^'''^'
may be delivered in that Kind; it amounts to a Livery. Le. 207. Mills mijriit have
V. Snowball. been t'^od
upon the
Land, becaufe it would have amounted to a Livery in Law. 5 yet not heinji; found tKat the Land w.as
witl.iH t'ki^, it could not amount to a Lrccry m Lh<-j:. Cro. E. 95. Palch. 50 [Eliz.. DoCton v Priell.
6. If A. makes a Deed of FeofTment of Land, and delivers the Deed, Sowhcrethe
and la}'s no more but, take and enjoy the Land^ or take the Land according Fei;rtor (md,
to the Deed, or fiach Words which amouiit to a Li\ery, u hen he delivers ' ^"y!'/7\
the Deed nothing paileth ; For the Law requires more Cer'emony than the 'if/j /L.vj'ac-
Deli very of the Deed on the Land. Cro. J. 80. Vaughan v. Holdes; cording to
the Deed to
you made. This is not a good Livery ; For tlicre is no Intent exprelTed, either by VVords or Ci rcum-
Itapccs,,to make Livery. But rather import an Aflont and Proniilc to do a future Act. Ley. 3. HiU
6 Jac. JNlaund's Cale.
[ See CT). ]
(D) Feoffment; By what Nnme a Feoffment may bs
m^de of the Thhig,
I. A koufe map {jafss lip aiDtcti of f coffiiicnt, urt)tci) mafecis nicn=
ji\ ti'on anip'of a Curteiao;e. 13 1:), 4. 10. 6. Dulntatur»
2. a JFCOffniCtl't mn^ be of a -Manor lip tlje Bm\Z of a Knight's
Fee. 17 E: 3. 8. b.
3. Jf a C0an feifed of a Manor leafes Parcel of the Demefnes l<)r
Lile, anU alter makes Feolliiient of the Manor tO lUfjICl) tlje leflte, attll
tlje -CenantiS of tt}C SQanor attorn. The Reverhon Of tW tanti fa
icafet! for life, fljall pafs by tW; Toecaure it is pajccl of tljc ^anor*
^iclj» 15 Ja» Qa» E* becaiifc Bore ano Palmer per pouffbton*
4- Jf a Manor be known only by the Name ot Sarret, auB be? tobO ISS
felfCll of tbiG S!9anor, niafeejS DeCti of Feoffment by the Name ot Se-
roit, ailtl 5Cllbe|0 Seifin fecundum Formam Charta* ; 'CbC ^ailOr (ball
pafsi bp It* for tbe itiahinn; Delibe^p fecimtittm JFo^maiu €ba,2te,
rcfa:0 to tbe €ftate, antJ not to tbe Bame* ^. 4° ^inti 41 <2U 03*
E* 26. bp 2. betuicen CUier ano DeiOon.
5. :jf a 99an bp Deeo grants Veiiuram to anotber anti bis DcUS, see Grant
anU makes Livery fecundum Formam Charts \)Z (ball babC bj? tbl6 t>Cf (P ^)-
tUram te«e, lli?> the Com, Grafs, Underwood, Sv\ecpage,anll fUCb \\!^Z^ * See Trcf-
anu be fliail balie action * €iua2e Claurmu frecit. €0. titu 4. b. pafsCH).
6. But in tbiS Cafc be fljaU not babe the Soiie bp tbiss errant ; 'Bc= „
caufe be ba0 bp tbiis bnt a pa?ttculat Rigbt in tbe lano* if or bp tW [^ ^{:^l
be fijall not babe the Houfes, Timber-Trees, Mines and other real pallet not the
Things, Parcel of the Inheritance. COt Litt» 4 b- i'o'l. For the
Livery can-
not enlarge th: Gt-int. Co. Litt. 4. b.
Y V 7. So .
174 Feoffiiient.
S^e Grant 7. So ft (^ Of (3rant Of Herbage of Land, tfjC ^S;ii!e flj-:^!! HOt p,\i%
^^ Z^-,^ luit !)c fljali ijiivic oiilv apa^ticuiac 3titc,2etl i Coiit fijiV.I i)a\}e * 'd"iTip.v.;^
Ticfp^G(i-i) SXmiz Clauftini fmiu (£o. Mtu 4- ti*
I'l. I. 8. Jf a 93an Up DceD grants J^cparaicm Pirchariam in a UiVier, ann
iiialicfj LiVibi) fcdniBum Jfojuiani Cijaite, tijc soiie ffjali not pafs iij»
It, nor the W atcr. jf Ot it tijC EtUCt tlCCOtllC^ D^P, tfjC QrantOt UiaH
take tijc I'^cncfit of tijc gioiie* Co» Lstt* 4- lJ» ^
9- f^o if a 93an itrant^ Aquam iiiam i tijE Soiie 5010 not par0, but
tf)c Fiiherv luitljin tijc Jt^ata* iljali pafs^ Co* Litt* 4. t)»
10. But if a ?0an bp DceD giautj^ the PKjtus or his Land^ aim
niahcs Liliq|) €)CLunrmm Jfo^mam Cija^c, tljc Soiie fijal! pafp, Co*
jLitt* 4. fa*
1 1. 05}? t!)e Gtant of Boiiiourv of Sait, tlje Soiie m\ pafs* €0.
%.ltU 4- fa*
^r.-' he niav ^^- ^^^ ^'^" ittanty to nnotlict to dig Turvt- i;i i)is jLanti, anti ta
bring jjffe catv}? tijcul at Ijis nBiU anti jjicarurc, tlje Land fijaa not paf5 ^ I5t--
cf Ccm,„on of caufc \)t i^ gtautcti onip lijJatcel of tljC l;5rofit, Co* jLitt* 4. b*
Ttirh.zi-y, and
lliall recover' but he cannot bring Affile of the Soiie. Br. Feo&racnt de rerres. pi. 21. cites 5 Aff 9.
13. Scire facial upon aFifie of certain Lmds^ the 'Tenant pleaded aFccff-
mcitt by tlie Ancertor of the Plaintiff with AV^arranty of the fame Land,
by Nariw of the Manor oj D. where in Fact the Land is no Afanor, and yet
a good Plea by Judgment, by Realbn of the Livery of Seilin oi the iiune
Land. Br. Sci. ta. pi. 200. cites 22 H. 6. 39.
14,. If a Man has a Manor m the County of N'. and Land is held of the
Manor •jjhich lies in the County of S. By Grant of the Manor with the Ap-
purtenances, in the County ol N. the Services of the Land in the other
■ County Jhall pafs ; and by Livery of the Manor made in the one County, tlie
Services of the Land in the other County Ihai] pais. Br. Grants, pi. 32.
cites 21 E. 3. 18.
Cro. E. 421. I J, If a Man has a moveable Fflate of Inheritance /';/ i^^Jcres Parcel of a
-SEliz^'k R ■'^^'^^"^ ?/ So ^cres^ the Charter of Feoffment ought to be generally of'' it^
AVelden v. -^f-'t'es, lying vjithin the Meadow oi 80 Acres, without bounding-or de-
Brid"ewater. fcribing of it in Certainty j and L'rjcry may be of the i-i,yierts allotted to the
—Ale. 302. Feoffor jor the Tear^ fecundum Formam Charts, and this is good Livery
to pafs the Content of 13 Acres in what PL'ce Ibever it lies in that Mea-
dow. Co. L,itt. 48. b.
(E) What Perions may make \Feoff'ment O/] Livery of
^ Seifin, and to whom. \Ju RcJpCii of hcapachy hi the
PeijonJ\
It is only I. TJf Infant UiafeCd jfCOffnif nt, nut! makes I^iverv himfelf, It iS» 3
■Lndahje. Br Ji^ goflti Jfeoffmcnt 'tin it fac Defeateu* 42 c* 3- x?- fa* 9 ip* 6. j.
JE'coflrncntde
tefres. fl. 48. citesiSE, 4. pi. z- .- Br. Coverture, pi. i. cites z^'U. S. 2.
2. And it is not material of what Age the Tntcmt is at t\)t Uiahing Of
tlje jTeoftnsent , Jfor tuljctljcr ije fac UiUDm 3ut ofSpifqction, nn. of
5 or 7 ^ca?0, or faeponD tijc ^sc of Difqetion, i3i?» i6 or niore, W
jfeofitiicnt IS not Vioili* 9 J!)> 6. 6. fa*
'Br Entry 3- 3^f i1 ^Sn de non fans; MemorijB makes JTCOffUlCnt aMJ Livery
Cong, pi himiijf, It iji not iJOtii. Contra 9 h. 6. 6.
ic6. cites 7
11. 4 12. — All his Afts in Pais arc void, except his Feoffments, and Livery, and Scifi'\ and tho'e are
only voidable. The Kea'bn k becauTe of ihc Refpect the Law give.s to a Feorfmcnt on the .Account
•f its Solemnity in the Tranliiiutatioii of a Freehold. And tlie if nt De r.cn Compos .UtntU, v hicii *avs
Len.ifit
Feoffhient. 175
Demijii, mud be underftood of a Feofl'menr, or a Fine. Tlio^e b;i'i!^ the ancient and oaly Conveyances
at tli.it Time. Per Holt. Hill. 9 \Y. 9. B- R. z Salk. 417. in Cafe of Tiionipfon v. Lc.ich.
4. But if !)C maizes lltinn bv Attorney, it i0 WU, 7 Jp- 4- 5- h 12. SceF.iir.,(A)
Feoffment dc terre. pi. S. cites 7 H. 4, 5. — Ibid. pi. 9. cites 7 H. 4. 12. — Ibid. pi. 48. cues ib E. 4. z-.
5- ."Jf aCi3ani}ialiC0 jycoftmcittbyDutefs^ itiss notiJOiD* Contra iti,<,,,,y
9 ?i). 6. J. tl» voidable. Rr.
J''e<;tfnK'ntde
ten-es. pi. 4b'. cites i j £. ^ 2-.
6. JF Baron and Feme fl/C Jointenants, ' iluD Bitron makes JfCOiT i'«' tho" a
!li£nt iinil Livery-, the Feme being upon tlie Land, and dilagreeing to "'-'rriedVN'o-
i:, m It IS IXCOO* iii E. 3. 6. ij. ■ "7 ^^/"f'^l
Hi^ht with
],er Husband, yet Livery and Scilin made l>y her ,ili->:e, zi-.'tl.cnt-ihe Jrrrri7:c7Jt of her Ilushatid, ii void ■ in-
Icmuch that l.er Husband and Slie may have an Allife, nocivit'dhnding liieK Livery of t'eifui if the
Hu.^ba^d be iiifed of the l-'rcchold in the Rij;ht of his V\ ife,: Biit in luoh Cafe, if he^was fci'ed ai its
iyu)i Rigl f, then, notwithftandin;; fucii Livery of Seifin made by the Wile, he lliall liavc an Ailife in his
ownMame, &c. Perk. S. 186.
7. If 4 join in rt JfcafTmCntj MjqtOf one onlv is feifed of the Land, Br.Feoff-
pet It i£> a ffoan ireoffmcnt* 42 e. 3- 12. ii. meut dc rer-
8. 3f InlantleifedOfLniHl, joins in jfCOffment with a Stranger, « ho '"• Pj- *;
has nothing in it, pet It liJ H gOOtJ Icaffinnit* 42 (g. 3. 12. h. ^ " '
9. Feoiinicnt by one Deaf and Dniub is ncu good; For if he makes Li- $(.£ p^jt;
Wfj/zrayf//" it is voidable, as it ieems ; JikeFeoirinent of an Intant, or one (A).
non (an:£ Alemoria:. If it be by Letter oi /ittonicy^ it lecms a Dijjhjtn.
Qiisrc. Br. F"eoftiiient de terre. pi. 7. cites 2 H. 4. 8.
10. He, A'.ho is outlawed /;; Atiion perfona!^ andOliice is found, that he
was feilcd of fuch Land the Day of the Outlawry, ;//')• iiiakc Fcojjmait of
his Land well enough; For the King is not feifed . Br. Oihce De\-ant, &c.
pi. 2. cites 9 H. 6. 20.
11. l"he King cannot he infcofTd '■xithoiit Deed inroWd; For no Livery
can be made to htm. Br. Office devant,' &c. pi. 41. cites 5 E. 4. S.,
12 There -nxcfcme Perfons, who may make Livery ol Seifin //; their q-JuU
Right ^ and aifo as Servants to others : And fime cannot make Livery of
Seiiin in their own Right, but as Servants unto others they may. And
feme may make Livery of Seiiin ly tbcmfJvcs in their cjcn Right unto
fomc Perfons, and unto otiiers they cannot ; and fome jh all make Livery of
Seiiin, and take by the fame Li''jery, &c. Perk. S. 1S3.
13. All fuch I'erfons, as mayGrant by thetnfehes, 'may make Livery o^ScWin
thc7nil-'ves, viz.. in their own Right, and as Servants unto others, in the
ikme Manner and Form, as they may grant, &:c. Mutatis mutandis, &c.
Perk. S. 184.
14. If a Man enfeoffs a married Woman, and makes Letter of Attorney
nnto the Husband to make Livery of Seiiin according to the Deed, and he
makes Livery of Seiiin accordingly, it is a good Feoffment ; For the Huf-
b;nd is but a Means to convey the Freehold to the v\ ile; for by this Act
done, no Freehold doth pals from the Perfon, &:c. Perk. S. 196.
15. Livery to a Corporation is not good, unlels it be executed by Letter
of Attoi-ncy. Admitted 14 Jac. B. R. Cro J. 411. in Cafe of Iplwich
Bail iris V. Martin and Parker.
[ See (R. 2) ]
(E. 1) What Perfon may make Livery, and to whom ;
J?2 Rejpeti of EJhte.
I. If a Man leafcs Land for Life, and the Le£ee thereof enfeoffs a Stran-
ger, and makes a Letter of Attorney nnto his Lejfor to make Livery of
Seilm
1^6
Feol^-ment.
Scilm accordingly, and he m.;kcs Lrjery ; in this Cafe it hath been ttd
by foaie Perfon^, that the Lelibr might enter upon the Feottee for a For-
ieirure, notwithltanding the Livery of Seilin made by hinilclf ; For they
fay thiit the Fnoffee took nothing by him ; tor the Lclfo'r had nt)tllirig to do
upon the L.and, if not to lee whether NV'alt were done^ and to diltrain for
his Rent and Services, if they were behind. Perk. S. 200.
2. \i A. end B. Jomtcnants in Fee, k.'.fc to C. for Life, and C. grants his
J^Jlatc to B. Some think that this Ihail enutfe by Way of Surrender ^ bp-
caufe every of the LelFors is feifed of the Whole, and of the whole Re-
verfionj and the Grant of the El late c/ the parttcular T'tnant cannot take
Effcii by Way of Grant, -withotit Livery if Seijin ; and the Grantee cannot
take Livery ol Seilin of the l;;me Land ; becaufe He hath the Reverlion
in Fee of the whole Land in him immediate to the fame particular £C-
tate, and in his own Right. Perk. S. 82.
3. Dijjcifor cannot miiio'ci^ Difjeifee by matter in Faftj Becaufe the Entry
of Dilfeifee is lawful upon him, 6£c. Perk. S. 197.
. 4. If Feoffment be made to the Ufe of W, N. for Life, and after ^ to the
Ufe of J. .y. and his Heirs, there Cefly que Ufe in Remainder or Re\ er-
lion may fell the Remainder or Re\ erlion in the Lite of W. N. but he
cannot make F'eoilment till atter his Death. Br. Feoiiinents al. Ufes. pi.
44. cites 25 H: 8.
5. A. grantsZc/z/t to commence at Altch. to B. Remainder in FeeC. Tho' A.
makes Livery and Seilinto Ji. yet the Livery and Seilin, and theRemainder
iliall be void, becauie he has no prelent Elhite to which the Livery may be
annexed, nor on which it can rell on the mean I'ime. Arg. Pi. C. 156.
Palch. 3 Mar. i. in Cafe of Throgmorton v. Tracy — cites Litt. 12. — See
And. 8. Okeden v. Sands.
6. A.leafes to B.for it-.-rrj, the Remainder to the JRight Fleirs of the faid B.
and makes Livery; the Remainder is void; becaufe there is not any Per-
fon in elfe^ who can take by the Livery prcfently ; and roery Livery ought
to have its Operation prcfently ; But where a Leate is made to B. for Life,
the Remainder to bis right Heirs ; there he has a Fee executed ; and ic
fiiall not be in Abeyance ; For there he takes the Freehold by the Li\ery.
per Dver and Manwood. Mich. 19 Lliz. 4. Le. 21. pi. 67. Anon,
Bendl. 12.pl. 7- Cejly que Ifb betbre the Statute of 27 H. 8. ot di\ers Lands !y feve-
10. S. C. — ral Conveyances, the Ufe ot fome being raifed upon Recovery, of fome
And^iS. pi. yppj^ Fine, and oi' fome upon Feoffment ; and he made a Feoffment of all
"' ■ ■ thefe Lands by Deed, w/r^ rt Zfmr o/'v://-rc/7;f)' to make Livery ; the At-
torney entered into part ot the Land, and made Li\ery in the Name of
the Whole ; and it Vvas agreed by all the jultices, that the Lands palfedj ■
notwithltanding in other's Polfellion, v iz.. other Feoffees, cited by Dyer.
20 Eliz. C. B. Le. 265. in Kracebridge's Cafe, as Keller's Cafe.
This Cafe is 8. Feme was Devifee for 30 Tears of the Occupation and Profits of a I'ernr^
in other if pe fhoitJd fo Jong live a Widow, and after her Widowhood, the Relidue
b°the Name "^ ^^ '^^''"^ *" ^^^ ^'^^^^ ^° 2° ^^ ^- his Son. The Fem,e entered, andat-
o^ipaming* terwardsi?ewr//o«frbyIndenturerf'frt'/Y, «;;(t;^/>, &c. totum illudTenemen-
tonv. ski^ turn, &c. to the Feme and her Heirs. It was refolvcd, that a Zf/Ttf for ??i?>-j
C£r,andi>;ii:: ;;; PoffeJioH may take a Feofiinent, altho' it be by Deed, and may take Li-
KidnrEiV '^''^^y ^■^^^'' ^^^ i>ei!'^'^ry of the Deed, altho' the Lellee may take the Deed
and JRup'' ^Y ^^7 ^'^' Confirmation, and then the Li\ery is but furplufage and void.
parDvif.aiu Trin. 28 Eliz. C. B. Ow. 6, 7. Haverington's Cafe,
ningfqn.but
the Point Ibmething varying, they are not here cited.
* S. P per 9- Diffeifee cannot make Feoffment, tho' to the Dilleifor by Agreement.
Anderfon. Goldsb. 2 J. in pi 6. Trin. 28 Eliz.
Owen I. Le-
onard V. Stephens.
to. A
Feofj-'mcnr. 177
10. A Leliee for Years, Rciiidifidcr to E. in T!-///; Reinuinder over. A. ^>""- E. 485.
hifecjf'd J.S. and vuuk a Letter of Attorney to IV. R. co enrer into the ''"'^,'^*'^- '^'^ ' •
Lands and feal the Pcoilnicnt, and deliver it in his Name, to theUft: cf"^\ p hIi/"
£. and his Hetrs. B. made Letter of Attorney toC. to enter in his Name, jS Elit.
who entered accordiht^iv. This \vas held a good Feoffment, xho'bcthyL
. and the Attorney rjcere Dijfcifors. For it is good between the Feoflbr and
Feoffee For the Remainder Man bv the P'eoihr.ent, and Entry, is remit-
ted, and the Term gone, the Freehold having come to it. Gouldsb.
92. Trin. 30 Eliz. Mounlon v. Weft.
11. It Ldljce tor 10 }iars, makes a Leafe for 1 I'car to Rcverjjcner ; there
he in ReverJion, who has the Land for a V ear, may make a Feoiiiiient to
the Leliee lor 10 Years ^ and it is good, per Clench. 41 Eliz. Trin. B. R.
G\v. 66. in Cafe of Knotts v. Everllead.
12 A. Leffte for Tears^ Reirnundcr to B. for Life, Remainder to C. and C;
enfeoffd A. by Deed, and made Livery. 1 he Con\eyanx.e was held void j
For it could not work by Livery to the Tenant tor Years, wh.o'-joas in
Pojfef/inn before. Arg. Vent. 360. Hill. 33 and 34 Car 2. in Cafe of Moor
V. Put.
13. \_Sotne Perfons may make Livery to fame, laho cannot do it to 0- ^Pcrk.S.io;.
iters, who yet may take by Livery from others. As^ if one* Jointe-T^ ^-.'^'^a
liant makes P'eoffinent to the other ; This cannot be a good Deed at ^^^^ jg tg^.
Common Law; For he cannot make Livery and Seilin, becauie the other res. pi. 4S.
is joiiicly feiled with him. Yet this Deed iliall enure by way of Cbnfit- cites iSE. 4,
macioii, and muft be lb pleaded ; and not literally as the Deed is worded. k'~,- j '
4 Mod. I JO. Mich. 4 W. and M. B, R. in Caie of Barker and al. v. td^t if 2 join-
Lade, tenants ai;e in
Fee, and one
le.H'rs to r Stranger for J'ears, the Rcmaimler for Life, in Taile, or Fee to his Compavion, and Livery is made to
tl'c L'JI'r-e for Tears ; that this Remainder is good ; But yet it Teems not good ; Hecaule it had not been
good, it' Livery had not been made to tiie Le.lcc for Ycavs; fo it appcareth, that the Remainder ftall pafs
Dv t!ie Livery ; and one Jointenant cannot make Livery to his Comp.uiion, Sec. Idco. (^sere. Perk.
S. 19-.
,<■
14. But if 2 Coparceners are, one of them may enteaff the other of her "-
Part, or Portion. Perk. S 193.
[ See (A. 4) pi. I. Non-Compos (C). ]
(F) What Name \a Ma}i\ may make Feoffment [fy].
'• 17[r Po'"'^'-''" «^'l? tt^il^^ Jfeaftinatt by the Name Of W. Fammif-
woith. 14 t). 4. 35. b. Fol. 3.
[ See Faits (B). Grants (B). ]
*,
(G) To what Perfon {%--\Jn RefpeEi of Ejlate (t)]
[and ivhat is ISame jufpcioit ofF(:ijJfce[^).~\
i.t/^ae Coparcener nW? \mU ifeOfflllCnt to the Other. 17 E. 3. ]^J)^^^
\_y 47. b. Cci:eejl, it
fhail enure hy
C"ow/f>-»M/;o» without Livery; For it countervailcs B.emifi & Confirmavi. Br. Confirmation pi. iS. cites
,10 E. 4 5. per Littleton.
2. t©nC Jointenant CaUUOt \\\t\U f eOfflllCtlt to the Other ^ ISCiaiife s P But
.|)c ijs aifta of all berate. Contra 32 €♦ 3- ^ce, aninittcD pfu ^-Ui;^* lu^h Ke.,rf-
rnent vn ill e-
nure by CniJ-miaticv. Br. Confirmation, pi. ii cites ii H. C 42. 4;. per Sh^rd.
lyB
Fcoffiiient.
3- + !^ ji'caffmEjit map be matic to nn Abbot, or Prior, by tiie fX^im
of ^buot or Idxm of luch a Place, jc. witbout nanumj tijcm bp tbnc
jOnnics of 'Baptifm* 39 ^* 3 13 b*
4. t C/ljC fame Law IS of a Mavor, or Dean. 39 E. ^. 13. b.
s- ijf'Dtmoiftoi^mmtbtmcitic to l.s."aitnlcttcc ofAttomev
to make Livery to J. S. Capellano, \)Z CaunOt nWHC tlMCiV tO J* @*
unlrfs be be n Cljnplnim 4 i^P» 6. i. b.
6. * Liverv can't be made to the K^ng ; For he can't be enffeofF'd, but
by Deed inrolled of Record. Br. Prerog pi. 66. cites 5 E. 4. 7.
Br Grant-;,
pi. 50. cites
4H. 6. I.
(H) By what Name the Feoffment may be made to the
Feoffee. Name of Feoffee. \_M/Jf/amedy
n MifnoC I- A iTeOffment to J. S. Militi, 10 gOOtl:, tho' he be not a Knight;
r.er pi 38. jC\ T>tm\k it panes bp tbe Libejp* 4 P* ^- 1- &♦
dtes S. "C. 2. a ifeOffment map be maOe to Julian, by Name of Gilder or Gill.
29 air» 16.
3. 3f a iFeoffment be maue to j. and a. his WifL>, uiljejc Ijis ^^^ife's
Name is M. fljc fljaU taUc notljinff bp tfjiis leolFment* 3 Aiiiie 4. Buc
Qusre.
[ See Grants (D). ]
(I) What Thing is neceflary to perfecl: the Livery. Feoffs
ment by Livery within the View.
I. Tjf a Vai) of JTcofFmcnt be oelibtJcD, ant! Liiir?p tuttlnn tbe
X 3Dietu matie, pet it is not a good jTcaSfmait, it tije Feo.^ce does
not enter intO tfielattO ; JfOt It 15 IlOt CtCCUtCD btlJK CITtrP* "s8 E.
3. II. b* aomitteu 3s M. 2 Co* litt. 48. b*
2. j©|)cn a liberp is nmDe iDitlmt tlje i*)ieui, if tbc Feoffor, or Feot-
fee, dies before Entry Of t|)e JfCOSeC:, It 13 liOiOv €0, tltt, 4S. b.
D. 253.
Marg. pi. 10.
Vent. 186.
Arg. Br. Feoffment de terre. pi. 70.
3- 3!f a S©au maizes a Cba?ter of jfeoffment, auo mat^cs warn
tDitbin tbe SDietO ; antl tbe Feoltee dares m^t enter tor iear of Death, but
claims it ; tf)is fljatl be ffooo €cecuttoii of tije iruc2P, aiiu njall ^ea
tlje ifranUtenement in ijtm, Co* Litt* 48. bv
Br FeofF- 4- I^^ Affife, 'twas found byVerdicf, that A. was feifed in Fee, and
ment de terre made a Deed of Feoff MCfit to M. and her Heirs ; and betbre Livery J.
pi. II. cites iiiarries M. and. at the Church Door, extri 'terrain^ fbeivei her the l.and\
S. B.— Perk, y^jji^jj r^^jj /^ another Cctmt\\ and delk-ertd her the Deed, and [aid. that he
^ E -• would xh'Xt flje pall have the Land Secundum Formam Chartie; and ivere mir-
' ried, and after they entered ; and the Baron, in rhe Lite Time of M. his
Wite, claimed notliing, buc in Right of M. his Wife ^ and Al. died j and
atrer the Baron devifed the Land to J. S. in Fee, and died; and the Illue
ot' M. brought Alfife againll the Deviioe ; and upon this Matter he reco-
vered by Judgment j For the Ihevving of the Land and rheir Entry was
taken inllead of a Livery, and the Baron in his Lite did not dilagree to
it ; and the Devife was not taken f )r a Dtfa^^recrnent ^ and it is f lid in the
time ot"H. 8. that exprels mentioalhall be made in the Pleading, that the
Land was within the View. Br. Feollincnt de terre. pi. 5". cites 38
E. 3. II.
5- Tho'
Fcoiiiiient. 179
5. Tho' the Livery be made within View, yet the Leale Ihall be plead-
ed CO De made where the Land is j For 'tis no Livery nor Leaie till the
Entry vf Lcflir, per Dyer and W'elton Jultices. D. 233. Marg. pi. 10.
Mich. 6 and 7 Eiiz. Aprieo v. Rogers, or Sir Walter Dennis's Cale.
(K) What fhall be laid an Exccnt'iofi, of the Livery,
I. T Jf a 03ilU ninfecS, nnn tlC!il3C2S' n iTCOffntrnt ro a Feme at the Door p^^ ^^^^^ j^
X ol' the iMonaltery, mitl HUlUfS Livery to her within the View, ,-.oAltcnirior
loa
anil aftCL' takes her to W'ite, nnO aftCt thev both go Irom the Houfe to of the Eibtc
the fame Land ; and theBariMi never alter claimed anV thing m ttiClaUl!, ^'o"'''-'>lue"^
but in right of the Feme. CijiS tS m €,rCCUtlOU Uf tijC lil3C2D» lOl t'',';.^",,,.^."'
bp tiiisj Ijc narccg to tlie entrp ot tljc JFcine ; ®r iDis €ntri> fliall be a^.^' vcnl"
ah €ntn' for tIjc Jfcmc* 3^ ^'* 3- *i2. aniuDixcti 3S aiT* 2. aiDUtiscii* i«o.
He mewed
her tlie Land after he had delivered her the Deed, and faid he willed tliat fiie fhould have that Land ac-
cording to the Form of the Deed ; after Marriage fhe entred, and he never di*agrced or claimed, but ir>
her Ri!;lit. The Wife died. The B.iron dcvi'ied the Land. Kut tho" tiie Laiui l.xy in atnthei- Comny,
yet ill AJi'e the Heir recovered a^ainlf the Devlfee. Br. Fcotfme.nt de tcrre. pi. ii. cites * iS E. 5. li.
* This iTiould be ;S £. 3. 1 1. b. 12.
2. J. and B. Femes J'>i;iteiw}its in Fee; J. vmde a Charter of Feofr-' ^}".^ .^-^'^ "^
nunt to f. .V. and Livery within View, and bid him enter j and after, p^j.^^ . _, '
betoie it was executed, in:jrr!ed him. Refoh-ed that this Livery was Lev.7,4Par-
Avell executed alter Marriage; For an Interell palled by the Livery with- lonsv.Pierce.
in View, which cannot be countermanded. Hill. 23 and 24 Car; 2. B. R.
\ ent. 186. Parlbns V. Perus.
(K. z) Livery to one, where it will ierve for others.
I. If a Man erifecfs 4 by Deed, and ma.tes Li\ery to the one in the Name of ibid. pi. 4^
all, this is a good Feolimcnt to all; but it' a Man enfeorts 4 'Xtthoiit Deed, cites iS E. 4.
and makes Livery to the one in Name of all ; there it veils nothing but l^^j^^^j g['
in him, that takes by the Livery, per Choke, quod NotaDiverlity, quod "' ^^"^ '
rullus negavic. Br. Feollhient de terre. pi. 16. cites 15 E. 4. ib'.—
pi. 72. S. P. cites Temp. H 8.
2.. Li\ery is not good to a Mayor and Commonalty, or other Corpora"
tion, without Deed to receive it by an Attorney; But per keble a ?eolt-
nient made to them, and to another is good without Deed, if the vther
tdkvs the Livery ; but Huliey Contra ; For they ihaii be Tenants in common
b\- their leveral Capacities ; For which they ought to h.-x\c fi'jeral Livaies
uf the Seilin. Br. Feoltinent de terre. pi. 41. cites 7 H. 7. 9.
3. li a I'eoflnient is made to 2, Habend. one Moiety to one, and the other
Moiety to the other; this Operates as feveral Conveyances, and not as one;
For there vnifi be 2 Liveries, becaufe there are le\eral Freeholds an<.i Li-
very to one lecundum Formam Chartae will not enure to the other per
Hflt. Ch. J. Wms's Rep. 18, 19. Hill, i-^oo. in Ca(e oi Filher v. VVigg.
(L) What PolTellion, or Eftate, will h'vnicr the Livery.
1. Tf a statute 03erci)atit be crtcntscti, if jfcafTmcnt lie matir bp
JLBellC3fiancr aUQ LltlCJ)), tlje Tenant bv the Statute continuing j;i
Poiieifion, it is ^C!iti» 7 f^^' 4- ^9- i)»
2. So If Kclirmoucr mal^c^ rcotTiiicnt ann li^cjy ii3itl}0ut cnffinu
of tlje Leliee lor Years in Poileliion, It IS a DOiU JfcOff'mnit* n t)- -x. L
71. 19 {■). 6. 56. 2 2J(r» i. aD)i!Do;cD» 5 3iu 8. aDjiiorsxa^ Co. L;u-. ■';*'• ^.';^-
45^. b, '€). 29 T), s.,33- 13- Contra 29 9AX. 60, s.p'iftfe
LciJcc v^^s.nc'Uhcr oullcil noraitorned. i3r. Feofeent. pi 60. c-xcs 2 AiT i.
'j. ~o
i8o Feoflment.
3. So if a il9a{t te feifCn of a M^ikm- in Leafe for Years, atlt! niiVdCd
Feoffment orthis and ol anccher ^pd.mt tCl)C2C0f l)^ 15 fCifCD in his
Hands in the lame County, an'O iUill^Ed Livery in that not in Leale, in
the Name of both, Mt'mit ouftiuij tije Ccnuor Of tl)z otljcc ^anou ;
•WW i^anor iljali not pafis bp it. 1 1 ih^^ii-
D 18. pi. 4. 3:f a S@an ijaS 2 Lellees by Icvcral Leales Of LattlJ m one County,
loS — Soin ^i^r, nia'aC!3 jFCOlfmCnt of ail, antJ nra^.C0 Llvcrv up.>n the Land of
P*"^"^.* one of tljC lEtTCCiS, OUfftUff IjtUI m the Name oi the whole ^ i^OtijtnU
lh"i"of B iirJ C. and a Letter of Attorney to make Livery ; if B. and C. are Tenants for Years or Life,
the' Delivery of the 2d Houfe is void ; But if B. and C. are Tenants at Will, the Delivery is good for
both. Pafcli. 31. Elii. B. R. Cro. E. iSi. Williams v. Afli ct Afh.
5. But in t!je fain Cafe otl)e?lmft it \$ of a Tenant at wiii^ Q3c*
caufe tW lietc?mmc!3 tfjc UBill, anti faotlj pafs, D.28. i|), s. 18.
Cavth no °6. If Leffee for Life fcc, tl)e Reverfion over; anH \)Z ttl RC\)CJfiOtt
Hill. 2 ^\^ nrafees iTeottmcnt ano Ktic;?, toitfjout ouffine; of tijc tttfce -, tm 10
and M.BR jt boia Jfeoftumit s'M. n. aBnropD* 2e* 3- 31- aDjtioaco* as
Swift V. j^jj^ niahed jfCOftmCnt ant! LillC.'P, a Feme Covert Lelfee ior Liic cun-
tinuing m Polieliion; tt 15 ^OlO. 5 'M. n. aBUtnWtl.
_ „ ^ 7. 3^f DC in Ec\3e;fion or Ecmaul?cr mahe0 jfcoff.ncnt an^ UMm^
menrpl So '^ the Abience of the Lelfee fCt tlfr DU l>ra26, lUbO nr'ueC attOJn OC as-
cites 8 E. I. rent to it after, ii^et tiji^ 10 a tjcoo f corrmcnt- D. 1 7 ^^* i^^.
and Fitzh.
AlTife. 41 S D. 540. pi. 49. per Manwood and Dver, who alTcnted to a Cafe in Point
cited bv Mounfon as the Lady Urrpton's Ctit:.-- — -Reversioner u, Tail., expectant on the Death ot Tcna-it
for Life, made a Feoffment to Lefiee fur Years, /y Lo?/f?.» 0/ 7'en/j?;//tr Life This ii 110 Jwlconti-
nuance, becauic he had no Freehold Carth. nc. Hill 2 juc. 2. B R. Swift v He.'.th.
8. Jf LefTee for Years, tIjC Remainder for Life, tXXt , ant! \)t XW Rever-
fion in Fee makes Feoliiiient anO LlllC'P to Lefiee tor \.ears ; dj"J' t(}l^
acceptance of tOe Jfeoftmcnr, cannot cniue ass a gnujcntiec for toe
(Eflare for Life m Remamoer -, pet it faall enure ^a a erafU oc m
(^fim for t{)e Cane to tt)e feoftor, or at le.ia a Licrnx to ijis-i to
matte It^erp, anD fo a gooo jfeciftaient. p. 4^ ^l» ^> R* bctuiecn
Ecdcs ano Kiwtsiorti. 'But ^icl)« 40 ano 41 €L 03. R* tijio loas ao--
juogeti to t{)e cbntraip,
9. If a i^an maSies a €})a|ter of ifeoffment ot 2 Acres, whereof
one is in Leafe tor Years to an Intant, and, ot the other, he is leifed in
Demefne^ IJUt tfjC Feoflor is dttOr Ot Guardian to the Inlant, by
which he is poUellcd o'i this Acre alto, nnO Uiai^C^ Livery in the Acre
in Demeihe, in the Name oi' both ; tijlG IJS gOOO tO pafS bOtfj. fp» 8 Ja.
fn tlje Ctctjequer, per cur.
Mo. 250. pi. 10. If a ^an lealcs a Houfe and divers Clofes in One CClUltl?, XQ 15*
i>7 /i c for i^ear0, ano after makesi a DeeO of ifeoftnunt of ali to C» ana
H-wordv "'^^^^ Livery Of 5g>eiftn in the Ci^ -fes, the Lelfee or his* Wile, or
Betti^Vorth Servants then Ix-int; in the Houfe, tijC Ll'Utrp 10 \)010 W tOtO ; j'^Or ti)e
— * Br. LelTce cannot be fipon e\jerp pAKti Jf tlje lanti to Dim Denuuo, for
Feoffment de (jjf continuance of Iji0 poileCTion in it , ano tWtfoK l)is> tiein^.T uoort
dtes/Aff" ^'^^ P^^^^«^ o^'«^t)e Cljuut oennieo 10 Uifncicnt to continue l)i0 p.3iTtltian
i,_A/?.v m tlje iDi}o!e. Co* Cut. 48. t>. Co, 2. Bat/jborrb ^i b. $iD>ut!gcD»
oftheLef- iDlOe 2), 28 p, 8. 18. 107.
fee's beii'.g
utcti the Land at the time of the Livery, makes it void. Br Feoffment de terre. pi. (>6. cites 8 E. I.
and p]. So. cites S. C. When aMcrtb.ii|;e is demiied with Land, the Aifjj'ii.i^e is fie Principal, at:d the
Land hut acceJJ'ary; and without Doubt the PoncfTion of the Houlfe is good PoffciTio/i of the Land de-
mifcd therewith. 2 Rep. 51. b. Pa!l-h. 12 Elii. C. B. S. C.
D. 18. b. pi. 1 1. But if tlje lelfee be abfent, antJ bas not anp W^c or ^dci^ants
-8H SB in Puflefujn. rhvneh.^^Cattie upon the Land, pet U'toe leiVar mahe.flt
Feoffmentdc It^^'P Cf ^iffiH Of ti^C tmlij It 10 COOilt C0» LltC, 4^. tl»
teric. pi. 06. 12. "M
t'eoftiricnt. 1 8 1
cites S E- /. Bv- AOi'.c. \>\. 4)2. citci S. C. — Bi-. Fcutt'iiKnt. pi. Si. cites S. C. 3r. Aiuil'. pi. ^iS. cites
!S. C. — By fome, If GfiW/ of LelVee arc on tlic Lard, it does hi:dir Livery, Mo. n. pi. 42. (^.icsrc.
12. 3^fLcfiee for'Yeirs leafes Parcel Of tijC LitinD lor a cercaia time,
ant! alter tljc Iciror maU^i n Drcu of jfcotiuicnt, cm snakes Livery
in this Parcel, UJljlClj tS in tlie PoUcllion ol' the 2d Lcacc, pUttUlS OtiU
out Of poiklBoiu CljijS IS iTooB Liljqp, tOa' t!jc fits Icffee tDiio iin
ponViTiOii crtljc Etliliuc* lor "up tji.6 LcaJc Ijeiws nuntiiD tljcj^oUci^
iidu of It firciij tije txtftouc* 2 i\cp* 32. iDCttUaiOJrij'o Caic*
13. I'Sllt othcrw ifb It UJaUlU be, If Ijt ijaD lealM tljlS pil?al at Will. t;'i<^'-= is no
::ECp. 3^- IxttlflUOitO'SCtlfC* psl;'
15- 3 til £J5an leafe^ a iricjule tor Years, autl ilftCt UUIIaCS ifCOftmCnt
lUiti! Letter "of SttO^nCP, CtnO tf)e Attorney tomes t() the Houie to make
Livery in the Ableiice ot the Leliee, and cfMiimands the Servant ot* thfe
Xeflee to come out of Of tijC IpOUfe, lUijO OOCSS fO^ and in his Prcfencp ^;^- ^J;^j
:makes Li-vervi flllD UriUlCUiattiP tl)e Matter returns, tO UllJOm tljC Ci't= v.'siukcly.
tOllKV notifies tljC LillC^P, to ialjlClj the Termor agrees, lii\ uig his
Term; tfjiSS 1$ H gOOS Jll^C^'P ailU jfeormiCUt* Dv 20 ei*362. 22.
,T5Ut if tlje Servant continues in the Houie, and the Attorney makes Li-
very by his Aiient, it is tioiti ; lot t\)z @>crMut cnniidt pht ttjC ^aG
tec out of poITciuoi!, Ijc fjimfclt coiitmiilus in l^offefUoiu Ci% 7
ja* 05* per 2. inireof ■
• 16. 3f oe in Uelierfioit maftes JFeoffaitnt ants liUe;'P in a l^oufc in y .i/.//^/ '
leafe for £lfe or l^earjf, ttje Termor bein^ at iMarket, a,,d his VVite and rears ^^Jem,
Children being in tiie Houfe; tljIsS DOC^ UOt paf0* D* 28 I), 8. 18. 107. [Jg^j^;';;7/°''
in the Abfcnce of the Hu<:band, tlio' the Ser-javts and Children be, and conthue in the Hcn/fi, 'tis a good
Livery. Quire if the Wife alTents, but continues in tlie HouQ: ? but if a Man commits his Houfe to his
Servants, and one ajjents to the Livery, and goc.<i out ; if the Refi continue tiere, and Livery is made, 'tis
no good Livery of Seifin. Godb. 15S. pi. 215. Mich. 6 Jac. b. R. Anon.
17- Sf a Q5att maizes a Leafe for Life, anti after maizes a Deen of
JTeOffnient of it, anD mafeeS It^e^P upon the Land, by the Allent ot
the Leliee, and in his Prefence, tlj!0 IS a gOOtl ll\)e2D ; jfOt tlje SITent
Of tlje lelTee fljall U a leafe at ilStU, or a eurrciiaer for tt)e '2i;ime»
Cr» 40 €l> 6. per Ciir* liettueen ^IjcpparB ant! Qrap*
18. Jf the Kins; be Leliee for Years, tlje JKeDCttiOn IH ftZ tH 3!» %.
anD J* @>» enters upait tije lanti, ann mattes ifeoffmcnt, tw is a
llOlD LilJerp i QSeCailfe ijC cannot put the King out of Poiieliion. %X\*
pla^'B* ^ , ' .. .
19- If the Kine, Leliee f -r 40 Years, makes Leafe for 20 Years, aill! So in the
after Ije in Reoerficn cnte^js upon tlje lelfee for 2o^ears, anB niaae^ ,^~i°ip„
leoffment, tljis is a (joon liise^D ; jfor tijis future 3nte?eff of m ,-„„ if the'"
fi^ins cannot preicrte tlje l^oifcfnou of ti)e lefiee, but ttjat f)c map Feoifor
be ouaeti* ipil 9 la* in tlje Cjrcfjeqncr* aujui^iiers bctu^cen makes Lue-
i©ickl)am anD UBoorj, : ;>;.;„;:'^'„f^'^-
the Ujuhr-Le£'ee, it is good without Attornment of the firft LefTee. Br. Feoffment, de-terres. pi. 6S.
cites 2.S H. S.
, 20. 3f Leflee for Life be, tlje Reverfion in Fee to J. S. who dies, his
Keir bein<.^ to fue Livery fOi tijiS ilC^jerflCIU, aUiJ alter Leliee for Lite,
before Livery fucd, makes Feoliiiient Of ttje LauD ; tljly SS a ffOOD jfCdfti
nieiit, anD tlje Eel^e^fion DifiOftttuueD m ft, notuJirijaanDimi; i\}c%m
um of tljefting* 13), 43 €U between Cija.'lton auu ^tacto, ci'
tcD t)» 9 30. 0i5*
21. 3if Baron and Feme atC feifed Of iHtlD in Fee, atlD tbC Ba-,
ron makes FeolFment, the Feme coniinuini!; upon the Land i pet ti)iS
noes not liiiracr tfje lilKjp -, but it is a gooD JfeoiTment, 21 m. 25.
22. Sotf tUtjen tbel?aron lliakrO tijeltUe^P, the Feme continues ♦Orig.[Dir-
upon the Land, and claims in of herLltate, * OltaffteeUlg tO tljeliOeiP, a^'i-i"ent.]
yet tIjiS IS gooD jfeofnnent* 21 SiT, 25. aojuDgeD*
23. sf Land defcends tO % ^, U)l)0 enters into Part Of tljC iKtlD,
ana net into tljc EefiDuei auD alter niafees ifeoHaicrt of tije Uiij&ie,
anD maizes Livery only in tiiac jjjlta U3()ici) Ije IjviD CUti'lCD in- the Name
A a a of
1 8 2 Feoffment.
of the whole, ^tt itll fljnli paft. 03. 13 Jii. 15. E. nnjunaeii upon
eminence, ticciuccn QSnnsiuaii mvo cijaaton.
Roll R -6- 24. if Cenant in ©ml uiaucs jrEoffmcat m jfcc to tijc life 'orf)iiii=
i. c m m iFcc , auu after icafc^ for l^cars am oice,, np unjict) rfji jirue
IS remittee btioiz €nrrp, aiiD tijc €rrarc of Letitf ctjanijca into a
Tenancy at Suherance ^ fniD at'ttt tiJC jjlVlIC tliaUC5 iL")i'ell Of J^'eOffilient
Of tijiis'Latiti, (nta luljict) tje Oas not cntcjco, ano of otjjcr tann
UiljiUj isoefccnncB to ijnu , aiiD mto 'tuljictj ijc iyw cnrcicQ, ana mai^e^
Liverv in that into which he has entered in ttie ^uineor the wiiolo; flji
fljall 'pafjs, tf)o' tije Ccnant at 8)iiffcjance wasi m l^^oircffion of i5ar^
ccl. {^. 1 3 la. 15. E. aD)Uti(jcti upau eviiQcncc bctuiccn ODriusinaa
nno Coa^Iton.
25. If tt be found bv Office, that A. was feifed in jfCC Of lanH held
of the Q^ueen in g)0Ca5e, antl died without Heir, lip tD})iCl) It elcheated
to ti)C Ciueeni iDljc^ctip tljc InnU^ a,'c feifcD into tijc fpanosi of t{)e
iiritieen. upon tUijld) -B- comes, and la\s that he is next Heir to A. and
tra\erfcs the Office ; anU UpOn tljIlS JffUe 10 )OineH, antl pending the If-
fue, B. makes a 2Dcell Of Feortment with Letter of Attorney tO C tO
\mU Ittie^p, anD after tlje iir^e is found for b. Di?^ tljat \)z i^ nent
Ir)cir to a. aim upon t\0 Judgment 10 gi^en, tijat the Hands of the
Queen be amoved, anD aftCt CtljC Attorney makes Livery aCC0,?t5tn(i tfl
t\)£ JBa?2ant of l^ttO^nep *, anU after an Amoveas Manum is awarded
and executed. €;f3i0 ts a gooo L(53qp j jfot noiu hv tl)z 3'utisjmcnt a=
oatnft tl3e Ciuccn, tIjc j^ofl'effion of tljc €iiicen wa^ iitterip ncfcatea
ann nifalnrnieD, antJ tije Deit reifoicn to ttjc HiKijt of tijc paffcU'iorsi
fa tljat Ijc map enter at W l.31eafure. ii^etu entries. 197- 1- aDjuDff'H
betuiccn Ce?^p ann oarouin ano £Dtije^.s.
[25 ] Jf a S^an ieiied in Jfce ot an Orchard, mafec0 a J^cofFment of
it, antl peSl into tIjC ©rCljaJtl, ann cuts a Turf and Tu io;^^, and deli-
vers it in tlje Bame of %ti(ii\ to tIjc jf coffee o\ er a w^aii of tiic fame
£)?clja?t!, tlje jfeoffcc tljen beinn; in otljcr LanU not htim [mentiojicQj
in tlje jfcomiient ; tbisi 10 a ioio Wxiv. p. 2 ja. 03. aHjursijeD.
2.(>. 3!f a S^an be dilfeiled ot one Acre, and is ieiled in Fee ot another
Acre, anD mafeejs jfeoffment of boti), ano mnl^csi Livery in this of
which he is feifed in Fee in the Name of both ; VCt nOtfjmiJ Of t?3C 6-
tijer acre Umtof be is tiilfcirco, fljall pals. D. 2s. j^, s. is. 106.
luljere Dtfleifoc ban mane Leaie at wiii of tijis acre.
27. 3!f Lellee for Lile of one Acre makes Feoffincnt of this and of
other Landj whereof he is feifed in Fee, anB mal^CS Livery in this, where-
of he is feiied in Fee, in Name of the whole ; all fljali pafS. 9^^ 7. 25. ft*
28. Jf Lelfee for Years Of OnC ^CXt HUlkCS JfcetfUlCnt Of tblS, mUX
Of otber acre lubc^of be is fcifen m jfce, aim niaues Libert) in tbiS,
ttbc.^eof be is fcifen in ifee, in tbc Baniz of tbe ujbcles pet tbe otbec
acre noes not pafs. 9 Jp* 7- 25 b.
29. 3if Cefty que Ufe within [tbC g-tatUtC OfJ R. 3. makes Leife for
Years, antl flftCt during the Term, makes Feolhr.ent Of tbC ILailtJ^ an5
ttiabtS Livery in other Land in the Name of the whole; notljinij palfesS
Of tbIS Lanti in leafc; 'Becaufc be batb notbing in uii nor tn pcP
temontbere. D. 3^^»8-5a.4
30. Earoti feized in jure Umtis made Lcdi'e Jor 7~earSj and died ^ tbe Feme
enfeoffed J. S. but the Tcfiaor was not ctijltd^ and alter, the FeTiie nUafed to
the 'termor^ &c. and yet the p'eolfee reco\ ered the Affile ; For the Leafe
was void by tbc Death oj the Baron and tlie Feoffment of the Fciiie, which
was an Entry j Quod Nota ; and therefore the Releale void. Br. Feoft-
ment deterrepl. 61. cites 7. All! P". 19.
31. In Affile it was found that the Father of the Plaintiff', whc'fe Heir
he was, gave all the Tenements that he had in D. to the Tenant, except
the Chamber in which be lay Jlck, and after tbe Se/Jrn ^^ives the Chamier^
and removed bi7!ij'elf into the Hal\ and then d:ed ; and good by the Opi-
nion of the Court, and laid that he entered into the Hajl bv Suilerance
of
Feoffiiient.
f8'.>
of the Tenant, without claiming any Thing there to hisUle, by which
the Feoitiiient was awarded gc^ud, and the Fiaintifl' bair'd ot' it, Nota 6c
ib it iceins here, that a Alun cannot niak.eLi\ery ot theC.hamber in which
he lies, * quod non videtur Lex. Br. FeoJiii.ent de 'xrK, pi. 24. cites «. jj^,.]^ 5
Air 6. 21 1. ace. cites
n.An-6. 1-
Afl. 61 . If a Man lyhi,e[ fick with)! a M/tmr, fc'lls the Manor to a Stranger, and fays unto him,
that hs'U.-ill th.-.t he jhall tah Setf.>i fn/e/illy, tu.tl co/iM/irids all lis Serdiu.ts to be .-!ttc7id.ivts it]o>ilim, as
their Loi-il and MalK-r, and thereupon tlie re>:dce t.tkei Scifni, ar.d perhaps givcth unto the Sfivarfts 2c/.
todrinkj and the Tenants ot the Mailer attorn unto him, and tiic Vendee ^50?/ irom the AJai.or about his
Bufincli, a»d the Fecffur aies upon the fame Manor; yet it is a good Livery of Seifin, according to the
Words; of the isftate, &c. Perk. S. 212. cites 45. All". P. 20. rir. Fcoifment. pi. 95. cites S. C.
32. If the DilTeifbr enfeoff the Difieifee and two others, all accrues
to the Dilleilee j For his Entry was la'xjttl, and he reunited bejore the Livery^
and io the Liverv void ; contra if the Entry had not been lawful. Er.
Feoffment de terre, pi. 99 cites 29. Aii!
33. Feotfment made during the Ciiflody of the King by Reafon of IVardj
&c. was void. Br. FeoHment, pi. 63. cites 50. Aff 2.
34. If a Feoffment be made ot' a FloulL- or Land by Deed, and the
Feojfvr, in coming to the Hoitfe or Land 7s:ith the Feoffee and others., &c. rejds
the Deed of Feotiment, and afterwards goes into the Houle or Land, and
dc/ivers Sei/iu accordingly, 'tis good, notwithllanding thiit the Feoffor ?-«-
mains upon the Land, or in the Houfe all the Time, and takes the Projits at
the Sufferance of the Feoffee Perk. S. 210.
35. If a -Man enters into my Lands by wrongful 'Title, and I being there.,
he enfeoff's a. Stranger thereot, and delivers Seijm unto him, 'tis void ; For
he can't give SeiJin before he himielf hath Scilin, and he had not Seilin
at the Time of Livery of Seiiih ; Ibr the L.tw "will adjudge the Poffeffion in
me, who have a Right unto the Pollelfioni becaulc I am prefent at the Time
of the Delivery of Seifin. Perk. S. 219.
36. li Husband and Wife purchafe Land jointly in Fee. and the Poflellion portheFeme
being executed in them accordingly, and atterwards the Husband enfeoffs could not
a Stranger in Fee, and the Wife lays that llic will not agree thereunto, nor contradiit
go off the Land, but continues there at the Time of the Livery of Seifin ^ t'15 Livery
notwithllanding the fxme, all the Land palies by the Fcoftrncnt, Perk. And^in^Ai^*
S, £23. cites H. 21; E; 3. 6. tilb brought
. . by the Heir
of the Feme after the Death of the Baron^ the Plaintiff was nonfuited. Br. Entre Cong, pi zi. cites
ti. C. and fays it feems a perfect Difcontinuancc, and that the Heir of the Feme fliall have Cui in t'lta,
and not Affife.
37. But if A-L;yor and Commonalty be jointly feifed of any Land in Fee, Sc<of De.m
and the Mayor againlt the Will of the Commonalty enfeoffs a Stranger ^^n^P'^^'ff
the fame Land, the Commonalty being upon the Land, when Li\ery of '' ' "°'
Seilin is made ; nothing palies by this Feollinent, &c. Perk. S. 224.
cites T 12. t. 3. 3, 4.
38. If a Ltifefor liars be made to A Remainder to B. in Fee, in Tail,
or lor Lite. If .^. enters bejore the Livery, it is goodj but the Remain-
der is void, Co. Litt. S; 60. a. Pag. 49. a. Arg. PI. C. 156. in the
Cafe of Throgmorton v. Tracy.
39. K Termor for looo J^ears made a Dcx'd o'i Feoffment, by Dedi con-
cejfi y Fevf'avi.y and a Letter of Attorney to make Livery, and alter, the At-
torney delivered Seifin, the Lejj'or being prefent upon the Land, not contrdditi-
mg it. Qusre, if the Land palies bv theFeoltment, 'io that theLelibr may
enter lor a Forleiture, or that the Term palies hrll b_\' the Words, Dedi
& conccliiTerram before Livery ' &c. As Wray thought prima Facie, but
Dvcr ec( intra; but by both, the Li\ery by Attorney is good enough, and
tlie Ptefciice of the Lelior upon the Land is no Impediment to the Fcoil-
ment. D. 362. b. pi. 20. Patch 20. Eliz.. Anon
40. A. ieill'd of a Manor leafes Part, and then gi\'es Grants, Bargains,
and i'dU the Manor, :.nd makes Li\cry in that Part in Polleilion, in the
Nanie
184-
Feoffiiient.
Name of the whole Manor •, nothing palles but what was in his roliclfion,.
and theReveriion of luch Part, as was in Leak, Ihall noc pais without Jc-.
tornmeiJt', but if the Deed be enrolled after, then the Wihole palftth j and the
Reverlion being fettled by thelnrolinent, the Attornment, coming after-
wards, has no Relation, per Wray Ch. J. Mich. 25 and 26. Eliz.. B. R.
Le 6. Stoneley v. Bracebridge.
^ 41. Z^or ^/Vi^Zf//?^ ^'cv//^ 0;/ f/'f Z^/;rf', the Law judges the Porfcffion uv
yc.xrsenjcoffs him that has the Right to it, and that is, the Lellee, and Livery ought
a Strangei; always to be given ot' the Polielfion, and the * Prefence of the Lcffbr^ who
tht- Lijfor be- has nothing to do there, cannot dillurb it ; but the Prelence of the Lelfee
linT'cnhc ^^''^ hinder Livery by the Leffor. Pafch 36. Eliz. B. R. Cro. E. 322/
Landftal^ Read and Morpeth V. Errington..
pafs by the
Feoftment; but perhaps, if he continues upon the Land, claiming the fame after tlie Feoffment, this
countervails an Entry for a Forfeiture. And the Reafon why it paffes by fuch Feoffment, is, becaufc .
the Le£or had nothing; to do to meddle ivith the Pojfejfion of the Land, during tie Term : But he may Come
and fee, whether Walt be done, or to dilh-ein for his Rent if it be behind, £cc. Peri:, S. 222.
(M) In what Cafes Liv^ery may be made 'vvithin the VieWi'
^, if a Man I. Tif a ^iltt tC UM^tXit if DilTeifee dares not to enter tl)E LaUD,"
delivers mc a. j^ jjj wu)) comt 35) wtiit to tl)t laitO, a^ |)etia?c fcr fcac of
Deed of Fe- ^!Q^J^x\•^^ jjnQ xM^^ \y{^ continual Claim, nnB tljCIT nialiC LlliCJP Of
fe^smtthe it taitljtn t\)Z Bim j ifOr tlji^ Claim fettles the aftual PoUellion in
Land a far him. 38. ^flf* 23.
off, and I a-
free and accent the Deed, and dur/l not enter for fear of Death ; 'tis a good PoffeTion to have Aflife. Quacro'
inde- Br. Affife pi. 3 50. cites S. C. Br. Feoftment pi. 52. S. C>. without any Qvixre.
s. P. per 2. 3!f a ^an maUes a DceB of jfcafFincnt, mi) a letter of 3t-
Brown and (jj^jipp fg f^ g,^ f0 j||a|^e UMlV, tlie Attornev cannot UinkE LlVieiD
c'l^Mi- iuitljnttDc ODieiBi if or f)i6i©arrnnt tis to be mtennen of an naiial '
pi."ia Mich. l^Miv, auH not of a tiotp in Lam* OTa* Litt* 52. In cites it to tie.
6 and 7 Eiiz. refoIiieD, ip* 3- €1 15. in €:am!)am'jj Catc*
Apprice v.
Rogers Alf! Sir Walter Dennis's Cafe.
3. A Corporation cannot execute a Feoffment by Livery within View.
D. 233. pi. II. Mich 6 and 7. Eliz. Apprice v. Rogers, alias Sir Walter
Dennis's Cale.
(N) In what Cafes Feoffment may be made by Livery,
within View. To whom.
I, YJT A. leafes for Years to B. tljC Remainder to C. in Fee, anH mafee0
JL li^e?p to B. itjitijin t\)zmtm, '^ins tMvv 10 "aom, lot
none can take bv Force ot a Livery within the View, but he who takes-
the Franktenement himfelf. C0» Jlltt. 49- Ij*
(O) 1,1
Feoiiment. 1 8 s
(O) in what Place.
1 T Jf it M^n be in one County within the View of Land in another |;I^If ■'•=
X County, \)t \m)> tUClI Wim llDL\n» mUn tl)Z mclH of it. 38- Br Fer^:"'''
€♦ 3. 1 1, b* at1)U00'D Co. ILttt. 48- ll- mcnt. de tci-
rc.pl. II. cites
iS. E. 5. 12. -But Feoffee buglit to e>:ecutc it, and take Pojfrjfum p-efer.th\ or the Livery
will not avail him; becaufe a Fraiiktenement cannot be in Abeyance, Mo. ijj. I'alch 7. Eliz. C.B.
in the Ca(c of Bullock v. Burdct.
2. LiUejp Ulitljtn tljC aDiCUl \^ goon, tIjO' tljetC iSS * not any charter La^f ifal-
of F'corimeut ot it. CO. jLltt. 48- tl. tcr'd in this
Point Sec 29.
, — — _. ■ Cir. z. 3.
(P) How, and in what Manner, Livery of Seifin within
the View may be made, [ or on the Land^ &c. ]. * p i .,
I. 9 ii^cp» ^7- Cljo^ouffljtjooti'jj Caft. $1 ^an nwlies €Jia?tfr^p p
of j'coitment, auD luaijiit tijc aDicui of Iji^ lanns, (aicai to i^^^ch. i
tljC jli^a^tp, !5ee you the Lund 3 Enter into * it and enjoy it according to Poph 49. "in
the Lrtett of this Charter; nnlS tljC Feoliee enters, ti)t£> aUlOlUltS tO a Cafe of Col -
jjooD iliijc,?^ nun fcifin of tl)e \ms. n&wx ot|)e2Uiifc it \m\m lie, if ["J ^- ^''^'
tjc i)at! been out of tljc aDieui of tije lann at tljc fpcalung of tijc ■" '
mm^. 18 \) 6. 16. In 6 Ecp. ^/.-^r/)':? c^/f. Co. litt. 48. a
$^ail bails the Charter Of .f EOffmCilt, and faies tO t?)C leOSCC, God give Co.Lit.45.a.
you Joy of it; ti)i0 IS aOjuiiij "0 a poQ Jfcoffmcnt; vet no liuqp toas e>- Feoff-
maOc, auo it oocjs not appear tijat it luagi UJitijtu iMcro. 41 C 3- 17- """"', 'l^''^'-
&. X^ut It fccm0, it 16 to t'e intenrt^o, tDat it 10 a 1i^c2p toitljin tlje '^' f'- ^-■
SDiciu, but It appeals tlje^c tljat tfjc Jfcoftot iuasi not upon tljc
Lano. 41. aif. 10. amuiog'D. Co. litt. 48.
2. 3^f a S^an tuitljni tije iDieto of LanD delivers ?. charter of jfeofF= p^rk. s 215;
mentOf IttOtljeleOfteC, aimfaitDj I win that you have the Tene-
ments which }ou lee there, the which are comprised in this Charter ac-
cording^ to the Purport of the Charter, anil ftews the Land ; tljIS 10 Hi
iToon \Mp iuitljm tDcDieU). 38 €. 3- n- b* 12. atiiuns'ti. ss- ISIT. 2.
aUjtlDff'D. Co.iitt. 48.
3- 3f a (^an ticii^c,20 a Dcen of ifcoffmcnt to tbc Jfeoffec m\)\\\
tl)C IDlEtU) anO ihews the Land to him without laying any more, and the
Feoffee enters, and Feoffor agrees to this Entry ; pCt it fCCHlS tijiU it 10
not a 5005 feoffment. Contra 38 c 3- 12. per ^^oiubrai'.
4. 3f A. enteofis B. i)f0 g)on \x\ Jfcc, auo aftct B. comc0 tDitbin t!)e
EpieUl, anB liiys to a. tbat where he had given to him the Land, as
liilly as he had given it to him, he vouchllifes it in him, \\)Z Q;il!C0 it fjllll
again], ano after, a. enters -, tl)i0 10 not goon liuc^j? uiitijin tlje
iDicui. Contra 39- 3tr. 12. aD)ur!g'0. XutCiue^c.
5- jf a Sl^an lying hck upon certain Land, oi which he is leifed in pg,.]^. s "la^
Fee, ano agree0 to inal^c a jFcoffmcut of tlje lanti to anotljcr, anti cites s.c.
lays to tjnn, tljat he vouchfates, that he lliall take l^ifin immediately,
and commands all his Servants, that they take the Feoflee as their Lord,
and Aiaiter; tl)i0 10 l^OOD LfOtiP IWltljtn tOC IDJCU). 43. ^tV. 20.
6.Jf a span leireO in f^tZ-, in Conlideratlon of the Marriage of his Cro E. ^44.
Son with another, comes upon the Land, and lays tO !)ini tljCft JI5Ott30, S. c: in B R.
Stand forth Eullace, (UlIjICl) tt3a0 1)10 J'^aUlt) I do here give this Land ^^o'^Sy.S.C.
to thee and thy Heirs; ti3I0 10 gOOQ liUCiP, (it fcem0 ttjat tl)i0 10 an
acttiii! \xmif). <^. 37- €!. iu t|)c Ccciyequer Cijamber, pec cur.
bctuieer. Cattail! ano CaUaro.
B b b 7. But
1 86 Fcoffiricnt.
Poph. 4-.S. 7. Butlf {JC Ijatl faia, stand tbrth Eultace^ I do here, reier\ing an
C Mo. Eilate to ine :iad inv VV ife for our Lives, s^ive thee this Land [and J to
63-. sc— ti,y I jeirs. ■^fjjg fijiiii HOt be n tmn), am fo bp Confcciucncc a jfc=
?r S n"T oitment to tijc i\k of fjimilir nnn Ijis iBifc for iM, tijc i^Ciuainocc
hew.th'ittilo- 10 (giUtacc, tyo' (Ctiftacc cannot ixoc anp Cttate tyitljout fiiclj Opc=
this Lid been ratlOU J {jCCaUfj; ijC makes the 1-Lciervation tirll, anH fO iJOOD, ililD ^(5
by Deed, yet ^nf^nt tiocs p.ot flppCiU to p?X9 it bp map of ifcoffmcnt to Hfe* 93,
rSivn 37- e=l» Ci'djCfiuer Cfjauibci-, betU)mu>V///»v/ anti Qfii.mi/, aDjuUirn,
Bccaufe <uch iwti tljc Subijment before giucn inJB. R. xt)3m o acco^Jtungiin
a Re'crvati-
on could not be ; For all the Operation of the Deed would have been hindered, and obftruttcd by it.
Sid. Sz. Trill. 14- Car. 2. B. R. in tlic Cafe of Fofter v. Fofter. cites 5S. H. 6 5S.
8. Jf it appears, that a Man intended to make an a£lual Livery, tiJlS
fljali never amount to a Livery in Law. p» 2. Ja* 15* aijrCCU* D» 2.^-
^, 8. 18. 107* l:f ijC maUCgi Livery in the Houle, aUD tW being in
Leafe [is] void, it fhall not pals a Clofe then in the Polieflion of the Fe-
oiFor. ©ubitatur*
For toevery 9. 3'f s, fcllio of 3 i^)oufc, comcjs iHto tljc l3oufe, anti fap^ to 15*
Livery is re- I here demife unto vou my Houle, as long as 1 live, paying 20I. per Ann.
<5«iiite,either ^^, ^j^jg jg j^qj -j,^y £itieip^ tmt onlp 0 limttatton of tfje Cftate,
d"; Law ad antJ tijejcfoie notljinij paffcs, but an €ftatc at UBiii. 6 Rep. 26. pec
judges Live- ^{\X, Sharpc's Cafe, CO* Lltt. 48-
ry, or apt
Words amounting to it. 6 Rep. 26. Pa'.lli 42 Elix, C. B. Sharp's Cafe, alias Sharp v. Sw.m.
A Feof>i:e>:t io» ^If a ^au delivers a Charter Of JTeOffmCnt upon the Land, tiJ
was made of ^|,0 jfeofec, m Name otTeilin ui the Land contained m tijC iDtZOi tljI.S
I.^rwhich i$ gooti ti^crp. Co, iitt, 48- '
was within
the View of the Koufe, and no Livery made, but only the DecH of Feoffment deliveirH ^s bis Deed, in
fjje Hoiife-y and this was adjudged no Livcrv for the Land ; and per Popiiam, nor for the Houle, without
nientm.ing that he JJxuld take tie Hcuje. Mo. 458. pi. 632. Mich 38 and 39 £lii. B. R. Sharpc v. Swainc.
9 Rep 157. b. Thoroughgood's Caie.
9Rep. i3:.b. II. %\)Z Delivery of any Thing upon the Land, in Name of feilln of
Thorough- ^he L-^nd, t!)0' it I'tDtijing couffrniS tlje LanD, as a Gold Ring, is
good. .a,e. ^^^^ iiue2i)> Co» litt> 48- auj) tljcje cites 50. e, 3- Kot, Pa^lia=
nienti ,jOmnc^o 30- to tz refoSirn bp all tlje ItiQgcs.
(P. 2) Livery within the View Countermanded. By
what A(9:.
Mod. 91. S. I. yf. and B. Femes, Jointenaftts in Fee; A. made a Charter of Fcofmefit
C. Parlons V. ^^ j: ^'_ .^^^ Liverv within View, and bid him entei-^ and after, be-*
Lev -4. ^^^^ '*■ ^^^ executed, married him. Refolved, that this Livery was
Parfons v. well executed atter Marriage ; For an Interelt paffed by the Livery
Pcirce, within View, which cannot be countermanded. Hill.'23 & 24. Car.
2. B. R. Vent. 186. Parfons v. Perus.
[QJ) [Livery.] By Letter of Attorney. How it is
to be executed.
I. TJf tbC 2!)ECl31 of Feoffment be to J. [S.] and the Letter rf Attor-
X "ev to J. s. Capeiiano ; jjc cannot Dcll^jcc ftian to I* %, imlefsi
\)Z be a Cbaplaiiu 4. f). 6. i. b.
Some hold 2. 3f a Deed of Jfcottuicnt, tuitlj lettct Of attomci) to ma't^c Hi-
the Liverv tlCtJ), bo limple, and the Attorney makes Livery upon Condition, VCt it 10
fo made to be gjjoD (£xfcutton ot tljc Icttct Of idttotncp, m m mud) ae^Dc \m
pcHi:ijn)'0
Void.CoLut.
Feoliment.
187
pe?it!2ni'ti ail iuljic!) Ijc ujas coniniaiiBcti, aixB nwu (I3ut tijc ^on- r,)^-^ ^ —-
mtioii 10 iJoiQ) 26. an; 39- agicca. „enfd°tcr-
re pi. 2.7 cites 26. AfT ^9 that Thorpe held it good, but Mowbray the Cintrary. Perk. S. 192. S. P. and
tjiat it has been held :i DiiTeifin ; but adds a Qii'Ki'e, becaule the Attorney has done ail the Command-
ment of hii Mailer ai;d more.
3. 3if a D^cd of Jfcdmticnt ant« letter of attotncu to niahe tu R-- p^-"*^-
\}tl\) be limple, and utccr tlie Kcorior conimands the Arcoincv to make Li- ";'=ntp^i:- S.
very upon a ccitaiii Condition, anU f)C COCiC It aCCOJDinUiP ; It iCCIlllj Tho"pl'e!d
tl)i0 is not a gccn Icoffmcnt, but a Dillcifin to tijc jr coffuiv lor it good, but
it ftem0 tijat it ijJ a Re\ ocation of tl}c ftra Letter cf attomci', ana Mombray
tljcn t\)\^ cannot create a neiu li)0U5cr to maiie tijc jf eoauient oiitijout .^-""V: ~°''
2)ccD. Diitntatut 26. aiV. 39- pr^'os "L
S. C. that
Skipvvith held it good, but Moir.bray Contra.
4. If a 93au ma!5Cd a Deed of JTeoffmcnt to t\vo, U)itlj a letter of But if he
$ittornci) to I. ^. to nialic li\3erp, ano tijc attornep maU& Livery m.kcs Live-
to one ot them in the Name of botn» CfjlS l& a gOOB lltie^'^ i iTOr 'T unto one
it i0 an actual li^e^p to ljotl> Cr» 1651. :Sntratur ®r. 16^0. Bot* LM,; aw
1768. cf both, nor
accordinj^ to
the Deed, it d-em'; thi.s '\< a DifTcifln to the Feoftor ; beciufe he has difbbeved the Commandment of his
Mailer. See Perk. S. iSS. Feoffment to two, with Letter of Attorney to make Livery ; ove dies
Livery may be made to Sur-vhor, per Anderlbn. J*lo. 2.yc, 2S1. I\lich 51 and 32. Eliz. C. B. Battey
V. Trevillion.
5. If the Attorney docs the Command of his Alcifierj and more, yet it lliall
be good for that, which hath Reterence to his Conunandraent, and void
lor the reit, unlels in fpeeial Cafes. Perk. S. 189.
6. ^s ij the Warrant ol" Attorney be to make Livery unto cue Man, and
the Attorne}' make Livay unto tii'o ^ it is good to him to whom the War-
rant doth extend, and void unto the other. Perk. S. 189.
7. And /c) is it, if the Warrant of Attorney be to make Livery of hlack
yfcre, and the Attorney n/akes Li-very of "Ji'hite Acre and black Acre ; in this
Cafe all is not void ; lor it is good for black Acre, becaule the Attorney
hath done all the Commandment of his Mailer, and more. Perk. S. 189.
8. If a Warrant of Attorney be made to make Livery of feilin unto two,
and one cf them die belbre the Livery of leilin made, and the Attorney
make Livery of feilin, according unto the Deed, unto the other Feotiee who is
Livino;, it is good unto him for ail the Land. Perk. S. 192. cites 22.
All: 9^
9. The Attorney mtif- purpie his Warrant, otherwile he decs not deli-
ver Seiiin by Force ot the Deed. Co. Litt. 52. a.
10. If Letter of Attorney be to deliver Seiiin upon Condition, and the
Attorney delivers it ahfohitely, 'tis void. And lo Ibme hold, if the War-
rant be abfolute, and he delivers it on Condition, it is void. Co. Litt.
258. a. b. Co. Litt. S. 359.
11. If Letter o{ Attorney be to three jointly and feverally to make Li-
very ; one only may make Livery, or all three may ; but two cannot.
Br. Jointenant. pi. i. cites 27. H. 8. 6.
12. But in fuch Cafe it was doubted, if Livery made by t'wo, the other
heing prefent, and faying or dang nothing, be good Livery. It was agreed,
if the thiicf had been abfent, it had net been good. Pakh. 38. H. S.D. 62
pi. 34. Pennington v. Morle.
13. Letter of Attorney to A. B. and C. Conjunilim vcl Divijim in omnia And.24.5.Ret-
iB Singula, i?cc. each by thcmfelves, in feveral Parts of the Lands, and at ^Y ^' J)T^'"
leveral Times made Livery, and good. Le. 192 Mich. 31 and 32. Mq ->-s~S~
Elii. C. B. Petty v. Trevillian — 4 Le. 195. S C, C. Battey v.
TrcvtUian.
SC cited Mo. ;i(J
14. When
1 88 Feoffment.
14. when Letter of Attorney is made to four CoHjiiiUfim 6? Divijijn,
and one executes Livery in one Part. By this Aft the Authority is not
abfolutely executed or determined, but that they Conjunfiim & Diviliin
may after proceed to give Livery in the other Parts entirely, or by piece-
meal, and Livery is well executed by one in one Parcel^ and by olher in
other Parcel. Mo. 280. Mich. 31 and 32. Eliz,. C. B. Battey v. Treviilion.
And 264. S- C.
Jf a ^f.ln 15. Feoffment of 20 Acres with Letter of Attorney to make Livery. If
makes Letter j p^^^^ or 19 Acres are evitied by lawful Entry or Aftion after the Letter
of Attoi-ney ^j^- ;\^j^yj-jjey y,as made Yet the Attorney may make Livery in that
ve"y'/i^V'. 'or which remains. Per Anderlbn Ch. J. Mo. 280. ut fup.
toS. and he
pi 1-2. lays, that this feems to be intended, where he makes one Deed of PeolhTient to W. and
another to S. And yet he makes a Quoere, if Livery by Attorney be not good by the Letter of Attor-
ney without Deed of Feoftment; for the Feoffor himfelf may make Livery by Parol without Deed.
16. If he makes Gemral Livery of all ivhere all cannot p^, by reafbn of
the Eviclion, yet it IhuU be good for that which may pals. Mo. 280.
ut fup.
17. Feoffinent of tzvo yJcres, iv hereof one is in Leafe Jcr 77'ars, with Let-
ter of Attorney to make Livery thereof, and fays not, (or of any Part
thereof) , yet may the Attorney make Livery in the Acre in Polleflion
alone ; and if he makes Livery ni the Acre m Pojfejfton onty^ in the Name
of both i this fhall be good of the Acre in Polfeiiion, tho' it cannot be oi
that in Keverlion, becaufe it is in Leafe. per Anderfon Ch. J. Mo. 280.
ut fup. Poph. 103. Slanings Cafe.
1 8. If a Letter of Attorney be made to enter into all^ or any Part ofLatids
in the Name of the is.'ihok^ and to make Livery ; the Attorney may enter
into any Part, tho' in the Pofieflion oi f-jcral 'Tenants^ and make Livery
feverally oi the feveral Tenements apart that he enters into the Polieffion,
of per Hale Ch. Baron and tot. Cur. Mich. 14. Car. 2. in Scacc. Hard.
314. Friend V. Drury.
<; r 't ct ^9- ^' ^^'^^"^ ^^^ Acres, makes Feoffment of both, and Letter of Attor-
Are. a ^^od. f'c}' to enter tnto both^ and deliver Seijin of both according to the Form, &c.
-8. Pafch. of the Deed. The Attorney ov/trj tnto one o;//)', and delivers Seiiin Se-
zS.Caisi. in cundum Fomiam Charts; this Livery is good, tho' he fuid not in the
jti''^ « Name of both; For when he dtliver'd Seilin of one Jccundnm Fortnant
%xi'^ ; but ChartiS^ it is Tantamount, and implies a Livery of both. Co. Litt. 52.
Serje.int ■ , • ....
Maynard reply'd, that my Ld Coke err'd much in this, and that it is not Law ; but u the Authority be
reneral, as to make Limry and Scifin, and he (enters into or) takes Pofleffion of one, and then makes Livery
of more Secundum Formam Charts, it is good ; and liiid that this is the Diftercncc takeu in the Books
5E. 3, 65. 3E. 3. 51. 27 H. 8. 6.
20. A Deed was made to three, Hahcnd. to two for their Lives, Remainder
to the third for Life, and there was a Lcttv of Attorney to make Livery to
the two, but inltead of making Li\'ery to the two, he made Livery to all
three. The whole Court held the Livery good, and the Chief JulHce
iinlefs where it plainly appeared that it was net parjued at all. As if a
Letter of Attorney be made to three jointly and fevcrally, fji'o cannot exe-
cute it, becaule they are not the Parries deleg.ated ; For they dc> not agree
with the Authority, and Judgment was given accordingly. 2 .Mod. 78,
79. Palch. 28. Car, 2. C. B. Norris v. TriiV.
(R) FeolFment
Feoffment 1 89
(R) Feoffment by Letter of Attorney.
I. A ifCOffmCltt may be made lip $lttO?nep ii $)♦ 4. 71. ^6.
jl\ air. 39-
2. So it map be received bp 3ttO?ltep 1 1 rp. 4. 71*
3. g Stranger cannot mnU JfCOffmCttt ol' my Land by my Aflent ; ^ ^ ^^.
ifoc it iis not nip Jfeomncnt* 4°- 3ff. 38. oauTpi ^
4. a ifeoffment ano Liuqp cannot be maUc bp an attomcu of
ttjZ JfCOftOr by Parol ttiitljout iDccii* Co. litt» 48. b- 52.
j:. an atto?ncp of tfje Jf coffee by Parol, uiitljout lettct of atto^
tltp bP DeeD niabe to Ijini, cannot take Livery. Co. ILitt* 48. b.
i^icl). r 1. cat> 015. la. pec Cut» upon euiuence at tbe osar, bctioeen
l^Jfrenian anb (J??obie.
6. 31f Leafe tor Years be made to A. bp DCCD^Ot tDitl)Ont DceH, tI)C
Remainder in Fee to B. anH Livery is made to A. '^CljijSf 10 0OOQ, tbO' IjC
be but an atto?ncp to tahe Libe/p fot Ijint in Rcmainbcr i Jfoc tbi?
cnute0 onlpto btni in Remambet. lit. s. 60. Co. jtitt. 49- b.
7. jf a Leale be UUIbe to A. and B. for Years tDitljOUt DecD, tlje Tho' Livery
Remainder in Fee to C. aUb Livery is made to A. in the Abfence of B "n't be made
in the Name of both j ^1)10 ijj gooH libe?p to bcft tijc Hemainbct in Nameofhim
C. Co. jLitt.49&» andofano-*
ther, who is
abfent, by which any Eftate of Freehold ftall pAFs to him, who is abfent, cvhhout Deed-, becaufe his
£llatc is only to commence by the Livery ; yet, when a Leafe is made to two for Years without Deed
the Remainder for Life, the Lejfees immediately have an fntereft in the Land, before any Livery made.
And therefore, Livery made to one, who has Intereft, in Name of him and the other, fufiices to this
Purpofe. 5 Rep. 95a. 59. Elii,. in the Exchequer, in BarwickV Cafe.
8. But if a Warrant Of SttO^Uep be made to two to take Livery In Cafe of a
jointly, nnb libe?p ijs mabe to one of tbem, in tlje abftnce of tlie i^"^' -^'^
otljet, in tbe Jl5ame of botb, it iis boib. Co. 3Litt. 49. b. ^Ts^Re.
mainder to C.
for Life, 3 Diverjiiy was taken by fi>me bet'xeen two joint Attorneys, who have ejcprefs Authority to takd
Livery and Seifm by Deed, and fxo joint Lejfe's, who have Power to receive Livery for the i^enertt of
another, by Warrant in Law ; For Livery made to one Attorney in Name of both, is ?wt good; for he does
not purfue his exprefs Wan-ant; for himlelf only had not Warrant; for they both make but one Attor-
ney. But in C.'ile of two joint Lelfees, the Livery made to one Lejfee in Name of both, is good ; For they
hud an Intereft in the Land before their Entry, and the Livery to one in Name of both makes an actual
Pofleirion in both, which is futiicicnt to fupport the Remainder to C. And in the one Cafe the Livery
is made to the Lrjfres, who have Interefi ; and in the other, to him, who made tSe Warrant of Attorney
by his Attornics, who ha'je lut a bare Authority. Trin. 39. Eiiz. in Scacc. j Rep. 94. b. 95. a. ia Bai«
wick's Cafe. Co. Litt. 49. b. , .
9. 3!f A. makes a "DZtXi Of Feoffment to B. and C. tOttl) Letter of At-
torney tO mafee jLilie?p, anb he makes Livery to B. in the Ablence of C.
in the Name of both. It iji 000b. CO. jLltt. 52.
10. 3f tbc lanb be in Leaie, if lettec of atto?nep be niabe, tlje ^^ '«"o good
better Uiap 10 to add this Claufe, Ac Omnes alios inde expeJlendi, Otljet^ P"«°*J'"e"t,
tote It IS a CiueOion, if be map enter upon jLeflie. D. 2 anb 3* ^. a DilSfin to
131- * II- the Leflee,
. . ^"'' not a
hwful Aft, per 2 J. But 5 J. and the Attorney, and Sollicitor General econtra. Pafch 2 and ^. P. & M.
D. i^t. pi. -I. ^It feeiTi':, that the giving the Attorniy Power to make Livery is fuflicicnt. See Mo.
91 pi. ijrt. Triii. \o. EHi, per Dver and Welch, who cited it as jhe £. of Wai-wick's Cafe .'
* It fliould be -I. . , '
1 1. But if it !>isi not tijiei Claufe, it feentisbc map enter anb m^\z
li^erp. D. ^ anb 3. Ci3a. ?» £>piiuan. \p. 31- CI. &. jRot.514. bc=
tuiccn Oirtir anb Ckypou aO)Ubp:cb, nnb tijis affirmeb ui J©rit of
^irrrar. 0* .'2- €\^ Hot. 791- Co, Litt. 52 b. D- 17 CI. 340. 49
12. Jf a Clia2ter of ifcoftmcnt be mabe, bpDeeb inbenteb, be«
VSimX $1. sub 12. tUltlj Letter oi Attorney to C. tO Wafee %.M}V ; t^O'
C c c " C. be
ipo Feoffment.
»
C. be not any Party * to the Deed, pct tljC }©a?rant Of Slttomcp 1$
* Foi. 9. n;oon, atiD tljc Cftatc fljall pnrsi lip tfjis Li\)qp» os/U. bc=
^-^^^''"^^ tujecit D/^/t^'> anO Mo/ami, x?,ou amuug'D per .Ctir* upon Ipecial
^vma, in tiijicij tlje ©pinion of Coke 10 nemeo, Contra Co* litt*
13. One Attorney cannot make LettCt Of SttOmcp tO another^ td
niahe line^i). is'c*^. 12. lu 19 p. s. 10.
Peik. S. iSS. i^. 3lf tijC Hetter of Attorney be to deliver Seifin upon Condition,
and he deli\ors it without COnOltlOn; tW iS KOt GOOD, bUt 16 be H
DifTdfor* II ip. 4. 3-
15- !^n iSttOjaep cannot \\UU LlUe}? within the View; ifor 1)10
U9a2|ant isf nitcnoitilc in Hm of an actual ano ecprefs LiUe?p, anU
not of a tm^v in laui* Co* Litt* 52. 13* 3. CU Qd» rcfol^jeo T^^r-
■ haiHS Cafe.
16. IJf 3» tie difleifcd of black Acre and white Acre, anil it l©at*
?ant of Attorney 10 UtaCe to enter into both aUO mafeC ll^JC^P, anH
tlje 3ttO?nep enters into black Acre only, anU make0 jLlUetp iecundum
Formam Charts ; tf)e^c tlje LMp 10 boin, ticcauic ije 0000 ttot putfue
W i©a^2ant; JFor tlje Cttate of tlje DiflTeifor m uibitc ac^e cannot
lie tie\)cfteri uiitljont an €mh Co* Litt* 52.
17. If a Man makes 20 feverat Deeds ot Feoftinent of one Mre of Land,
fothat they all accord in Sitbjlance^ and delivers Stijin upon a!/, it is good.
Held in Cam. Scacc.Br. Feoffment de terre, pi. 12. cites 7 H. 6. 44.
1 8. If a Man makes Letter of Attorney to make Livery to W. or to S,
and he makes Lroery to cither ot them, 'tis good. But it Jie makes Livery
to loth, 'tis void ; lor it is contrary to his Warrant. & hence it feems,
that the Feoffment is good by the Livery, by the Letter of Attor?icy with-
oitt Deed of the Feoff 7iiei!t. Br. Feoftment de terre. PI. 83. cites 11 H. 7. 13, j
K-r, ^ Roll ^9- ^^ Letter of Attorney to receive Livery on a Feoffment nnfrecites
kcp c-4. ^^-'^ Fe({fme>it, the Livery is void. Cro. E. 603. Hill. 40. Eliz. C. B. Mar-
riot v. Smith.
(R. 2) Who may ht Attorney to make Livery.
Alonks, &c. I. Few Perfons are diflibled to be private Attornies, to make Livery of
a^i.d Feme Seilin. For Monks, Infants, Fane Coverts, Perfons attainted, Excommu-
Cpverts may fn^^^^^g^^^ Villeins, Aliens, &c. may be; and a Feme may be Attorney 'to
to make'^U- deliver Seilin to the Husband, and the Husband to the Wfe, and he in Rs-
ycry for a mainder to Lejjee for Life. Co. Litt. 52. .
Pcrfon able
to make a PeotFment, becaufe the Feoffee in fuch Cafe is not in the Land, V'r him that makes the Li--
very of Scifm, but is in the Land by the Feoffor, But if they do not make mch Livery of Seifin, ac-
cording to their Warrant of Attorney : Then in fome Cafes it is a DiiTcifm unto the Feoffor, &c. Perk.
S. 18-. — Br. Feoffment de terre. pi. 4S. cites i8 E. 4. 27. Br. Coverture, &c. PI. 55. cites 21. E. 4..
iS. Br. Attorney, pi. 5. Perk. S. 199.
! 2. If a Man, feized of Land in the Right of his Wife, Leafe the fame
Landyor Life referving Rent, and makes a Letter of Attorney unto the Wife
to make Livery of Seifin, and the makes Livery ot Seilin accordingly, and
the Husband dies, and the Wite accepts the Rent, yet Ihe fhallhaveCui in
V ita ; lor this Acceptance cannot make the Leaie good, infomuch as llie
is a Stranger unto the LelTee; tor the Leflee took nothing by the W^ite,
notwithllanding that the made Livery of Seilin ; for Ihe made that but as
.5W-wr;/r unto her Husband. Perk. S. 199. cites 26 H. 8.
And. 247. S. 3- If a Letter of Attorney be made to Le[fee to make Livery, and he
C. Mo. .makes it accordingly; yet this does not determine his Interelt in the
zSathe 4th Land ; For what he does, is as Otficer or Servant to the Leffjr. Mich,
in S C."By 3^ ^^^ S^- E^i^- C. B. Le. 192. Petty v. Trevillian.
Name of Bat-
tey V. Tre- -.'
viiiJon- (S) Feofim^rit
Feoffment. 191
' (S) Feoffment by Attorney. At what time It may be made.
i.TiT a ^m mafecsi a t:)£fa of Jfcoffmcnt toitf) letter of attornej) ,
X to I* ®. to deliver Seilin alter his DeatH, tfjE ^ttO^llCP CaiinOC If the jr^r-
.ticii\jcr ^ctfm mirmg !)i0Lifc, ann if Ijc Uieis l)c 10 a Diil'eifor* 4°- tTObf,;
aiTt 3S. Curia* (pet Ije cannot uiaUe liijerp * after ijig DcatljO rMveryo?
Seifin (j/iffr
//le Death of a Stranger, and lie make Livery of Seifin in liis Life timey tliisis a DilTeifi!! unto the P'eotfor
•Perk. S. 1S8. cites u H. 4 ;. 40 Aff. 33 ^^- Fcotiments, pi. 54. S. C. * Ibid. S. ?. per Brooke.
— Agreed to be Law Holt's Rep. 465, 464. * Co. Litt. 5. 6(k
2. 3f a Span maV.eei a Deeti of Leafe for Lives rentiermjj Hent mo. s-j.s.
papable at 4 Cliiarters of tljc l^ear toitlj letter of atto^nep to %u ^* r — r^
to make llUerp. 'J\. %. may make Livery alter 3 of the Quarters pall l""^^"' '"'
toell CnOlWi) ■> jfor tt)e Lelior in the mean time continuing in Pollellion
Ijais not aup i^reiucice, W. lo. ja* 6. aujimgen -, tietiucen }©altet.0,
ann tlje Dean ann Cijaptcr of jOortoiclj.
3. :ff a* be diii^ifcd of lano, auo after mafeos a Cljarter of Jfeoff co Litt 4s
ment to 15. uiitl) letter of atto^nep to rnaUe liwrp, uiljo Dottj it b rays, with
accorcinglp ; tijts is a gooo jfeoffment, tljo' Ije uias out of PoUeifion Letter of At-
at ti)c 'Qtime of tfje Cljarter inaOei if or tt)C autljo^itp ijitien &p tlje ^'"■"cy cw
lettcr of attojnep uias (£j:ecuto?p, anti noticing paOeo U}? Deltoerp SE w
of tlje Deeo, till liijerp mane* co* litt* 48- 1^ j/jerVmaice
Livery (.Je-
(undtim formam Q:art4:] And Nelf! a. S45. pi. -. takes in thofe Words, but without quoting the Book.
But there it is mifprinted (Diireilbr for Dilleifee) but he quotes 37 Eliz. ©roton v. STtrrp, as is in the
Mavf. of Co. Litr. — The Cafe was, Land was feifed for the (^leen on an Office wrongfully found,
and the Heir, after ifTue tried and Judgment given againft the Queen, made a Feoffment ; Hanging this
Illue, and before the Writ of Amovcas Manum executed, the Attorney made Livery according to the
Deed. Adjudged that the Livery was good ; For by the Judgment the Queen's Hands were imme-
diately amoved, and he had Authority to Execute Livery on the Land. Cro, E. 525. Mich. 38 and 39
Eliz. C. B. Brown v. Terry. S. C. cited 2 Buls. 903. Arg.
4. J f^ Mayer and Comvwnalty generally^ "without naming the ■proper Name of
the Mayor, make a Feoffment, and Letter of Attorney to make Livery,
and the Mayor dies, and another Mayor /f KleCied, and the Attorney
makes Livery, this is good enough, per Moor Jultice. Br, Corporations,
pi. 34. cites 14 H. 8. 2. 29.
5. Leafe lor 21 Years, and a Covenant after in the fame Deed, that after genj] § c
the expiring of the laid 21 Years, the laid Leflees ll^lLsajoy tor Term of c. See Co!
their Lives. To make this a Remainder for 3 Lives, the delivery of the Deed Litt. 49. a. b. .
and the Livery of Seifnt muji he at the fame time j But if Lelior firll de-
livers the Deed, and the Attorney delivers Seilin after, the Livery is
void j For by this Livery it cannot pafs as a Remainder. 2 Eliz. C. B.
And. 8. Okeden v. Sendy. Mo. 14. S. C. Helier v. Okeden.
6. Feoffment on Condition to re-enfeof Raron and Feme and the Heirs of
their Bodies. Feoftee makes Gift in Tail accordingly, and Letter of
Attorney to make Livery j btfm-e Livery executed Baron dies:, yet the At-
torney may make Livery to the Widirx, and fhe llmll take inTail according
to the Gilt, per Periam J. Mich. 31 and 32 Eliz. C. B. Mo. 280. Batty v.
TrevilUon.
7. The Demile was to A. for Life ^ Hnbend^' a die Indenttirx pradiCia,
the Jury found that he demiled the loth June 44 Eliz. by Indenture of
the lame Date^ 'tis a Demiie at that time, and the Livery not being made
bv the Attorney till the 23 July was void, per 3 J. And per Popham Ch.J.
it the Ihid had been delivered after the Day of the Date, and then Livery
ha-vi been made by Attorney, it had been well enough, and had been lo
adjudged. Cro. J. 153. Pafch. 5 Jac. B. R. Hennings v. Paucharden. —
Roll.^828. pi. 5, 6. S. C.
S. \\illiam Lord Dacres the Father made a Feoffment in Fee to his
fiic Sens, tipcn Qnditicn, that they Ihoutd 7nake a Fccfment over to Thcmas
D,ii.yes
1 92 . Feoftmcnt.
Dacres and one MtddUton zvith a Letter ofuittortiey ; All the Deeds were ready-
to be delivered ;" but before the Father had delivered the Deed to his SonSy they
hiKi delivered their Deed o( Feorfment to 'Thomas Dacres and Middkton^
•with a Letter of Attorney t'j £. G. to make Livery ; afterwards the Father
delivered his Deed, and then Livery was made by Virtue ot' the Letter
of Attorney j adjudged that the Livery was voidi becaufe the Sons, at
.the Tinieithey made the Feoffiiicnt, had nothing to pals. Cited by Coke
Ch. J. 2 BuUt. 304. Hill, li Jac. in the Cale of Butler v. Finch, as Lord
Dacres Cafe.
Fcofiirient ^ Leafc for Life to commence at Mich, and Leflbr makes Livery after
"7/abn!kZ y^//t/>. 'tis gocd Livery. — So if he makes Letter of Attorney to make
.ifter Mch. Livery after iMich. — But if he makes Letter of Attorney to make Livery .
and the At- generally, and the Attorney makes Li\erv alter Mich. This is a Diileiiin
Live J ""'Sur ^^ ^^^ ^^^^"'■- ^ ^"^^- ^•3^6- ^i^^- ^ 7 M"^- ^- ^- Tiler's Cale. — And if
yWrZ-'^^et it *" Leflbr or Attorney had made Livery before Mich, it had been void. Arg.
Wis Held 2 RoU. R. 109. cues 13 Jac. * JButler v. Finch.
void, cited
per Popham Crq. E. 585 — The Difference is, where the Livery is made ly the Lejfor in Perforiy and where
by Letter cf Jttori.ey., being in the fame Charter, generally made ; but if" the Letter of Attorney be > *
malie Livery after Mkb. then in both Cafes 'tis good enough ; For there is no Intention, that the Lhiery
f oitld ofeeate fuiiirelyy but that Livery fhall be made, when it fhou^ld operate, and the iiflate ftiould be
good prefcntly. Cro. J. 565 Hill. 17. Jac. B. R. Greenwrood v. Tyler. — Dal. iii. Stileman v. War-,
ren ♦ 2 Buli. 50i. i). C.
[ See (U. 3) — Eflate (B) ]
(T) Livery. How it may be made.
1- TiT diverfe Parcels Of LaitH are contained in a IDZtt) Of JfeOffmettt,
JL iilltl t\)t Feoffor deli\ ers ^Clfltt Of one Parcel according to the
Dtcd, tljo' ije noti) not lav in ti)c Bamt of tljc l©f)ole, ^rt fiHtf)e
^ arcci9 paig i becaiite tlje OeeU contani0 tlje uiljolc* €o* Litt* 48. a.
Eut'tisother- 2. ,So It t^XS iXXt diverfe Feoffees namCD in U IDttJj, UtiO Feoffor
wic, u the rnakes Livery to one Of tl)t f eO{fCf|E( according to the Deed, ft?itI)OUt-
h'dtecn'iv fapmg in m Bm\t of tos mok, vet tm lanti fljall pafis toalU
r!^roi. r. 14. Co. JLltt. 48- a-
pi 71. Trin.
zS H. S Jopfon V. Undcrdon.
Trin 28 H 3. Jf CJ, be to maKC a JfCOffnient to is* auti €* without Deed, and
8. ]). 14. .1. YiQ makes Livery to B. in the abfence of C. in the Name of both, tpijj ijj
Topfbn V ^01^ a?3 to €* becaufc a $^an, tDl)o ip abfent, cannot tatte a jfranfe^ .
Undcrdon tHicment bp tiUxVy but bj) an atto^ncp, lamftUiP autl)0?i?cri to re»
cci\)e Lrtjerp bp Deen. Co. litt. 49- b.
4. But if a Charter of ifeoftmnit be maBC to a. and B. and, Livery
is made * to A. in the Abfence of B. in the Name of both, ti)i)3i0 JJOOll ; •
becauft It iis bp DecD* Co. JLitt. 49- &.
5. The manner to deliver Seilim of Land by force of a Feoffment is .
to remove all PexfoHs off' the Land, and one being upon the Land, in the Pre^
fence of all the Perfbns that are there, tajhew Caufe of their cuniing, and if.
the Feoff inent be by Deed, to read the Deed in Englijh, and the. Deed being
read, the Feoffor to enter on the Land and take a Clod or the fame Land, and
* The Book dclrjer the fame, together '■juith the Deed, unco the Feoffee, in the name
it"d " ' "^ Seifin of the fame Land, to have, hold and enjoy, according unto the
Purport of the lame Deed, &c. Perk S. 209. cites 39 Alf * 12.
6. 1^0 fliafl it be done, if Livery of Seilin le to be ?Nade ly a Stranger, by
force of a Warrant oH Attorney, Mutatis mutandis, &c. Perk. S. 210.
p P a- 7. If there areyortj- Fto/Ztfj-, and one makes Letter of Attorney to one B^.
nientdetcrrc ^° ^^'^'^ Livery in the Name ot the Feoffee and the Co-feoffees, accord^
pl. is-. cites ing to the Deed, and tg do all other Things tor turn and his Feoriees, ,
which
Feoffinent. ip^
which he mighc have done ii" he was Perfonally preient, and the Fco^br Nothing
f/iakes Livery to the jittorney in Name of that Feoffee and the onher Co- F'^esbuton-
leoffees to their Ufes according to the Deed ; this is good to all. z And. ^^j^'^ J!^'^
196. in the Court of \Vards, Davy and Abbot. the Letter of
8. Of Uater tn ajlanding Pool^ Livery ought to be with a Dirti of part Attorney.
of the W^ater; but no Li\ery can be oiriinmug Water. Mich. 6 Jac. B. R.
4 Le. 238. pi. 385. Anon.
9. Feoffment to Covporetion and another Perfon.^ there ought to be fede-
ral Liveries^ in refpeft of their feveral Capacities whicji makes them Te-
nants in Common. Finch. 23 b.
10. Livery can't be made to operate inftitiiro. Rayni. 207. Mich. 22 Dai. nr. i<5
Car. 2. B. R. Elii. Stile-
man V. War-
ren.— Roll. Rep. 425. Hill. 21 Jac. B. R. in the Serjeant's Calc;
11. A Feoffment \\-as made habendum to A. and B. for Life, Remainder
to C. and Li\'ery ^vas made to all three. Refolved 'twas good to two tor
their Lives Remainder to the third. 2 Mod. 79. Pafch. 28 Can 2. C. B.
Konis v. Trill.
(T. 2) Livery. At vvliat Time to be mads.
1. If a Man makes a Lcafe for Tears to A. and £. Retnatnder to C. for
Life ■■, in this Cale the Leffbr ought to 7uake Li-very to A. and B. before their
Entry j and by the Livery to A and B. C. ihall take a prefent Eltate
for Liie by way of Remainder, by force of the Li\ery made to the
Lcflees for Years. And with this agrees * Littleton, lib. primo fb. 12. b. ''Litt. S. 60
S Rep. 94. b. Trin. 39Eliz. in Scacc. agreed in Barwick's Cafe.
2. Livery made after the Day, not ivorldng fatarely, is good enough, j^ Lg^j-^ ^^^
Hill. 15 Jac. B. R. Cro. J. 458. Smith v. Bole. Life to com-
mence at
Mich, and Leflbr makes Livery after Mich, 'tis rood Livery, Hill. 1 7 Jac. B. R. 2 Roll. R. 566. Tiler's
<';i!c — But if Lcflor had made Livery before ^lich it had been void. Arg. z Roll. K.. 109. cites 1 5 Jac.
* Butler V. Finch.- Dal. iii. 16 Eliz. Stileman v. Warren. * a Buls. Joz. S. C. — ^See (S)pl. 9.
and the Notes thereon.
3. Feoffiricnt Habendum a Die datus j if the Seifin be not made at the
laft Inilant of the Day, it is not good, per Roll. Ch. J. Sti. 189, Hill.
J 649. in Cafe of Watts v. Dix. '< •■•'
(U) Livery. How it may be made, Secundum formani
Chartse, \jis to the Name and Thhig.'\
I T -f a S0an mafee^ a charter tip tuljici) Ije tscmm tlje Lann in Fee see (U. z)
^and delivers Seilin tor Lite, Secundum tbrmam Charta?, ti)Z ifCC
fijail pafg; JTor tt)i^ (Ijaii be tal^cit mod fitcnuasainfttljc JfeofFati
fat ii« tijc fail! xmim, ^ecunoiun foiinaui Cljartc, arc intcituea
aCCOrDiUQ; to tbC Quantity and Quality of the efteflual Eltate in the
Deed. C0*lltt»48.
2. jt a O^an leaie for Years lip DcfH, anti DcU^Ersi %vSi\\ acco?D=
inn,- to tl}c jfonn ann effect of tijc Dcctr -, pet lie t)a0 bnt an (Sflatc
fcr l^f at5, anti tije Ltijcrp lis i30tD* Co. litt. 48. b*
3. '}X A. lip iDCCB gives land to B. tO IjalJC after the Death of A. to B. 5 Rep. 94. b.
avd his Heirs, tOls td iJOiti ; becauO- \)z caniiot cccate a particular " ^^j>- ■§
eiTatc in liisufeir, aiii! if LiUf rp be mane accojtiintt to tlje fom anu ^ ^ '^"^
Cfirjt of tlje DrCil, tl)I!3 is liOitl ; becaUfe it refers to a Deed which is .
void in lauu mtlh 33 ann 34 eii?. Id, K. a5}Uligeli betlDCcn Hogg Hob i-i.
aut Crc/}, citeB Co, litt* 4^- b.
D d d 4. Jf
194-
Feoltment.
D. 281.3. pi. ^. ^^t a f^iJU Covenants to make a Feofiinent of the Value of 50 Marks
'5- Land fO %'* %* P.tttt ilftCr, makes Feotiment ol" Land of a fir greater
Value without alfigning where the 50 Marks Land Ifiall be. 'SiljIlS IS
tiaiD, for tijc unccrtaintv, niiti HO mo?e fijall paf0 tijaii tijc i^tace,
KJijere tljc Ifoerp was mane, [♦)♦ 13- 2:a» 'B* u* pet Cur, bettoeeu
■iT'OotiijOUlc anti if utter,
5- So in tljC rauie Cafe tIjC i^CDlfOr cannot after the Livery afTign So
Marks of Land, fp uial^e to nuici) to pafgi {jp tljc faiD Ltijcrp, m nsi
timcl) ais it noes not paid at firit, p, 1 3 31a. x';. E. per €ur, uetmecn
BDoaDOouie auu latter,
6. But otijcrtoUe it ujouId lie, if Ije had affigned iDijere tlje 50
ei5arfe5S lanu fljouirt be, beiore the Livery mate, p, 13 3^a» 13, E,
per Cur, tsetiueen iBoouijonic anu Jfuttcr,
7. So It fC£m0 it iuauin tie, ifijeOaO affimteD it upon the Li very-
made; jfor tljcn tije arfujnuient is Uno Fiatu uiitt) tf)e liijerj), CoiT=
tra 1^, 13 la, 13, E,
8. Jf a SJ9an Covenants to make a Feoffment ot all his Land, whereof
■50 Marks V alue fhall be to fuch a Ufe, and the other to other Ufe, (JC, aUO
after mahes tlje jfeoiTment of all acco^uincfp, without aligning tlje 50
Spares 5i)a!uc, ijc cannot after affign it, p, 13 Ja, OS, E, iiettueen
iBoonfjcurc ano gutter,
9- l!f a ®An tiaS a moveable Eftate Of JnljCritSnCe in 13 Acres Par-
cel of a Manor, tijep iDlli paf0 by Name of the Manor. CO, JLltt, 48. tl.
This is to be 10. 3!f a 09an IjaiS a moveable Elbte Of InijeritanCe in 13. Acres
underrtood if Parcel of a Meadow of 80 Acres, tljC Cljattet Of Feolfment ought to be
^''!''g*'o' generally of 13 Acres lying within the Meadow Of 80 ScreS generall?
anVnotPai-toitfjout faounBing, or tstfctibino: of it in Ccrtaintp anu Livery may
eel of a be of the 13 Acres allotted to the FeoHoribr a Year, ^CCUnBlUU fO^maiH
Manor Co cijarte^ aHti ti)i0 10 goon liuerp to paf0 tlje Content of 13 Slcres
1 1, jf a Manor lie fepatateti, anti di\ ided betioeen tioo, fo tljnt tIjc
one has one Part one Year, and the other Part the next Year, auB fO tlk
Other, anu fa tljep fjaUe motieaWe jfranltttnement0 -, in tW Cafe,
jLincrp ougiit to lie niaue in tbe $panor, Co, litt- 48. b,
12. But iaijere two Manors are fepirateU, anu uiijiueii, akemis vici-
bus; tijere tije Cijvirter of Feohinenc ought to be m.ide in Both, and
Livery in this ivianor tu|)ereof ijE 10 feifeU in anp oue l^ear, €>ccuntiuin
fO^masn Cljnrte, and the next Year in the other, ^eCUiiUUm fOiUTam
Cbarte*; jfor tijere are tiuo tsimnct ?r5anoi0 anU federal (ic dates
in tijem, Co. Litt, 48. b,
[13] 12. 3if A. feiied of loo Acres Of LanU IW fCZ enfeoffs B. of i8
* This of tbe fain 100 acre0 verfus auitrum, or ^crru0 G^ientcm, anu makes
fiiouid be Livery ; t(3l0 10 ffooU ; JFor tl)i0 10 cettatn at tlje Cimc of tlje jFeoff=
ment, D, n €i, * i8i. 19- 23 €1 372. lo.
r ,■ r^r l'^^}^- 2*^^ if ^* teif^^ of i°° ^^^^^^ "^ -^ff^ cnfeoiF0 05, of 18 of
the Ffofe tijefaiU 100 3cre0, Habendum libi& Hseredibus luis ad Ek-aionem ip-
iiied b'e^" ^"JS ^- ^ Haeredum iuorum quandocunque eis placeret, attU lUalieS
£:ecihr,, and tfytt^ acco.'Uuiglp, tl)t0 is & liolu Icottment for tbe uuccrtanitp,
the judg- tuijefe t!je is $lcre0 il)aU be amontj tbe 100 acre0 -, jfor tfjc jfranK=
T^L^t tenement of tljc 1 s acres ougbc to paf0 abfgue aliquo tempans inter--
And II 'ballo, from tlje iTcoifor to tlj: jfeoffee i jr or a Lioerp cannot ©pe^
ibcmstobe rate m futuro, D, n €i,*2i8. 17. 18. 19. aoiuugeu,
grounded
only upon the Ekclien ly the Heir ; and Anderfon put.? a QiiEre, if the FeofF-'c himfelf mit^ht have made
Eleftion, or Not, and the Livery take EtfeA Hy fuch E!e£tion and Hob. 174. cites it fo, ii'; that the E-
teftion of the Feotfee, himfelf makes the Grant good. See And. 11. and 12 Kullocfe'fi Caff,
cited 2 Rep 56. b. f. And. 11 Bullock v. Burdet.— Mo. 8i S.C.— Bendl. 148 — ♦Tnis iliimld be 2S1.
15. Dcr/Zof Feoffment is dated at Mich, next, and Livery made rw^ Se-
cundum foritiam ChartiB. The Freehold is in the Feoffee preiently. Mo.
8>. 86. Pilch. 7 Eliz.. in Cafe of Bullock v. Burdet.
* 16. Where
Feoffment.
195
16. \\ here the D fed is 'jouI^ Livery Secundum lormam Charts is \uid -oE 3 •> h
alfo. Co. Litt. 4^. b. — Cro. E; 60^. Hill. 40 Eliz. C. B. iMariot v. Smith. 2 Buls.5'02.
Butler V.
Fincher. — RoU.R. 229. S. C.
17. A Lcafe for Life is made 25 March^ Habendum a Die Datns^ with. Roll. R.izy.
Letter of Attorney in the Deed to make Livery Secundum f irmam ^ ^
Charts, the Attorney makes Livery the 26th^ this is not good. 2 Buls.
302. Hill. 12 Jac. B. R.. Butler v. Fincher.
18. I'ho' a Grant of Land to A. and B. Habendum one Moiety to one^
and the other to the other ^ makes a Tenancy in Common; yet they arc
diuinct Conveyances, tho' it be really one Deed, and Livery to the one.,
Secundum formam Chart:^, will not avail the other, per Holt Ch. J.
12 Mod. Mich. 301. II. \\". 3. in Cafe of FilLer v. Wigg.
(U. 2) Secundum formam Chartje. Where the Deed con-^
tames more or lejs than Seiiin is delivered of.
1. If a Man be enfeoffed by Deed of two Acres, to have and to hold three
Acres, and Livery of Seiiin is made to him, according to the Deed, in the
fnjo Acres; the third Acre, of which there was no Speech in the Premilles
of the Deed, fhall not pals bv^ the Deed j but if TJvery of Seiiin he made
in this yJcre, then it Ihall pafs by the Livery of Seiiin, &:c. Perk. S. 165.
2. If Livery be made to one of the Feoffees according to the Deed, it
p.ifies the Land to all, lb of the Seilm of one Parcel; but the beft way is to
lay in the Name of the whole, or of all the Feoflees. Co. Litr. 48. a.
3. If a Alan makes a Charter in Fee, and makes Li-very for Life, Secun- s. P. if it be
dum tormam Chartse, it palles the whole Fee Simple. Co. Litt. 48. for Lite e\--
preily, and
alfo according to the Deed ; becaufe in this Cafe being made Secundum formam Charts, the Livery Iins
a Reference to the Deed. But if Fcoftbr delivers Seifin for Life in fuch Cafe, Jnd not Secundum for-
mam ClurtJB, the Feoftee fhall hold but for Life. Co. Litt. 212. b.
4. If a Deed contains no Condition, but Livery does, the Land pafies S.'P. andy^
not by the Deed. Litt. S. 359. UKz't^b.
5. If the Livery be Arr^tr r/5rf« /•/7^^^rtft7»«;f, fome hold, that the Eilate '^^
fliall be according to the Agreement. Co. Litt. 222. b.
(U. 3) Liver)'. Secundum formam Charti^, at -zvbat
Time it may be.
I. Leale for Lives to commence a Die Datus was refblved good; ^^"^^^'^^
becaule Livery was executed after the Day of the Date. But if before, it jj^^ ^o'laW
Ihould not. Mo. 637. Mellow v. May. See i Roll. S28. 50. S. P. 21 Eliz. and
the Ltvery
1V.U 2; Eliz. Secundum fjrmam Chartie; the Livery /a kn^ after will not help the Leafe, which was Ha-
bcnd' a Die Ditus. Cro. E. 8-3. Hill. 4.4 Eliz. C B Mellows v. May, So if the^ Attorney makes
Livery the fine Day, Secundum foi mam Charts, 'tis void. Cro. Car. ^8S Mich. ic. Car. B. R. Bull V.
W'yart. — -But fuch Livery ?««/? be made the uext Day if it be to be made Secundum formam QiartE ;
For that is Forma Charts, per Dodcridge J. 2 Buls. 50&. Hill. 12 Jac. in Cafe of Butler v. Fincher.
(K) Livery. How it may be, where of Parcel hi ths
Name of the f-p^mle.
i.T Jf a 93aU mafeCSi feoffment of Land in diverfe Places in the fune p^ik. S 2z<S.
\ Counts', ailB liia'uO IS^iV^ in tt)e lanU in one Place in Name oic^^-^s. <^ H. 7.
all, tDc UJljaie fyall paf3. ?3erhiii^ %. 226. ^5-
2. Jf
196
Feoffincnt*
cites 2iH. 6
10,
^r,
Er Er.trc 2. Jf tl £0:111 Hlul^C^ ti DCCH Of jfcaffillCUt of Land in two Coun-
^:"^S Pl^35 ties, ailG muUCS LttJCrp Of tijE luUil iti out; Councv ia the Name of the
whole , pet tijc t^ii^u uiljtcij is iii ti)C otijec Couhtp fljall not pnfsi bp
It 22 i>. 6. 10. ii. DJcror nnu ^uiDcnt loo. b. #£dun0 -^^-j. con^
tea 26 aifv 4^.
3. :^r divers Parcels Of laiiH be coutaineii I'ti ii Dccu Of j^eofTnicttt,
fiUtl tijC l^'colior delivt-rs Scilin of one Piirccl lucoiding 10 the Jkvd, tljO'
Ije does not fiv in the Name of the \>. hoJc, j;ct all tijg }piU*CCl|3 pilijj, bC=
raufc tlje Dceu contaisid aiU Co* litt* 48-
4. If a M;ui 13 fa fed of two Jlcres^ ths one in Fee a/id the other for Lifcy
if he makes Feoffment of both Acres, ;uid makes Lh'ery in the Acre of Fee
in Name of both the Acres, this is a good Livery, and both the Acres
Ihall pafs. Br. Feortment dc terre, pi. 42. cites 9 H. 7. 25.
5. But if he had two Acres, the one in Fee, and the other for lears, and-
niakes Livery in the Fee Acre in the Name of both 3 the Acre for Tears
pall not pafs. Ibid.
Peik. S. 6. If a Man be diffeifcd of fjvo Acres of Land /';; one Cotmtj, and he efi'
;5. S. P.— fers into one of the Acres, claiming the f aid Acre only, and makes a Deed of
.y.i of an En- pgQ^fjj/^fif pf t,oth Acres unto a Stranger, and makes Livery of Seilin accord-
Acre ovttio ^"§ ^^ ^'^'^ Deed in the Acre into which he entred ; it is faid, that both Acres
Jcrcs fur- lliall pafs unto tlie FeoHee, becaufe this Claim is nothmg to the Purpole ;
fi,rycW in Fee por he had Right of entry before, &c. and both Acres are in one-
^■y^ K'''f\, County; fb as his Fntry into one Acre Ihall be entry into both Acres, not-
daim'd not withftaiidingthe Clain::, ^:c. againll which it may De faid, that the Acre,
the other into which the FeoiFor did not enter, Ihall not pafs by the Feottinenti
Acre, but For when a Man is out of PoUeffion of a * Thing feverable, he is at Liberty
^f'^a-'J'^* to continue his Polleliion in it, in which Part he will, and Ihall not be'
Stranp-er of compelled to rc-continue his Polleliion unto all in delpight of him. Perk. ■
both Acres, S. 232. citcs f !*■ 9- 7- 25-
3'.id made '
Lively in the Acre, which he entered into, Secundutn form.im Charti: ; yet the Acre into which he did
not enter, flio Id not pafs bv the Feoffincnt. Perk. S. 154. S'o where one has Title to enter ixto tuv ■
Jcres for aCoiiAiiion bruhev, &c. or for an Alienation in .)7or*ra/z/?;> 6cc. Mutut'ti- Mutandis. Ibid. S. 23 j.
. -j- It fcems It fliould be P.ifch. 9 H. -. 25. 1
Tjcndr. 12. pi. <^. A.feifed of 3 Acres^ by fiver al Feoffments, enfeoffed B. C. and D. cfthe
10. S.C. D. y^^y^jf Acres, tiz. each of them of one Acre to the Ufc of A. &c. A. before'
F'afch 1° '-'^^ Statute of 27 H. 8. by a Deed oi Feotiment, and a Letter of Attor-
Eli?.. S. P. ney enleoiled J. S. of the faid 3 Acres, and the Attorney entered into:
Anon. one of the faid Acres, and delivered Seilin to J. S. in the Nam.e ot that
Ibid.^v". b. ^^^ j.Ljg 2 other Acres; and by this the 3 Acres palled by the Statute of.
^6E\Il \mn ^ ^- 3- ^^ ^^^^ adjudged in E. R. after Argument by the Court. But How
' it palled, viz. by Grant or Feoffment quaere, &:c. nota the Statute. Palch.
25 H, 8. And. 28. pi. 66. Kellet's Cale.
8. A Man hath two Leffees for liars by feveral Leafes of Lands in a Com-
mon, and made a Feoffment of all his Land within the lame County, and
made Livery tipon the Land i one of the Tfermors ouiled him inName of all ;
nothing of the other Lealepalles by the Feoffment, inafmuch as the other
Termor hath an Interell, and remains upon the Land. But it is otherwife
of a Tenant at will; For there both Lands Ihall pals, inafmuch as 'tis a
Determination of his Will. D. 18. pi. 106. Trin. 28 H. 8. Anon.
9. But note by Knightley, that if I hefeifed of Land, and another is Te-
nant at Wilt to another Adan of Land, to which I have a Right to enter ; in
this Cafe tho' I make Fecff'ment of all ; and Livery of St'xiin in that part'
of which I am fcifed in Name of all; nothing palies of my Land, of which
the other is Tenant at Will to a Stranger; inafmuch as it is no Determi-
nation of the Will of the Stranger. So note a Di-verjity where he is my
Lefile at Will, and where he is Lelfee at Will of another. D. 18. b. pL
106. Trin. 28 H. 8 Anon.
Br. FcoffiTit. J o. if a Man feifed of one Acre of Land in PoffeJJion, and of another
Qc terre, pL ^.^ jjr y^,^^ ^^^^^j^ .^ D^,^;Jl yf FcoffhuNt of bcth^ ana Lii'erv in the Acre m
7 7. cues S.C. ■' ' M J 3 y
' Fofieffitii
Fcoffinent. 197
'Pqff'ejion in the Nairn; of bcih^ the Land in Ufc iLcuId not pali ; Con-
trary, if the Livery v\-a3 /// tte Laiid in Vfc^ by Kealbn of the Scatuce,
ike. Br. Feoffinents al Ufes pi. 55. cites 37 H. 8.
^Tv-^— ' '' '
(Y) In what Caies Feoffment may be ivithout Deed.
Of what Thing.
J- TT^i^OffmCltt maj' be of an Advowfon by Liven- of the Door of^^^p,
Jr the Church U)(rl)OlltDeCt!> 43 €. 3-1 -b. ' . ; '• 2.
2. d jfCOffnirnt may tic with /attornment of a Manor, t«it!)DUt
DecU, aim tljc ^cr^icc0 \M. pafg lip letter of i^tto^nep. 3 Kep* 29.
c^utier anu ':aat?cf0 €afc* '^ 20 jp. 9. 7. ♦ThisfhouM
3. Letter ot Attorney to deliver Pollelfion, it there is fio Deed of Fc- [.^ ^^^ ^_
offllient, is void. Per Frowick Ch. J. Kelvv 51. Tfin. 18. H. 7. 7. x
4. The Qiieltion of a Cafe drawn was, whether the Advowfcn in
Queltiod did pafs by the Livery made /';/ the Vie''S} of the Church, 'v\'ithuuc
Deed or not, (the Church being full of an Incumbent^ and refolv^'d by the
Lord Ch. J. ol" the King's Bench, and Jultice Manuood, to whom the
fame was referred, that the Advowfon could not pals by that Liver}-.
Gary's Rep. 74. cites 18 and 19 Eliz. Pannel v. Hodgfon, alias Hodfm.
5. The Father enfeoffs the Son to the Ufe of the Father hmifelf, for Term Bcndl. 288.
of his Life, and after his deceale, then to the Ufe of the Svn and his Heirs ; Fafcli. i - E!.
and after the Father and Son, (upon Communication that theFather fhould S P.Lanpi-
re-havc the Land in Fee) came together to the Land, and upon the Land ^' ^"^'^'
by Parol, without any Deed, the Son delivered Seijin of the Land to the
Father, Habendum libi & hicredibus fuis, &c. it' this be a good Feolf-
ment or not, Quxre ? it beingtound by Ipecial Verdict in Ejecl. Firm. And
by the Opinion of the Court 'tis a good Feoftiiient, and that in Law this
Acceptance of Livery implies t\vo Etiefts, Viz.. Firjl, a Surrender, and
after a Feoffment ^ as a Surrender to the Grantee of a lleverlion amounts
to an Attornment and Surrender. D. 358. pi. 48. Pafch. 19 Eliz. Anon.
' — Ibid Marg. cites it as fb held M. 28. Eliz, in Leonard's Cafe.
6. Livery and Feotiiiient vv-ithout Deed, by way ot Alortgage, was
good. Mo. 144. Mich. 25. and 26. Eliz. Ivers Kcale's Cate.
7. Livery oi Seifm (contrary to the Opinion of Coke Ch. J.) niav be
received "without Deed, as a Stranger may take Liverv to the Ufe of J. S.
and after J. S. agrees to it 'tis good. 2 Sid. 61. per Glvn Ch. J. "Hill
1657. B- -f^- in <-'ale of Blunt and Clerk.
3. 29. Car. 2. 3. Puts an end to all Feoffinents, &c. without Deed,
in writing and iigned bv the Parties, or their Agents authorized by writ-
ing ib as to have any greater Elte£t; than as FJlates at Will.
( Z ) By Letter of Attorney. Revocation.
What Act ( *) or Thino; lliall be Revocation. * Orig is
I. TiF a ^an inal^cy a Decri of jfcoftmcnt tuiti? Letter of iatto?= 5 Rep. 90 b.
1 llfP to make Ll^Crp, l)C tUap betbre Execution Of ti)C JLil'Cl'P
rebohc it. ^4. Id. 6. 14. i3er Cljol^e.
2. 3^f a '^m mai'.cc Cijartcr of jTeoffment tuitl) Letter or atto?^
nCV to llClllier ^eifin antl betbre Livery n-iade, bvQ^aiaXjp he bec-mes
Ptiraiiticke, {int)at \)z ts * mute at t|)c Ctuie, ujfjcn Li\3?rp i$s niatie,
but bv all Siens, tDl}!Cl) il 93^11 COltlt! pCtCetbC, he aiirecd tO tl)C BClt= *>'^''S f"''0
luerp of tlie %z\{\\\ -, t\w 10 a ncoon ifeotfmcnt, anti no EeViocation of !;, ,f 1?"^'
tlie Letter of attoraev. 25. aiT. 4- atmiDffef^ s c -^^
Eitt if ,1 Letter of Attorney to make I-iveiv of Seifin is made of cert.iin Land, by a Man of
unfound M-eniory, und the Charter of Fcoft'ment of tlie fame Land v;as wade lelore, lahen he
E e e ''^.'^.s
ipS
Feofthient.
'was of good .Ue/!!i}r^,and ihen Li-jcry of Scifin is ma^e by Force of th Letter of Attorney, iiithutit other
y^Jfent of tl'- Feoftor, and the Feofor dies. Now his Heir may enter upon the Feotfec ; but the Feorfor
himfelf in hi? Life can't enter. Perk. lo. ii. 8.23. cites 1; AlT. pi. 17. Perk S. 22.
^. 3^f tijc FeofTor dies Mm li'^crp utatie bp tte attojiicp, tijc
letter of i3tto2niT 10 retioheu m Law, tiecaufe tt)e Lano is oe-
fCCIlQcri i5D iji^ DCiitl) to i)I£i f^ctc* Co» titt. 52. In
[^] So If ttjc Fcoftbr dies lufu^e Liijctp tse mat!c ijp tlje ^tto^ncp,
tijc letter of atta2ucp (is relioheo in laiu, becaufe libcrp catmuc
lie niaDc to Ijis * liar, ro2 tijctt ije fijall tafee bp i^urcljafe, uiftcre Ibc
iuujs narn^n bp U3aP of limitation, Co* litt* 52. b,
4. %i a c:orporacion aggregate, ajs C^apo^ nnti Commmaltp, D^an
ant) Cijaptcr, 0? fuel) iifee, mahc a Cfjarter of jfeoffnient, mitf)
letter of attOjnCP to UiaKC liUerP an0 before Li\ery made, the
Mayor or Dean dies, pet tljelettct Of '^ttomepts not rc^otten Ijeeauft
tijc Corporation ncuer Bies* Co. litt. 52. ij.
5. But otijertnife it is( of a foie Corporation, as a "Biibop, FatfOH,
$c. COv litt* 52. b.
6. jf a c?5an mahesi a Deeti of jfeoffment of Land in two viiis,
tUitI) letter of attorney to niahe li'aerp, anD before Livery made by
the Attorney, thcFeofibr hinilclf makes Livery of the Land in one Yill,'
tl)i0 10 a coiintermanti of m letter of atto^nep, fo tfjat tbe at=
to^nep casinot luahe liiierp m tlje ot'Dcr aDiU» per ^Caniiclti i), 8.
3:a\ m tljc Crcl)ci]uer, bettaem %>\\\\t\) ano Jennpnfon.
7- 2f .a ^an mattes ctjarter of jfeoffment ot two Acres, whereof
the one is in Leafe lor Years, and the other in Dcmefne, iinD iltai^e^
letter qf Utto^nep to mafec li^crp, ant! after tbc Feoitor himfeir
makes Livery in the Acre in Demefne in Name of the \\^hole, tIjO' tf)C
otfjer aere, ialjicl) \$ in Icafc, cannot pafg bp \ty pet tfjc letter of at=
tornep 10 reiJolieD fo? tDi0 ^cre -, Jf oi it appcar0, tfjat fa mac tije l\v
tent of tU Jfcoffo2v !p. s. :ja» iw tije Ccefjeaner, per Ctir^
8 A i'lfie palled befduten the Grant and the Livery^ is ho Countermand.
Dal. III. 16 Eliz. Stileman v. Warren.
9. Tho' there be a Letter of Attorney to deli\'er Seilin, yet if before
Seiiin delivered by Virtue thcreofj the Feoffi)r gives Authority, Ore tcnus
to the Attorney to make Livery, he may give Seilin by Virtue of the
Authority Ore tenus, notwithftandingrhe Letter of Attorney j but then,
(as in Cafe the Letter of Attorney was in any wife defe£live,) the Attor--
ney mult fvvear he did it by Virtue of the Authority Ore tenus , for if
he did ic by Virtue of the Letter of Attorney the other Authority'
will not avail the Delivery. Pafoh. 24 Car. B. R. Allen. 53. Bamfield
V. Brown. 'Twas faid he could not deliver it by Virtue of botli
Authorities i Quod Quxre. Ibid.
(A. a) Who may make Liv^ery by Attorney.
I. XF an Infant makes Livery by Attorney, 'tis void, contra if he
Jl^ makes Livery in proper Perfon ; For there 'tis only voidable. Br.
Feortment de terre PI. 48. cites 18 E. 4. 27.
2. Vid. (Z) pi. 2. from which Cafe Ld. Brooke concludes, that it
feems, that a ndan Dumb, who has Reafon to perceive by Signs, may
make Feoffment. Br. Feoftinent. pi. 26. [and in that Cafe the Livery
was by Attorney.]
If a Man be 3- A Dijjeifee may make a Feoffment. But when he makes a Letter o'i
iiijj'fifed, and Attorney to one to make Livery, where he himlclf has no ¥Jiai-:, it is
"fi'^^a-^'^'^'^ not good; For he has neither Jus in Re, nor ad Rem. per Doderid-^e J. -z.
and a S ^nlf 305 Hill. 12 Jac. in Cafe of i>utler v. Fincher.
cf Attcrr.ey to
enter, and take fojfejjion, and after to make Livery fecund' jcrmantcharM; this is a good FeofFmenX albeit
he was
Feoffi-nent. i ^^
he ■s\as out of Poilcnion, nt the Time of the Cliarter nude ; fur the Authoi-ity givci by the Lettc""
of Attomcy is A'Afi^roij, aid iiotiiing palTcs by tlie delivery of the Deed, 'till Livery of Seiliii be
made. And in ancient Letters of Attorney, Power is given to others to take Pollelltoii for the F'eotfor.
K..0. Litt. 4$!. b. (d).
4. 'Tenant for Life z:iih Po'xcr to make Lenfes cannot make Livery b}- 9 Rep "•_»-
, jiis Attorney ; fo where Executors have Fewer to fell ; but where they have |£^^"™''"''
Jntercll they may. Arg. 2 Roll. R. 393. cites Rep. Combes's Cafe.
5. Ccfly que Uj\ ha\'ing Power to make Feottment, may make Livery g^ Feoff-
■..l?y Attorney. Arg. 2 Roll. R. 394. cites 9 H. 7. 26. mcnttoUfo.
pi. 28. cites
,S. C. and that it was held by all the Juftices^ thatCefty que Ufe might make Livery by himfelf, but nor
Tjy Attorney, for that the Statute is taken llrictly. But Brooke nukes a Qasrc, fo;r he :ays, it is heli
other wife at this Day.
(B. a) What palles by the Llvxry, by Relation.
I. A S S I S E by R. F. where it was found that AI. leafed the Tenc-
_/\_ ments to the P laintiff for n 2 ears, and in luret)- of it, made a
'Charter upon Condition, that if he was difiurhed of his 'term, that he
fljould have the 'tenements in Fee ^ which Charter was delivered to C. to keep
and to deliver according to the Condition, and delivered SeiJ/n upon this
Charter, and that M. fold within the term, and for the Dillurbancc, F.
delivered the Charter to the Plaintiff, and Li\'ery of Seilin was upon the
one Charter and the other, V iz.. upon the Sale alio, as it leems, by
which it was awarded, that the Plaintiff Recover ; the Realbn feems to
be, inafinuch as the Seijin wa.s delivered upon the Charter to the tertnor ; for
otherwife the Condition had come too late, as appears in the Cale ot
P'.tfinStOlt 6 R. 2 tit. Qiiid juris Claniat in Fitzh. 20. Br. Conditions.
pi. loi. cites lo Air 15.
2. A. makes a Feoffment to B. of 17 Jcres to be taken at the Eleificn of D. 280. pi.
B. or his Heirs, out of 1000 ^eres as they pleafe. By the Death of g'' ^c^^
B. the Eletlion determines. ^u,rre If B. might have made Election? Bendl. 148.
For if he might, then the 17 Acres pals by the Livery, which it feems i Rep. ^S.b.
they cannot; for 'twas not then known, which were the Acres j but the
Livery, being the Aft of the FeoHbr, ihall ha\ c its Etiect and Operation
by the Eleition of the Feolree, or elfc 'tis good for nothing. Palch. 7.
tliz. And. II. Bullock v. Burdot.
3. It Infant make a Feolirnent, or Leafe for life, to commence mfu-
tnro, and at full Age snakes Livery ; this is a good Feoffment. Arg. 2 Roll.
R. 109, leems admitted ^ but the Reporter makes a c^ncre of Feme Co-
vert ^ For her Deed is void. Trin. 17 Jac. B. R.
(C. a) Who may take by the Liver)^
1. T F J. S. le enfeoffed to have and to hold to J. S. and t. K. and Li-
X very ot Seihn is made unto /. S. according to the Deed, it is
void unto T. K. Perk. S 164.
2. But if Lfjery of Seilin had been made unto t. K. according to
the Deed ; then he takes bv the Li\ cry ot Seilin, and not by the Deed.
Perk. S. 164. ■ ■
3 . Seme may make Livery of Sii/in, and take by the fame Livery ; but
then the)' do net make Livery m their own K.i^hts or otherwile they do
ni.t take by the Liverv of Seilin ,'.'/ their cw?i Ri<ht. unlels in tbe.ial Cales,
OvC. 1 erk. S. 158.
4. therefere
200 Feoffment.
Br.Attoniey- 4. 7'bcrefoix if Land he ka fed for Life unto J. S. th^ Rcmahider unto
P'- 5- T. K. in bee. And a Letter of Attorjicy ts made unto T". K. to make Li-
very of Scilin unto the Ldiec accordingly ^ in this Cafe he takes by the
lame Livery of SeiJin, which he hinilelf made, bat not of his own
Grants For he made the lame <?j •Vfr-A'r;/? to the Grantor. Perk. S. 198.
5. If a Man cnfeojf's Piiuo by Deed, and n'iakes a Letter of Attorney unto
one of them to make Livery of Seifin, and he makes Livery of Seihn ac-
cording to thcDecd to his Companion ; he himfelt, who makes the Livery
ol' SeiJin, Ihall take by the lame Livery of Scihn, becaufe he Ihall be m
by the Feoff'r, and not by himfellj &c. Perk S. 199.
6. If a Man makes a Deed of Feoffment ot his own Land unto himfelf
dnd tlnto a Stranger^ and makes Livery of Seifin unto the Stranger acccrdmg
to the Deed, all Ihall pals unto the Stranger and nothing to himfelf j for
that he cannot give unto himfelf^ as this Cale is, &c. Perk. S. 203.
7. If a Feoffment be made to a Monk profefs'd^ and to a Stranger, by
Deed, and Livory of Seilin is made to the Stranger according to the Deed,
all palfeth to the Stranger. • But if Livery and Seilin be made to the
AJonk according to the Deed, and not to the Stranger, nothing fhall pafs
thereby. Perk. S. 204.
8. Unto divers Re fpcfts -x Man may take hy Z/ivrj' of" Seilin, ivhich he
made his own Right ^ but then \\t fhaUnot take in his o'xn Right, unlcfs
in Ipccial Cafes. Perk. S. 205.
9. And therefore if Dean and Chapter are, and one of the Chapter is fcle
feized in Fee in his own Right of Lands, and thereof by Deed enfeoffs
the Dean and Chapter, and makes Li\ery of Seilin according to the
Deed ; in this Cafe the Feoffor givcth and taketh by the lame Gift in
divers RelpeSls. Perk S. 205. cites 22 H. 6. 43.
ID. And fo Ihall it he of Mayor and Commonalty-, i f one of the Com-
monalty be feilcd of Land in his own Righc^ and thereof enleofts the
Mayor and Commonalty. Perk. S. 205.
11. Sixch Perfons as are ;;; i-'o/7i/^'^/(/7of Land for Tears or Life, ^c. canH
take Li\ ery of Seilin of the finie Land Perk. S. 205.
12. In FeolFment to the Dea,! and Chapter they cannct take but by Let-
ter of Attorney under Seal, per Brook Juitice, Er. Corporations, pi. 34.
cites 14 H. 8. 2. 29.
■^ "■ - 13. A. Lord of the Manor of D. by Indenture between him of the one
Part, and J. S. his Copyhold 7'enant in Fee, and R. S. Son and Heir Ap-
parent of j. S. of the other Part, in Conlideration of 100 1. paid by J. S.
enfeoffed, releafed and confirmed, &c. to J. S. the fiid Land Habcnd'
to J. S. and R. S. and their Heirs, and covenanted that all Alfurances
fhould be to the Ufe of J. S. and R. S. and Livery vv'as made Secundum
Ibrmam Chartse ^ refolved, that J. S. only took, by the Livery, and R. S.
took nothing thereby ; but R. S. took, by the Limitation of the Ufe in
the Habendum, as jointenant with J.S. and by the Statute of Ufes of '
27 H. 8. was jointly feized of the Intereft, and Policliion with J. S. Ley.
13. Trin. 7 Jac. Sanunes's Cafe.
(D. a) What Thing, or Eftate fhall be laid to j)njs by the
Livery.
I. T F a Man makes Feoffment of his Manor, in which he Jiath a War-
J[^ren, the Warren Jha// not pafs. Kr. Feolfment de terre. pi. 81.
2. If a Man makes a Deed of Fio/fj/je/it of his own Land to himfelf anci
unto a Stranger, and makes Livtry of Seilin unto the Stranger accoyding to
the Deed, all Ihall pals unto the Stranger, and nothing unto hiiniell, as
this Cafe is, &c. Perk. S. 203.
3. If tivo Jointenants are in Fee, and one of them enfetff's a Stranger of
theT{'l:>ole againll the Will of bis Companion being upon the Land i by
this Feolliiient nothing, but the Moiety, paffeth. Caufa pater. Perk,
ij. 220. 4. By
Feoffinent. 201
jt.. By Li\ery ol' Sciim in one County, the Lands and Tcncitienti in BiftifaFerf'
another v\ill not pals 3 yet il' the Scttc of the Manor of D. le ui the mentbc m^i^
County of Effcx, and Paral of the fame Manor doth extend into the Coun- "l '^'^ -'•';"""•
ly ot A/idd/efcx, and a Feoffment be made of the A4anor of D. and Livery /).,/,,'' ^hicli
of Seilin /.J made of the Sate oi the 'bA-xnor, v;hieh lies ?>; the County of Munoi-fv.
Effex ; by this Livery of Seilin, the Parcel of the Manor, which lies in temUwtoDale
Middlcfex Jhall pais, becaufe 'tis Parcel of the Thing, viz. the Manor, ^"^'^'''^f's^f
of which the Feoffinent was made, the which Manor is but as one thing {in^'JnmAe
to fuch Purpofe, &:c. Perk. S. 227. accordingly
in Dale ; By'
this Feoffment nothinj^ pafR-s but thnt which is in Dale ; becaufe the Feoffinent is not of more, but of
that which is in Dale, and the Livery of Scifiii is made in Dale, and r.ot elfewheie, 6cc. Peik. S.
22S. cites T. 9 E. 4. 17.
$. A. (elz,ed of a Houie for Life made a Feoffment of it, and Letter o^
Attorney to deliver Seilin fecundum tormam Chartse ; Icfcre Li-very Tenant
for life fiirchafed the Fee, and after Livery ^\'as made. Per Cur' all palles.
- — ^But if the Feoffment had been of all his Lafids in D; and the Let-
ter of Attorney accordingly ; — and before Livery the Feoffor had many
Lands there- — If he purchaled one Acre after ; — the Livery fliduld
not extend to that Acre, becaufe the Authority wiis fatiiried by the othet
Acre. 3 Le. 73. pi. 112. Hill- 20. Eliz. C. B. Anori.
6. Feoffhient was of a Adanor, to which an Advo'-j.fon ivas appendant^ - '
and Livery w;is made ; tho' the \tenants did not attorn, yet the Advovv-
Ibn palled as Appendant to the Dcinefnes. D. 70. b. pi. 41. Marg.
fa}'s that it was lb ruled 32. Eliz. in C. B. in Hamlington's Cafe. — And
lays, that it was alfo agreed 30. Eliz. in the fime Court. Ibid.
7. Doderidge J. cited a Cafe, ^vhere 'tis held, that if one make fwo
jeveral Deeds, one purpart tng an Eftate in Fee, and the other en FJiate Tail,
and thofe are made to one and the flime Pcrfbn, and he brings both in
his Hands upon the Land, and makes delivery of both Deeds with the
Land; by this both Deeds Ihall take Effeft, and by themEllate Tail, and
alfo Eltate in Fee Simple pallcs. Pafch. 16. Jac. B. R. 2 R.0II. K. 2g.
in Caf: of Thurman v. Cooper.
(D. a. 2) What Eftate fhall be faid to pafs by the Live-
ry; without the Words, Heirs, of Succefiors.
I. "T F L-ands be given to a Mayor and Commonalty for their Lives, by in-
\_ tendment they have an filiate not determinable. So if a Fcoffi
ment be made of Lands unto a Dean and Chapter without Speech of their
Succefibrs. Per.k. S. 240. cites T. 22 E. 4. 38.
2. If my Fcojfee in Fee of an Acre of Land re-infeoff's me of^ the fame ^i,f if Land
Merely Deed, recUing in the lame Deed, that I have infeoffed him of an Acre be given unto
of Land, to have "and to hold to him and his^ Heirs ; and f nth farther in "^c by Deed
the flimcDeed,/-/.^^?; as fully as I have given the' Lands unto him, he doth give f^l^i^^^ „,^
me them hack again, and delivers to me the Deed as his Deed, and Seilin ,„ j>f^ ^vith-
of the Land according to the Deed; in this Cafe it feems, that I have an out fpealdrg
Eftate of Inheritance in this Land, notwithilanding that it is not given ot mv Hcir^
unto me and my Heirs, becaufe that my Efbite doth rely upon an Eltace ggii-^^bJ"
of Inheritance, recited within the lame Deed, tamen qu£rc. Perk. S. ^.^^^. unto
241. cites 1\ II H. 4. 84. & 39 All! p. 12. ineaccording
to the Pur-
pon of the Deed ; by this F^ofiment I have ati Eftate but for the Term of my Life, &c. Perk. S.
243. cites T. 2u H 6 '46.
Fff (D-as)'
202 Feoffment.
(D. a. 3) Pafles 5 what, by the Feoffment or Livery.
I. \ M;in feiz.cd of a Manor ivith Mvcjifon uppeftdant^ made a Feof&
Jf\^ iiienc de tertia parte Mcr,icrii. The Ad\'0\vlon does not pais, nor
any Pare ot" it. Er. Incidents, pi. 30. cites 6 £. 3. Fitzh. tit. Qu.ire Imp.
40. per Parne.
(E. a) Pleadings.
J. X N Affile, where Deed of Feoffment is pleaded in Bar, Nknt Comprifi
\^ is 110 Plea, Envjhallfay thatRiens pajfa, Sec. Stouf where a Thing
of Kecord, as Fine, &c. is pleaded, there Nient Comprife is no Plea, but
in Cafe of a FeoHmcnt, he fhall lay that Riens palla, neverthelefs after
Perfey allented to the Averment, qucere. Br. Comprife, &c. pi. 12 cites^-
29 Alf 56.
S. P. per Cur. 2. Formedon in Reverter, the Tenant faid, that the Domr enfeoff^ d the
Br.Pleadint^s. Donees in Fee, &c. Judgment Si Aftio ; and this is no Plea, per Cur', if
r','H'!?o' he does mt traverfe the Gift in 'Tail. By which he faid, that after the'
^ . an 2, . ^j^j.^ ^^^ Donor enfeoff 'd the Donees in Fee ; and no Plea, per Cur', with-
out faying, that after the Gift the Donor was feifcd in Fee, and enjeopf 'd the
Donees in Fee ; wherefore he fiid accordingly, and the Denimdant im-.
parled, and yet this is in £lfe£t only in Confirmation. Br. Barre. pL;
4. cites 2 H. 6. 15.
3. In Ward, the Defendant pleaded a Feoffment by which the 'Tenant^
Anccjior of the Heir enfeoffed IV. P. in Fee, -johofe FJtate he hath; and per
tot Cur' this is no Plea without a Traverfe, that he did not die his Tenant, •
or that he did not die feifed; neverthelefs as it feems, he fliall tra\erfe, thac"
he did not not die in his Homage. Br. Barre. pi. 37. cites 4 H. 6. 29. ^
4. And in ECcheat becaufe his Tenant died feifed without an Heir, 'tis'
no Plea, that theTenant enfeoffed N. li'hrfe Efiate he hath, without a Tra-
verfe that he did net die feifed, per Martin, which the Court agretdl*
And fo lee, that where the Plea is contrary to the fuppofil of the v\'rit,
'tis no Plea without traverling the Point of the \\ rit. Quod nota. Br.
Barre. pi. 37. cites 4 H. 6. 29.
5. And in AJftfe, the Tenant pleaded a Deed of Feoffment hy the Plain-
tiff to J. N. isjhofe Ffiate he hath ; 'tis a good Plea ^ and yet if he
pleads the Feoffment of the Plaintiff to htm, this is no Plea, per Pafton,
which Martin agreed ; and fo fee there, a Difference is taken between a
Feoffment pleaded by .^/le Ffiate, and a Feoffinent made immediately to him
who pleads it, note the Diverlitv. Br. .Barre. pi. 37. cites 4 H. 6. 29.
6. In Praecipe quod reddat, if the Defendant pleads Feoffinent of the Fa-
ther of the De?nandant, whofe Heir he is, fimply and •without any Condition^
it was held by Babb. and Pafton, that thefe Words (without Condi- ■
tion) are void, and the Effeft oi the Plea is no more, but the Feoffment;
and the Demandant fhall allege the Condition of his Part to confefs and avoid
it, and then the Tenant by Rejoinder jhall anfiuer to the Condition. Br.
Pleadings, pi. 8. cites 9 PI. 6. 59.
7. In Trefpafs, the Defendant f.iid, that it was his Franktcnement,
&;c. the Plamtiff' faid, that before the Defendant had any Thing, A. was '
feifed in Fee, and enfeoff' d B. who enfeoff 'd C. who enfeoffed F. who enfe-
off'd the Plaintiff, and the Defendant enter'd, upon whom the Plaintiff'
re-enter'd and brought the Aftion^ and was compell'd by the Court to
emit all theFeoffments, except tlx Feofjim nt of F. to him ; For this is fufficient, .
and he may give the ether i» EvtdefKe. Br. Pleadiogs. pi. 23 cites
19 H. 6. 30.
8. Where
Feoffment 20-:^
8. VV'here a JVIan pieadj Fcoiiiiient, the ocher may fiiy, that it was Pleading a
tipoii Comiitwnyivit hoiit Trava'je j fur it mav be intended one and the lame Fe^'ft'i'iiiit in
FeofFment. Br. Traverfe per, &c. pi. 382. cite? 32. H. 6. 4. Condmon
without Deed, and Reentry is good, if tlic other Party ccuj'cjfes the Jcihn. 5 Rep. 40. b. in ©prmtr'jBI
(taff. cites - H. 6. 7 b.
9. Entry in the Quibus, the T'cnant faid^ that J. S. was fei/ed in Fee^
to whom J. D. releajtd by his Deed all his Right^ &c. and J. S. enfeoff W
H. in Fee, whofe EJlate the Tenant has, and gave Colour. Billing prayed
to be difcharged of the Releafe, and that it be not entred ; tor
Pajfij/ioii, nor Right is alleged in J. D. who released, and yet it was an
Entry ; for it may be that J. D. was feiled in Fee, and releafcd, and
then this made Title to the Tenant ; and per Prilbt tiie Releafe may
make Ilfue. Br. Pleadings pi. 54. cites 38. H. 6. 5.
;■ 10. If Feoffment be made by Livery by Letter of Attorney, it Ihall be
pleaded generally ^ and lie lliall not iay, that the Livery was by Attorney.
Br. Licences, pi. ij. cites 10 £. 4. 4.
ii. In Trefpafs, 'tis no Plea in Avoidance of a Feoffinent to lay, that S.P.Br.Con-
the Feoffor had nothing in the Land at the Tinn of the Feoffment ^ /or it ^^*? ^"'^ ^-
^a£es by Livery ; therefore he pall fay that Ne enfeoff 'a pas. Br. Fe- ciTetiSE 4*
oftiiient de terre. pi. 46. cites 10 E. 4. 8. z-y.—But 'tis'
a good Avoidance of a Leirfe for Tears to fay, that the Leflbr had nothing in the Land at the Time of
the Demife ; for there is twLncry. Br. Fcorfhient de terrc. pi. 46. cites 10 E. 4 8.
.' 12. Feoffment by J. £. and C. to J. S. and J. S. pleads that B. and The Feoffee
C. werefeifed and enfeojfed him, &c. [It ieems to be intended that A. was cannot plead
dead.] If this Feoilinent be traverfed, it Jliail be found againll: him. For fromthcSur-
the Feoffment is one joint A^ by all threes * 14 E. 4. i. b. pi. the laft, vivor of the
per Littleton. Whole ; be-
caule each of
them gave but his Part. Co. Litt. iS6.a.— S.P. per Holt Ch. J.Williams's Reo. 17. cites S.C.—*Br. Feoff-
inent de terre. pi. 65. cites S. C. Br, Jointenants. pi. 64. cites S. C. Br. Pleadings, pi.
105. cites S. C
13. Rut if J. S. make a Feoffment to A. B. and C. and B. and C. die, ^ ^ ^"^-^^^
fo that A. has the Whole by Survivorlhip, in fuch Cal'e A. may plead the ^°^^ lACar'
Feoliment to himfelf only, i E. 4. i b. per Littleton. B. R. in
Cafe of Man
V. the Bifliop ef Bridol. Br. Feoffment de terre. pi. ^5. cites S. C. Br Jointcnants.
pi, 64. cites S. C. Br. Pleading:i. pi. 105. cites S. C.
14. If a Man be bound to make a Feoffment of the Manor of D. and
pleads y that he made a Feoff nent, he pall Jhew where the Manor is ; for it
cannot be done, but upon the Land. Br. Pleadings, pi. 31. cites 15 E.
4. 14.
■4 15. There is a Diverjity between the Pleading of Void Feoffments^
or fuch as arc voidable only ; as a Feoffment by one Jointenant to bis Com-
panion, or by Feme Covert, or Monk is void, and the Party may/^y, Ne
fnjeoffa pas ; But otherwife of a Feoffment by Infant, or one in Prilbn.
18 E. 4. 29. a. per Littleton.
i6. In AJ/fe^ if the Tenant pleads Feojfment made to him of the faid
Land, and the Deed is of all his Lands in B. which defcended to the Feoffor of ■
the Part of the Father, and does not aver, that thef'e Lands were defended
to him of the Part of the Father, yet 'it is good ; becaule he faid that he •
enfeoff 'd him de Prwdidis terris in qnerelafpecif.catis; by all the Juilices
and Serjeants. Br. Pleadings, pi. 66. cites i H 7. 28.
17. So in Affle againlt J. S and he pleads a Feojfment made to him by ^^i where he
Deed and the Deed is f. N. and yet good ; For he may be known by P'"*^^' ".°^
two Surnames; but the Pleading is the better, if he pleads perNonun, &c. ^^^ flicws '
For where he pleads a Deed to J. S. and lliews Deed made to W. S. [it is Deed of the
not good] ; For he cannot be known by two proper Names ; Per all the ^far:or of S.
Jullic.^s and Serjeants. Br. Pleadings, pi. 66. cites i H. 7. 28. fufticlf and
Serjeants. Br Pleadings, pi. 6<S.. cites i H. 7. 2S
17. Where
204
Feoffment.
18. Where a Man pleads^ that a Stranger -was fetftd and enfeoff 'd hiniy
he need not, in any Cale whatlbevcr l:iy, that it zViis to his ck,'« i'Te; For
Prima liicic, it lliall be fo hnendvd, 'till rhe contrary be lhev\n. 5 H. 'h..
33. a. per Brian.
19. In pleading of a Feoffment, Leafe, &c. by Cefty que Ufe, he
vecd not [ fey], that he at the Twic, ^c. was of pill .4ge^ Sound Manory^
&c. but this pall come Ly the other Party. Br. 'Pleadings pi. 171. cites
16 H. 7. 2.
20. In Trefpafs the Defendant faid^ that A. and B. were feifed in Fti
to the Ufe of the Plainltff'^ and that the Plaintiff' fold the Land to him^
6cc. and admitted good, notwithltanding that he docs not peiio^^ who enfe-
off d A. and B. to the Uie ot' the Plaintiff j quod nota bene inde. J5f.
Pleadings, pi. 43. cites 21 H. 7. 6.
21. In Doifer ^ if the Tenant pleads DifleiJin by the Baron, and the
Feme pleads Feoffment by J. N^ to the Baron, who after enfeoffed the Tcnattty
and after diffeifed him, Ihe Jhall fay that the Feoffment of J. and the Seifm
cf the Baron, were darmg the Coverture. Br. Pleadings, pi. 147. cites 26
H. 8.
22. Mention Ihall be made in the pleading, that the Land was withitt
View. Br. Feoffment de terres. pi. 57.
£3. If A. pleads a i^'eoiiment in Pee, he muft conclude, Virtute aijns
pradi/f. -A-fuit feijittts, &c and this holdeth not only in Cale of Lands,
which lie in Livery, but alfo o£ Rents, Advcwfons, Cojnmons,8cc and other
Things, that lie in Grant, v/ hereof he hath an Eltute for Lite, or Inheri-
tance. Co. Litt. 201. a.
24,. When a Man pleads a Leafe for Life, or any higher Eftate, which
pafies by Liver}', he is not to plead any Entry j for he is in actual Seilin
by the Livery itielf Co. Litt. 201. a.
Such Plead- 25. In pleading a Demife lor Lil^ after the Death of two former
tnr; of a Fe- Lives, the Indenture was pleaded bv a Teltatum only, viz;, quod per
aliment by quondam Indenturam, tc/lantv.r quod fjemiferiwt, and no Livery of Seifin was
iVnotgood, P^-'^f, ^"'i Jt >^'as held 111. D. 117. b.' 118. Pafch. 2 and 3. P. and M*
but it ftouid Jones V. Weaver, alias Sentloe's Cale.
be allcdj^cd
dire(5tly,quodFeofflivit. Arg. 2 Roll. R. 1 10. in Cafe oflSutflfant i). jjlolman cites 21 E. 4.. 44. 22 E. 4,
Brief. 5S0. 22 H. 6. 5. 4 E, 4. 5. 28 H. 6. 29. — But it ^vas ar.^jucd e tjontra, tliat it had been rcfolved,
Alich. ^l, an'i ;2 £li/.. that -where the Pleading the Feo^tn)e^.t is only hy way of //Hhii-cj.ent, it is good
by Tciiatum ; As where the Attion is only to recover Damages, as in Covcnarit, as the Principal'tJale
■was, and adjudg'd accordingly. 2 Roll. R. no. Trin. 17. Jac. B. R. Buttitant v. Holman.
In a Plea of 26. In Trelpafs for taking his Ox, the Defendant juffified as Servant
the teoft- q£ ^_ ^jjj j-hm- Yi^^ ^Q^^]^ j^ ,jg .^ Heriot, by Reafon of a Cuftom within
Manor Uve- ^^^ Manor to pay a Heriot on the Death of every Tenant dying feifed of
ry and Jttorn- a Mcfuage, and that J. N. enfeoff'd W. R. and W. S. of the Manor, to
7/ie7it are im- the Ufe of A. The Plaintiffdemurredjbccaufe the Defendant entitlesA.as a
{'^'/w V^' Purchafor, viz. by Feoliment, and Jbews not the Attornnient of the de-
— Vid the ce^fi^d 'Tenant, whofe Services are demanded, aad that he cannot otherwiffe
next Cafe. entitle him to the Services of that particular Tenant ; and tho' a Feoff-
ment of a Manor may be pleaded, and that by Force thereof he was
feiled of that Manor without Ihewing the Attornment of the Tenant, (lor
that is necellarily intended, as Liv ery without pleading it,) yet /;; thiT
Cafe of a particular Tenant, he ought exprefsly to Ihew his Attornment.
But the Court held that there was no difference, and Ktit Attornment may well
' ' ' he intended, and if he did not attorn, the other ought to have pleaded it.
And all agreed, that by the Feoffment of the Manor the Services palled not
without an exprefs Attornment, but that mav be well intended, if the con-
trary he not Jbewn. Cro. E. 400. I'rin. 37. Eliz.. B. R. Ferrers v.
W'ignall.
27. Executor brought Debt for Arrearages of Rents, as well CupyhoH
asfre, belonging to the Manor of J), whereof his 'Pclfator died leiled,
ana tor Reats due at the Teltator's Death, the A£f ion was brought upon
the
Feoffincnt. 20 c;
the Stat. 32. H. 8. It was held, that it lies not for the Copy old Rents,
within the titatutes j Nor lor the Iree Rent, becaule the PLiinti;!' h.id
not declared that Dejtiidant attorn d to I'ejlator :, and tho' in pleading it is
fulficient to alledge Feoffment of a Manor 'without fkading Li\er\-, or At-
tQ-muent of the Teikints^ } et when the Rent of any Freeholder comes in
Debate, it behoves both the Owner of the Manor, or his Evecutcjr, who de-
mands it, to coni'ey Privity between the Tenant and the Lord, which
ought to be by Attornment; For the Rents and Services do not veil with-
out Attornment. Quod iSota, Yelv. 135. Mich. 6. Jac. B. R. Appleton
V. Doily.
.28. A Man pleads * fcoffavit, dedit, ox divufit^ for Life. This implies * When a
Liver>' ; for without Livery, it is no Feoffinent Gilt, or Demile. Trin. ^"eofeent is
7. Jac. 8 Rep. 82. b. in Ymyor's Cale. t^^^^
plead Livery and Seifin thereof, becaule it is to be admitted. Hill, j Car. C. B. Cro. C. \o\. in
Cafe of Peto v. Pemberton. — S. P. Cro. J. 656. Pafch. 20 Jac. B. R. Smith v. Mcltcr.— S P. .idmitted.
Mich. 6 Jac. B. R. Yelv. 155. in Cafe of Appfeton v. Doilv. — Livery fhall be intended Becaufe
he who made the Livery Ihall be intended to be upon the Land, and to Execute it. Admitted Arg.
PI. C. 149. b. Mei.tion lliall be made in the Pleading that the Landiuas ivithm I'levj. Br Feotfmcnt
dc terres pi. 57.
29. Upon a Demurrer in Debt for Rent, it was obje£lcd, that the
Plaintifts, being a Corporation, intitk themfehes by Feoffinent, and pew
not Livery to be executed by Letter of jittcrmy ; For that they may
not take unlels byLetter of Attorney. Sed non allocatur ; For all neceflary
Circumflances fliall be intended to be executed, as well as in a FeoHhient
pleaded to other Peribns. Wherefore it was adjudged for the Plaintitis.
Cro. J. 41 1 Mich. 14 Jac. B.R. Ipfwich (Bailiffs, &c.) v. Martin andParker.
30. It was pleaded that Sir Thomas Parret was Seifed in Fee, and
enteoff'd twoTruftees to fuch Ules, Virtute cujus, they were leiled ; yet,
becaufe 'fvsas {aid, Jtrffavit inde, it was adjudged ill, and Virtute cujus
did not help it. Cr. J. 588. Mich. 18 Jac.B. R. Dowfewell v. Reynolds.
31. If a Feme fole makes a Feaffinent, 'and Livery laithm View, and di-
rects him to enter, and atter marries the Feojf'ee bejore his ailtial Entry^
yet an Interell palles by fuch Livery, and the Marriage is no Counter-
mand, and when he enters it has a ftrong Retrofpe£l to the Livery, and
fhail 'oe pleaded as a Feoffment when fie was Sole. Vent. 186; Hill. 23 and
24. Car. 2. B. R. Parfons v. Perus.
(E. a. 7,) Pleadings, Traverie.
1, "TN Avowry, the Plaintiff pleaded Feoffment of twenty Acr<?s by !7! Lord S. P. Br. A-
X of the Manor, before the Statute, to hold by lefs Services by Deed, which vowry.pl. 00.
heJLew'd ; and the other f aid that R. was feifed before this, and enJeoff''d p"^^ an/''"''
W. to hold as in the Avowry, abfqtie hoc, that 't. any Thing had in the Ma- Newton,
nor at the 'Time of the Feoffment made of the 20 Acres ^ this Traverie is
as well, as if he had laid, Abfque hoc that T. enfeoff d N, &c. Bf. Tra-
verfe per &c. pi. 106. cites 22 H. 6. 50.
, (F. a) hivQvy ftrefnm'd at Law, orjuppjyd in Equity.
I. X F a Man fell Lands in two Counties tor Money, and makes Livery in
J^ one only, he Ihall be compelfd in Confcience to perie6c the AlFu-
rances by another Livery i For the Contra6t tailcth in a Circumjtance, or
Ceremony. Cary's Rep. ?4. cites Dott. and Stud. 37. J'p^'- '°''
2. Where one would have avoided a Conveyance for a;^»/ 0/" Z/'ytffj, Hiii'io^lac
the Grantee, on a Bill by him, was reliev'd. Toth. 104. cites Mich, or Moretonv.*
Hill. 9 Jac. Conquelt v. Nev.digate. _ -Bf'^g*- -; — •
Ibid. 116. S. P. cites Mich, z Car. B.irrow v. Barrow.— Ibid. 117. cites Mich. 15 Car. Row vChefwick.
3. The Perfon died before the Livery and Seilin^ and before the Afliir- So there were
ancc pertetted j \et it it was ordered to beperfe^ed. Toth. 237. cites \^^l"fZ'J'
■ Pafch. 7 Car. Higham v. Ladd. his Land for
a valuable Confidei-ation, ard died hefore.Fitecution'of the Deed, it ivas decreed againft the Defendant.
• Toth led. citej Mich. 14. Car. Paul v. V\ ilkin.s.
Cgg 4. Alter
2o6 Feoffment.
Toth. ikJ.S. 4. Atter a Leflee for Life had been twenty five I ears in PojjeJJion, and-
^ 't"^"'u' Leifbr would avoid the Leafe for want ot' Livery, Chancery prefimi^'
den V Love- Livery, and Decreed the Leflee Ihould hold out ddring the Countinii-
dcn. ance ot his Life; tho' alter long Pollelfion Courts at Law will prefume
Livery. Vern. 196. cites 11 Car. i. Biden v. Loveday.
5. 14 at the Allifes, a Deed ot" Feoffrnent be given in Evidence to be
tateof Free- madeywYjV Tears pajf-^ but it cannot be proved, that Livery was made; yec
hold diter- if PqlJeJ/ion has gone all the l^tnie according to the Deed, 'tis good Evidence
mined, Live- co the Jury, and I will dire£l them to find a Livery ; tor it Ihall be in-
ry fliall be tended ; but if the Jury find all this (pecially, we cannot adjudge this
need noVbc ^o be a good Feoffment without Livery ; per Coke Ch. J. RolL Kep.
pleaded by 1 32. Hill. 12. Car. B. R. in Cafe of Ifaak V. Clerk, p. 149.
the Kever-
fioner. PL C. 149. Throgmorton v. Tracy.
6. A FeofFraent was made by Way of Mortgage, bat no Livery ani-
S.RArg.Hill. ^^;-^^ — Biji yf2& brought by Executors of Mortgagee to fupply thcDefe£t,
iqu"]^ I . and to be reliev'd againll Judgments fulFered by the Heir ot theMortgagor.
And Decreed accordingly, and that the Judgments ought not to incumber
the mortgaged Piemilles, 'till the Mortgage-Money be all paid, efpecially
fince theMortgagor had covenanted ior Jurther yljjiirance, Mich. 2$ Cat. 2.
Fin. R. 28. Burgh v. Francis and al.
Fin. R. 174. 7- A. Tenant in Tail, by Settlement on Marriage of B. his Son with
S.C. and that M. made a Feoffment to the Ufe of himfelf for Lite, Remainder to B.
at any Trial for Life, Remainder to firft, &c. Sons by M. This Deed was indorfed
brmight^by'^ generally (viz. Z/w^j made toJ.S. appointed by W. R. the Feoffee thereto)"
E.(the Plain- B. and M. had C. D. E. the Plaintiff^ and F. the Defendant, and fi^c
tifF)F. the other Sons. A. levied a Fine to W. then his eldeft Son, to the Ufe of
fl^^^Td T ^' ^"^ ^'* Udts ; W. dies ; A. convey'd the Land to F. and died ; f C.
tni°Livery ^"*^ ^- ^^^ ^'''^'^ elder Sons died, as it feems, and without IlTue] F, enter'd,
and Seifin, fuppoling that Livery was not well given. Ld Keeper decreed, i. that the
and that this Letter ff yittorney ihould heftippKed, and Livery admitted ; tho' it was 0^-
^creewas jetted, that this "vnas in Ejfeif to Decree a Dijcontinuance, which is a
Rchearine* wrong and unlawful A£t, and that it was 2. to ajftji a Remainder-
Man m Itail in a third Remainder, (tor he was the third Son) againjt
a legal Fine of his Father Tenant in Tail, and whofe Fine was a Bar to
him in Law ; .and alfo againft the Acceptance ot the Fine by W. who
join'd with A. who had Power by the Recovery to have barr'd the Ellate
of the Plaintiff But to this laft the Ld Keeper faid, the Grandfather
might have theConveyance, made by himfelf^ in liis own Hands : and it is
apparently fo; tor he recites in that Deed, that he was Tenant in Tail,^_
and he recites not the Feoffment made by himfelf Mich. 26 Car. 2.
I Chan. Cafes. 240. Bokenham v. Bokenham,
8 Lands were conveyed by Feoffrnent, as a Marriage Settlement, on
the Wife, but no Livery was made ; the Husband died, and by his Will
left to the Wife more, than Ihe would have by the Settlement, and gave
the Lands to A. and B. Decreed that A. and B. execute Conveyances
to her for Life, and deliver the Polfeflion to her. Fin. R. 388. Trin.
30 Car. 2. Marlow v.Maxie and al.
9. Where the Deed, under which the Plaintiff claimed, appeared to be
^u^'^n*^" ^^^''^y executed by the Defendant's Father, and that there was no DefeSt ■
fett in a vo- ^^herein, fave only the Form of Livery and Seilin, and made on fuch
luntary Con- Valuable Confideration as Marriage ; Decreed the Defendant to execute Li'
veyance fliall Very and Seifin in the (aid Deed, and make farther Aflurance of the faid
^?A^ *"/" P^'^ni'T^ '^o ^he Plaintiff and his Heirs, and the Plaintiff is decreed to
S' K^ ^"J^y ^^^ ^*"*^ againll the Defendant. 33 Car. 2. 2 Ch. Rep, 218.
here, yet if a Tnoniplon V. Atlield.
Man volun-
tarily makes a Sttthment, as a Proiijlm for his Children, and for their Maintenance ; fuch a Valuntary
Conveyance ili^U be fupplied and made food btrt. Vera. 49. Paich. 16S1. Thompfon v. Atfield.
10. A.
Fcoffinent. Fer^ Natura?. 207^
10. A. made a Feoffment in Fee, by way of Mortgage, of feveral Houfes i*''"- jK- zS.
in London, for lecuring the Payment of 400/. and Interellj and being ^-.^^V^V^
likewile indebted to feveral other Perfons by Bonds, he died before the tho' theHe^r
Money due on the Mortgage was paid. After his Death, the Bo/id- ofthcMort-
Credttors demanded their relpe6live Debts of his Heir, who had nothing gagor, after
to pay them, but the Equity of Retlemption of this Mortgage. A Credi- 7''^f)Tft^f
tor undertoolc to fatisfy the Mortgage, which he did, in order to let Livery luf-
himfelf into the Eltate, and hold it, 'till his Bond-Debt was piid ; but fered judg-
having d>(covered that there was no Livery and Seijin endorled on the mentstobe
Feoftinent, he brought an Aftion of Debt againll the Heir upon the Bond °''"'" ^^^
of his Anceftor, and got Judgment : But before Execution, the Seal was Creditoi-s in
opened on purpofe for a Subpaena, which was taken out and a Bill filed order to pre-
to help this deteftive Conveyance, which was fupplied accordingl)', and vent the
the Mortgagee had his Money. N. Ch. R. 183. cites the Cafe of Burgh Jg^j^^'ff*
V. Francis. jvior'^^ yet
the Heir was
Decreed to cbnrey a pcrfeft Eftate of Inheritance, fubjeft to Redemption on payment of the Princi-
pal, and Intereft due on the laid defeftive Deed : and a perpetual Injunftion for ruiet Pofl'eflion againft
the Heir, and all other Defendants ; and to ftay all Proceedings at Law. S. C. cited by Mr
Vernon. Arg. Wms's Rep. 279. as firit heardj by Ld K.. Bridgman, and decreed by hini, and
after affirmed by Ld Nottingham.
rr. A Deed bf Lands in two different Counties, by way of Feof&nent j^, ^■^\^ q^^
and Livery and Seiiinj was tndorfed of the Lands in one County only, but itwasinfifted,
nothing mentioned of any Livery of the Lands in the other County. that,astothe
But decreed that by Reafon of the Poffejton and great Length of 7'wie, ^'^^f^"" .
(being upwards of 70 Years before) Equity will fuppole and fupply it. ^f time^he
And laid, that it would have been much ftronger on the other Side, had Intendment
the Livery been indorjed bf the Lands in one County, in the Name of endeavoured
iothy for that would have imply'd. that none was ot the other, and that *^^. ^'^^^
one was defign'd ibr both. Sel. Chi Cafes. 81. Mich. 1730. Jacklbn v. thencc'can
Jackfon. have no
Weight, be«
caufe the fame Perfons, thai enjoy' d the Lands under the Deed, ivere alfo Heirs at Late, and as fuch mufi
have enjoy'd them cthertii/e, tho" there had been no fuch Deed ; yet Lord Chancellor declared, that, was
he to fry this Matter [at Law], he fliould prefume, and lb direA, that Livery was executed as to all
the Lands, according to the Deed, after this Length of Time ; but however^ that this Court would ai^
a Defed of this Kind. Gibb. 146. Mich. 4 Geo. 2. S. C.
r>'r' -r^-iti.i
(G a) Equity. Mlftakes*
I. TIfTHERE more Lands paffed in a feoffment, than were intended^
y \ it was holpen in Equity, notwithllanding it was after a Verdt^
and Judgment at Law, fuppoling ibme Circumvention. Toth; 186. citas
£borall v. Hunt.
(A) Fer^ Natuj'^*
I. Tp^OR Pidgeons, Fifh kill'd, nor othei- favage Beafts found in * their ♦'Orig. (l«jtsr
X/ Range, a Man ought not to fuffef Death, unlefs they wtie fe.pni- Savage.)
otislyjfok out of a Houfe, &c. Br. Corone. pi. 92. cites 22. Afl- 95.
2. If a Man breaks a Fidgepn-Houfe, and takes yoting Pidgeons fehni-
oayTj', which can neither go nor fly,this is Felony j For the Property is in
th9 Ownet of the Pidgegn-Hpufe ^ becaufe %he.Y cannot ^o norJJy, there*
tore
2o8 Feras Nature. Ferry.
fore he may take them at his Pleafure. Contrary of taking of^ old Pidgeonsi
For a Man has not Property hi theni; for they are not amethable at Will.
Br. Coronepl. 163. cites 18. £. 4 8.
3. And taking of Fijh out cf a 'Trunk tn a Pond^ is Felony ; contrary if
they are taken out of a River. Ibid.
A. So oi young Gof-Hawks in my Park, which cannot go norfy j this is
Felony ; contrary of old Gof-Hawks. Ibid,
5. Larceny cannot be committed of Things Ferae Naturae, while at
their natural Liberty, but if they are made Jit for Food, and reduced to
Tamenefs, and known by the Taker to be fo, it may be Larceny to take
them. And fo he thinks, it may be of wild Pidgeons in a Dove-Houfe
Ihut up, or Hares, or Deer in a Houfe, or even m a Park inclofed in
fuch a Manner, that the Owner may take them whenever, he pleafes with-
out the leaft Danger of their efcaping. i Hawk. pi. C. 94. Cap. 3 3 S. 26;
(B) Pleadings in Trefpafs, for taking Things Ferae
Naturae.
^. f I ^Refpals quare Vi &" Armis Damam fiiam cepit. 5:c. and becaule
f he did not fay Damam fuam Domitaiu, nor that the taking was in
Park nor Warren., therefore the Writ was abated by Award. Br. Brief
pi. 63. cites 43. E. 3. 24.
2. Trefpals, <^ua.re Claufum fregit, and four young Gof-Hawh in their
Nells, being ot the Price of 4/. ibidem cepit B yifportavit. Per Moyle,
he /hall fay, they were reclaimed ; as of four Deer, he jball fay Dcmejlick ;
ctherwife there is no Property, and then an Action does not lie. But per
Afcue and Newton the Writ is good, and fo it is, that his 4 Deer ibi-
dem Inventas cepit, &c. And fo of a Writ, quare Claufum t'regit, and
four Herns taken, &c. Br. Trefpafs, pi. 162. cites 22 H. 6. 59.
3. But if It be quod talia cepit, &c. and does not fay quod Claufum (regit,
B cepit ; then the Writ does not lie; quod Curia concelfit; And fo note,
that if it be in his Clofe, or in his Soil, or in his Park, or W^arren, Writ
lies, and not otherwile. Br. TrefpaJs, pi. 162. cites 22 H. 6. 59.
(A) Ferry.
S. p. and C. 1. A Ferry is in RefpeSf of the Landing Place, and not of the W'ater:
^v j^ '■*•. jL\. ^^^ Water may be to one, and the Ferry to another ; as 'tis 01
Ferry oK^It Ferries on the Thames, where the Ferry in fome Place belongs to the
tohtneti''perx. Arch Bifhop of Canterbury, vihere the Mayor of London has the Intereft
and able Per- in the Water ; and in every Ferry the Land of both Sides of the Water
rymen, ana to ^f^g\^^ jg ^g j-q the Owner of the Ferry, or otherwife he cannot land on
P«Jn%,7»cl ^^^ other Part. 13 Apr. 23. Eliz. in Scacc. Savil. 11. Inhabitants of Ipf-
reafovable wich V. Brown.
Payment for
the Paflages. And it is requifite to have one, who has Property in the Ferry, and not to allow every
Fiflierman to carry, and recarry at their Pleafure, for diverfe Inconveniences ; and erjjc.ijlly when a
Place is between the Divifions of two Counties, any Felon may be convey 'd from one County t6 ana.
ther, fexrretly, without any Naticc. '
2. A Ferryman, if it be on Salt Water, ought to be privilegd from
being prefs'd as a Soldier, or otherwife. Savil. 11 and 14. ut fup.
Carth. 19;. 3- Owner of a Ferry cannot fiipprefs that, and p*t up a Bridge in its
S. C. I Salk. Place without Licence, and ad quod Damnuni.^ per Holt Ch. J. Pach. 3.
12 S.C. YV. HndM. Show. 243. 2^7. Pain v. Patridge.
Feudal I Barony. Ficlions. 2 op
— ■ — ''■• ' -- ii- — *
4. If ;i P'crry be granccd at this Day, he that accepts jhch Grant is
bound to keep a Boat ior the publick Good, per Holt Ch. J. Show. 257.
iq the Gde ot Pain v. Partidge.
5. Cultoin lor the Inhabitdiit^' to he difcharged of T'oll^ may have a rca-
fonable Beginning by Agreement j as that the Inhabitants of the Town
might be at the Charge of procuring the Grant, and in Conlideration
thereof, one Man to find the Boat, and take Toll ; but the Inhabitants
to pay none, per Holt Ch. J. Show. 257. ut fup.
6. A common Ferrv was for all Pallengers paying Toll, but the In- But he can'r
[halaitants of A. were 'foil Free. An Inhabitant of A. may bring an maintain an
J{Tio/i for taking ^/o!l, but not for not keeping up the Ferry; Becaule the ^^j ""^if"'.
tbjmer is a private Right, but the latter u Pubjick. i Salk. 12. Trin. 3. Porib, any
yV. 3. Pain V. Partridge. other Sub-
jeft might
bring an Aftion, which would be endlefs ; but the taking Toll was a Special Damage, and without S^e-
ijcial Damage, he c^n o>ily itidUi, er bring Informatiaiu i Salk. 1 2. Pain v. Partridge.
(A) Feudall Barony.
.ing.
iall
1, TT'Eudall Baronies ■were, ■R^en the King;, in the Creation of Baro- Feudal Ba-
J^ nies, gave Rents and Land to hold of him for the Defence of the ^'^^^ .^ ^
Realm. Per Holt Ch. J. There is no Feudail Barony remaining at this rftory"o/*^"
Time, except Armidefl. i Salk. 253. Ld Gerard v. Lady Gerard. Land, per
Baroniam,
■IV herein there was a Caftle, whereunto all the Inhabitants in Time of War reforted ; and thefe wer«
■ called the Cafita Ba^vnU; and there was no Dower of tliem, bccaufe they were for Defence. No flich
Jiavc hetn grar.tcii jince R. id's. Time. Mich. 7. W. 5. B. R. 12 Mod. 84. Ld Gerard's Ca(c.
(A) Fidions.
I. A LL Fictions of Law are to certain Rcfpcfls c^nd Ptirpofes, and
^Ifx^ extend only to certain Perfons ; as the Law fuppoles the Vouchee to
be Tenant of the Land, where in Rei Veritate he is notj but this is as
to the Demandant himlelf, and to enable him to do Things as to the
Demandant, and which the Demandant may do to him j and therefore a
Fine le\ icd by Vouchee to the Demandant, or Fine or Releafe from the
Demandant to the Vouchee is good j but Fine levied by the Vouchee to a
Stranger, or Leafe made to him by a Stranger is void, per Coke. Alich.
33 and 34. Eliz. B. R. 3 Rep. 29. b. in Butler and Baker's Cafe.
2. The King is not to be anfwered, bound, nor deieated by Fi<S;ions ^
and therefore he would not have been bound in his Reverlion, or Re-
mainder by a feigned Recompence upon a Common Recovery, or W'ar-
rantv Collateral, without true and aftual Allets, &c. Hob. 339. in Cafe
of g){)CffiCin and natCliffC, cites 6. E. 5. 56. and i Rep. 43. Alton-
wood's Cale.
3. Thcrie Things are properly Fiftions of Law, that have no real Ef^
fence in their csn Body, litt are fo ackno-xlcdged and accepted in Law for
fome fpecial Piirpcfe. Hob. 222. cites Co. Litt. 265. b.
4. Fiction is never adjuittcd '■j^bere Truth may work ; as where Cefty que
ufe, and his P^olfee join in a Feoffment, it lliall be the F'eoffment of the
Feoffee. Hill. 15 ]ac. Hob. 311. in Cai'e of Wright v. Gerard.
Hhh s The
2 1 o Fictions. Ficures
The Law of- 5. The L;iw never fhall make any Fittion but for Ma^/yy, andtort-
ten makes rjojd a Mischn'i\ per Coke 3 Rep. 30. in Cafe of Butler \. Baker .
Fidhons jor j^j^ ^^_ ^^^ Uodcrid^e J. 2 Roll R. 502. in Cafe of Sheffield v. Rad-
^y^J"er tliif Jo. 73. S. C. and to avoid Jlfurdtty^ and preferve the Right
Gouid. y. 12 of a Stranger, per Doderidge J. Pafeh. i. Car. In Cam. Scacc.
Mod. 2yo. 5 There ATcJi'i'c Scrts of fictions in Law, Jlbeyancc^ Remitter, Rt"
Idtion^ Prcfmnpiicn, -and i?£'/)i-6/f/;A'/r/o», per Doderidge J. Jo. 73.
Co. Lift. S. 7. hi Fiffu.iic juris ftiiipcr fnhjifrit JEqiiittrs 11. Rep. 51. Lilord's Cafe.
224. 150. [i mull do Prejudice to none, per Doderidge J 2. Rolf R. 502.
'tis to prevent Mischief Jo. 427. Hill. 14. Car. in the Cafe of Harper
V. Derby (Burgellcs).
8. Fictions of Law mull: not be of a Thing imprj/ilk ; For the
Law imitates Nature, per Doderidge J. 2 Roll R. 502. in the Cale of
Radclift' V. Sheffield.
9. You Ihall never make a Man fubjeft to the Penalty of a Statute upon
a Fiction oi Law. Arg. Godb. 388. cites 11 Rep. jr.
10. No Efcape can amount to a Capital Of cue e, unlefs the Crime,_ for
which the Party was committed, were actually luch at the Time of the
Efcape ; for it is not fufficient that it become fuch afterwards from the Be-
ginning by a Fiftion of Law ; as where one is committed ibr having
given a dangerous Wound, and efcapes, after which the Party dies.
2 Hawk. PL C. 135. S. 25.
Figures.
c^b •'*h^ r. TN Jjfumpftt in an inferiour Court, the Time of the Promife aUcdgd
>iameofBu- X was in Figures, and upon Error brought, Judgmefit was reverled
Ihel V.Bland, for this Caule. Sid. 40. Pafch. 13. Car. B. R. Ducket v. Bland.
2. It was moved to qualli an IndtBment, becaufe the Year of our Lord
in the Caption was in Figures. But per Hale Ch. J. the Year of the
Xing is enough. Mod. 78. pi. 40. Mich. 22. Car. 2. Anon.
3. In Debt for Rent, the Sum demandtd was in Figures, and not in
Words i upon a Writ of Error brought, the Court held it ^\as a material
Exception, and reverfed the Judgment, unlels Caufe, &:c. Hill. 23. Car.
Sti. 88. Hobfon v. Heywood.
Kgv, »r)i 4. Roman Figures are good in Pleading, but otherwife ot Englilh Fi-
ji. c._Vcnt. gures. 2 Lev. 102. Palch. 26. Car. 2. B. R. Hawkins v. Mills.
256. ftems to
be S. C. If an ItnViB»ie).t fets forth the Stile of the Day or Tear, in any Figures but Roman, it
is infufficient. 2 Hawk. pi. C. 255. S. 129.
5. In Indcb. AfTump. pro opere ^ Labor e, it was excepted, becaule the Sum
was in Figures, fed non Allocatur, for they v^ere (XII) L:itin Figures^
which is well enough j otherwife, if they had been (12) Knglijh Figures ;
and it would have been otherzvife, if they were in Figures in an ittflriour
Court, and therefore it wasadjudg'd for the Plaintiff' This was in a Writ
of Enquir}-. Skin. 409. Hill. 5. W. &;M. B.R. Hebliert v. Corlthorp.
6. 6 Geo. 2 14. yillows the exprefjing Nu7nbers by Figures in al! IVrits,
'^c. Pleadings, Rules, Orders and Inditlnunts, Sc in C&urts of fujiite,
as have been commonly ufcd in thcfaid Courts, notwtthjlandiug any Thing i»
the 4 Geo. 2. 26.
File.
21 r
File.
(A) Of putting upon the File, and taking off
I. A Qatfe was bcfxeai Father and Son ^ and there having been great
X\. Heat, and indecent RcficBions on both Sides, in Bill and An-
fwer, and the ^lattcer being ended this Vacation by Cujuprojuife ; upon Mo-
tion this Day made in Court by Mr Porter, the Bill and Anlwer were
taken off the file by Content. Mich 1683. Vern. 189. Treniaine v.
Treniaine.
2. iiifoi-mation filed, ivithotit Recognizance entered into bv the Party, is.
ill, but tac Court cannot take it off the File ; when once a Thing is on the
File, it cannot be taken off' without yr// jiti of Parliament ^ rjo, not by,
Confeut cf Parties ; as in the Cafe of Dr IJ^iQTJtthlJtOIt on a Mandamus, the
College made a very Icandalous Return, and which he and the College,
agreed ; and then they moved to take the Return oif the File, but the
Court reliafedit, faying, it could not be done without an Aft of Parliament;
only they ordered a Vacat to be entered thereupon ; that in this Cafe,
the Method may be, to enter the Irregularity on the Roll, with a Cellec
procelfus Superinde. Sed Cur. advifire vult. 12 Mod. 155. Mich. 9. W. 3.
the King v. Lambert.
3. It a BUI againji an Attorney be filed irregularly^ it may be taken off
the File, per Cur. 12 Mod. 164. Hill. 9. W. 3. in Caie oi Broadwaitc
v. Blackerby and Perkins.
[ See, Report. (A) ]
Fine.
(A) The Antiquity of Fines.
I* A ifinC id plCaHcn to be ICllietl 2 E. i. but not pleaded" as a Fine,
X\ becaufe !jC fjilD no Chirograph Of it 20 J), 6. 3.
2. 7 E. I. Hot. Glauranim SSemlirana 5- in Do2fo a ifinc leijien
between the Kmg and Bigod (£a2l Of BO^fOlU lit %i{) Jlfl^Ui, itSf at tIjiS
£)a)), fc* l:)cc eft finalis Conco^nia, ^u s. e* i. i^embrana n.
ifinC upon Relcafe of an Advowfon. i^''
3. 18 E. I. Libro Ji)arliamcntoriim, amonfj tbe Ecafon0 of t\)t ^ ^""
JUtlgnient tIjCrC fflUCll, itl^CaiU, Ncc in Regno ilto provideacur, vel
he aliqua Securitas Major leu Solempnior, per quam aliquis vel aliqua
Itatum certiorem habere poflit, vel ad itatuni faum Verifitandum aliquod
SoleuniusTellimonium producere quam Fincn\ in Curia Domini Regis le-
vatum; qui quidcm Finis lie Yocatur, eo quod Finis & Corifummatio om-
nium Placitorum elle debet, & hac de Caufa providebatur.
4. It is certain, that Fines were frequent before the Conquejl. 2 Inft.
511- Catlin cited fome Fines before the Conqueft, touching the Pol-
leliions of the Abbot oi Crow land. PI. C. 369.
(A. 2.) The
212
Fine.
(A. 2,) The Original of Fines.
■&k
1. The Ancient manner of Conveyancing was oi~ two Sorts, either by-
Fine or Feoffinent. The Fine was i^i the Lord's Court, and by this they
pirfeii all Feudal Right, which Avas /;/ l^o£}j/ioH ; and there arc Inltances as
low a5 the Time ol H. z. and F.. 2. of Fines in the Court of the Lord :
and they were called Fines, becaiife a Fine was paid to the Lord lor fuch
Agreement, tor that it translcrrcd the Feudall Right held of the Lord.
G. Treat. Ten. 93. cites Madox 15.
2. But tho' in I'uch Courts, they pafled all the Right the Tenant had
in PoiielHon ; yet the Right of Action could not be tuansfcncd, becaufe that
would eiicowage Maintenance ; theretbre, whatever fuch Grantee could
leife palled by this Feudall Conveyance. But the Right of Diftrefs and
of Action did not p afs without Attornment. G. Treat. Ten. 93.
3. The Feoffment con-jeyed the Feudal Pofleffion, Coram fanbus out ot
Court ; for it was necetlary to convey fometimes before the Court was
held, and then the Polleliion was delivered o\er coram Paribus ; but as
there were two Conveyances of Cop)'held, one in the Lords Court, and
the cxherto the cultomary Tenants; fo in Freehold, where the immediate
Grant was to the FeoUee, and not to the Lord, as in the Copyhold ; yec
there were two Sorts of Conveyances, one by Fine in open Court, tlie
other by Feoifment coram Paribus ; the Right only parted by Fine, be-
cause the Polielfiou being in the Grantee, they might well itay till the next
Court to transfer the Right ; but ivhere the 'PofJejfioH zi:as to be parted withy
or Service to be d'.^ne, or Mone\' paid, there the Ufuahjsaj ivas coram Pa-
ribus, that the Feorfee might not lofe the Profits in the mean Time, or
the Poflelfion be deli\cred belore the Contract could becompleated. G.
Treat. Ten. 93, 94.
4. Thus itjfoodtillfometime after the Conqnejl ; but the after Kings en-
deavouring 10 retrench the PrivilegeoftheG] eat Lords,theyfirlHn Magna
Ch'Arta, and after b\- the Statute of J^uia emptores terrarum, began to ad-
mit of Alienations without Fine to the Lord ; and the Atts of Court-
JBaron were only clteemed to create Notoriety among the Tenants of the
Manor. From hence Grants in the Lords Courts were omitted, and the
Jittornments in Pais were tbe onlv Notorieties of fuch Grants, no Fine
being paid to the Lf)rd ; and the Kings Courts creating a Notoriety all
over the Land, the ufual Way was to make the Grant in the King's Court,
-»^ . in this Manner : They ufed to fuppofe that the Parties had Coxenanted to
, : Alien ; and all Writs of Covcjiant, (as being an A£tion of publick Con-
cern to the Juftice of the Kingdom,) were fuable only in the King's
Court ; and by Gonfequence this Covenant to Alien was fuable there ; and
that Court being polfefled of the Matter as an Ad\ erfary Caule, they
were admitted to make all manner of Agreement, touching li:ch Suit de-
pending; and thefe Agreements being amicably made bv way ot Com-
polition beiore the King's Court, it became the Jullice of the King's Court
to tee them performed ; and therefore a Scire tacias ilfued to execute the
Fine, and a Quid juris Clamat to the Tenant. G. Treat. Ten. 94, 95.
(A. 3) Fine. How and in what Manner to be levied.
Afti/«L/- ^•'^^ £■ 5f- *^'- 4- S- I- Enafts that, ivhen tbe Writ Original is deliver-
ed vet itnwv ^"^ '^ ^^^ Prefence of the Parties before Jtijlices, a Pkader Jball fay thus : Sir
Jcivcinmany JtiJUce, CoHge de accorder.
Rcfpefts to'
explain the Statute of 4 H. -. and 52 H. S. 2 Inft. 218.
5. 2. And the Jufiice fliall fay to him, '■^•hat faith Sir R. and pall Name
one of tips Parties.
S. ^. T'ha^
Fine. 2 r '^
■ ■ I rT ■ .- ■ ■ ■ ■ ,
S. 3. 7'hc/j, ivbcn they be aj^rced of the Sum of Moiiej tb.it vaijl I e give?/ to
r^A7//f, the Jujiicc jhoTi f(iy^ Cry the Peace. ♦So are the. ^
'^. 4. And after the Pleadir jhall fay., infcr/mcb as Peace is Liceufcd thus 11^"^!^'%^^]
Ill/to yoK^ W. S. and A. his O-'ifc, that here Ic, do achioivledge the -'^'^'O/- fl^'oVkcb'crind
B. with the Appurtenances contained in the IVritjtolethti Right of our * Lord Rartal, hut
the King, '■jjhich he hath of their Gift. this (eems a
S. 5. To have and to hold to him and his Heirs, of the f aid W. and A and ^^^^'^l^^^
the Heirs of A. as in Dcmefnes, Rents, Seigniories, Courts, Pkas, Purchafes, f^ould be R.
Wards, Marriages, Reliefs, Kfc heats. Wills, Advozvfons f Churches, ^;/rt' as the Name
all other Franc hi fes and Free C.ujlonis, to the faid Manor belonging, paying o'aComrron
yearly to R. and his Heirs., as chief Lords of the Fee, the Services andCul- P^'.'''"''> •V^'^
toms due jor all services. ,,q
S. 6. And it is to be Noted, that the Order cf the Laiv 'u:ill net f'ff'cr ^ ♦ If there be
final Accord to be levied in the Kings Court without a * Writ Original, and "" Original
that muft be at the kajl betbre f lour Julfices in the Bench, or in Eyre and ^^ ''11'. '^'^^■
^ not otherwifc, and in Prefence of the Parties Named in the Writ, ivhich ,_,j,, ^^,j ^,^t
miiji hi nf fill Age, and good Memory , and out of Prifon. idAMehy '
Wv'n of
Error. 2 In(l. 51;. Scc(F) pi. ;, 4, 5, 6, -. f The Xumbcr of Jufticc^ here rr.eVitioncd
are not requifite at thi.s Day ; but there niuft be nbo-je the Number of One. And therefore a Fine levied
before T'/'iiw.i Brian Milite & Socih fiiis ]\i\\\cur\\'i de Communi Banco was not good. 2 Inlh 514,
51 5. 4 H. T. 24. Enncts, that it jihilt be (rood tbo' levied in C. B. before, Z Jufticcs only there. jf: It,
was Rcfolved, that a Fine may be levied of Lands in .Indent Demejne in tie Ccurt cf Jncient Demej'iie,
notwithftanding this Statute, which fays, that Fines Hiall be levied in (>. B. & non alibi. For this ^t-::L-
n\te only t.iki's a'-xay the Falid ty of Fines levied in Borouph Courts, or ether Iife-ior Courts, which was the
Mifchicf intended to be prevented by this Statute, and does not extend to Courts of Ancient Demefne ;
for it would be unreafbna'->le, that thcv fliould be barred of levying Fines in C. B. (as they may be by
Writ of Difceit) and yet not be able to levy Fines in their Courts of Ancier.t Demefne. And it was
P.efolved, that fuch Fine levied in Ancient Demefne mak;s a Difcontinuance, and has all the Efte;ts of
a Fiiie levied in C. B. except that it is no Bar, which is only by Force of the Stat, of 4 H. 7. Lutw.
781. is[unt V. I5oiirne, and al. 1 Salk. 340. Hill. 1 Auujs.'B.'R. S. C.
* S 7. And if a'Woman Covert be one of the Parties, then they nnifl le * -ce (?") s]'--
fird examined before four of the fiid Judices., f and if /he dot h not A flint '> =^- ^' <"■('"*')
\./ * .►/ L-- II -^11 fr 7 J -^ per totum.
thereunto, the tine jball net be levied. i g^j jf ^j^^
Fine be re- f
cei-jtd and Recorded, the Feme, or her Heirs fhall rot be allowed to a-.cr, that J?.e luits not examined nor
cjj'ented. 2 Inll. 515.
S. 8. And the Caufe ivheref ore fuch Solemnity ought to be done in a Fine, is,
lecaufe a Fine is fo high a Bar, and of fo great Force, and oj fo fliong Na- * 2 Inft. 516.
tare in itjelf, that it concludcth not only fuch as be * Parties and f Pri\'ies Parties art
thereto, and their Heirs, but % all other People of the World, being \\ oi" lull ^','g p'^^'ig^ ,^
Age, out of Prifon, oi' good Memory, and within the four Seas the D.iy ticOri?jnal.
oj the Fine levied. | z Inft. 516.
Firft this is
to he underftood of Privies in Blood ; rot only of the Heirs by the Ccmmcn L.itv, wliich are here named,
l»t Heirs by the Ciiflcm, here comprehended under tliis Word (Privies) as Bomuf^h-Englifli, Gavelkind,
or the like, which claim as Heirs by Cuflom, and is vot intended 0/' Privies in kfate, as Jointenants,
the Donor and Donee, Lellor and Leilee, or the like. Al("o, this is to be underftood of Privies in
Siiccejpon, as Bifhops, Abbots, and the like. Privies fignify thofe that are Partakers, or that
have an Irterell in any Action, or Thin?' with another; or any Relation to another. Thefc
are either Privies in Flhire, as Donor and I.)onee, LeiTor and Lcflec, Jointcn.ants, &c. or Privies in
Blood, i<i the Heir to the Ancelt-or, or between Coparceners; For by Privies in Blood, Privies in Blood
Ihherttable are to be underftood ; Privies in Reprefentation , as Executors to Teftators, Adminiftrators
to Intellates ; Privies /» 'Tei.ine, as Lord and Tenant, Sec. all which may be reduced to two General
Heads, (vi/..) Privies in Deed, and Privies ;;; U.iv ; Privies only in Eftate are not to be undenlood here ;
but Privies in Ellate and Blood, and by Rcprclentation. Privies therefore, being Heirs to the Parties,
are bound or barred prefently for Ever bv a Fine if they Claim the lame Title, that their Anceftors
Jv.-.d, tl\at levied the Fine, whether under Imredimcnts, or no ; For tho' the Iflue in Tail is under Im-
pediments (as within Age, under Coverture, Non Compos. Mentis, in Prifon, or beyond Sea,) yet fuch
IlTne in Tail is b.irred ; Fur fuch Ilfue is out of the 'avirg of the 4 H. 7. 24. Wood's Pift. 244.
The words Parties and Privies are to be t<t:derjfo d as to a Fee Si>-ifle,.ns the Statute iS E. I intended
them. Jenk. 192. pi 9". See 2 Jo. 241. &c. in Ld Darby's Cafe ace. He that is Priiy in BUcdon-
/)■ nr:d net in Fflate al'o, is rot witiiin thcfe Statutes, neither fliall he be barr'-d by the Fire. Js n
Lands be given *.■ a Man and the Heirs Fmwlts of. his Body, and he hath a .Vow and a Daiirher, a"d the
Sai le'.ia a Fi'^e, end dies 1: iiha.t TJftie, this is no liar to the Daughter; For tho' fhe '^c Heir to his B'ood,
yet fhe is not Heir to the Eftate, nor hath flie n.'ed to make her Conveyance to it by him , but if the
III ' ' ' Father
214
Fine.
Father had levied it, it would have been otherwifc. 5 Vol. R. S. L. 21 5, 216. cites Tiin. 21 Jac. C B.
Godfi-ev's (la'.e. By the words Privies and Strangers in the Statute, if Tenant in Tail is party to the
Fine, and his IjJ'ue clainii per J<>mam Lci.i, yet he is Privy ; For he ciumct ccniey lin:fe!j' as Heir to the
'fail but ai of the Body of lis Fnlher, ivhich is Privity. Br. FiiK-s, ^)1. icy. — Jo it Lands he given to Husband
nnd If lie ui f fecial 7ail., the Remainder to the right Heirs of the Husband in ivf, and he alone le-jies tt Fine
with Proclanution.s of it, by this the Ilfuc in Tail may be biirrcd ; For he cannot otherwjie convey
liimrelf to the Tail and Dcfcent, than as Heir of the tSody of Father and Mother. 5 Vol. R. S. L.
Z16. cites * I). 5- 251. and Br. p'incs 109. * D. 5. b. pi. 6. Trin. ly H. 8.
:\: In the'e words are included as well T'enaiit for fears. Tenant by St-^tiite-Merchant and Staple, Copy-
holders and Ctijiomary-holders, as 'J'enants of Freehold and Inhritarce, if they be cttt of Pojj'fjpon or Seifin at
the Time of^the tine levied ; For a Fine levied by a Stranger c.mnot barr him, that i^ in PoiTellion.
And alheit, the Words of thi< Law are very general, yet do they not abrogate the Statute of VV'. 2.
dc Donis conditionalibu-S 2 Inll. jiv If I'cnant in 'Tail levies a Fine; this Fine bars the Intail, and
every other Perfon who has Rijrht, if he docs not enter or claim within 5 Years after the P'ine and Pro-
clamations ; unlets fuch Perfon oe aided by Ibme of the Impediments mentioned in the Statute. By all
the Judges of England. Jcnk. 192. pi. 9-. dtcs 19 H. d. 6.
II By "this Act, if any Stranger was within Age, or in Pi ifon, or Non Compos, or beyond the Seas, at
the Fine levied, he was totally and for ever excepted; fo as after his full Jge, eomh-.g cut of Prifcn, Sf^c.
he or hiiHali-^ need mt make any Claim. 2lnft. 516. But this is altered by the 4 H. 7.24. Ibid, in
Marg.
* Tho' the ^- 9- * ¥ -^^0' "''^'^^ *^^ ^^"^ Chum of their JlBion •jsithin a Tear atid a
Words are, JO^y h' ^^"^ Country.
if the V put
pot ill their Claim, vet in Tome Cafes the Ri,7,ht of «»?, who might Claim, and doth mt, fhall be prcferved.
A'' if DifeiU)r be diiVeifed, and the fecond Di'eilbr lew a Fine ; in this Cafe, if xhzf.rp DiJJtiJor enter
\vrthTji the rear, tJiLsfliall prefervc the Right of the DiiVcifcc ; becauCe the firft Difleiibr, by liis Entry,
kreiucd tl^e whole Eltat-e given by the Fine, and yet the DilTeifce might have entered bimfelt. 2lnlL jibi.
—Set- (S)
2. 27 £. I. Cap. I. S 3. Enaifs that, the Jiijlkes p:!aU fee that fuch
Notes and Fi/ieSy as henafter pall be kvied in our Court, be read openly and
Solemnly, and that in the mean time all Pleas fliall ccale. And this mufi
be at tivo certain Days m the Week According to the Difcretion of the Jujitces.
3. At Common Law, a Man might levy a Fine by Attorney, as well as
Ha. F.N. B. contels an Action ; and the Attornvy himielt'niight enter, and Record it,
S44- (a) j-j^q' ji^g Party did not make Conui.mce, and ot this great Mifchietlbllow-
ed, and ottentiines DiJherilbn j and therefore it was Ordained by the
♦I'jE. 2. St'xtxxtt''^ de Fimbus ^ Attorn, that a Fine ihould not be levied, until the
Parties went before the Jullices in proper Perfon, lb that the juitices
might have Conulimre of their Age, and other Detaults j )'et at this Day
a Man may take Eiiate by Fine bv Attorney. Alio, a Miui may take a
Grant and Render by Fine by Attorney, as in proper Peribn. Denlh. R. of
Fines 7.
* ow?. is 4. And the Baron and Feme may take Eftate by Fine by Attorney made
(..Seignior.) hy ^hg Baron ; but this Ihall not bind the * Lord to Claim other Ellate
ttSld not '^^'^er the Coverture diffolved. Denth. R. of Fines 7.
be (Ferae.) 5- -B'^^ Mayor and Comonaltv, Dean and Chapter, rechtfe i^Jimul can't
levy any Fine, nor cake any Eitate by Fine by Attorney. Denlli. R. of
Fines 7.
[ See Stat. 4 H. 7. Cap. 24. S. 12. at (W^ 4) Infra. ]
(A. 4) How Confidered in Law.
1. A Fine is no more in Effe£t, than n Covenant made bet'xeen the Par^
ties before Suffices, and tnttred of Record. Br. Fines, pi. 97. cites 21 E.
4. 4. per Tremaile.
Til"' a F^'ie 2. A Fine fur Cognizance de Droit come ceo, ^c. is a Fine executed, and
mentof Re- ^^ ^ Feoffment of Record, and fo are the other Fines executed ^ as Fines, fur
cord, yet it is Releafe Confirm at ton, or Surrender. 2 Inll. 513.
but fo F-Bi-
cne Juris. If another were in by Tort, it -will not amount to an Entrv, as a Feoffrncnt fliall, per Bridg-
nian Ch. J. Cart. i:6. Jo. 16 Eliz. 4J9 cites D. 53;. b. 334. a.- Co. Litt. 332. b. D. 334. pi.
3 a, ♦ But fee pi. 5.
3. Where one, who hath a Freehold in PoffeJ/ion, levies a Fine Co7ne ceo
&c. this enures as a Foiff'ment with Livery on Record i but where he hath
but
Fine. 2 1 5
■ but a Rci-crjtoi: or Ratmiijdcr, it enures aily as a Grant thereoi, without
Tort prefumed, or done to the Pt)Iieinon of a Stranger, who h.ith the
. Freehold. Arg. Mo. 629. in Sir Cha. Danvers's Cafe.
4. A Fine is a ferfonal Jliton^ tho' the Covenant is real in rcfpcft it
concerns Land. Arg. Hill. 6 Car, Cro. C. 270 in Cafe of Favely v*
Eallon.
5. The Court denied a Fine to be a Feoffment of Record, and faid
it was irapropcrly lb called, but that the vicamng was, that it had the £1-
lecls oi a Feohment to fome Purpoles, it he that levied the Fine was
feifed of the Freehold at the Time of the Fine levied, i Salk. 340. Hill,
1 Annas B. R. in Cafe of Hunt v. Bourne.
6. While a Fine remains on Record, entire Credit mud be given to it.
per Cur, 10. Mod. 45. Mich. 10. Anns. B. R. in Lord Say and Seal's Cale*
(B) Plea of the Fine \AmtejitJy?^
I. 11^*3. pien Kollsi at tljc Cotuec Hot 7 in a aarit Of Efffbt
bp (Salfno Be Ccrlantia $ S^atilUuem 'mxm iollanum Jl^etiil , tije
€;ntant pleaticti a Fine upon Reieafe acfenoiuletJffeo lip tlje 3nccftor of
tijC £)2UUlllDailt in time of H. 2. & indeponit fe fuper pedem Curiie qui
clt in Thelauro, ailD tl)C PlailttlfFS deny the faid Fine & inde ponunt fe
Super Rccordum Curice & pes Curise inventus ell in Thelauro domini Re-
gis & Curia avocat & warrantizatus ell a lulliciariis & Ideo al])UD0CD
tijat tlje I2)lamtiff be ijatren, ^u
(C) Who [;^;/^/j^, or'\ may take a Fine Ex officio. \Anc'u
ently and AW.]
I. \ jfine map be lebicu in Evrc. n jp, 4. 68. b» 16 €, 3. 19. e* wed s i^
l\ 3- ^bbc 13- per S^ljo.^pc ancicntip* 2 (£» 3. 35. b* cites ub.
Intrat. tit.
Scire fac. in Ayde. 2. DcnJh. R. of Fines 2.
2. gnctaitb' a iFute mitjijt be lebieu befa?c tbe junices of Affife in an
Afflie, 16 (£♦ 3- 19 C» 3- '^\s\A !■(. abiubgcD*
3- 3 ifmc mtixbt be lebieo before tlje juitices itinerants, s e» i. Eot,
Claiiraritm S^cmbrana lo.
4. \Vhere a WWfrefcribcs to hold Pleas ^and to make Protejiation^ in Na^
'tun of "whatfocver VVrit they '■jotU^ yet they cannot levy a Fme in a Writ of
' Right, and make Protejlation of a Covenant, &c. For the Aftion is Real
and the Protellation perfonal, per Knevet J. therefore if it be not ex-
prejfed to levy 'd Fine, it is a great Quellion. Br. Fines, pi. 104. cites
50 Alf 9. '
5. Conufince of Fines may be levied in Parliament by a (pecial Suit of ♦ ow^. (Dc-
any * coming to the Parliamatt. Denfh. R. o'i Fines 2. vinii'e a')
6. The King may take Conufance of a Fine, and fend it into Bank by P}-o'^^°^'''^
Writ; and alfo the Lord C^<^7;ct//o/- of £«^/£;»^. Denfh. R. of Fines 2. /irgna^tfbus
See the Statute de Finibus. Regni pcr-
aj^;batur
Spelm. Glofs. Vcrbo,Finos,
7. Juflices in Eyre may take Conufance of Fines, and fo might ^^;Vfj
of the Cmnmon Bench, before that it was a certain PLice ; and now Jnftices
of the Comninn Bench, may take Conuf^nces of Fines, &c. Denlli. R. ot
'Fines 2.
8. So Jti/^/ces of Jiffife, of Tenements in Plaint before them, and the
Juficcs uf Miji Prtus mav take Conufance of Fines, and Darrein Prefent-
ments in ^tiare inipedit o^ Advo\\ fon, in the fime County, where the Ad-
vowfon
2 1 6 Fine.
vowfon is; but Jufiicesof Nifi Prius in entring Pleas of Lands cannot
take Conuliince of Fines. Denlh. R. of Fines 2. cites 37 All! 1-7.
9. At Common Law, the Baro/is of the Exchequer hield common Pleas,
and took Conuliince of Fines; but now they are prohibited by the Statute
called Articidi fiiper Chartas, made Anno 28 £d. i. Dcnlh. R. o^ Fines 2.
Br. Judge. 10 A Jufiice^ or otlier Perlbn being Cogmfee in a Fine may not take
pi. 6. cites Co^nifance thereof himlelf; for if he lodo the Fine thereupon levied is
^ ^^- '9 void. 8 H. 6. 21. Welt Symb. S. 17.
per Stran<;e. ■' '
Br. Judgmt.
pi. 116. cites S. H. 6. 19. per Martin.
Coke in his 11. The King by Patent or ConniiJ/iofi, "xitb a Nm ohjiante^ givss Po-U-'er
Reading on fg j ^;;^ g Jujtucs of AJJife in a Circuit, to take the Conulance of all •
Fines, 10. Ymti and Recognizances, Conjunctim and Separatim. A. is not a Judge
thmks'tiiat if of one of the Benches at Wejlminjler^ nor one of the Barons of the Exche-
a Fine be quer , A. takes the Conufance of a Fine by the Authority abovemention-
Icvied before ^(j . the Caption is good by Force of this Patent, without any Uedimus
anybyDcd. pyj-gi^.^tem fued before or afterwards. This Judgment was affirmed in
no Tudte,^ Error. Without fuch ipecial Patent the Ch. J. of the Common Pleas on-
Knlglit^or ly has the Prerogative to take the ConuHmce of Fines without any Dedi-
Serjeant, it ^1^3 Poteltatem fued before the Caption, or at'terwards. This Cafe was
is Error, and j.gfy|yeci ^pon good Conlideration ; thefe Juftices were the Attorney Ge-
vei-Llln b" neral and a Serjeant at Law. The Statute of 1$ E. i. de Modo levsindi Fims
R. hy Writ ordains tiie Caption of Fines before the judges of the Common Pleas;
of Error : the -Statute of Carlijle 15 E. 2. Ordains in Cafe of Sicknefs, or Impotency
But that it of the Conulbr, that one of the Judges of one of the Benches, with a
n'b tliata Serjeant, or a Knight, Ihall have Power to take fuch Conulance. Thefe
Serjeant are ■mly Affirmative Statutes^ and do not take wjjay the King's Prerogative to
fworn to the Grant Power by Dedimns Potejlatein to other Perfors than thofe named in
Knig may thefe Statutes, to take Acknowledgments oi Fines. And {o 'tis uicd at
WbTDed. this Day. Jenk. 227. pi. 90.
Pot. and yet
he is not nam^d in the Statute. Br. Fines pi. 1 20. S. P. but adds a Quaere if a Seue.wt at Lnw be not
taken ai Jnfiice by -the Equity of the Statute. Trin. 5 Elii. D. 224. b. pi. 31. 'filter's Cafe. .
... 12. Jujtices o/" B R. and C. B. and Barons of the Exchequer in their
■ rJnietuM-- Circuits without Ded' Pot. may take Conulance of Fines; and a Writ oi
/il'm Kegiii. Covenant and Ded' Poteft. is liied out afterwards with an Antedate. But
Jenk. 22;. pi. none elle may do fo. * Chief Jujlice of C. B. only may take Fine with-
90- ~J^"'^' out Ded' Poteft. fued out either before, or after, as by tlie Prerogative ol
Itt'f-^ his Place. Jenk. 279. pi. 3.
Co. Ron
Fines, Left. 9. Pag. 10. S. P. as to the Ch. J. of C. B. and fays, that the Chief Jufii-e cj EnrUnd, nor
any other julHce ot the King can take Conufance in the Country without Writ ot Ded. Potell. and this
(eenis to ke by Qifiim and Ufap^e ; For he fays he docs not find any fu-jh Ipecial Authority given to the Cii.
T.of C B. oy any Statute. * Weft. S. i6.- fays, th.\t the C^hief Jullice of C. B iiy th.e Prr.ik^e and
'Prenoative oj' his Place and Office may take Cognizance of Fines in any Place ^ut ef Court., and certify the
fame without Writ of Dedimus Potcftatem. cites D. 224. pi. 51.
13. Fines may be acknowledged before the Lord Ch. J. of C. B or tiio
of the Jitjliccs in open Court; this is called acknowledging a Fine at Bar, but
the Ld Ch. f. may take Fines in any Place out of Court without a C<'>mniilli-
on, and certity the lame. Jiifiices of A/fife may do it by the General
Words of their Patents ; but they do not Ule to certify the fame before
a fpeciafWrit of Dedimus Poteltatem is Sued out. W ood's Jnlt. 242.
14. A Fine can't Ix; levied by any that have Conufance of Pleas, or
Power to hold Piea-s, it mult be done only before the Jultic s of the Com-
mon Pleas ; For the King can't grant Power to hold Plea f )r the Levy-
ing of a Fine. Wood's Inlt. 242, 243. (cites 34 and 35 H. 8. 22. con-
cerning Fint^s in To^vns Corporate.)
[ Sec Stat. 18 £. I. S. 6. and the Notes tliereon at(A. ■>,.) J
(C. 2) At
Fine.
217'
(C. 2) At Common Law, and Now. Levied in what
Places or Courts, other than C. B. and who may take
Fines ellbwhere.
1. In Affife, the Tenant faid that the Ufage of the Soke of Wlrichejler
is, and Time out of Mind hath been, that tf any Earcu and Feme make
Alienation of the Land of the Right of the Feme by Charter, and the
Baron and Feme come hejore the Bailiff of the Bipop of Wnichcjter^ Lord of
the iSoke^ in the Court of the Soke^ and the Feme is Confeffed and Examined
bcjore the Bailiff in the fame Courts and they acknowledge the lame Deed j
this Ihall bind as a Fine at Common Law ; and this Matter was Pleaded
in Bar of the Affile, and Hank and Knivet J. were clear, that they ffall
not Prefcribe in fiich Cujloni^ if it was not a City or Borough ; and alter the
Affife was Awarded 3 quod Nota, and {o no Bar. Br. Cuftoms, pi. 39.
cites 45 All! 48.
i 2. A Fine may be levied and acknowledged in B. R. when the Record 'eems to
IS there by Error-, but not upon Original to be Commenced there. Denili. ^^,.^ the Fine
R. of Fines 3. be engrojfed,
the Record
of the Fine fial! remain nvith the Chirograpley ; and this is the Reafon^ that a Fine can't be levied ;« £. R.
becaufe there is m CUrcgrapher. Co. R. on Fines 1 2.
3. If a Fine be levied in B^ R. 'tis not void^ hut 'yo;W<?i'/i? by Writ of Br. Fines pi
Error. Co. R. on Fines 9. cites 36 H. 6. 34. Br. Faux. Recov. pi. '-''^"p^' ^
1$. cites 36 H. 6. 32. that Fortelcue held it good enough. levied in"B
R. is good,
• bat Brook makes a Quere thereof
4. Thofe who have Conufmceol Pleas Z'j'C/'^rfcr, after Conufance grant- Byrpecia!
ed in fuch Licences, &c. may take Conufance oi Fines in their Courts oi' Grant a Fine
Lands in the Writ ; but they ought to have Power of levying Fines by may be levied
Ipecial Words in their Charter, Sec. and they ought to pray Conufance in "' " -^"-/^
theie Cafes, betbre the Fine acknowledged, or they Ihall not have it. ^""s cite's' '
Denlh. R. of Fines 2. 44 e 5. js'
— But Fine
levied in Jmient Demefne, hy_ any Cuficm, Teems void. Weft. S. iS. cites 44E. 5. 58. and that it is the fame
in other inferiour Courts, cites 50 AlV. pi. 9.
5. ylnd upon Conufince granted, a Fine may be levied before xhe Mayor And Deeds
of London of Lands in the Writ contained ; and fo it may in Writ of Right '"''oll'din
. In London. Tamen qusre. Denlh. R. of Fines 2, 3. il'oZl? ''
Fines.Dcnfli .
R. of Fines 3.
6. But a Man can't Prefcribe to levy Fines in his Court of Lands with-
JK his Alanor j becaufe Fine is a Record, which no i\Ian Ihall have by
Prclcription ; and the King Upon e'-Jery Concord is Donor^ which a Man
can't he by Prefcription. Denfli. R. oi^ Fines 3.
7. A Fine levied in C. B. of Lands within the Cinque Ports is good,
and fliall not be reverfed by Error. Denll]. R. of Fines 3.
8. A Fine levied of Lands in Ireland m C. B. here is void. Denfli. R.
of Fines 3.
9. In Aidrdoalfea, Hundred^ Comity.^ Leet.y or Court Baron, Fines
can't be levied, becaufe a Prifcipe qucd reddat lies not there, nor a Writ of
Covenant ; vet upon Urit of Right, the Suitcjrs in Court Baron Ihall hold
Plea of Land, and lluill be tried by Battle, and not by Grand Affile j yet
rone ol thefe Jultices, nor Courts, have Power of recording a Fine upon
Proclamatirn, but onlv the Jutliccs of the King in C. B. nor any oi the
Fines levied in the faid Courts at tliis Dav are of other Force, but as
the Fines there levied, were before the Statute of 4 H. 7. 24. except the
K k k Fineii
. 2 1 8 Fines.
Fines levied in C. B. with Proclamation ; lo that 'tis in the Eieftion of
every one to levy a Fine by the faid Statute, or according to the Forme
belbre Ufed. Denih. R. of Fines 3. 4.
10. By 34 a>jd 35 H. S. 26. Fines may he levied in Wales.
11. By 37 //. 8. 19. In the County Palatine of Lancai'ter,
12. By 2 Ed. 6. 28. In the County Palatine of Cheller.
13. By 5 Eliz. 27. In the County Palati?ie of Durham.
But Fines in 14. By 43 Eliz. 1$. In the City of Cheller.
thofe Coun-
ties muft be of Lands lying in tViofe Counties. Wood's Inft. 24.5. — Fines may be levied within tlie
County_ Palatine of Lancafter and Chefter but that is (as Coke fays he apprehends) by Force of divers
Acts ot Parliament and ^o it may be in any Cities or Towns Corporate, where they have :ifed to kiy
Fines, if their Ufages are ccnfrtned by JH of Parliament. But fucb Fines fhall not bar any Eftate, Tail,
nor any Strangers, who have prefent, or future Right. Co. R. on Fines 9.
[ See Prerogative (D. c) — Conufance. J
(D) Fine of Land. What Perfbns in refpeft of Eftate,
[may levy Finest]
Se and vet 'T^ ^'"'^ °^ ^'s^^ ^^^^^^ CeHaitt fot Lift [tiJ^o nwUciS De&ult]
no Original X aftCT DCfaiUt, [it IJC IttJ Remainder is received, n JTUIC imip
is between b£ gUOD between the Demandant and him [iU RCUWlinllCt j who is received
them.2iE.4. 21 C* 4- 5.
5. pi. s.
After he has 2. ^ Vouchee ma? IC^P a if (lie* 8 p, 4. 5. 5 ]^» 7. 41.
er.tred irito the
U'arrai:ty he may levy a Fine to (he Demandant, tho' in Fadl neither of them is leifed ; For fuchVoucIiee
is 'Tenant in Laiu, and may confefs the Action ; hecaufe of the Privity between him and the Demand-
ant. But a Fine by him fo levied to a* Stranger is void. 8 H. 4. 5 H. 7. 40. Well. Symb. S. i^. Br.
Fines pi. ^4. cites 8 H. 4. 5. ; Rep. 29. b. in a Nota of the Reporter's. In reg.ird to the De-
mandant, Vouchee is Ten.wt ; 'out in Regard to a Stranger he is not. i Rep. 87. b. per Walmfley J
* Br. Fines pi. 105. cites S. C. and that it is void for wa.it of Privity.
3. 3 Prior prefentable, who had Covent and Common Scale, llllfffjt
- leiij) a * Jftitei ifor De !)ati tljc Kigljt in \)m, 12 fp. 4. 1 1 1. 21 e* i.
Ii'.b. pi. 13. iJ* aDjungcn 16 e» 3 19 es. 3- auue* 13- aDjuDgeu s.
"„ ' 4 Note, that fre'/;rf«?j'or T^^rrj, Tenant Z_)' LjVi^/wrd- Merchant, or Staple,
for Years* "'' Guardian in Chroalry^ or 'Tenant at IVill cannot levy a Fine ^ and if
levies a Fine they do, 'tis void, tho' it be with Proclamation. Denlh. R. oi'Fines 1 1.
v;ithoHt firft
waking a Fecffmevt, the Fine is void, as to the making of any Title by way of Non-claim, by reafon of
the Imbecillity of the Eftate. Wms's Rep. 519. cites it as fb Held by Holt Ch. J. in delivering the Rc-
folution of the Court in the Cafe of il^unt v. ©OUrilf ■; Which Ld Ctiancellor agreed, and thence it
was inferred, that if in Cafe of LelTee for Years, as before, the Fine might be faid to be void, becaufe
Parties finis Nihil habuerunt ; a Fortiori, it might be fo faid in Caie of 'Ter-a/it at H-'tU; But Ld C3han-
cellor Held it otherwife, where a Fine was levied by one, cy/.'p had a defeajible Ri^lt, andfuch LcJJee join'd
•with him, as in the Principal Cafe there. Mich. 1718. Wms's Rep 519, 520. in Cale of Carter v. Bar-
nardifton. (alias. Loddington v. Kime. Vid.)
5. Cejluy que Ufe in Fee Simple may levy a Fine, and this fliall bind his
Feofiees. Denfli. R. on Fines 12.
6. Executors^ that have Power to re-enter by Will, cannot levy a Fine.
Denlh. R. of Fines 12.
7. A Fine levied to a Corporation., that is aggregate., is good enough; For
a Man may receive a Fine by Attorney, but not levy a Fine by Attorney., by
the exprels Words of the Statute, Anno 15 E. 2. made at CarliJIe., by
which 'tis Provided, that Partes Jinis perfonaliter veniant coratn JuJliciaritSy
tit coram tstas, facultas, feti alit defeiius per cos adjadicari pojjint ; Co. R.
on Fines 9.
8. A. devifed to J. S.\n Fee Lands held by Knight's Service., J. S grant-
ed a Leale ibr Years of the whole, and the Leuec occupied under this
Leafe
Fines. 2 1 9
Leafc tor 3 Years; afterwards the Heir at Las: levied a i^ine: Relolved,
that this Entry and Leale by J. S. did not gain PoiiclJion but ol' 2 Parts,
and the Heir was never out or Poliellion, and lb his Fine is good. Mich.
40 Eliz. B. R. Cro. E. 641. Hempfley v. Brice.
9. Albeit every Fine be good to bind the Parties, yet for the Validity D:nfli. of
of the Fine it is Convenient, that either the Cognifor, or the Cogtufcc -Eines. 14.
\xfeifed of the Lands alienated, 41 Ed. 3. 14 22 H. 6. 13. For the Fine is
void, if neither of the Parties be ieifed at the levying thereof Welt's
Symb. S. 13 cites. 41 Ed. 3. 14. 33 H. 6. 18. 3 H. 6. 27. 27 H. 8. 4. and
20. 37 H. 6. 34. 13 All! p. 8. 3 H. 7. 9. 5 Ed. 3. 22 H. 6. 57.
10. The King levy'd Fines by Grant and Render oi Lands defcended
to him from the E. of G. a Suhjcci, his Anccltor, by Advice of Popham
and Coke. After the Render made, they adviled it ncceflary to have
Letters Patents granting to theConulee by exprefs Words, that he might
enter into the Land; For otherwile the Fine being Executory, upon G/ant
and Render, it might be doubted, if the Conwlee without any fuch
Grant might enter on the King. 7 Rep. 32. b. Mich. 2 Jac. Cale of
Fine levied by the King, Tenant in Tail.
11. I'enant tn Fee-Jimple, in Tail General or Special, or Tenant in Re-
mainder or Reverji-in, may levy a Fine ; Tenant for Life may levy a Fine
of Lands, &c. which he holds for Lite, to hold to the Cognizee tor
Lite of the Tenant tor Lite. If he Grants a greater Ellate, it is a F'or-
teiture. So 'tis of Tenant in Tail alter poffibility of lliije extinft, Ten-
ant in DcJDer, Tenant by Curtefy. A Tenant tor Tears cannot levy a Fine
of his Term, nor Tenant by Copy of Court-Roll of his Eltate. A Tenant
in Common, fointeuant, or a Coparcener, may levy a Fine ot' their Parts.
Wood's Inll. 241.
12. Note, I'hat the Cognizor or Cognizee miifi be fetfed of a Freehold,
be it by Right or Wrong. Wood's Init. 242.
13. A Man by his Will devtfes his Lands to Triijlees for 99 Tears for Em it being
the Payment of his Debts and Legacies; and afterwards in Cafe theyjlmild urged for ti.e
tiot Act, and take upon them the Trult within fix Months atrer his j'^'^^hgCafe^
Death, then he deviled the laid Lands to another, and his Heirs in Trtifi otjfricman
to pay his Debts and Legacies ; and afterisards to A. in Tail ; Remainder in v. JiJa^ni"5,
Tail to B. A. levies a Fine, and dies zvithout Ifhe; Five Years palled and the Fine was
Non Claim. The Ld Keeper was of Opinion, that this Fine by Ct/ry que levied by the
Triijp m Tail, and Non Clarni, Ihould bar theRemamder Man m tail, 'pruft who
For equitable Rights are as well to be bound by Fines, as Adions and had the
Titles at Law ; and cited the Cafe of ifrCeiUilU'and 'BiimCg, where a 'V^hole en-
Fine by Celly que Truft was adjudged a good Fine and Bar; and he was j|[^, a^d^^o"
of Opinion, that it would bind at Law. Hill. 1683. Vern. 226. Basket •was'to work
V. Peirce. upon his own
Equity only ;
but that here thcCcftuy que Truft had but an EftateTail only .which was fpciit, and there were other Re-
mainders over ; And it being infiftcd in this Cafe, that the Rernainder Man was not barr'd by Non Claim ;
For that all the Debts and Legacies were not paid, and fo his Title was not commenced ; and that
the Term for 99 Years did I'ubfift, and was not expired ; and further, that the entire filiate at Law,
being in the Truftee, he ought to iiave entered, and it was againft Equity, to fiirfer the Ceftui que
Trull to be barr'd by Non Claim for the Laches of his Truftee. Whereupon the Ld Keeper decreed,
that the Truftee fhould give Leave to the Plaimift to bring an Adtion in his Name to try his Title; and
faid, it lieiK? a Title at Lu-j.; he 'xould not deterninie it hw:je!f ; tho" his Opinion was, that the Plaintitf
was barr'd. Vern. 22(5, 22-. Hill. I6S3. Basket v. Peirce. ■ S. C. cited Pafch. 1 1 Geo. 9 Mod 144.
in Cafe of Webber v. Earl of Montrath.
14. A. de\>ifed Land to R.fcr Payment of his Debts, and when his Debts
are paid then to R. for Lfe, with Power to make Leafes tor 99 Years, if
three Lives fo long live ; Ranainder to the Heirs Male of his Body, Re-
mainder over This Ellate to B. tho' Executory, and e.xprelsly limited
to A. for Lite is yet an Ellare Tail, and barrable by Fine and Reco\er; .
Wms's. Rep. 142. Patch. 17 11. per Ld Harcourt, and thereby rev eri'd
a Decree of Ld Cowper's. Bale v. Coleman.
D. 1
hi
220 Fine.
(D i) By whom: Tenant in Tail; or by PeiTons not
leifed of the Eilate Tail.
♦Tenant for I. A Tenant for Life, Remainder to B. in 'Tdi!, Remainder to the right
Life dies, jCjL* -Wf/" '^f ^- It' B. Bargains and Icils aO his Eftace, * or levies a
'r^ ''h'\'\-i Fi'"'^ '^^'■'^h Proclamations of it to D. Nothing palles to the Grantee,
L"^BaiTeJ^2 3S '^o ^^'^^ Remainder in Tail, but during the Liie of B. 3 Le. 60. Hilh
Rep. S4. 18. Eliz.. C. B. Owen V. Sadler.
Pafch. 44EI.
The Cafe of Fines. ■ — Jenk. 274.. pi. 96. S.P. But if there had been >io Prodamaiio?, there!
had been no difcontinuance, becaufe the Conufor was not leifed of the Entail.
2. Gra?id-father andGrand-'/iiother 7'enants in Tail of the Gift of A. — Re-
mainder to the right Heirs of Grand-jdthcr. Grand-father dies — Grand-
mother enters — Father by I)ced inrolled and Fine with Proclamations,
conveys to King Philip and Queen Mary, and tiie Heirs and Succelibrs
of the Queen, if this Barrs tne Son, the Grand-mother Tenant in Tail
being feiled ? Mo. 146. Trin. 24 Eliz. Twine's Cafe. — Mo. 455. S. P.
adjudged a Barr. Trin. 38 Eliz.. Lynn v. Spencer. Cro. £. 513,
8. C-
Jenk.2-5.pI. J, Grand-fither, Father and Son. G rand fither was Tenant in Tail.
F th"-'''^^d ^ - P^f^^'' '" ^'fi ^f Grandfather, levies a Fine to a Stranger, who has no-
in„ fij.^^ anil thing in the Land — Grandtather dies — Father dies — The Son is barred
^lly^,th.^'tthe ol the Land by the Fine of the Father. — But* if the Grandfather had fur-
Heir in Tail vived the Father, the Son Ihouldnot be barred. Hill. 27 Eliz. per J. Peryam.
and'"rH^ Mo. 252. Vid. Jo. 33. cites atCljer'lS Cilfc, that the Father died, living
bertth. T°' the Grandfither, and yet the Son barred becaufe of the Li/ieal Defcefjt.
accordingly; I Rep. 66. b. * Jo. 41 Trin. 21 Jac. C. B. contra.
For tho' the
Jion fhould claim as Heir in Tail to the Grandfather, as laft feifed by the Intail, yet he »7!:J} cLiin; af
Heir hi Blo.d by tie Father; and fo falls plainly within the Words, a<i f/eir of Hm that le-jkii the Fine,
and clain inq onlv by an Entail made to tiie Anceftor of him that levied tlie Fine. Trin. I 5 Jac. Hob.
253. in Cafe of t)uncomb v. Wingticld. D. 5. pi. 5. Pafch. 19 H. 8. 4 Mod. 5.
s\ C. Le 84. 4. So if the Father has two Sons, and the E!dc_fi Son levies Fine of the
Mich. 29 and EfiatcTailto the Father, and the Father dies, and the Eldeil Son dies
Jerfon Cii f without Ilfue, the Youngell is barred by the Fine of the Eldeil ; yet he
who faid it claims as Ilfue of the Body of the Father ; But becaule the Tail lias de-
was lately fended in Right upon Eldefi Son, his Fine is a Bar to all claiming the
a.djudp;ed_i:i f^me Tail. But if he had died without IlTue in the Life of the Fa'ther^^
^tamford^s^ th; youngeft Son Ihould not be Barred by the Fine ; Becaufe the eldeil,,'
je-.k. 275. ^ho levied it, never was in Pollelfion, nor in Right had the Eftate
pl 95.-^ Tail. Hill. 27 Eliz. Mo. 252. Zouch v. Bampfield.
.S. P. but no
Judgment. Cro. C. 524. 545. Edwards v. Rogers.
5. A.DevifedLand to his Wife, the Remainder to hisSon and his Heirs,
and if he dye Lefore his Age of twenty-one 7~ears, that then it Ihall remain
to J. S. in Fee — The Son levies a Fine, and dies before twenty-one
Years — J. S. fliall have the Land after the Death oi the Wife ; For "ti.s
a phin Limitation. Trin. 31 Eliz. C. B. Cro. E. 142. Mills v. Snowball. ■
It was held, (,_ Devife of Land in Tail General to A. To have, ^c. at his Age of
"^''^^ p-^„^''^ twenty-five I'ears; after twenty-one and before twenty-five, J. levies aFmc with
wl\ich enu'r- Froclamations, and after A. attains to twentv-fivc, and has Ilfue ; th;)' th^
cdby wav of Conuior had only a poifibility at Time of the Fine, yet the Eilaie Tail
FJIcfpel i'Bin ^vas Baired. 10 Rep. 50. \S5rant'0 Cale cited in LilinpCtt'0 Caff, -^s ad-i
t';atitp..f- jjdged. Hill. 29 Eliz. The Ear in the Cale above is bv r-^ H. 8,
fcth the very •' ^, 1 t r 3 i, j t) ■ 'c '^
Kight. " Le 3^- ^*^^ t)}' 4 "• 7- twas not barred. Raym. 149, 150. cites S. C
2zr. M. 51
r.lii. C B pi 504. Anon The Devife in (Sranf^ CTafl", w.is to th-e Deitfir'jlflfe <'cr fif',
atidiuhen J cimes to- ij, he ti> S.j:e tn \tail, &c. A. died before 25, Icavin,:^ Ilfue, and the \N ite IliH
living
Fine. 221
living; and (ci'ed, lb that Pmtes aH Jinem }:il.il haiuerui.t, yet ad^udp^ed, that the Elhitc Tail was utterly
extind: and dcftroy'd. Hill. 31 Eiiy.. a Le. 36, S. C. by the Kainc of Johnfon v, B.-llamy. •Parties
and Privies, as the Heir is, fhall liavc no (uch Averment. Goldsb. 107. S.C. by Kame of Johnson v.
Oariile. Cro. E. 122. Johnfon v. Gabriel, alias Bellamy. S.C Cro E. 610 S.C.
cited in Cafe of Hunt v. King. cited Jo. 36. per Jones J. ip. per Hob. Ch J :itcd Ci'o.
C 455.
7. IF Tenant in Tail has IlTue three Sous, and the fcccnd Sen kiy a Fifie Ir. Fines ^-
with Proclamations /« the Life of his Father, ■sho dies ; this ihail not bar "'""J ^''^'"'•-
the elder Brother : But if the Elder die -xithuit Ijfuc in the Lite oi the i^'eirs'am'ong
Father, the Second lliall be barred : And if the Elder die \'vithouL Illuc thcm'eh'cs,
after the Death of the Father, fo as the Elder had the Whole Tail, }et " receiveth
ii^the Second or hts Iffhe fiir-vii'e, and then die, it Ihall bar the Younger, (tor ^'f'"'^"'"
he is plainly within theWords) as well as the Second, that lev ied theh me. cJ,uwgf>icy ■,
The Words of the Stat, of 32 H. 8. are, that a Fi»e levied of Lands m any for it is Tiot'
wife etitail'd to the Cofiiifor, or any of his AnceJlors^Jhall Le a Bar againji the vecrgAry,that
Perfon and his Heirs claiviing only by Force f fuch Entail, any Dcubt ; '''' collateral
&c. per Hobart Ch. J. Trin. 15 Jac. Hob. 258. In Cale or Duncoiiib. v. jf^'by ^Trl
Winglield. tail, muft
make mo.ticn
cf every Collateral JJfiie Ijileritalk lefire lirji, as in the Ca(e of Lineal Anceftors it is ; and therelorc
make the Cafe, that the Father being Tenant in Tail to him, and the Heirs Male of liis Body, hath
IlTue three Sons, and the lecond Son levies a Fine in the Life of the Father, ai d then the Father dies
without difpofing of the Eftate ; FiHl, clearly the eldeft Son is not barred, becaufe he is not a Privy
to his Second Brother, tho' he be within the Rigour of the Words ; for he is * Heir to him that levied
the Fine, and doth claim [rot] only by the Intail, but above him, and not as Heir, which is the meaning
of the Law. Then again, if the /eco!:d Rrotlier & u-itlcit fffuc, hi the Life cf the Elder, or cf hts fffne,
.the third Brother fliall claim this in Tail after the Death of the Elder Brother, notwithltanding the
Fine of the Middle Brother ; becaufe he doth Claim innnediately from lis Elder Brother, ard need not
to convey himfelf by, or make mention of his Middle Brother, no not in his Pedigree. Bi.t if the Elder
Brother die liithout fffne, in tie Life cj the Middle Brother, or hts fjfue, without dilpofmg the Eilate,
and then they all die ; now the third Brother and his Ilfuc fliall be barred ; For tho' he nuy bri:ig his
Formedon in Defcender, and by down the Intail, and then bring it to his Eldeil: Brother, that was laR
feifed, and make himfelf immediate Heir unto him, v. ithout mention of the iecord Br< thcr ; yet the
Tenant in the Formedon may plead tlie Fine of the J\llddle Brother, and that he or his IlVue did fiir-
vive the Elder ard his Ifluc ; for, by that it appears, that the Middle, or l.is Illuc, were the Perlbns
inheritable to the Intail before the Yourger Brother, in whom the 'J'ltlc of the Intail had been totally,
but for the Fine which bars him, and the whole Intail, as well a^ainft his Younger Brother as a-
cainft his own IlTut. By which it appears^ that the Fine Bars, or bars not the ^ ounger Brother,
by Contingency of Survivor, or not Survivor of cither Party. Whereof the Realbn Ls, that if after
the Fine of the Second Brother, the Elder had died v/ithout Iflue, and the Father had died, the
whole Tail had been bound arainlt all the Brethren in the fame Manner as it were upon a Fine,
againft the Brethren in Fee Simple. Hob 353. Mich. 19 Jac. in Mackv\ illiams's Cafe. *[Quxre, if the
"Younger Brother is not intended dead ;J
8. Baron and Feme, Tenants in Tail, have a Son and a Daughter ; the S.Padjudg'd,
Baron dies, the Son levies a Fine in the Life of the Mother, and dies j per j ?nd aifiimd
Juft. the Daughter, being a Collateral Heir, ihall not be bound j but per ^,e ^.^ gg^ . "
3 Juft. fuch tine Ihall bar a Lineal Heir ; but by one J. fuch Fine ihall P'or Collate-
bar neither Collateral nor Lineal Heir; but per i. ]. luch Fine ihall bar ralHeimeed
both Lineal and Collateral. Trin. 21 Jac. jo. 41. Godiry v. Wade— Ad- Ij^-jiT^f the
judged no Bar to the Daughter alter the Death of the Mother. Becaufe Son.'Cro. G
the Son had only a polhbiJity to inherit the Tail, which was only in his 434. Brad-
Mother alter the Death of his Father; and the Mother iurviving both Hockv. Sco-
her Husband and Son, the Land lb eiitaifd ihall defcend to her Daughter T'c^/"'
immediately on her Death. Mich. 19 Jac. Hob. 332. * Mackwilliams's \Vadc S^C
Cafe. Cro. ].
6i^ cites M.
13 Jac. Godfrey v. Pafton. S. P. * Win. 41. S. C. argued-
9. Tenant for Life the Reverllon to an Ideot — Uncle Heir apparent to For the Ef-
the Ideot levied a Fine and died Tenant for Lile died The Ideot '^^p'j^'jf'^ .
died The lliue of the Uncle is not barred Becaule he claims in the [itc Uncle*
Collateral^ and not in the Right Line^ and his naming his Father here a-d con'e-
15 not by way of Title, but Fedigree. Mar. 94. Palch. 15 Car. B. R. '.u-ntlythc
Edwards v. Rogers. Jo. 456 S. C. per 3 J. againll Jones. Cro Car. f;'^^,'^^^'^^
524. 543. S. C. per 2 J. againit Jones. cUim^-ror*
L 1 i their
222
Fi
ines.
their Father (the Uncle) but from the Ideot, and is in EtFeft a Stranger to the Fine of their Father (the
Uncle) and may aver ^wd Partes, &c. per Hale Ch. J. Vent. 418. cites Cro. C. and liiys, it was fo
Ruled inCufeof Edwards v. Rogers. The Ideot died without ItTuc. Oo. C. 52.4. S. C. Jone.*
J. who was the Judge, that held the Fine a Bar to the Heir of the Uncle, Reports, that Judgmenr
was given, that It \vas no Bar. Jo. 461. S. C.
10.^. made a Feoffment to the V^coi him fclf for Life^ and after thel>eath
of him and M. his IVifc^ to the U(e 0/ E. (ekielt Son of A.) for his Z{/t,
and after the Death of A. M. and B. to the Ufe of B. and the Heirs Male of
his Body, and ior Dctault of fuch IHiic to the Lie of the Heirs cf £. — Jf{.
had IJne, a Daughter, aiid then, by Fine and Indenture, granted to G. for
500 }ears. B. dies. JVL dies. A. llili living. Upon a Reterence out of
Chancery to the Ld Ch. J. Hale, and atter hearing the Arguments of
Counlel, his Lordlliip was of Opinion, that the Ellate as above limited
to B. was a Contingent Remainder ; that the Fine of B. did Operate at
the Beginning bv Conclulion, and palled no Interell, yet that this Eftoppei
ihall bind his' Heir, and he Ihall be in the fame Cale with his Anceitor ;
that if the Fine had been levied by B. in Fee, this would have barr'd
the Elrate of the Heir, deltroy'd the contingent Ufe, and have Operated
to the Benefit of the PolletTion, as the Fine of a Dilieifee to a Stranger ;
but beingonly for Years, the Fee is veiled, and the Term is good, it being
drawn out of the Fee. January 3, 1672. Pollex. 55, 65, and 66. Weale v.
Lower.
II. Lands devifed to A. and B. tor 99 Years, in Trri/} Jor Payment of
Debts and Legacies, and after to C. in 7'ail the Remainder to D. m 'Tail.
— C. before the Payment of, &c levied a Fine and died without liFue,
and 5 Years palled without Claim ; 'twas urged for D. that C's Title
was not commenced, and the Term tor 99 Years was iHll llibfllling, and
that the Truilees ought to have entered,and thatCefty que Trult fhould not
be barred by Non-claim lor the Laches of the Truftees, but North. K. was
ot Opinion the Trullee fliould give leave to the Plaintilf, to bring an
A6lion in his Name to try the Title, and laid that it being a Title at Law,
he would not determine it himfelf j tho' his Opinion was, that the
Piaintiti'was barr'd. Hill. i683,Yern.R. 227. Basket v. Peirce. — S.C. cited
per Cur. Pafch. 11 Geo. 9 Mod. 144. and that the Court ^vas of Opinion,
that the Plaintiff was barred.
♦PerAnder-
fonCh.J.
Le. 85. in
Cafe of
Zouch V.
Bampfield.
♦^Rep. 9i.a.
S C. cited in
the Cafe Of
jf inf0, and
tiiat the Heir
in Tail was
barred by
the Stat qz
//Stho'tlie
Eft.itc.wh'. h
paifed by tue
(D 3) By Tenant in Tail after a Conveyance.
I. A tenant in 'fail conveys to the Ufe oi hinifelf for Life, Remainder
Jf\9 to B. his Heir Apparent j A. levies a Fine, B. enters for the For-
feiture, betore Proclamation palled; A. dies, B. is not remitted to the
firll Entail, altho' afterwards Proclamations palled in the Lite of A. For
notwithftanding that the Ifllie in Tail, by that Entry, hath defeated the
PolIelTion which palied by the Fine, and fo he enter'd Quodammodo in
AlFurance of the Fine ; * as if Tenant in Tail dtfcontiniies and dijjeifes the
Difcontinuee, and levies a Fine with Proclamation, and the Difcontinuee
enters within the 5 Years ; Now tho' the Fine, as to the Difcontinuee, be
avoided, lb as the Pollellion,which patied by the Fine, is defeated, yet the
Right of the Entail continues bound. Arg. Mich. 25 and 26 Eliz. B R.
Le. 7. Stonely v. i^nicebridge.
2. A. Tenant in Tail difcontiniics, and then dijfeifes his Difcontinuee,
and levies a Fine, the Difcontinuee betore the Proclamation re-enters, and
then the Proclamations are made, A.re-enters and dies t'eiled; his Itlue tlmll
not be remitted againit this F'ine. per Andertbn Cli. |. Hill. 27 Eliz.. Le.
85 in C.de of * Zouch v. Bamfield Le. 67. Mich. 2<) and 30 Eliz.
C. B. Stonely v. Bracehridge. The Ellate Tail is barred, and the
fntry Ihall go to the Benefit of him that has moll Right to the f Pollef^
lion, and that is the Difcontinuee.
391. S.C. Hill 37 Eliz.
Owen 76. Hunt v. King.-
-Mo.
3. Tenant
Fines.
22C^
Fine, was utterly avoided before the ProcUmations paflcd. By which it appears, that tho' the Eftate,
which palled by the Fine, he utterly defeated before tiie Proclamations ; vet after the Proclamations
palled, the Eftate Tail Ihall be barred. ' — Mo. 114. pi 256. S. P. 2J2.'S. P. And. 45 pi. 109.
Anon, but feems to be S. C. Bendl. 122. pi. i^Ci. Anon, fcems to be S. C. S. C. cited And.
1-2 and 2 And. 1-7. in pi. 99. Jenk.2-5. pi. 9 (J. ] If Difccntimiee enfeoffs tenant in 7'ailt
the Inheritance is involved in the Poffeifion. Vid. Jcnk. zS6. pi. zi.
3. Tenant in Tail difcnntiniied to B. and afterwards levied a Fine to C. ) Rep 9o- a-
The fine bound the Elhite Tail. 3 Le. 211. cites it as the Cafe ot' ,^^'?!"^^ '".
Lord Zouch. — Mo. 252. 253 Jo. 36.— ^Cro." E. 610. Hunt v. King. J^^/Zf'
S. P. — Jenk. 275. pi. 96. 0\v. 75. Hunt v. King. levied a Fine
toaStranger,
It barred the Intail
4. 'fcnaut in 'tail Covcnmted with his Son to Jland fiifad to the Ufe of
himfelf for Life, and afterwards to the Ufe of his Son in tail, the Re-
mainder to the right Heirs of the Father j the Father levied a Fine with Pro-
clamations and died. It was moved by Fenner, if any Eftate palled to the
Son by the Covenant, lor it is not a Dilcontinuance, and io nothing
palled but during his LitCj and all the Eltates which are to begin after
his Death are void. Anderfon faid, The Eftate palfeth until, Hcc. Le.
no. pi. 150. Pafch. 30 Eliz. Anon.
5. Jad he cited the Cafe of one }^itt0, where ic was adjudged, that if
tenant in Tail of an Jdvovjfon in Grofs grant the fame in Fee, and an
Anceftor Collateral releaieth with Uarranty, and dieth, the lame is a,
good Bar for ever. Le. ni. Anon. pi. 150. ut fup.
6. It tenant in tail grants tot urn Statum, and after levies a Fine
thereof with Proclamations Come ceo, ^c. the IHue is barred. Secus,
where the Fine is on a Rcleafe, &:c. per Wray. Trin. 33 Eliz. B. R. Le.
260. in Cale of Manning v. Andrews.
7. Remainder Man in tail dijfeifed tenant for Life, and levied a Fine,
tenant jor Life enters before Proclamation palled, fb as he defeated the Fine,
and alter the Proclamations were palled. Tho' neither the Freehold,
nor Inheritance in Fee were bound by this Fine, yet adjudged that the
Intail was bound by it. Cited per Popham as Lord Starton's Cafe. —
And faid, fo it Ihall be in all Cafes, where the Fine is levied by one, to
whom the Lands are entailed, or who may claim as Heir in Tail. Palch.
39 Eliz. B. R. Cro. E. 610. in Cafe oi Hunt v. King. ^.^ ^ .
8. A. Tenant in Tail, Remainder in Tail to B. Re^erfion to the -faj] ^.^^_
Right Heirs o^ A. — A * Bargains and fells to J. S. in Fee, and then le- gains and
vies a Fine. This being levied after the Bargain and Sale, was no dif- /'^''^ *<> S-
continuance j as it would have been, if levied before the Bargain and ""'J '■" "^"■'>
Sale j but operated only upon, and corroborated the Eltate palled by the y[^^ ^ pi^g
Bargain and Sale^ which Is an Eftate in Fee, but determinable on the to C. and his
Entry of IlTue in Tail, and on Failure of IlTue of A. then fubje£l to the Heirs to the
Remainder to B. and a Fee expeftant on the Determination of the Re- J^- %? .''^
mainder to B. 10 Rep. g^. b. Mich. 10 Jac. f Seymour's Cafe. Jenk. [^^.san Ettate
51.S. C. BuUi 162. • now to him
and his Heirs
during the Continuance of theEftatc Tail, per Holt, Ch. J.Farr. 19. inCafe of Machil v. Clerk — j A. paf-
fed all his Eftate by the Bargain and Sale, and had nothing more to pafs, but to extinguifh the Ef-
tate Tail, by Way of I^eleafe, and to leave the Remainder untouch'd. Jenk. 51. pi. 97. S. C * 'I'he
Fine is void, becaufe the Bargain changed the Vie, and fo the Conufor had nothing in IJfe, or Poffef-
fion, at the Time of the Fine. Br. Feofirnent al. Ufes. pi. 7. cites 27 H. 8. 28 ■ "it was by Deed In-
dented and Inrolled, See the firft Refolution, 10 Rep. 96. S. C. — | Holt Ch. J. Held this C^is
to be good Lav/. 2 Salk. 619.
9. A Fine levied by Tenant in Tail after a Bargain and Sale in Fee
works no Dilcontinuance or Wrong. But the Law, to avoid a Tort, doth
expound it to Operate upon the Bale Fee, that was formerly granted,
which wrought no Dilcontinuance ^ as is adjudged, 10 Rep, 98. in Sir
Edward Seyinour's Cafe. And yet if the Fine had been levied before the
Bargain and Sale, there it had been z Dif onri nuance j tor then the Law had
no
224- Fine.
no Means to expound it otherwife. Arg. Pafch. 1653. C. B. Pvaym. 147,
in Cafe of Corbet v. Scone.
10. Tenant in Tail Covenants to Jland feifcd 10 the life of himfelf fcr
Ninety-mne rears, if he pall Jo long live. Remainder to his Jirfi Son in
^ail, Remainder over, and ali:erwards levies a Fine. Whether this
Fine Ihall enure to the Conulee, or to make good the Eftate Tail levied
by the Covenant was the Doubt ? For per Hale, the Tenant in Tail does
not limit the Eftate to him f elf j or Lije, but (or llnirs ; lb 'tis not like to
1Blitl)man'0 Cafe Cro. e. 279. Nor toOSetiintjfitiO'si 895. where
the HrltEltate, being to himfelf tor Lite, is all, that he had Power to dif-
pofe of But here he difpoles, by the tirft Limitation to himfelf, only an
Eltate for Years ; and the Remainder to his Son may well arife out of the
Relidue of his Eftate Tail, which he had Power to difpofe of for his
Lite ; and fo a Renmiiliitr executed in the Son, corroborated iy the Fine ; a*
SDUnCOmi) anH tt^inSfieiU'lS Cafe. Hob. 254. where Tenant in Tail
Bargains and fells, and then levies a Fine ; this corroborates the Eftate of
the Bargainee. But the Deed being found forged, the Caufe dropped.
2 Lev, 84. Pafch. 25 Car. 2. B. R. Whatley v. Greenfield.
(D. 4) By Feoffee, &c. of Tenant in Tail
•KcpS-iab ^- Tenant in Tail difcontinues; the Difcontinuee levies a Fine with
Cafeof Fines. Proclam.ations ; five Tears pafs without Claim in the Life-ti7iie of 7'enant in
* Cro. g^ail. In this Cale the Iliue fhall have a Formedon, and Ihall not be
^•896 Pe- barred ; for his Father could not claim. 'Tis otherwile where he is
ft^er -''Niy' diffeifed, and the * Difeifur levies fuch Fine i for in fa.h Cafe the Tenant
46. s. C. — in Tail may claim, &c. Jenk. 192 pi. 97.
PLC. 5-4- a.
— ^Godb. 50:. Arg.
2. Feofftnent ly tenant in I'atl, and then a Fine is levied bv Conulee,
[FeoffeeJ the Tenant in Tail has no Right remaining in him, and the
Iflue in Tail is the hrft, that has Right to impeach it. Cro. C. 430. Mich.
II Car. B. R. in the Cafe of Stone v. Nev.'man.
(D. 5 ) Where it is levied by a Remainder Man, and a
Conveyance is after made by Tenant in Tail in Pof-
leffion.
The.Vo» h-vi- ^' ^'^^^^"^ '^^^ ^fi ^^''^ Tenants in 7'ail, Remainder to the Husband in
edaFhiein Fee, he died, and after his Death, the Son and Heir of the Husband and
hi.s Life of Wfe levied a Fine, &c. to the Ufe of him and his Heirs ; and afterwards
his Mother, jj^g ^/jj'g ^^^^^ ^ 'Leafe of the Lands for 21 Years, and diedj the Son de-
J ^^\' r^A viled the faid Lands to G. D. and died, and the Queftion being whether
•ftards lealed ... r a y\ , 1 ■ i \ t^ • r ■ i- 1 j 1 1
the Land for this Leale ihall be good agamu theDeviiee- :t was adjudged, that the
21 Years, Ulije in Tail himfelf was barred by this Pine to avoid the Leale j and
notreferving ^\^^^ ^j^q' j^g Eftate Tail was barred, yet 'tis not quite extinguished; but
Ren^""nd'^ Ihall have a Being to fupport the Leale, lb long as any ot the IHiie in
died.' The Tail are living. Bridg. 28. Crocker v. Kelfey.
Son had Iflue
a Daughter, and devifed the Land to J. S. adjudged a good Leafe to bind the Devifee Cro. ]. tfSS-
Trin. 21 Jac. S. C. affirmed in Cam. Scacc. Cro. J. 6Sy. and faid there to have been refblved in Cafe
of York V. Sparliam.
2. If Tenant in Tail, after Fine levied by the Iflue, mzkes Feoffment,
and dies, the Feoffee lliall hold the Land againft the Ilfue and his Conu-
ite , For if the llliie brings Formedon, the Feoffee may plead his Fine
againft him ; and the Iflue fliail be concluded to avoid the Fine, by fay-
ing, Pattes Firiiis nihil habuerunti and the Conulce cannot have a Forme-
don,
T ^ "
rmc. •-^•25
don, or any other Action or Entry to rcco\-cr the Laiid j and fo the Feof-
iee ihall hold as long as there is any liiiac, and then Remainder Man, or
Reverlioner, fhali have Formedon to recover clie Land, per Jones J. and
liOC denied by any. Hill. 2i |ac. R. R. Jo. 61. in Cafe ot' Crocker v. ivelley.
3. A. has Ilfue 2 SonsB. and C. — £. m the Life of A. levies a Fine with s. P. per Ho-
Proclamationsj now A. may convey, and pals this Land^ to iX'hom he pkafc^ by bert. Cli. J.
Virttic of the Fine by his So>i, and the N'endce niay ple^id againft tlie Co- ^y^- ^J^-.
hulee, Quod Partes nihil habuerunt ^ and aguinit the Heir in I'ail, he m^dllrCiT
may plead the Fine of his Father. Jenk. 275. pi. 96. does crh'ex-
. . , . tm^u^p^ the
T.tH, but cannot give it by'hisConveyance, who had not fb much as ^'Right,[p.or1:i PiJJibilily,th' there ivere
a Pc£lhilit)[in him. J So the Statutejeaves the Form and Etiett of the Fine (as to all Purpofes and PeWbns,
but the Illues in Tail) to the ordinary Rules of Law ; whereof one is, th.at a Conveyance to one by
him that hath but a naked Right or PolTibility, works by the Extinguiflimcnc of it in the Pollcirion.
(D. 6) Where there is a Difleifin.
1. A.Difeifor cffeojfs B. 071 Condition -, J5. /iJi'/f^H^^ with Proclamations 9
5 Years pafs; the Condition is broken; theDilleifor re-enters ; zh.Q Diffetfee
is bound i I'^or by the Fine and Nonclaim the Right of every Stranger is
barred ; and when A. enters for the Condition broken, the Fine is not an-
noyed, but rather alfirined ; and former Rights Ihall not be r&vivedi Le;
84. Mich. 29 and 30 Eliz. C. B. in Cafe ot" Zouch v. Bampfield.
2. Tenant in Tail enfeoffed his Son of full Age, and after dijpifed f;^o g ^j^,
him, and levies a Fine with Proclamations; and before the hji- Proclamation S. C.and the
the Son enters^ and makes Feoffment. Now the Proclamations expire, and Court_ being
the Father and Son die. — Feoliee makes Leafe to a Stranger and dies leiled. °/ ^^i"'°pV
—It feemed to the Court, that the Entail was bound by the Fine with Pro- ^^^^ y^i ^^a"
elamations. Mo. 391. Hill. 37 Eliz. King v. Hunt. bound by the
Fine, they
J-everfcd a Judgment to the contrary given in C. B. Hunt v. King.
3. If Tenant inTail be diflcifed, and Dijfeifor levies a Fine., and 'Tenant Jenk. 192. S.
in Tail fitffers sYta.xs to pais without Claim; that iLall bind thellfue. For ^^- ? ^^P-
Tenant in Tail had a Right at the Time of the Fine levied, and there- CafeofFinc?.
ibre the Ilfue is not within the Saving. Cro. E. 896. Trin. 44 Eliz,. in the; —Pi. C. 574.
Court oi Wards, in the Cafe of Penjlton v. Lyller. a. per Dier.
— S. P. per
Dyer and
Catlin, for the Right was prefent to the Tenant in Tail at the Time of the Fine levied, and he cuv-
mt claim bi/t by the fame Title, which his Father had, which was barred in his Life Time. Weft's Symb.
&. 185. cite.s Dy. 5, pi. 6., 19 H. 8. .7.
The like it i5 of the Laches of him in the Remainder or Reverfion, for it barrcth him and his Heirs.
Weft's Symb. $. 185. cites Dy. 3. pi. 6.
4. A Dijfeifjr makes a Leafe for Life^ ahd afterwards levies a Fine with
Procl-.mations to a Stranger ; alt ho' he had only a Reverfion^ yet this Fine
and Xonclaim Ihall bar the Dilleifee. Jenk. 254. pi. 45.
(D. 7) By Tenant in Tail Difleifee^
1. Teinant in Tail is dilleifed, and during DiJJeiJin levies a Fine to a Arg.towhich
Stranger, Sur Conufance de Droit come ceo, &c. The Heir in Tail is Popham and
barred. He cannot aver, Quod Partes nihil, &c. by Force of 27 E. i. ^^""" J- ^"
of Fines. Bift before the Statute 4 H. 7. he might have had Formedon. ^^^^-^^ q^'
At this Day theDilleifor lliall have Advantage of this Fine; and ihall of Hart v.
plead the Fine to the Stranger, whofe Eltate he has; and the Heir in Tail Ameredith,
mult anlvver to the Fine, and Ihall not be received to traverfc the ^le
F.Jiate. jenk. 274. pi. 96.
2. Tenant in Tail dtjfeifed accepts a Fine Sur Conufance de Droit co-
me ceo, &c. of a Stranger, and renders the fame Land to the Stranger.
M m m I'his
226 Fine.
This being ivith Proclamations^ bars the Intail by the 4 H. 7. and 32 H.
8. In this Cale, the Fine, being a Fine by Concluhon, ihall bar the
Heir in Tail ; for he is privy to the Efhppcl. Jenk. 275. pi. 96.
3. It' he that is feifed oi Land, to which an Jdvowjon is Appendant,
be dilleifed, and the DilFeilee levies a Fine to a Scranger of the Land, to
which the Appendancy is j the Diileifbr ihall keej) the Land, and by
Confequence the Advovvfon tor ever ; For the Dilieilee againlt his own
Fine cannot claim, and the Conufee cannot enter ; the Right which the
Dilieiiee had, being extin6t by the Fine. Wats. Comp. Inc. fol. 443, 444.
* Buckler's cites 2 Rep. * 56. and Terms of Law, Yerbo Dilleilbr ; but lays that f
Cafe. I Cro. 484. feems contra.
f This feems
n^if-cited. ^j)^ g^ g^ ^j^^j^^ jj^ Refpea of Eftate. Before a^tial
Commencement.
1. If one, who has but a Condition^ levies a Fine^ and after levying the
Fi»e^. enters for Conditmi Iroken, his Illue is barred by the Fine. See 3
Le. 227. pi. 304. Anon.
2. A. devifed his Lands Pj Trujiees for 99 Tcars^ lor Payment of his
Debts ; and // they did not a£f^ he devifed them to 7! S. and his Heirs ^ in
^rujf, to pay his Debts, and afterwards to B. in I'ail, Remainder to C.—.B. le^
vied a Fwe, and died without KFue j and 5 Years pailed with Nb?tclai7it..
Decreed that C. the Remainder Man in Tail was bound, tho' 'twas infill-
ed that the Title of C. was not yet commenced, becaule tht Debts were
not paid, and the Term of 99 Years was fublifting, and that the entire
Eftate at Law being in theTruftees, they fliould have entered ; yet 'twas
decreed to be barred P. 11 Geo. 9 Mod. 144. in Cafe of Webber v. E. of
Montrath. — cited per Cur. as the Cafe of Basket v. Pierce.
3. A. by Fine conveyed the Manors of K. and N. to B. viz. A", to the
UfeofB. his Heirs and AJftgns, and A", to the Ufe of M. the Wife of C.
for her Life, and after to the Ufe of the Heirs of C. until M.fiould eviB B.
his Heirs, JJftgns, &c. of the Manor of K. or any part thereof ^ and after
to the Ufe of B. his Heirs and y^fftgns, till fat isjied by the Profits. B. by
Fine, conveyed the Manor of K. to D. in Fee. C. died, and M. reco-
vered Dower againft D. of Parcel of K. and entred. D. entred into N.
Refblved that D. could not enter as Affignee, but that by the Words,
Heirs and Affigns, which are Words of Limitation, the Ufe on Eviftion
ought firft to veft in B. and his Heirs j and that before the Eviflion, D.
had no Title of Entry as Affignee, it not being an Interell: aflignable over
before the Eviftion. Hill. 9 Car. Cro. C. 358. E. of Kent y. Steward
and Scott. \
(D. 9) Who may be Cognlzees.
1. All Perlbns, that may be Grantees, or that might take by Contraft,
maybe Cognizees, or take by Fine; as Infants Perfons of full ylge. Feme
Coverts, Ideots, Lunaticks, Corporations Spiritual, or Temporal, Afen attaint-
ed of Felony, or Treafon, Men outlawed in perfcnal Atfions, Baflards, Clerks
* A Fine convidi. Villains, * Aliens, &c. but not thole that are civilly dead, as Monks^
fliall not be &c. Welt. Symb. S. 15.
levied to an
Alkn; for after OiBce the King Ihall have the Land. Denfh. R. of Fines 13.
2. An Abbot, Dean and Chapter, Mayor and Commonalty, and fuch like
Corpcrations, may be Cognifees in Fines ; but before the tngrcffitig of the
Fines to fuch a Corporation, a Writ ought to be dtreiied to the Jullices of
the Common Pleas, G)uod permittant Ftnent ilium levari^ 5 H. 7. 25. 19
H. 6. 15. A Prior may be a Cognilee, 22 Ed. 4. 15 Ed. 4. 22. Weft.
Symb. S. 15.
3. The.^we« at this Day, and at Common Law, may levy a Fine ; and
a Fine mayoe levied to her. Denfh. R. on Fines 12. cites 13 H. 4.
(D 10)
Fine. 227
(D. 10) What Peribns may levy a Fine. Ideots, Infants,
&c. and at what Time iiach Fines may be reverled, &c.
1. iSE. I. Stat. 4. §. 6. E'aaSfs that the Parties be offtillJge^ found Ale-
mory, and out of Prifon.
2. It' an Idiot levies a Fine, and after it te found by Office, that he is
Ideot irom his Nativity, *yet the Fine is good ; but it it be toun3 byOt- *S.P. 2An«3.
fice, thatoneis anIdeot,and ^ alter he levies a Fine^ this Fine will bind him v^Vini*'-^
and his Heirs j yet the King hath the Freehold during the Lite of the :^ s. P. iz
Ideot. Quaere, if it will bind the Heir as to the Reverlion, in as much Rep n?-
as the Title or the King was to the Freehold, during the Lite of the ^'"^'V/^^
Ideot._ Denlh. R. of Fines 12. cites 12 E. i. Seid-fS?--
3.FinebyWfo?ltornfrom hisGuardian,and whowas after found an Ideot, Fine levied
by which the King had Potleffion. Atiier the Death of the Ideot, 'twas by an Lieot,
decreed in Chancery, that the Remainder Man thould give theConulee6o/. i,^\fl^''^!"
and he lliould make a Reconveyance. Arg. Roll. R. 115. in Gale of Dey ^owl. For
V. Hungat cites Rulhly's Cale. Iv the Com-
mon Law,
neither the King in this Cafe upon O/fice, nor the Heir, nor any other can defeat or avoid thisFine,bv Error,
Averment orotherwifc; and by admitting an Averment of Ideocy, the Act of the Court (which is judi-
cial) will be falfified, which is not convenient ; and the Court by allowing of the Fine, having teftiticd
that he was no Ideot at the time of his levying the Fine, it fhall not be controuled by an Oflice found
after his Death. 2 And. 193. Lewis's Cale, alias Lewis v. Wynn. Br. Fines pi. 75. cites 17 E.
5. 52. and 78. — and 17 Ail p. 17. Remainder Man in Fee was relieved againll the Purchafor,
Toth. 104. cites Trin. 10 Jac. Rufliley v. Mansfield.
^.Ideots and Madmen, if they are admitted, are barred as Parties, if tf,ev
Wood's Inll. 243. See Co. R. on Fines. 9. o/.^?e'aFinc
. bythemfhall
conclude their Heirs, and the Fine mall not be reverfed. Co. R. on Fines, i -.
$. Error pal! be brought to reverfe a Fine levied by an Infant within If. an Infant,
Age, by the lame Infant daring his Nonage ; io that he may be adjudged being a /"me
by Infpe^ioH, whether he be within Age or not. £r. Fines, pi. 79. cites xh^f\\^-*?'
27 Alt; 53. levies a Fine
_ ; . by Grant
and Render to her or him in Tail, or for Life, and the Hushand dies ; the Widow fhall not have a
W'Vit cf Error, becaufe fhe is Tenant of the Land ; and fhe cannot have Error againll herfclf, and fo is
without Remedy, per CatJin. Owen ;3. Hill. 40 Elix. Anon. But it feems it fhould be Trin. 6 Eliz.
as in Mo. -4. pi. 202. * S. P. per Citlin, that the Infant fliall not have a Writ of Error to deftroy
the Fine, Becaufe le him/elf is fifed cf the Land ; and fo he is witiiout Remedy. Trin. 6 Eliz. in the
Star Chamber. Mo. 74. pi. 202. Anon. If the Fine of an Infant is not avoided during his Minority, it
fliall bind him. Co. R. on Fines 8. fays it has been fo adjudged, contrary to Catlin's Cpinion in Srowel's
Cafe. So Wood's Inft. 243. becaufe his Infancy muft be tried by Infpeftion of the Judges; But if he
dies in his Infancy, his Heir is not limited to any Time. .-h, in a Writ of Error brought by an In-
fant upon a Fine levied ; the Plaintiff fued a Scire facias againft the Conufee; for whom a | Protection was
call ; and the Court examined the Age of the Plaintifl, and by Irfpeciion adjud,?ed him ivithin j^ge, and re-
corded the fame, and then allowed the Proteftion ; and this can be no Mifchief to the Plaintiff; whereup-
on it follows, that albeit the P'.ainti^ dies aftcr'xards before the Fir.e be reierfcd, yet after his Age adjudg-
ed and recorded, his Heir jh.rll in that Cafe reverf the Fine, for the Nonage of his Anceftor. And lb it
was reiblved in thcCafe of iifffei'toicfji", in a W"rit of Error brought by him, by the Opinion of the whole
Court of B. R.otherwife it is if the Plaintiff dies before his Age infpcCled. Co. Litt. 131. a, i Br.
Error pi. 60. cites 21 E. ;. 2C. and that the Infant was firfl c^ramined, and then his Godfather and God-
mother, and that they put the Plea fine Die, faving to the Defendant his Anfwer at the new Garnilh-
inem, ar.d all this was tipen the Iranfcript of the i\ote, but the Judgment fliall be upon the Note itfelf.
6. Infant dies, the Fine mult ftand. i Mod. 246. Pafch. 29 Car. 2. C. Co'. R. on
B. Barrow v. Parrot. 2 Vent. 30. S. C. Perrot's Cafe. Fines 17.
7. Fines levied by Infants, i-acated upon Complaint of Remainder Man
in Fee, expettant upon Fltate Tail, and on bringing the Infants into
Court ; and Information ordered againlt Commiliioners that took the Co-
nulimcc. 3 Lev. 36. Mich. 33 Car. z. C. B. Hutchinfbn's Cale.
8. If
2 2 8 Fine.
See(A ;?.) 8. 11 2. marned IVomjn under Age ^ (of which the Judges may examine
Stat. iS E I. ]^g[. yp^^ Oach) doth levy a Fine wicn her Husband ot her own Lands,
Notes"tht.-rc^ ihc can't rev'erle it during' her Husband's Life i nor after his Death, if Die
on— Writ" is of iiill Age, when he dies. She can only reverfe it, if her Husband'
of En-oi- was dies during her Minority. W'ood's Inlt. 243.
broufjlit to
reverl'c a
Fine levied by a Feme Covert during her Nor.agc, and at the Scire fucias ad Audiendum Errores the Defen-
dant cafi Fr.icHion, and yet the Jultices tried the Age of the Inhut by hifpcHioi, and did nut ftay it till
the Expiration of the ProtetHon. Co. R. on Fines i -. Marg.
Error was brought by' both of a Fine fo levied, ihc being yet within Age, and per Cavendifh, if they
reverfe the Fine for Nonage of the Feme, yet no Execution jbal! be a'luardeci during her Lije, ®_W rion ne-
gatur. Br. Fines, pi. 29. cites 50 E. 3. 5. * The Year Book of 50 £. 5. 5. b. 6. pi. li, is that Ex-
ecution cannot be till after the Death oj the Baron.
Denfh R. on 9. Perfons bltnd^ deaf, or dumb accidentally, may make Cognifance if they
Fines. 11,12. ^.^^ exprefs their Meaning by Writing. Welt. Symb. 2. b. S. 5.
10. Lord Ch. J. Bridgma'n acquainted the Court of C. B. that a Wo-
Denih. R.on j^^^^^ 1,^^^^ Deaf and Dumb, came before him to levy a Fine. She and her
See Co' r'^ 3 Sillers have an Houie and Land. An Uncle hath maintained her, and
on Fines. 9. taken great Care of her, and he is to buy the Houfe and Land of them ;
•. — ^.)one and he agrees to maintain her, if fhe will pafs her Land for Security. Aa
born Deaf, j-'-^j. [^^^ Intelligence, the Sillers lay, ihe knows and underilands the mean-
and heTas' i"g '^^ ^^^ "^^is. He demanded, what Sign Ihe would make for faffing a-
brought be- w-rj' her Lands; and, as it was interpreted to him, llie put her Hands that
fore Judge Way, where the Lands lay, and Ipread out her Hands. It being a Buii-
Warburton nefs of this Nature, and for her own good, bethought fit to communi-
FinT^Tndp-e ^^^^ ^^ ^° ^'^^'" ' ^"'^ ^^^ ^'"^ ^'^^ taken by the Confent of the other Juf^
Warburton tices. Cart. 53. Trin. iSCar. 2. Elliot (Martha's) Cafe.
would do no-
thing, till he had acquainted his Brothers ; then he examined him, and found him intelligent, and fo he
took the Fine; cited per Bridgman. Ch. J. Cart. 53. as Hill's Cafe.
1 1. Monks, Friars, Nuns, &c. ougbt not to be received ; yet //' thej are
admitted, their Fines are good and unavoidable. Wood's Inll. 241.
12. If the Heir being in Ward of any other, levies a Fine^ this will
bind the Heir for ever, if it be not reverfed by Error within Age ; and if
he be of full Age, in Ward of the King, it never Ihall be avoided. .But
where the Heir in Ward of the King at his full Age, intrudes upon the_
PofTeffion of the King, and Jevies a Fine ; this is void as to the Title of
the King, ^lia nullum accrefcet ei liberum'leHementum, Jt ingrediatur, antc-
quam Homagium S Seijinam ceperit de Rege. But it feems good againlt the
Party and his Heirs. Denlh. R. on Fines. 12. cites i H. 7. 26.
13. But where the King isfeifed of Land, as in Name of Dijircfs, as for
Alienation without Licence, &c. and he, who hath Rightj enters, and le-
vies a Fine^ 'tis good, and will bind him and his Heirs forever. Denlh.
R. on Fines 12.
14. The .^leen at this Day, and at Common Law, may levy a Fine.
Denlh. R. on Fines 12 cites 13 H. 4.
Butitfliall 15. An Alien who hath purchafed Land in England, can't le\'y a Fine,
rotconcKide jf the Court perceive it ; but if the Fine be levied, it feems that 'tis good,
I«Offife ^^^ ^'^^ "^^^^ ^^ reverfed. Denlh. R. on Fines. 13.
found. Co.
R. on Fines. 17.
16. Fine was levied hy A. in the Name of B. but a Reconveyance de-_
creed. Roll. R. 115. in Cafe of Day v. Hungate. cites the Cafe of
Cilderbrand v. Hubard.
[ See CD. ii). ]
(Dii)
¥
ine. 2 29
(D. ii) Vacatsd.
I. Feme Infant, Tenant in Tail, levies a Fine iv'ith her Barcn. The Fine f.'''?' ^^., ^'
was vacated, tho' the King's Silver was paid ; and the Exemplification was of Serjeant"^
brought into Court, and delivered up, and the Cominillioners ordered to Buckby's
be profecuted. But the Vacat was J^wad the Feme only, and not as to tlie ^•''^- — ^"<*
Baron. 3 Lev. 36. Mich. 23 Car. 2. C. B. Hucchinlon's Cale. '^'- ^'^F"""'
"^ 2. another
Fine was va-
cated for the fame Caufe. 5. Lc\'. 3(1. cites it as Sir Robeit Aiailam's Cafe.
' 2. But the Feme dying before any thing i:cas Jfirred olS to the Fine, it was
agreed per tot. Cur. that they could not meddle with the Fine. But if
Ihe had been ali\e, and ftill under Age, they might bring her in by Ha-
beas Corpus, and inipefcl her, and fet the Fine aiide upon Motion. 2 \'ent.
go. Pafch. 29 Car 2. C. B. Herbert Perrot's Cafe.
3. In the Common Fleas, they will /cf ajide a Fine levied by an Infant
{during his Life and Infancy') upon Motion, as null and void, and without
any W rit of Error i as they will do a Judgment irregularly obtained by
Trick or Surprize, and punifh the Commiliioners bellties, if taken by De-
dimus 3 and they will do this by Lifpeiifm and Examination of Witneff'es in
Court; but if he be affirmed to be of Age, they will order ^'fnal by a
jeigned Action, if Intimt or no ? But the Complaint mult be before he comes
of Age, and then it matters not if after the Motion, (and fo if alter a
Writ ol^ Error) he arrives at Age, this will not prejudice him. So if
the next Heir, or any Relation come and inform the Court, that the Party
-■jjas a Fane Covert, and levied a Fine without her Husband, they will
fet it alide as void. 2 Show. 281. Hill. 34 and 35 Car. 2. B, R. Cafe of
vacating Pines in C. B.
4. Several Precedents were produced of Fines, Recoveries and Decla-
rations of Ufes thereupon, being vacated on Motions, becaufe of their
being by Femes Covert under Age ; and one of the Rules produced was,
that the Feme Ihould not be admitted to levy any more Fines, till Ihe tr^'^^T^'^
came of Age. And another, that the Couniel, who had adviled it, Ihould ^f -pi^in. T.
be fined 14/. becaufe no Writ of Error coiild lie. And another, that theHuA Car. 2. ami
band be fined 100/. And in the Cales oi* @)irKObCCt ^arfijaui, a 6 Clerk cited Skin,
procured hisW'ite under Age to levy a Fine j and being lent lor into Court, rj: ^^^\
he was lain to deliver the Fine and the Deed of Ufes to be cancelled in q^ ^ 'be-
Courr. And per Pow ell, if the Commiffioners, before whom the Fine was tween Boyef
taken, knew the Feme to be under Age, they are finable ; Bur there are and Hut-
so Precedtnts of Vacats of this Kind ancienter than f 4 Jac. i. But the chenfon.
true ancient Uay was to bring a Writ of Error ; but becaufe the Husband jHill. 4 Jac.
would not join in the Writ of Error, Szc. this Way was introduced: i. Rot. 70.
Ar;d fome Books lav, that if Feme Covert be outlawed without her Huf- ^ic?i>pmtxi
band, there is no Remedy for her ; but now in fuch Cafe the Court will , Lev^'-^ In
dilcharge her upon Motion. But in this Cale, there appears that there is Hutchinfon's
a Ptnrhafor; and therefore we ought to be u'ell ad\iled. But in Regard Cafe— and
the FefJie is to be of Age in 2 or 3 Days Time, let us De bene elie exa- '" ^!""-
mine her Age bv Affidavits and Infpeftion ; and that was done, and the •'■^' l%,fJC
Inlpeaions entered on Reccrd ; and the Rule was to lee Precedents, and by 's Cale.
to give Notice to the Purchalor. Hill. 12 W. 3. C. B. 12 Mod. 444.
Sarah Griffith's Cafe.
5 A. having inveigled his Wife to levy a Fine of her Land to him, when
pe lay on her Death-Bed ; pretending as was fuggelled, he was to have it
only for his Lile ; and a Dedimus was lent into the Country to t.ike the
Fine, and xht Caption v,-i.s taken about loa Jlliles from London, the very
iJ.'j' pe died ; and becaule the Fine would not have llood, the Party be-
ing aead before the King's Silver was paid, the Writ of Covenant was
razed in the I'^f^e, and made to bear Date 10 Days backwards, and all
N n n other
I
2-:^© Fine.
other Pares of the Fine were nvied likewise, Lincl made to correfpond with
it J and the King's Silver was paid, and lb all appeared on _ the Record to
have been done before the Death of the IVoman ; on a Bill brought to
have the Fine let alide, or to have a Reconveyance, it was held by the
Court, that tho' Chancery has a Pozvcr to relieve, as much againlt a Fine,
obtained by Fraud or Prattice, as any other Kind of Con\'eyance; yet
that fuch Relief was not by decreeing a Vacate of the Fine, but by ordering^ a
Reconveyance ; but that for any Error in the F'ine, or Irregularity, or ill
Pra6tice in theComniiirioners,'it was aMatter properly cognizable in that
Court where the Fine was levied, and for which that Court may vacate
the Fine j and there being no Proof of Fraud or Practice in this Cafe,
the Bill was difmilled. Hill. 1700. Abr. Eq. Cafes. 259. St. John v.
Turner.
[ See (E. b. 2) ]
(D. 1 2) By Tenant in Tail. In Refpe(3: of his Eftate,
What Eftate barred.
» Tho'e ^- Land was given by A. and others to B. for his Life, Remainder to C.
Words make (who was Heir apparent) to B. et * Prtmogentto Ftiw tj' Hered. Mafcul. of
no Entail. the faidC. to be begotten, y /?f de Primogeriito Filio ^ Herede Mafctilo ipjttis
Ci-o. E. 220. Q ^Q Corpore fuo procreand' in Pri/iwgenitu>,i Filiuni et H^rcd. Mafcitl.
211 Tc ^^ Corpore fuo procreand. et pro Dfefhi talis Exitus remanere inde to
Cotton's D. the 2d Son of the aforelaid A. B* Prnnogenito Ftlio ipjitis D. with Re-
Cafe.— Savil. mainders over in like manner as are limited to C. &c and then limits a
111- ^\^-c. Remainder to the Heirs Males of the Bcdv of the fiid D. and A. the Father,
""■ ^" ' to be begotten. 'Twas agreed per Cur. that D had Eltate Tail in Remain-
der, alter the Death of his Father, in the one Moietv, and the Father had
Ellate Tail in the other Afoiety :, and that a Fine with Proclamation.?
might bar his Moiety, and ad)udged accordingly ; and the Court held
that the Words Primogenito Filio in Priinogemtaru Filiinn, &c. were void
Words, And, 264. Smye v. Chown, alias Cotton's Caie.
(D. 13) By whom Fines maybe levied. Perfons under
legal Dilabilities by Crimes.
S- p. Wood's I. Perlbns attainted cr waived in Per fonal AB ions may alien by Fine
Inft. 241. Qj. otherwife ; for their Eitates remain in them Hill, tho' they thereby
forfeit the Profits of their Lands. 9 H. 6. 20. 21 H. 7. n. Welt. Symb,
S. 13.
Denfh.R.of 2. Perfons attainted oi Felony and 'treafon may not be Cognizors, by
Fines^ 15. Reafon that by their Offences their Ellates are Ibrteited : * But it they do,
Wood's Inft their Fines are good again/f all Perfons bat the King and th:: Lord, ofwh.-m
241. the Lands are holden, for their Times. 8 Air pi. 2.$. For theirEltates remain
in them during their Lives. W^elf. Symb. S. 13.
[ See(D. 10)— Utlawry. ]
(E) To whom it may be levied ; [or loho may take hy it,
hi Refpeci of Eft ate. 1
*o • w, I- A i^i«C Sur Releafe ttia? U ICDtCtl tO X\)Z * 2d WtmUt 6? W
TenTntper jfV i^a^^ailtj). 18 (g. 3- 12- b.
garranty.)
This Cafe feems obfcure, and therefore have taken it from the Year-Book and Fitih. which are
as follows, vix.
Kote, that in Writ of Dower brought by the Baron and Feme, where the 2d "Tenant by his Warranty |
wasPany; a Fine Sur Releafe was levied between him and the Demandants, viz. that the Demandants I
ihould '
Fine. 2':^i
__^ : "^
Ihould rQlqafe to the Tenant all, which they had of the Right of the Feme by his Warranty, [l^er
fa Garrantie.j Pafch. i8 E. v i2- b. pi. 3. _. , . ,
In Dower the 2d Tenant by his Warranty entered into the Warrantv, and a Fine was levied between
the Demandant and him, by 'which the Demandant iclcafed and nuitclaimed all the Right, &c. which
was admitted, and yet none of them had any thing in &c. Fitih. tit. Fines, pi. loz. cites P. 18.
E. 5. 12.
[ See CD. 9) S. P. ]
(F) Fine of Land, upon ^ ( N. B. this Letter {^) might ht
L -iHT • T L /^ r I more p-cperly aiviacd thus, V!z.
what Writ. In what CaleS I InwhdtCafeshemgkviedbyYcmc
being levied by a Feme ) ( Covert,/7c/?^//^e examined (F).
- -' i(?wW without Writ, in "what
Cafes It may be (F. 2).
Covert, fhe fhall be exa- I
inined. / V^ Levied upn what Writ (F. 3)
■I
Jf Baron and Feme grant by Fine, tljC ifcme fljaU U tXm\\\Vi't\ As to E^s-
33 JP»6. 31. peCl^riCSt* mination
Vid. (A. 3)
Sratute 18 £". i. S. 7. and the Notes thereon, andCM) per totum.
2. But Upon a Grant and Render to a Feme Covert flje fljall ttOt bC ^'''"^ ^^^^
cramincti : lo? fljc 10 at no J^rejunicc, Out fljaU lie m Ije? JSlenuttct, pine LJ!;^.-
(Ciiiere ttje EeniittetO 3 3 i^* 6. 3 1 . ;,^,, ;,,„, „,.
fliall not be examined. 2 Inft. 215. . Br. Eftoppel. pi. 92. cites i J E. 4. i3
[ (F. 2) //^//jo//^ //^-/V. ]
3. 3 jftltE cannot be levied without a Writ. 12 |)* 4. 12. 18 E. i iv^/.
4. 7);c Order
tf >he L.VIV, •will r.otfuffer a fnal Jccord to he levied in the King's Court, •u.ithout a Jf'rit Original.
The letiorance, or Error of fomc Judges, was the Caule of tiie declaring the Law herein, z Inft.
515. — The Writ is the very Bafis, Ground and Foundation oi the Fine, whereby the Parties have
Day in Court to levy the fame, and containeth the Perfons and Things to be pafl'ed certainly. Well's
Symb. S. 23. ^Co. R. on Fines. 3.
4. jn ancient Times a fine inifvljt U \tWX\ tcftljout fltt ©tiijinaU
21 (Q* 4- 62. 16 (£♦ 3. 19 05, 3. UmjC 13-
5. But now a Stint cannot ht Ic^jicb ujitijout a WxiU 12 p. 4. 12. Nor can it
be levied
upon /ir Original determined. As where the Plaintiff entered a Retraxit, by which it was awarded, that'
Defendant cat inde fme Die; the Parties can not come and have a Compofition between them, in
Kature of a Fine ; for the Original is determined, and they have no Day in Court. Br Fines, pi. 82.
cites 37. AfT. 17. — Co R. on Fines 10.
6. But if fuc!) JTinc lie Ic^teU at t)\^ Dap iuitljout Onptal, it 10 s- ^.f ^ it
not DOID, Imt * good 'till it be reverled. 21 (£♦ 4. 62. COHU QLmWt ^ w v p
^ICftianKC. 394- 1J» ' E-rorrand
lb it is, when
there is an Original Writ, pnd the Fine is levied, as well of a I'hing contained in the IFrit, as of ano-
t}:er Tiin" mt contained in it, it is voidable for what is not contained in it. 2 Inft. 513, 514.
So if the Fine is le-jied imme.ii^tely to a Perfon jiot named in the J frit of Cc'jenar.t ; as if A. be Plaintiff
in the Writ againft C. and C. levies the Fine to A. and B it is voidable byVN'ricof Error. 2 Inft. 514. —
Denfti. R. on Fines. 16. cites 21 E. ;. and 2 E. 3 • — Co. R. on Fines. 10 For it is not Coram non Ju-
dicc, inafmuch as the Juftices have Power of the Thing, tho' they proceed h-verfo Ordine. * Br.
Fines, pi. 97. cites 18 E. 4. 22. by Brian.- it is not void, but Error ; For they are Judges of the
Tliinjr, Br. Affife. pi. 397. cites 16 H 6. rj: It is in the Cafe of the Count, or Eatl
of Lcicefter v. Heydon, and fo fcems rr.ifpi inrcd.
7. But it iSl Erroneous. 21 d^,^. 60. b* €om, 39J.. b-
(F. 3)
2^2 Fine.
In AflTifc, the Plaintiff ap-peared, and ajier made Retraxit, and then /^^e JtiJJicei of J^:fe recorded an A-
greement L:i--jucen them in Nature of a Fine, and by the bell Opinion it is "void, and Coram non Judicc,
and Ihall not be executed, byReafon t!iat no Onpinal '■^as _pe!:din^, but was determined before by theRetraxit ;
and fo fee, that Judgment, 'where there is no Original, is void by this Opinion. Sr. Judgment, pi. 1 14.
cites 37. Aff. IT. ^and fee 26 H 6. where it was held, that it was Error, and * not void. But riuxre
inde ; For without Original they have no Comniiflion to hold Plea, and then they are not Judges of thi.?
Caufc ; and of this Opinion was Bromiey. Ch. J. H. 2. M. i Ibid. * For they are Judges
of this Caule, and therefore Nul tie! Record of Writ of Covenant, upon which fuch Fine was levied
is no Plea. Ibid. pi. 130. cites 26 H. 6.
[ (F. 3) UpQ?j ^Jjat HYu. ]
Jow^holf-ht S- Jn ancient Times linC0 tOCrC IC^ICH upon Aaions mixt with
to be a^amil the * Pcrlonalty. 18 C- 4. 22. Cije l^ttO^ Of S^CCtOtt'lS CilfC*
the Height
and Force of a Fine, zinft. 514 * Orig (Perfonal ) ,
9. But at this Day fuci) jf inc0 ate itot gooti 5 Ijtit anlp fitci^ iFmes asf
ate levied upon Writ oi Covenant or UpOH Aitions in Right or Kealty.
18 e. 4. 22. pctJLitt*
Co R on 10. ^ Jfine ttiap be IClliCD of an Annuity upon Writ of Annuity.
Fmei. 10. 18 e* 4- 22. II ip» 4. 68. % 20 i^, 6. 3. contra aumitteD 44 €♦
3- 37, 38-
1 1. a Jfine ir.ap be le\3iet> upon a ilBrit of Right Patent. 19 (£» 4. s.
ii 21 ^ ' ?.
„ ^ , „, . * 12. if me map be [upon a] !©rit of Right of Cultoms and Services.
a Fbe may ^9 ^^ 4" S- U. l8 €. 4" 22. 21. €. + 4" &♦ 21 e. 3- ^8. ft. 53- 21 ^fl". I.
be levied 5/ ?0 QtlT, I. 24 (!£♦ 3. 29. t)»
i?fw/ or Ser-
vices, &c. But ?/c/ of Land. Denfh. R. on Fines. 16 D. 179. b. pi. 4($. Pafch. 2 Eliz.
Bruce V. Boaet. Bendl. 116. S. C. See a Precedent there.
Inantient ^3-3 ifUtC 1)30 bmt IC^JtCtl lU 3 Quate Impedit. i8 e, 4. 22. 19 e/
Time, in 4. B. !)» Of tijC aODOlUrOnt
^uare impe-
dit, a Fine might have been levied of an Advowfon ; but at this Day, fuch Fine is not receivable,
becaufc 'tis only a perjcnal Jiimi, but in the Time of K. Henry 3. Fines were often levied in iiich
Perfonal Adi:ions. Co. P.. on Fines. 10. —2 Inft. 514.
In Times H ®^ ^*^ ^ W^arrantia Charts. * 18 (iJ* 4. 2. 21 C* 4- 4. !)♦ 61. fj»
pail Fir.es Of tljC laUO- 42 (£♦ 3- 5- 12 ^, 4. 12.
were as ufu-
ally levied upon a Writ of ff-'arrar.tia Ciartd, as now they are M^on a. U'rit of Ccien.trt. Ca R. on
Fines 10. Well's Symb. S. 25. cites iS E. 4. 22. [* And ib it feems it lliouid be licre]
In a Writ of ^S- ^0 m 3 Rationabilibus diviiis. 19 C» 4- 4- !)♦ 29 C» 3. 3 fj*
Rattonaki'.i- 25 C* 3, 46. 2o t^* 6. 3. I ^^ 3. I4 {j*
bnsdi\iifis, if
a Pifcarf, or ether Thing be allotted by the Dividers to o?ie of the Parties ; in Confider.uion thereof tlic
faid Party may levy a Fine of an Anr.ual Rent to the other for the laid Pifcary, and ihi'- Fiae is good
enough, and receivable. Co. R. on Fines 10. cites 20 H. 6 3.3. but the Book, lecms mif-citcd.
„ jn,^ 5, , 16. 8)0 in Affife of Darrein Prefentment. 21 (£» 4. 4. tJ» Of tlj? \p!X'
- — Co. R. tronagc. 43 €* 3-
on Fines II.
cites 31 E. 3- and Br. Fines, pi. * 90. r* This fcems mifprintcd.
17. In a Franchife UpOU a J©rtt Of Right Patent bv Proteftacion in
Nature of a Covenant, a Jf lUC CanUOt bC ICOtCO ; JFOt tl)f {i^rOteitatlOtt
cannot cijange tljc plea Eeal into tijc pcciunaltp. Cijc fajuc jtain
ilS of lllCf) ifinCiS in Ancient Demelne. 44 t!=» 3. 38.
18. ^ ifine map be leiJico in an Aiiife. i6 e» 3- 19 € 3- ^^^t 13
jrtjjungcii, ^
19. S^O in a Precipe quod reddat. 9bbe i3- pCt Cl)Orp»
20. a
Fine. 233^
^ 20. a JfinC upon Releafe nWP U itUCH Itt WUt Of jD0iUC2. 1 8 (£♦ ^. <^"^ ^ "^
12. zg ^. 3. 46 li. " ^ " Ki"
ines 10.
[21 J 22. sijFinc map be itWa in a quid juris damat agi tijc Defcn= CV^'^
Uitnt map grant, tljat Ijc IjolDS of tfjc Conufo?, anU Rennet fjis cnatc '^■
to tljc >Stantcc. 12 e. 3. 60.
■ 22. In a *Ji-nt ofMfjie. Warrant i a Charts, ^lem redditam reddit. Per ♦ s P Co R
q!i£ fervitia, Mtjid juris ckmat, a Fine may be levied of Lands compriftd on Fines 'lo
'1. Statham, and
1SE.4. 11. a. b. '19 E. 4. 2. EI E. 4. 4.b. ^zfi. q Scire facias. loo. + But in all Anions, where
Land is not dernandeA, nor to be churgeci, a Fine cannot be levied. But in perfonal Adions a Fine may be
levjed Co. R. on Fines lo.
23. _ A Fine may be levied, and acknowledged in B. R. when the Re-
cord is there by Error., but not upon Original to be commenced there,
Denfh. R. of Fines 3.
24. A Fine ihall be Ie\-icd in the Court of Jucieiit Bcmcfne upon a
^myWrit'of Rigbt-c/qfi; buinoz upon P/ai»t ; and becaufe 'tis no Court
jot Record. Denlh. R. of Fines 3;
25. In Jttaint upon IVrtt of jijd a Fine may be levied. Co. R. on
Fines 10.
26. So in a .^lodPermittat of a JVaj, a Fine may be levied of it. Co. R. S. P. and yet
on Fines 10. no Precipe
■ '27; A Fine niay be levied on a Writ of Right-dofc, or in any Real r''" on* pii!^"'
J^ion., but uot in an Original or Perfonal Atiion ; and a common 1 1 . cites 2 £,
Writ of Covenant^ on which a Fine is levied, is not a Perfonal, but a 3 13-
Real Ad ion ; f'^r tho' it is to ha\c Damages for a Breach of Covenant,
as in Perfonal Aftions, vet it is to have an Execution and Performance
of the Covenants, i Safk. 340. Hii). i Anns B. R. in Cafe of Hunt v.
Bourne.
(F. 4) Levied by whom, stnd to whom. Stra?igers to the
Writ. Take by it, who.
I. Where a Fine is levied Z'ffci.w^ A. and B. by which A. ack»o"j;kdges td
£.*and B. renders to A. to hold to him and E his Wife., and the Heirs of
their Bodies, &c. there E. has not any Eftate j tor ihe is only in the Ha-
bendum, and is no Party to the Writ of Covenant. Br. Fine pi. 61. cites
24 E. 3. 28.
2 So A W^rit of Covenant -joas between A and B. and after A. acknow- ^ '^ "°'j^ui'^
Icdged theTenements to be the Right of B. and then B. granted., and rendered bv^Er^or^ ^
to A. for Lifcy Remainder to M. his Wife for Life., the Remainder to A. Rep. 5. cited
and his Heirs. This is not good, becaule the Feme was not named in byCokeasad-
the Writ. See Br. Fines, pi. 108 and 114. cites 30 H. 8. and 7 E. 3. 64. ^"'^if. T,""-
andFitih.Tit.Sci. Fa. 136. _ ^ _ i"; Cafe of
3. Fine fur Conufance de Droit Come ceo^ &c. can't be levied to any Owen v.
Perfon that is not Party to the Writ of Covenant, neither can the Grant Morgan.
mid Render of the Land, &c. be immediately, in Primo gradu, to any
that is not Party to the W^rit, but mediately or in zdo Gradu., &c. ic
may. Vor Example, if a Writ of Covenant be brought by A. againft B.
o'i the Manor of D. and B. levies a Fine to A. Come ceo ; A. may grant and Co. R on
rcndci the fame to B. for Life, or in Tail,, the Remainder to F. in Feej ^'"^^ 9-
For albeit the Writ of Covenant be inter A. querent' and B. deforc', to
■^ F. is a meet St'anger to the Writ, yet feeing hi takes it by Way of Re-
liiauhier., deptudin^ nfcn an Eflate 'jjarranted iy the iine^ it hath been al-
lowed in our Books, and hath been compared- to a Deed Indented be-
t\>ce'.i A. and B. v. hereby A. doth give Lands to B. To have and to hold
O o o to
2 34- Fine.
to B. for Life, or in Tail, the Remainder to C. (who is a Stranger to
the Deed) in Fee. 2 Inll. 514.
♦SP.andyio/ ^ Where the 18 £. i. De niodo levandi Fines, fays, that the Older
'^t/l^^o R of Law does not fuller that the final Accord be levied in theKing'sCourt,
on Fines ii. Without Writ Original J ^c\ It docs not fay ^ without Writ Original bePsieen
citcs5H.S. 7. the Parties, but generally; and therefore a Fine may be levied by a
- — So if a * ygii^iygg to theDemandant, trrby thjOaniinlcnt to him ; <\nd fo likevvife by
brought ,^- ^-»^^'iJt h Refceit to the IJemandanc, or by the Demandant to him -, and
gaiujfa'Te- yet they are not Parties to the Wric. 2 Inff. 514.
narit fcr Life,
and rfpoii his Default, he in Rezerfwn is received ; he in Reverfion may levf a Fine to the Demandaftt
of this Rcvcrfion, and yet no Writ is pendintr between them. Co. R. on Fine.'i 11. cites 18 E, 2.
82. 21 E. 4, 5. The Words being in the Aihrmatiative do not reftrain them. 2 Inft. ji 5.
(F. 5) Take. Who fhall take by the Limitations.
I. In Scire Facias, Thefe Words Profrti^w? vel Haeredibus /)rofr(ftt?/j^
fhall ferve as well thofe, which fhall be bom after the Gift, as thofe
■which were at the Time of the Fine, Br. Fines, pi. 61 frites 24 E. 3.28.
A
(G) Covenant.
Jfinc ma? lie \tW^ of an Annuity upoH J©rit Of Coijenaitti
_ i8€*4. 22.
^ ifine cannot lie ICtlieU upon a Bill of Covenant. 44 C, 3. 38.- ' -
3- a Jfine map be ICUtCD in Wnt of Covenant. 29 C* 3- 31. !)♦ 16
e* 3- i9€o- atll3ei3-
Salk. 540. 4. A Fine Sur Concefiit was levied of Lands in Jticient I)eme,^iie in thi
S C.Hill. Court of Ancient Demefne. In Eje£iment it was found by V'erdi6t, that
I Annar.B.R. upon Writs of Right-ctofe^ Fines liave been Time out of Almd levied, and
leviable in the ftme Court ; and upon fctting ibrth the Fine, it appeared
to be levied in Placito Conventionis feiiindum Confuetudinem Adanerti
come ceo que il ad de fon Done, with W^arranty. It was refolved, thatth*
Fine found in this Cafe is good, notwithltanding that the Culhtn is
jound to levy Fines founded upon Writ of Right-clofe, and that the Fine
ievied is in Placito Conventionis inter eos, &c. For it is found to be
fecundum Confuetudinem Cur' and there is not any Inconliitency between
W^rit of Right-clofe and this Aftion of Covenant ; For the'A6tionof
Covenant is not Perfonal in this Cafe, but Real, quod Tt neat Ccnzrntionem^
&c. and not for Damages for Breach of Covenant. Lutw. 781. Hunt v.
Bourn and al.
(H) How it fhall be [exprejsd hi the fFrh of Co-je;/ant.~\
I Tif it lie of a Rent-feck, Charge, or Service, it OUgfjt tO bC pt't
X in tl)ei©rit of COiltnant, who is Tenant of the Land. 19 ^£»
4. 3. 03ccaufc otijcruiife it cannot U \\nom againtt uiljoin to btmo;
tije CiuiD autis Clamat, o^ Ciuem KciiOitunu
2. 3lf it hZ of Rent Service tljC Writ fhall be, fo much of Rent,
with the Appurtenances in D. anO Of Rent-Charge fo much of Rent
ifluing out of the Land in D. 21 (£♦ 4. 61. \},
3- If a Si9an grants lip line a Reveribn, tbe natit fljall be Quod
teneat Conventioncm of the Land, fC« 19 C* 4. 9-
4- tBl)tXt tl;C JTme 10 ItMicn of Rent and other Services, aiS f)OmUSt
anH jfealtp, tbe COiJCnant mentions only the Rent, 19 C» 4. 8.
(I)
Fine'.
(I) Render. [Ho-w the mh ffjall k:]
l.TTCnpCre tIjC Conulance is ot' Land, nnU 3 Pvender of Common
, V V out Of it tlje l©nt ftall UC quod mni^i CanveoEionem of the
Land, &;c. 19 C* 4- 9-
■ ■,,. ' . am
(K) Fine at Common Lavv. What Perfon may levy a
Fine.
I. T JF an Infant fciilfSS 3 SfmZ, Ije ma? reverie jt XHlXinQ W BOU'
. X aP» 17 ^» 3- 53- 79- 17- 3ir» 17-
2. IBUttf |)C I1OC0 not reverfe it duiing his Nonage, t{jI0 fljilll binU ^ut where
Ijtm pcrpetttnll]? i becaufc Ijc ougbt to te trv'd bv infpcaion, miti) ''"' ^T"'^'
cannot be notn, ijcing of ftiU age. i? e» s'js. 79- 17 aiL 17. Sr/LS-
/or Was 'Within Age, the Commiffioners were lined, but the Fine ftood. 12 Rep. 122. cites it as the Calc
of Cavendiili V. Worieley, and Lanter and al. Roll. R. iij. 12 Rep, 121. Ann Hui'Mte's C4fe.
3. Note, that every one who have Power to implead, and to be im-
pleaded, may levy a Fine. He, againjl "whom Fra:cipe qucd rcddat lies, may
levy a Fine, and every one that may levy a Fine at common Law, may
levy a Fine by this Statute. Denlh. R.. 1 1. upon 4 H. 7, 24. cites 8 E. 2.
4. The Kmg, and /?// Perjb/js, ivbo may laisjjully Grant by Deed, may ^^^j^ o
be Cogutzors, or levy a Fine. Wood's Inil. 241. on^Fines. i j
A Fine
was levied by the King, viz. K. James the firft, and wag held to be good. 7 Rep. 5^.
5. Civil Corporations, as Mayor and Commonalty, may levy a Fine of
Land belonging to their Body; But Btjhops, Deans and Chapters, Pre-
bendaries, Parfons, Vtcars, Heads andFelloivs of Colleges, are reltrained by
Statutes from levying of Fines of their Inheritances to bind their Suc-
cellbrs. Wood's Inlt. 241.
[ See (a 10) ]
(L) Of what Thing it may by levied. Of what Thing
a Man may levy the Fine upon the Writ, [and of
what a Render may he],
I. Tif tlje Dcfo?ccant acfenoiuIctitTffi ail Ijijj Kfgtt to be to tlic
X J3lamtltf, fat lUljiCij COnUfnllCC fje grants and renders 20 j.
Rent, De Novo 5 XW 10 a ftOOH <^XmX, 19 €♦ 4. 2. b, JfOt it 10 rom--
pteljcntist! bp implication in tlje Coijcnant. i6 e* 3- 19 €* 3- abbe
iSpetCljO^p, 2ia. 3 5-49- <£*4- 8. lU-i. e. 4. 4.b«6o. b, I9€»4.
8. aDjung 0.
2. So, If be, fot fucbConufancc, grants ant> fcn5c?0to tbe Defen^
Cant the Land lor Life, it 10 gOOU. 19 €♦ 4- 2. b.
?. So be map tenUet a Common out oi the Land. 19 CJ. 4. 9. 21. C.
4. 61. b* ©r I'o many Load of Wood, to tafec upon tlje fame lanB*
Jf Of tbi05 tObieb i0 comprehended within the Covenant, exprefsly, or by
Implication, tUtU pafS bp tbe JfinC. 19 €. 4. 2. b. 21. €♦ 4. 61. b.
4. Jn^V^ic of Culloms aitH ^C?^iCC0, If tbCLord releafes all W
^EilTbt bp ifine. and the Tenant grants to him 20 s. Rent, it Ig gOOO*
i9-e.4-8-b
5- Jf tbe Writ and Conufmce be of the Manor of D. anO tlJC Otbet
/coders the Manor to s. tbi0i0boiDi becaiifc it i0 not comprcijeniiea
tottbm tbe ©tiginaU 21. e. 4. 4. b.
d. Jn Affife of Darrein Picfentmentj Plaintiff .ic knowledges the Right
iBf
2'^6
Fine.
of tlje patronage to tijc j^atrou, pa?ron, nnn O^tiina^p, toto ren-
der an Annuity out ot the fame Churcn tO ttjC piattltiff; tljld 10 ffOOH*
ifor tl)e }3a^ii 10 not cljajgeo, but tljc Jlano, 21. e. 4- 61. 2
7. .In a Rationabilibus Divills, a ECtttiet lliaP bC Of a Free-Filherx,
in his Several Fiihery 21. (£*4 4-b.
.8. So, in tljijJ UBtit, a KCnOeC of an Annuity 10 gOOH* 21. C*
4. 62 b*
9. ^0 in tl)C faiD Writ of Pifchary, DCftnUattt renders an Annuity
to tlje plamtift> 2 . e* 4- 62. b, 2 k» 3- 5-
10. 5lf tlJC line be of a Manor, DefcnUant map render to find Ca-
pellanum Divina Celebrantem in another Manor. 2 i^» 3- 5- b* (duete).
"• 3!f COnUfOr acknowledges the third Part Of a (^anOt tO be tlje
Elgbt of tije COnUfCCj ijC cannot render all the xManor. COUtta 42
€* 3- 12.
12. Sn Acquittal map be acknowledged bp Jfine in Writ of Mefne.
46. (£* 3- 31. 49- ^* 3-8. b*
A may want 13. ^f ti)e Wxxt U of certain Land, pet a KenUct map be of a
.a..d iqnderto ^^^^ ^^^^ ^^ ^j^j^ .^^^^^j ^^t^gj, ^^^^^^ ^jj^^g qj- ^^ ^ ^^ aOmittCH, attO
cf tie fame JuUlt*
Jfnnor, con-
tained in the Fire, iwi yict out of ^")' '^''^f L/tnti ; neither can the Grant and Render be of uny thing Colla-
teval to tie L.^tui, &c. contuircd "'i the VNiit, or of anjther Nature, and neither ill'uing out of, nor inci-
dent to the Land, &c. contained in the Original. 2 Inll. 514.
14. Jf tl)e i©rit be of Tenements in D. nnti tbe JTme 10 Ir^ien of
Tenements in S. tIjiS 10 DOlO. JfOC tljC JlSnt OOe0 UOt tUatrailt It*
19 (£» 4. 9. 7. b» 3-
15. So if it bZ IClJirtI of Land in D. tDljete 3 have nothing there,
tljclmc is DoiD* 19. €.4. 4.
16. So, If It be of Meadow, tOljCrC I have not any, it (0 \)0il3« 19.
(S* 4. 4. 3t feCU10, nothing can be granted immediately by fine, unlels
it be upon a Render roljtcb 10 not iuiuTeDiatc if It luastiot m Cfle,
at tlje Cime of tlje itDrit of Covenant fuc3; Dubitatuc 19 C% 4. 7- b*
As concern- 17. Gj Rent de No\'o caunot be gtaiitcB bp Jfuie* Dubitattir 19 e*
ingtheThirg ^ ^ b. (flue^e) if It luav, Ijoui ttjc couciiant fiiall ber jfor if tlje
Finri°ievv- Covenant map be of tlje lano, it fccms tljat [a ?ii?anj map Iclip a
cd, it istobe line of anp '^Cijnin; out of tlje Lano* Jt 10 a fure Courie, fint to grant
known, that the Rent, and alter to levy the Fine of it. 19 (£♦ 4. 3. COntCa 21 (!5»
in Cafe of a ^ ^^ jj^ j^ ^^^^^^ j„ ^{jg jj(|jp^ ^^^^ jf jj,j. yy,;^ ^^ brought of a Rent,
cZa a»d where there is not any fuch, ailO Ije aCl^nOU!leli[!:e0 it bp line, it will
RerHer, be eiioppei apinft Ijim, anO all daimino; unocc Jjim*
which con-
tains a double Fine ; there is a great Diverjity between the Fine Sur Ccmifans de Droit Come ceo, &c. for
that muft be levied of the Land, &c. in the Original ; but the Grant and Render may be of another
Thing, thin is cxprefled in the Original. As A. brings a Writ of Covenant againft H. for the Manor
of D — B. Ci^n't levy a Fine to A. ot a Rent to be iffuing out of the Manor of D. but he mull L-vy tlw
Fine of the Manor of D. according to the Writ, and his Covenant therein expreficd. 2 inlL 514.
* As to 20. 18. Jf tlje Writ be of 20 Acres, and the Fine of 40 $^cre0, it 10
flwii be d.f- "^^ ^^^^ ^^* 2°- ^^ ^* 4- 4- b* 61. ifor it i0 not v\ tije i©rit So, if
charged. 21 tljC UBtlt be of Land, and the Conui.mce of Palture, Meadou' or Wood;
1:4. 6i.a.by It 10 not gOOO, nor e contra -, JfOC it is of other Nature, and not con-
Pigot- ' tain'd in the Writ. 21 (£» 4. 61. b.
19- 3f tbC CO\)Cnant be of Land, Ije map grant the Re\erfion b?
tliefine. 21 c 4. 62.
A Concord 2° 3^ tljc Cobctiant be of Rent, pet tlie Jfine map be Icliien of the
■ can not be of Other Sctviccs, as Hoinuge and Fealt) . 19 (J^, 4. 8.
Any other
"Ihng than is contained in the Writ of Qtenant, and not of a foreign Thing, •/ it be ii.t carfiju-'nt ; as in
0 W'rit of Land; Rent, Cimm:n, fij'f. m.«y be rerdcrcd illui g out of it. iS Eu 4 22. Wcl^s Synib.
S. 30.
■ •- ■ - 21. upon
Fines. 237
21. upon a CO'OCr.ailC of a JVLmor, a Rene may be relerv'd tip tije
22. Jf t\)Z Wtit ht ol: a Rent with the Appurtenances: t!)2 COllU^
fmiCe iliap be of an Annuity* 21 (£, 4. 60. '©t)C PCJOr Of 'iDlltiJtaiU
aim i^cjtwrjs Cafe antfB'ti*
23. 'fiCijc JiDrit map bcof aRent^ anti tfteComifance map be of
Rent .".I ^JJ. 3. 44. t*
2.1. '^U30 miljDt anCICntlp exchange l3P iTme* i6€«3, 19^* 3-
able 13- ^ . .
25. Upon a Writ of Co w»^;/f 0/ one Are, a Fine hath been levied ot
it, and lurther, by a Pra:terea in the fame Fine, a Manor hath ken con-
vefd, and the Fine received. Denih R. oh Fines 16.
[ See (O) pi. 16, &c. J
(M) In what Caie a Feme Covert lliall be exafmned.
I. Tjf a ifl'ne fur ComiCmCe He Droit lie levied to a Baron, andDenili.R.on
X Feme rendring Rent ; tijC leillC fljail \3Z etamUlCtl, becaUtC flje Fines. 14.
i^ to tic clja?g'D luirfj t{}c Hcnt* 4^ €. 3- ^s- ti»
2. Jf il» aCKUOU'iiCDrce^ to 15* auH B. grants and renders to A. and s.P. Br. Ex-
his Feme tor Lile, to hold of * 3» by the Services of lo j. per Ann. &c. amination pi.
and doing for hini to the chief Lord, the Services due, &c. tljO' tlje ^■/'^'^^^ *4
ifeme njaJl U clja^sen of tije ^erijicejs, pet flje fljall not be eraniinea* ez.^^^
1 C* 3- S- Fines, pl.(5j.
cites 24 E 5
6i.- ♦It feemsitfliouldbeCB). * It fliould be E. ( 5 . )
3- Jf fl ifine upon Grant and Render bC maUC to the Baron and
Feme, fijc l^all not bc etantineD* 8 1), 4 8. b* ( Jt fcem0 it is in=
tenUeQ as tlje prutcioal Cafc tijeie luas) tljatlje^c uias not any Conu-
fance by Baron and feme, bUt Onip a ©tant anUiRentiet bp tfje OtOCt*
4- 3f 9* render certain Land to ilie Baron and Feme in Tail, tObflO Br. Fines, pi.
bp ce2tain Eciit, tbeifcme fljaU not be ecaminetJ, becaufe flje tjatl) 65 cites ^
not Difnulfcn l)e?fclf of anp Eigbt* 24 e* 3- 30- aujucgeti* ^ ? ^^■
5- If a jfme upon Releale tC IClliebto the Baron and Feme, fftcniaU
not be etamincti, becaufc tljc jfine is not eaoppcl, but for Ijcr ao^
uantap* 3 ^)* (>■ 42 €lue?e»
6. So if jfine Sur Conufince de Droit Come ceo, be ICbieD tO tlje ^Thisrccms
OSaron anH feme; Jfor Hjis fljall not eftopp tbe Jfeme to claun '"h'k'";/^
otijcr ^UXt, Contra * 4 $P, 6. 42. ^ 8 13. 6. 4- i\ pi ,2 -and
S. C. is cited
Br. Examination, pi. 4. but fays,thatit isfaid elfewhere, that file fiiall not be examined, where fhe takes,
but where fhe departs by Fine ; and, that where fhc is not examined, flie fhall not b^- ellopped after to
claim a greater Eftute. 1 Br Fines, pi. 51. cites S. C. that the Fcnoe, who took Eftate for
Life, was examined, if it was her Will to have th.it Eftate, and no other; and Brooke, fays that by
this it fccms, the Feme, who took the Eftate, fhall be ejfifped to claim a letter EJlate.
7* 3f upon a Warranty of Charters a ifiue fur COHUfaUCe Be DtOtt ^^- Fftopp^l-
Come ceo, wbicbtbep ijaiie of tbis <iDift, be imtxt to tlje OSaron ?'■ '^ ""'
ano feme, to ija\)C to ti)cm,ann to the Heirs of the Baron ; tljeJTcmc
fljall not be eramincQ, ano mKi'oit ttje Cftate of tljc JFemc ii)an not
becbang'O bp it* 21 c* 3- 32. b»
8. In Quid Juris clamat agai nil Baron and Feme, if tljC Defendants
come into Court, and grant that tliey hold Of tfje COUUfOt, and farren-
dertheirEltate to the Grantee, tllC jFcmC fljufl bC ecaminCD. 21 (Q, 3. 60.
9. If Baron and Feme render lanQ h\> jTmC tO aUOtljCt, tf)C JTcme if a Fine be
fljall be ejcamincHt 25 c* 3- 4+- b»iHi)U5go» levied of
•.. •'.■.". - '. . , * -. "' - Lanii to the
HnibeTUi and Wife, and the Husband arid tflfe grant and revder the Land, tliere the Wife fhall be exa-
P pp 10. 18 E.
2 '^8
Fine.
•"ined, and the Examination muft ever be upon the Writ ; and therefore a Baron and Feme, upon a Fine
levied to them of Land, can't grant and render a Rent cut of the Land, becauic that Rent is not contained
in the Writ. " i Inft. 515. Co. R. |on Fines S. Br. Fines,, pi- 2;. cites 46 E. 5. 1 5. per Finch..
IViid. pi. 39.
Seethe Notes 10. 18 £. I. Stat. 4. 6". 7. yf Feme Covert mtiji he txamined by four of the
^1}^ ?v °" Jujitces of C. £. and tf fhe confent not., the Ft»e cannot he levied.
^ '^ '^ ■ II. In every C&ie, where the Feme Jha/J )?iake anj EJ^ate hy the FinCy or
depart from any Inter ejt^ Ihe ihall be examined. Denlh. R. of Fines 13.
12. The Court liiive no Authority to examine the Feme, but where pe
is named in the Writ^ upon which the Fine is to he levied. And in ancient
Books, the Court would not examine the Feme, but of ftich 'Things ^ which
were contained within the Writ. Denfh. R. on Fines. 13.
13. A Fine was levied Siir Conttfance de Droit to the Baron and Feme,
and to the Heirs of the Baron to ho/d of the Chief Lord j and the Feme was
examined upon this Render, and fb bound, Denlh. R. on Fines. 14
cites II E. 3.
14. Where fhe \s not esaviined, fhe Ihall «of he ejtopped from claiming a
greater FJf ate. Br. Fines, pi. 7. cites 9 H. 6. 42.
[ See (F) pi. I, 2. ]
(M. 2) Grant and Render, upon what Fine.
I. The Fine Sur Grant and Render cannot be levied upon a Fine execu-
tory ; and therefore, if a Man levies a Fine Sur Conufance de Droit tan-
turn to J. S. he cannot Grant and Render the Lands back to the Co-
nufor, becaufe the Cvnufee has nothing in the Lands till Execution fued, and
a iMan can't Grant thai which he hath not. Co. R. on Fines 8.
Bui upon a 2. One would have drawn a Fine Sur Conufance de Droit tantmn., and
Fineexecut- that the Conulee ftould Grant and Render a Robe annually tor Lile to
Sur^Conu-'^ the Conufbr, with Claufe of Diftrcfs^ and fuch Render was not received j
fanccdc droit becaufe the Conulee cannot charge that which he hath net. Co. R. on
Come ceo. Sac. Fines, 8. cites Hill. 7. 3. Fol. 14.
or a Fine
Sur Releafe or a Fine .Sur Surrender, Gr.ant and Render may be made ; For thofc Fines arc immediately,
executed, ard therefore the Conulee may v.ell Gr.int and Render. Co R. on Fines, .S. cites 24 E. 3.
Fol. 36.
3. Quaere, if one may Render upon a Fine Snr Releafe, which Jhall
tnure by Way of Extinguijktnent ; for the Conulee takes nothing. Co. R. on
Fines, 8. Marg. cites 2 H. 5. 2.
(N) Who may Grant and Render. '\
I. TJF A. brings Writ Of COtJCltant againft B. CB* tCltfjOlIt aitP COtlU^
X fence bp a* map (©rant anQ Efntjcc tijc lanti to a, 8 \% 4. 8.
aumitteo 5000, ant n. fo IjcID, CBut it iccmes t|}at b. ought to be
Tenant of the Land, OtljCCttWfC It IS nOt gCOOO XUt ifO* 12. ^C
$pa?fe!)am it ijs faio, Vm it ii3 not neceffaip*
(N. a) Render to whom and how, Strangers, &c.
Note.thatper j, jf /^g jg^y g Fine, the Grant and Render may be to one of them.
der^a^mot"' ^ '"^* •^H" '^^^ "4 ^- 3- 3^- ^^ '^ ^^''^" ^"^ ^^"^^ ^^""V. '^ ^'^^ ^^' J-
be but only to ^- ^^ ^^Y Grant and Render to the Baron, and to his Heirs lor c\er. Co.
him that it R, On Fines. 8. citra 24 E. 3. tit. Fines 61. 66.
named in the
Fine. But a Remainder may be limited to one. by The Fine, tho' he be not ramcd ia tlie Prscipe.
W«ft-s Syrab. S. 145- . '^
2. So
Fine. • 239
■ ' ' ■■ I'-'-i
2. So if the Baron and Feme acknowledge by Fine, the Conufee may
Grant and Render Panel to the Barcn oiily^ a7id the othtr Parcel to hint
and to his Feme. Co. R. on Fines 8. cites 17 E. 3. 31. 12 E. 3. 33. Tit.
Fines 61.
3. A. and M. his Wife levied a Fine to J. S. and J- N. of the Manor
of D. &c. Come ceo &c. and they Grant and Render to A. and M. for
their Lives, the Remainder of one 3^ Part to the eldejt Daughter of J. and
M. in Tail^ Remainder to the Right Heirs of A ^ the Remainder of another
id Part to the fccond Daughter of A. in Tail, Remainder as above; Re-
mainder of another 3^ Part Rejidiie, to the 7,d Daughter in I'ait, the Re-
mainder m P>e as above. Quud Nota. Br. Fines, pi. iii. cites 18 H. 7.
and Brooke fays, that he fiw and read the laid Fine.
4. In a Fine Sur Grant and Render none can take the firft Eftate upon p.^'° f\. °^
the Render, but fome of the Cognifors ; bur Rei'erJJons or Remainders thaThetaiS
any Stranger may take: For if A. acknowledges a Fine to B.and B. * ren- this Cafe to
ders to the faid A. habendum fibi ^ E. U.sori ^tis^ and the Heirs of their be mifi-c-
Bodies, &c. bv this Fine E. can have no Eftate, becaufe fte is not named P°."^- ,,^°'"
in the Writ. VN^eft's Symb. S. 30. cites 24 E. 3. 27. 30 H. 8. Br. Fines „„ ,5inc of
108. 7 Ed. 3. 63. the immfai-
ate Eftate by
the Grant an4 Render, but by Iiim who was Party to the Conufance ; but in Remainder a Stranger may
take, as by a Cafe put there for Example plainly appears, and fb arc the Books in 42 E. 3. 2. 16 E. ■>.
Br. tit. Finci. 3. 7 E. 3. 64 Br. Eftates pi. 23. circs 24 E. 3. 2S. ''
5. A. levied a Tine to B and C, and to the Heirs of B. who Grant and See Br. Fines
Render to A. and AI. Ms Vf'lfe. Tho' M. zons neither Party to the Writ nor 'p^- ^"'^ ' -4-
to the Conufance, and tho' it appears by the fime Record, that Ihe was a ^""''^•
Stranger and not Party, yet the Grant and Render to her was not
iKtd^ but voidable by Error. 3 Rep. $. cited there b}' the Reporter as ad-
judged. Trin. 27 Eiiz. in C. B. in Cafe of Owen v. Morgan.
[ See (F. 4) J
■B
(O) How being it may be received*
ARON and Feme ma}> Grant and Releafe ;\ithout Warranty i\\ SoSave
tljC Jf ine» 44 e. 3 ■ 3 6. I]. drawn a F
inc
in this man-
e
not
Bar, the Baron and Ftme Gra>:trd and Rendired nil which they had in the Tenement!! comprifed in th
Writ, for n'erm of their Lives t,> f. .9 to have and to I old to him and to his Heirs for ever, and it was no.,
received by the Cxjurt. Then they Granted and Reieafed ■what they had for Term of their 2 Lives to
the fame J. S. and to hh Heirs for ever; and this was accepted witbont Warranty. 44 E. 3. 36. pi. 27.
Sir Giles Daubeny's Cafe.
2. 3!f 'Barcn anu JTente acknowledge their Right to anot()$t ftp savon and
Sfint and Releafe, and the Feme only obliges her and her Heirs to War- F<:"iep'n 'i
ranty,tti0SOOll. 44<:£o.2i. b. e^fcelTuwith
r~, n J- ^ Warranty.
The Baron dies. Covenant on the Warranty lies againfi the Feme. Lev. JOI. Mich. 22 Car. 2. B! R.
Wotton V. Hale. 2 Saund. iSo. S. C.
3. 3f 'Ba^Ott anU ifCmC iCbP Jfilie (of Land whereof they are feifed 4^ E.3. pi.
in Right of the Feme) Come ceo, &c. tl)ij3 fljall ItOt be rCCClUCtI with ^f S"" F'"e'
Warranty by them and the Heirs of the Baron i BUt fljall bC [reCeiiieHJ, ^ p^' ^"^'
JJEIHC; tDa^iantCU by them and the Heirs of the Feme. 42 C* 3- 14. 3Bt '^^ " ^ ''
fee.iu0 tl)c Rcafon 10, bcwufc it ies tljc Jnberitancc of m ifeme* I5a= „ ^
ton mm Jfcmc map ieup a Jfnic, @)iir Comifancc De Droit Come ,7 5"'=^
ttO que U aD, tC. to a. and A. mtiy Render * to the Baron in Fee, ailD 24 E '' T^
t^s flwU be receiijpD, 24 e> 3- 34- '
4. Bajon anc Jfemc cannot acknowledge certain Lanu to be the
Right of A. as that UJljICf) l)t' 1)30 OftbetC ©ift, and alfo releafe all their
Right
2^o * Fines.
DcnfliR. of ^'ght to tljc Comifee i jfor tljcp cannot 5o bott) in one jfincv ase*
Fines 6. cites 3- pi-
27 E. 5. con-.
tra, that a Fine Stir Covtijance de Droit & Siir Releafe may be in one and the fame Fine , to one and the
fame Per/on, ar.d ef one and the fame Land ; and may be of Part Sur Qnufance de Droit come ceo, Qpc.
and of Part S:ir Releafe.
Jiid there m.jy be in one Fine Sur Conufance &>c. tome ceo, &>c. Grant and Sur Releafe ; and the Conufee
by the fume Fine, may render to the Coiufor. iio at this Day, two or three * Sorts of Fines arc in one.
Denfh. R. of Fines 6. * Orig. (Partes Fines.)
Br. Fines, pi. 5. Jf (nC IClliCU of a Manor, except 4 Acres, and of the 4 Acres alfo
19. S. C. ^^-hen certain Monies are levied, fOC UJljICl) t!)C lantC iltC nOlD m €Xttnt,
UJass rccci^cn. ^(S*i-2.i. \i,
6. a $@an map acknowledge the Tenements COntaineU ftt t!je tJBtit
to be to the Conufce to have in Taile, anU fljall not acknowledge the
Right. I €♦ 3- 6. b.
7- 31n a JfinC, a 9^m cannot acknowledge the Right of a Conufee,
and atter Grant it to him in Taile. JfOC t^C COnUfanCC 10 Of a jfCC,
htm Of tlje Eifffit* I C 3- 4- tJ* a. h.
Co R on S- Jn a ifine, a ^an ftall acknowledge the Right to be only in one.
Fines 9. — ano not in mo^ of the Conuibe^. Contra 17 €♦ 3- 9- lJ»
Yet if re-
ceived to ici-o ar.d tfeir F/cirs, it fliall ftand. 5 Rep. 38. b. Tey's Cafe. And in Cafe of a Fine levied
by the King, the Juftices will not refufe a Fine to Jeveral, and their Heirs, for the Benefit ,0/ the King.
Co. R. on Fines. 9. cites 33 H. 6. 52. 7 H. 4. 7.
But if re- 9- a line Ictiien upon condition, fijaijf.'tut be refcei5jeti* 44 <Q* 3.
mwiitfhaii 22. 5Eep*38. b* Cep'isCare* • .;•.
"* fiavd. 5 _ ,....,. .
Rep 38. b. Tey's Cafe— .^ A Fine levied to one inT'ait upon Condition ?r;Vii; Remainder, is holden
to be good. 2: H, 8. 24. Plowd. 34. b. 24 Ed. 3.] 62. Contra per Prifot. 35 H. 52. and 44 Ed. 3. 22.
But a Fine with a Re-entry was rejefted 44 Ed. 5. 22. Weft's Symb. S. 50. — $ce (O. 5). Br. Fines, pi.
20. S. C. Fitzh. Fines, pi. I 5. 33 H. 6. 52. — Co. R. on Fine.?. 5. Br. Fines. 5. cites 28 H. S. 24. '
A Fine was levied of Land in Tail, upon Condition to carry the Standard of the Conufr, and for Default
x\\e.r^of Remainder to IV. N. And per Fitzh. J. the Remainder is good, and ib in the Grantee prefently be-
fore the Condition broken or never ; for if the Remainder be not good at firtf, it never <hal! be goodr
And per Montague Serj. contra and Fit7.h. after doubted Br. Done &c. pi. 3. cites 27 H. 8. 24.
A Claufe of Re-entry cannot be in a Fine. Weft. Symb. S. 145.
I. Covenant to levy a Fine, the Writ was .J^iiod teneat Conventiomiv. of
izo -and 10 Acres of Land; and Herle would not accept the Fine upon
fuch ,*^orm of VS^rit. But per Shad, the Writ ihall not abate v.-ithrout
Challenge of the Party. But per Herle we will not abate the Writ, buci
we will furier the Writ to lie in Peace. Br. Olfice del &c. pi. 22. cite^
7 E. 3. 39. and Fitzh. Office de Court. 27. \
II. haron and Fane tendered to Grdnt the Revcrfion by Fine for them
Lives, whch Reverjion they had in 'tail^ and becaufe "twas notified to the
Court, thereibre the Juftices refuied to accept the Fine. Br. Fines, pi.
80. cites 29 Alf 34.
III. In Quare impedit, a Fine was levied of the Advowfon by J. ]\f. fa-
the Abbot of B. who Granted to the faid 7- N. that he and his Heirs at eve-
ry Avoidance pould name aCkrk to the Abbot and his SiiccefforSy and that kt
poiild prcfeut him to theEipop-, and 'twas admitted a good Fine. Quod'
Nota, the Form of this ancient Fine, and was Tempore H. 3. Br. Fmes.
pi. 42. cites 14 H. 4. 10. ?
IV. A Fine .?//)• GV.7/;? and Render is executory, and therefore the Lav^^'
prefuppofes, that he who renders is feifed ; yet it the other, at the Time of
the Fine levied, be feifed, the Fine is good and executed prelently j and'
thereibre the Court w ill receive this Conufance de Droit only, and that-
the Conufee by the fame Fine renders to the Conufor the fame Land, that
he who furrendered by the Conufanc-e Ihali have nothihg in the Land, nor
can the Conufce in this Cafe grant Rent to the Conulbi; l>Vf he f.ime'-Fine,'
&c. Dcnfli. R. of Fines. 6. • " •. *':' '-
'w-
V. And
rmc. 2A.I
\' . And a Fine Stir CtiiitfciHK dt Drat Ccmc cc;^ BV. the Conufee b}- the
fame rinc, niidtrs to the Cumfvr the fanic L.iiid^ and this is commonly
uled. Dcnlh. R. of Fines. 6. cites 8 t. 3.
"VI. Note, a Fine fjr the AJ alter and Fellows of x\\t College inOxon,
ofthe Foundation T.W'hiteMilitis, Civ is &AkLrinaa' London, cf certain
Land to le cvncrtifcd to the iiiid College, was refufed to be ingrolled fro
Dcfcdti Ire-vis inde Dirctf Jufiicmr. de Banco to pj/'s fuch Fuie ; ilcut tuit
Anno 19 H. 8. pro hujufmodi Fine pro Collegio Cardinalis NV'ollev in
Oxon' in Banco praedift' levand' ; Item pro Collegio Reginse in Cantabri-
gia limilis hnis fuit rejctt' hoc Temiino, ex caufi Prxd'. D. i58. pi. 9.
Alicli. 2 and 3 Eliz,. St. John's College's Cale (Oxon )
YII. In Udrrantin Chartie qmd Warran. ttnam Acram^ the Defendant
may ackfioivlcdgv all his Right ichich he hath in this Acre to the Plaintiffj
and tlie Fine is well enough receivable. Co. R. on Fines. 10.
VIII. So if at this Day the DcJendant will le\y a Fine vf the fame Acrt^
<tnd of one other Acre ^ the Fine is not good for the other Acre ; For 'tis not
comprifed within the Original. Co. R; on Fines 10. cites 20 H. 6. 3. a.
[ See (P). ]
[(O. z) Referjcd rjjat.']
10. 3!f Tenant for Life renders his Eftate, f)C ttliip referve a Rent. 29 ^;,, „ f^.p^,
€♦ 3- 7- b* Contra 3 C* 3- I- ^ to me b the
Ca'c aforc-
faid, if the Reverfon of Leffee for Life be e^rttnied for Life, that the Tenant fcr Life nmy trr..r.t tlie Land
by Fine to the Grantee fcr Life, the Grar.tec retiderin^ Rent, bccaufe 'tis not an abiblute Surrender ; For
it the Grantee dies, the Tenant for Life fnall have the Land again, as our Books fay Co. R. on Fines
5. cites 7 H. 6. 13 R. 2. 29 AIT. Brook, tit. Eftates 69.
11. But if JFinC be IClliCtJ of Land in Fee inTaile, ije Uiap referve fe-
veral Rents at feveral Times, 44 (Q^ 3. 22. (0 reCClijClI* 17 ^* 3-
48. 6*
12. a jfine %i\x Conufance 5c Droit, toljicl) referves a Rent, map pi. 14.
be rcceiueu* 46 c 3. is- 49 £• -i- lo- Contra 17 ^» ?• h- b>
13. But OtljejtDifC It 10 of a Grant and Render relerving Rentj CIBC^ Br. Fines pi,
caufc tW ifine 10 crccutonn 46«£*3- 15- (£iue2C m laeafom) ^- cites 46
Contra 4 C> 3- 8. b* 50 c. 3- 9 b* Contra 17 C 3- 48- b. 29 C* 3- ^ ^ '^
7. b*
14. Hpcn a ifinC Sur Conufance, &c. Come ceo, &c. a Rent canttOt pi 12
ije rcftilicD, becaufc it i0 ecccutcn* 50 C 3- 9- b* This Refer-
vation is void
Becaufc tlie Fine is executed ; For m Refervtttion can le but on a Pine executory, as Sur Render. Wert's
Symb. J-'. 50, cites 50 E. 5. 9 24 E. 3. 26. 29 E. 3. i. But it may lie rendered on luch Fine. Br. Fines
pi. 27. cites 46 E. 3. 15. per Finch.
15. a Dillrefs for a Rent ma^ bS tCfC^liCt! bj? jfilte* 44 €* 3- 22. 46
(g. 3. 15. 29 (£* 3. 7. ll»
I. In A f life, thcT'enant held by finding certain* Maffes, &c. and rendring * ori^.
6 Marks Rent -per Annimi^ and the Lord brought Writ of Cnjlcms and Ser- (MeOcs.)
vices againlt the Tenant, in which he releafed the Services^, referving the 6
Marks^ and a Mark more ^ and awarded a good Rei'ervation, which
Brooke lays feems not to be Law. Br. Fines, pi. 78. cites 26 Alf 37.
II. A Man made a Lcafe for Life-, and after granted the Reverjion for
Life, the Remainder in 1'ail by Fine ; the Grantee for Life brought Quid
Juris clamat againlt 'Tenant for Life, who ■-juoa/d have furrendered by Fine to
the Grantee, ixith Refervaticn cf Ruit during the Life of hwi that fur-
rendered; and this Fine was refected; nnd the reafon of the Refufal, as
I apprehend was, becaufe the Eltate of him who furrendered was extinft
and merged in the Eltate of him in the Remainder for Lile; and then if
he in the Rem:.'.indcr dies, during the Lite of him who furrendered, and
•#
242
Fine.
he in the Remainder in Tail enters, he fhall hold ic difcharged. Co.
R. on Fines 5.
16. .Jtl it JfinC upon Rcleafe by Baron and Feme, andVVarranty againft
the Feme fl Rent luap be KeitDceD tO tftCUt lor Life of the Peme, b?
tl}£ CoiUifce, with jjiihefs, aiiD tl)l)3 fljall be receiUcD. 17 C« 3- 57.
24C:;»^.36. b* 28 (£,3. 95.
fer Fir.es pi 17- SI Rent UUip be ffraittCJl anH rcntlCilCtl \\ith Ckufe of Diilrefs.
t -. cites 44 29 (£* 3- 4°- bt
E.3.21. —
./j, ^'.'>c« ^vd Feme Gy.mteil, Releafed and Quit-claimed all tleir Ri^ht, which they had in the Tene-
nicnts, &c. viz. tie Frarikterien:e!it, for Life of the Feme, to D. ar.A G ard for this Grant £». and G -grant-
ed to tl e Ban n a>:d Feme, for Life of the Feme, a Rent of 50 i^iarters of Early per Annum, &C. and if the
Rent be .-hrear, that they Jl.all difirmn ; See. and per \\ ilby and Cur. the Right pall not be acknowledged
to tiL-o in Common, but to one alone, and therefore it was m«dc accordingly. Br. Fines pi. 64. cites 24
E. 5. 64.
See (Dpi.;. ig. Baron and Feme grant and render ftJljatfOeUeC t^e? \)tCOZ Itt
—And be- jjjj. ^jj^jjrj in x\)Z WUt lor Term ol' their Lives to the Conufee and
not receTvcd his Heirs, mitl HOt reCdUCD* OSUt if tlje? grant and releafe ^U ^
ihcy granted iifo,2c[aiii, It fljall bc re£cit!eti+ 44 €* 3- 36- b*
end releafed _ _ .
all whicli thev had for their Lives to tlie Conufee and his Heirs, and fo it was received. Qu*rc Br.
Pines pi. 21. cites 44 £. 5. 36.
19. "Ba^On iintl ifeUte feifed for Life of the Feme^ ||)e Itt Reverfion
IC^ie0 a jf ine, anO grants, that after the Deceafe of the Feme it Ihall
remain to the Baron lor his Life rendring Rent. 44 C* 3- 45- &♦
20. Bdroii and Ftme ackmiakdge the Tenements to be the Right of 7'. and
they releale and quit Claim lor them, and the Heirs of the Feme, to him
and his Heirs tor ever, to hold of the chief Lord^ &c. the Baron and Feme,
and the Heirs of theFemeWarr.ant, &c. and/cr their acknowledgi/ig^ Re-
kafe, quit Claim and Warranty T. granted 40 s. Rent to the Baron and
Feviejor Life^ to take cf the fame Tenements withClaufe of Dijfrefs^ &c. and
'tis received. Br. Fines, pi. 60. cites 24 E. 3. 26.
21. The Baron and Ft^mc Granted a Mejfiiage to J. &c. which they held
for Lfe of the Feme., rendering to them i\s. Rent ivith CLwfe of Dijtrejs, and
'twas reluled j and after they granted and rendered as above ^ ibr which
Grant, J grants back 4^. oi Rent out of the Mefuage, &c. and 'twas
refufed. Quaere Caufam ; and after they gr.mted and rendered to J. and
relealed and quit-claini'd to him and his Heirs for Term of the llite of
the Feme, for which J. grants 45. &c. cum Claufula Dillriftionis, and ic
was accepted. Br. fines, pi. 68. cites 39 E. 3. i.
22. A Fine was levied with a Render, and the Render was "-iVith War-
ranty; and the Officers of the Fine relufed to take it, by reafon of the
Warranty annexed, which had not been known belbre Time ; but all the
Juflices conceived it was good ; tor altho' it was not ufual^ that he, which '
renders, ihould warrant the Land, becaufe he takes no Benefit j yet it" he
will warrant it, it is not to be doubted, hut it is gooii enough^ and the
Officers were commanded to receive the Fine. Cro. E. 17. pi. 9. Pafch;
25 Elii. C. B. Anon.
(O. 4) Done. What Things may be done by Fine, and
How.
S»c Manor. 1. A .Mrwor may be drSided by Fine. Br. Fines, pi, 17. cites 43 E.
2. If a Man will^ he may make ii Jointure byFine,thus; J. viz. levies a
Fine
<
Fine. 2/^^
Fine tc J. in Fee Sar Cognizance de Droit Come ceo, &c. and atccr A.
renders to J. for Life^ '■^itfyout bufeaibincnt of V/'aJi^ the Rim.rnhkr to B.
his Wife J or Qcrtu of her Lfe, the ivenwinder to J. and his Heirs, Well's
Symb. S. 30. cites 38 H. 8. Br. Fines loS.
3. A Leafe for Tears may be made by a Fine in this Fortn: The Leflee
mult acknowledge the Tenements to be the Right of the Leflbr, as that y!;"^ ^"1'^''^
&c. and then the Lelibr mult grant the Lands back again to the Leliee, Anon,
tor fo many Years as are agreed upon, referving a Rent with a Claule ot"
Diltrels: But this Fine will not bind the IHlic in Tail, bccauie he taketh
by the Fine, but giveth nothing thereby. Well's Svmb. S. 30. cites Br.
Fines 106. tempore H. 8. 36. H. S. Br. Fines n8. Plow. 455. 14 Fliz.
4. Or a Lcafe for Years, ma\- be made by Fine, to hind the Tenant in
^ail thus : The Tenant in Tail, and the Ltjjee to achnickdge the Tene-
ments to he the Right of a Stri^nger, as that, &c. And the Cognifee t6
grant and render the Tenements to the Lefjee J or certain I'ears, yielding a
Rent with a CMule of Dillrelsj and then grant the Reverjion to the Tenant
m Tail. Well's Symb. S. 30. cites 39 H. 8. Br. Fines 118.
5. If a Stranger, who has nothing in the Lands, /ev/cs a Fine to him in
the Remainder tn Tail dependant on Eflatefor Life, Sur Cognizance de Droit
Come ceo que il ad de fon done &:c. and the Cogniiee by the fame Fine,
renders to the Cognifor for Years, to commence at Mich, enfuing, and
dies, and all the Proclamations afe made after his Death. The Tenant
for Life, after fuch time as the laid Leafe is limited to begiuj dies j ic i.-i
adjudged a good Leale, to bar the IJl'/ie in Tail for the Term. VYelt's Symb.
S. 30. cites 14 Eliz. Plowd. 437. b. Smith v. Stapleton — which leems
contrary to the Opinion before. Br. Fines. 106. 118. Welt's Svmb. S. 30.
6. A particular Tenant, as for Lite, See. cannot fnrrender his Term to
him in the Rev^rlion, or Remainder, by F"ine; Bat he may grant and re-
kafe it to him by Fine. Welt's Symb. S. 30. cites jj4 Ed. 3. 36.
(O. 5) How being, it inay be received ; want of Ccr-
tahitff^ &c.
i. Note, thit 'tii ctgdinfi the Natttri and Credit of d Fifie to omit any Foi-itisi.
thing, in which Certainty is not rcpofed, or in which the Thing cannot S;'"'-'^ ^^^ .
take Effeff and Continuance, according to the Purport of the Fins. Co. R. Fi^-e''^ifrl«/j
on Fines. 5. cites i^E. 3. [Quaere, For there is no fuch Year.] a Fine, ot its
Nature, // a
Final Concord, and rcjefts certainly all Inccrtainty ; for Certainty (as is faid) begets Repofe, and Inccr-
talnty, Contentldn ; and it is againft the Credit of a Fine, Lcc.uife Credit always .attends and accompanie.*
•Kith Certainty ; and of the contrary Part, Inccrtainty and Faliity begets Trouble and Difcrcdit. Co. R.
tin Fin«s 5. cites 2 H. j. 55 H. 6. 45 E. 3. 18 H, 7. 24 E. 3. ;rt. 21 E. 5.
Therefore Fine cannot be levied, de Teaementi'; Bccaufc Tcncmcntum is of uncertain Signification.
A Fine Iff on Condition is not j;ood ; Becaule fuch Fine, Fincm litibus non imponit. Sec Br. Fines pi.
5. cites zS [i;] H. 8. 24' But the Year Book is, that if it be fo taken, it is good.]
i. And therefore in our Bocsks, a Grant and Render was drawn by
Fine to A. for the Life o'i B. Remainder to C. in ¥e.Q; and there Chard
laid, that the Fine ought to be certain, and to limit in -s'hat Perfons the
Latid jhoidd re7nain ; and becaufe it was uncertain, who Ihould have the
Land, if the Tenatit for Life died, living Cejiy que Vie. Upon this Thorp
drew the Fine to A. and his Heirs for the Life of B. Remainder to C. and
}ct Stone doubted ; Becaufe, as I appl-ehend, fome (Iiy the Limitation td
one and his Heirs during the Lite o)l J. S. is void j and notwithftanding
this, there Ihall be ?LnOcciipant, becaufe a Fee Simple cannot depend upon
the Lilt; df a Man. But I hold the Law c contra as to thisj and fo is
Li::. 168. i9E;[3.JAccon)pt. s^. 33Air p. 17. 22 Alf p. 31. and 11H.4.
43. But I agree that this Ihall not be liiid in Fee Simple, but that the
ficir Iball take it as a fpt!cial Occupant named in the Deed. Co. R. on
Fin,:;', 5.
3; S»
•
>
244-
Fine.
3. So^ if a Fine be drawn, that J. S. ack/wwler/^^es the hand to ie the
Right of J. D. and J. G. and to their Heirs ; luch Fine the Juftices ought
not to receive, becuufe the i^'ee Simple Ihall not be certainly repoled in
anv certain Perlon ; for it may be that J. D. Ihall iiirvive, and then he
Hull have the Fecj or it may be, that J. G. Ihall furvive, and then he
iliall ha\-e the Fee ; the which (as 1 have laid) Ihall be againft the Nature
• ; and Credit of a Fine. Co. R. on Fines. 5.
Er. Fire<;. pi ^ ^ j:^.^^ ^^^g levied of a Afcuior, unto which an Advowlbn was appen-
itE "12 dant, wherein a ■id Part was rendered back to yJ. ibr Lite, with divers
vS. C Av.d af- Remainders over, and fo of the other 2. Parts, •nuith ibs Advowfon of every
tcr Kiiton -i^d Part as aforefaid ; It they cannot agree to preient, a Laple Ihall incur.
diuwedt'i^ They are all Tenants in common, and being //r/? named, or lait named, is
. j'p /.'r . oi no Privilco;e or Prejudice. For being by one Deed, it fliall be Uno Fla-
wyParct! tu. Arg. Godb. 128. citcs 45 K 3.
of the Mitmr
and Jdvoivfin, Fyc ar.d that the frjl Tenant for Life, pall have the frft Prefentment, or he in Remain-
der, if it falls not in the Life of the Tenant for Life, or his Heirs, &c. and the other, in the other ;d
Part of tlie Manor, the zd PreJ'entmeiit, &c. and alfo the other, to whom the :;d Part was granted &C.
the 5d Prefentivxnt, &c. & fie de Siiij;uUs, &c. oua;re if this ISIatter fhall fever the Prefemments.
[ See (O) pi. 9. (P) pi. 2. (Z, 3) (2. 4) (^'- 5). j
(O. 6) UfKcrtahity in Fines. A'lnde good or explained
by the Intent,
I. A Fine was levied Sur Conufance de Droit come ceo, &c. to J. N.
and he rendered to the Ccnufor and W. is Son, and to their Heirs, where
there were 2 IV's elder and younger ; and the Contention came between W.
the younger, and the Heir of VV". the elder, and the I/f'ae --jjas jonied, whe-
ther the P'ine was levied (to give the Inheritance) to W. the elder, or
W. the younger ; and fo lee Ilihe taken upon the Intent. Br. Fines, pi.
cites 47 E. 3. 16.
And if they 2. And where a Man hath the Manors of over S. and nether S. and le-
had no Com- ^j^g ^ jr^;;^ q^' fj,g Manor of ^S". this Ihall be taken the Manor of S. of
then it Ihall which they difcourfed or huave Communication, and the Manor that the
pafs the Ma- Conufor intended to pals. Br. Fines, pi. 28. cites 12 H. 7. 6.
nor, which
the Conufor intended. Br. Fines, pi. 88. cites 12 H '.6. Per Vavifor and Davers, and denied by none;
and that the fame was aj^reed. 27 E. 5. •
Grniniflai'ces fhall be given hi Evidence to prove what Manor they intended. And Phrafcs of Speeelv
declare the Intent of Pcrfons. Per Mountague Ch. J. PI. 'I 85. in Cafe of Partridge v. Strange and
Crocker. l
[ See CJ. b. 2). ]
(O. 7) Received or not. In Relpeft of the Grant. ,
1. Fine was drawn, by which A. granted a certain Rent in the Writ
to B. to have and receive of J. N. and his Heirs 'tenant of a HoiiCc, with
the Appurtenances in K. t? hered^ 'p.ft'is -8. impeifetiinni cunt Warrantiaj
and this Fine was accepted j and B. prayed a Writ to put him in Poliy-
lion^ and it was granted. Br. Fines, pi. 49 cites 21 E. 3. 44.
2. A. brought a Writ of Covenant againll B. who was fl'tfed of a Ma-
nor, to which an Advowfon was appendant ; and he levied a P'ine Sur Co-
nufance de Droit tantitm ; and thereby granted, that the Conufor lliould
ha\'e the next Prefentinent, and himfelf the 2d, and Conufor the ^d, and he
the xth i and Jo they and their Heirs to prefent hy Turns for ever. D. 259.
b. pi. 20. Patch. 9 £liz. cites 43. E. 3 35,
"^* •■"•.'(?) ■Hoiv
Fine.
(P) How the Fine being, fliall be received, [iitf/;/^ 'zy/V/j
Re?uicr^ or wf.j
2+5
I.
AJriilC Iljall not lie reCCtlieO, llCing with Warranty to four dnd g
their Heirs, UUlCfei tl)fP il^C Coparceners. Contta i? €♦ 3- „L</'
ceiiedy p/i/l
9- lU y?aw</. 5Kep.
58. b. Tey'sCafe.
2. 3 jfine fljall not be reCCttlCU, Mm with Render to a and B. See(0 5).
and to the Heirs of the one tor the Lite ot A. the Remainder to the o-
ther, tor tlje Uncertainty Of tl)e €ftntC. COntm 17 €» 3- 48- &♦
3. a Grant and Render bp 2 'Btl^Ong ttnO tl)m ftUK^, of as much See (O) pi.
as they ha\e lor the Lives of the Kernes to another and his Heirs with ^'>-
'Warranty, for the Li\es of the 1' ernes fljilU nOt ht VCCnljeD* 17 (£♦
3. 66. h* TBecaufe no Eiixljt iss faDcD in tOc EcnGc.Jor, noc ijrantcQ
0\3Pr IJJJ Kcntier aiS OUgiJt to lie* JBuc a Fine upon Releale, m fUClj
manner fljall be recciVicD* 17 €* s- 66. b,
4. 3 ifUlC by Grant and Render ot a Reverlion to 2. fljaU UOt hZ XZ
CtiMfO, but it OUa;t)t to be to one in certain. 21 C* 3- 13-
5. Cf)C fime JLaUJ of Land in Polleliion.
6. Qi5Ut otherwife it 10 if tlje Render be to two, and to the Heirs ot'
one. 21 C» 3. 13.
7. -SCIje lame JLatU of Land in Poflelfion. 21 (£♦ 3- 27. b*
8. $1 ^an ought not to acknowledge the Right to two, but to one of
them, as that which the two have of the Gitt, $C- JfOt OtIjejtUife tt)e
Jfine fliaU not be [recettieuj* 27 e* 3- 84-
9. iiliFine by Grant and Render by two tO anOtbCf with Warranty Warranty
ibr them and their Heirs, fljaU UOt be rCCeilJCll, 21 (*];» 3. 27. b+ Sec(R. b. \\
But in Cafe
■where tlie Land was Gavelkind, the Render by 3 Conufces, and Warranty for them and their
Heirs, was received. Br. Fines, pi. 65. cites * 24 E. 3. 66. Co. R. on Fines 5. ■* Br. Fines-
pi. 48. cites S. C.
10. But if tlje Warranty be for them, and the Heirs of one, it fljall
be rcceiijeo* 21 e*3-27. b,
1 1. a Warranty cannot be liUlitell to two, and their Heirs, bp JfinC* 5 Rep. 38. b.
iFor tbiiS fljall not be tecei^ieti.
12. But It ma? be limtteH to two, and the Heirs of one. 21 (£♦ 3-
27. b.
13. 3if Baron and Feme bp ifiue, Grant, Releafe and Confirm to two, ♦Ow^. (ove)
all that * which they have of the Tenements of the Feme, which they
hold for the Life of the Feme of the Heritage of the fiid two. '(PjilS
fine fljall not be recei^eo j OSecauft tlje 3,nDe?itance 10 not tyrantcD
to one* 24^15. 3. 36. b*
14. 3 JFinC map be le^ieD of Land in feven Counties tOgCtljet* i C*
3- 4- b*
15. Rent of 20 /. per Annum was granted by Fine to J. N. and his
Heirs iipoti fuch Conditio)!^ that if after the Death of J. N. his Heir, or
any of his Heirs, be -juithtn Jge, that during the Nonage he Jhall be quit^ of
of the Payment of the Rent, & it was received, and difputed after
if the Fine be well accepted, or not j quod mirum ; For at this Day
they IV lU not fiiff'er a Condition, becaufe Finis Fmem Litibus imponere debet.
Br. Fines, pi. 62. cites 24 E. 3. 61.
16. If Covenant be brought by fjuo, the Defendant may acknowledge the
ontMo!etf[to the one,and the other Moiety ]to the other; or the onePart in
Severalty to the one and other Part tn Severalty to the other Co. R. on Fines 8.
17. But it feems if 3 bring Writ of Covenant, the P^ine Jhall not be le-
vied to 2 cnh'. Co. R. on Fines 8. cites 7 E. 3. 25.
R r r " ' 18 Riit
246
Fine.
* Quaere. 18. But ill Writ ot" Covenant by two, the Defendant may levy a Fine
For there is ^^ „j;g_^ j-j^g Rem(^!nder to the other, or levy a Fine to om rendering Rent, and
t TWs ftems ^y '^^'^ ^^"^^ ^''"'" S''^"'^ '^^^ Rever/ion to the other. Co. R. on Fines 8.
I Mi'ihke,'"' cices * 16 E. 3. Br. tit. Fines f 5. 7. 36 H. 8.
and that it
fliould be pi. iiS.
Br.Fincs.pl. 19. The Mtuwrs and Tenements contained in the Writ m.iy he di^'ided;
17. cites 4; ^^j. ^f■r^ Fine be levied between R. and M. of 2 Manors, and M. acknow-
E.5.11.S. C. j^,^gg^}^ ^]j j^ig Right of the faid 2 Manors to be the Right of the faid
R. as that which &c. for which R. granteth and rendreth the one Ma-
nor to -i/. {or Life, with 2 Parts of the other Manor, which N. holdeth in
Dozver j to hu'je the one Manor, and tzco Parts of the other Manor, to M.
for Life, the Remainder after her Death to R. m I'ail, and that after the
Death of A. the third Part fh all remain to anothtr. W^ell's Symb. S. 30.
cites 43 £.3 II. 45 E. 3. 12.
20. Fine levicxl to Baron Corne ceo &c. and they grant and render to
the Conufor the Land, to hold tor Term of the Lives of Baron and Feme,
and after their Deceafe the Remainder to the Heirs of the Baron. The Fine
was not received ; For a Man canaot entail a Remainder to his Heirs li-
vnig himfelf, unlels he commences firii with himfelf j and this becaule of
the Reverlion favcd. Pafch. 7 Eliz.. D. 237. b. pi. 32. Vide.
21. A Fine was levied with a Render, and the Render was -with War-
ranty— Ws good tho' unufual, and that he, that renders, takes no Benefit.
Cro. E. 17. Pafch. 25 Elii. C B. Anon.
22. Render with WarrafUy was commanded to be received. Cro. E. 17.
pi. 9. Anon, ut fupra.
23. Exception was taken, that the Writ of Covenant, and the Caption
was De Mancrio iB Tenetuento, and 5 s. Rent ; and the Fine engrolled was
DeManerio 31'enemento ; But 'twas agreed, that theCourfe of Fines is, that
if the Rent be under 5/. they ule not to mention it in the Fine en-
groiftd. Cro. E. 275. Hill. 34 Eliz. C. B. Argenton v. Wellover and
Lucas. Cro, J. ir. Pafch. i Juc. B. R. Arundel v. Arundel. S. P.
(P. 2) Certified. How Fine acknowledged fhall be cer-
tified, and when, and by whom.
1. By \$R. 2. Stat, of Carlijle. The Coimnifftoners, that take theCogninafictj
pail m.ike a Certijlcate thereof to the Jujiices^ to the End the Fine niity be
lawfully levied according to the former Ordinance.
2. If two Juflices have Dedimiis Poteflatem to take the Conufmce o{ i
Fine, the one alone cannot take itj but if it be taken by both, the on:
may certify it alone, ajter the Death of the other. Dentil. R. on Fines. 9.
3. 23 £/. 3. Fjialls, that the Day and Tear of the Ackncwledgment of a
have tYk^n ^'"^■> ^^^^^'^ Warrant of Attorney for the Stifering a Reccvety, pall be certi--
Cognifance _p«d together with the Concord or Warrant; and tmte pall be enforced fo to ccr-
of a Fine, tify^ but within one Tear after fttch Acknowledgement made, or Warrant
f'llf'y"''- given.
inconvenient "^^ Q^er pall receive any Writ wr Entry without the Day fo certified in
Time, aC«^- Pam of 5 I.
tiorari is to
awarded unto rhem, comprefiendinp the matter €>f the Ded. Pot and commanding' them to certify, &c.
■which if they do not., there lici aeainft the Commilfioners, mAlias, ^InrieSy andJttachmmt, &c. Weli's
Symb. S. 156. cites F. N B. 14- b._
.ffa^they are not bound to certify ("uch Rccognfiances hut viithin tit Tear after fuch Caption thereof;
but if they do, it is good enough bv this Att. And with every fudi Certificate, they muft certify the"
Day and Year, wherein the fame was ;>cknowlcdgcd, thus, vii. Cnpt' apnd R- mConi. Ebor/iaDu 0.ii)k..4.-M
Reg' Ja. Regis, tPc- Wert's S\ mb. S. 1 56.
4. Tho' Jufticcs of Afftfcy by the general W^otds of their Patents may
take and certify Cognizances of Fines without any fpecial Ded. Pot. yet
liach Jultices ul'e not now to certity them without n /pecial Writ cf Ded.
Pet.
Fine. 247
Pot. fued. lurch ot' the Chmcery dire£led to them, and gii'ifis; them there-
by PiTXtrxo take and certify fuch Cogniziinces ;is they h:ive already taken.
Welt. i>. 16, cites D. 224. pi 51. [but it ihould be pL 51.J
J. ir a Judge takes the Cofiufiwct, a fid dies, a Certiorari (hall be a- ?'' .'"^' P.'
■warded to hts Exunttors to ceriity the Conulance. Co. R. on Fines 10 - ^ *" '" '
cites Fiizh. 147. S. P. So * if
he be dif-
ch/trget! htfcre he has certijicd; he may certify it by Writ, biit not otherw i(e ; notwithftanding that lie be
reinjKueii. Br. Fines. pL 54.. cite.s 8 H. 4. 5 * V\'eft. Symb. S i ^6 cites S. C. apd i H. 7. 9.
Jp if a Ccmmifflcnry dies after tlic Cognizance, his Eiccators may certify on a Certiorari. Weft. Symb.
S. 156. cites S ri. 4. 5. I H. ;. 9. F. >;. B. 14- (B).
6. h-Wxlto^ Covenant is prolecuted Jtvi.ii. returndleOif. Pttriflcat.
TheDedimus Poteltatem is tejhd 23 Jan. the Judge certified the Concord
taiun ¥cl. 14. which is 2 Days after the Term, at which Time the Writ
of Covenant is not depending; the Fine is, Hsec eit 'nv\^X\%CoHcordta foBa
in Oil. purif. And alter it is recorded in 15 Palch. and yet adjudged a
good Fine. Hutt. 135. Sir Rich^ard Ghampernoon's Cale.
(P. 3) Executed. How; and in what Cales neceilaiy.
1. Wejim. 2. 13 £. I. 45. Enalis that for all 'things recorded hefore the -yj, f^-j •
King's Jtijticcs, or contained in Fines, (ivhether Contrails., Covenaiits, Ob- our Books,
ligations. Services for Cttftoms acknozvledged, or any other Things mrolled) a that at Com-
Writ of Execution (hall be ivithin the fear, but after the I ear a Scire facias, I""? ^^'^.
whereupon if Satisfaffion be not made, or good Catife pewed, the Sheriff' pall ^^^^^^^^^^^
be commanded to do Execution. w a Fii'e ex-
ecutory was
notexecutetl, that the Party fliould not have Brief de Five Frallo, in the which the Plaintiff will recover
only Damages ; but under Correction, befote the /aid Statute oj ii . l. the Cotiufee might have entered iitfoii the
CcKxfir, and his Heirs. For the faid Statute docs not give Entry to the Conufee or his Heirs. Co. K.. on
Fines iz.
2. A Fine may be executed by VV^it of Habere facias Seiftnam, and if
Refcotis be made, the Sheriff may take the Pcffe Comttatiis, and make Ex- , t'^° ; ?"
-' . T. T.' 1 • I- !-•■ 1 • I- • * Kemainder
ecutiOB. Br. fmes pi. 112. cites 19 L. 2. I'ltzh. tic. Execution. 247. was made by
Fine, fued
Habere facias Self nam to the Sheriff, and the Sheriff returred, tlint he Cannot m.\!ce Execution for Kr-
fifiance, and 'twas adjudged that his Return was not good , ar.d the Sheri.rfivas amerced 20 .Marks. Co.
K. on Fines 12.
3. Scire facias upon a Fine bc'':::een 7! and H. by which T. acknciuledged
the Land to be the Right of H. &c. and H. granted and rendered to T. Ha-
bend" to him and E. bis Feme, and to the Heirs which 7! Jhould beget on the .•^■t ''
Body of E. f(5 that if they died tvithoitt fach Heirs, that then it Jhould re- ,-*
•vert to the faid H. for his Life, the Remainder to C. and S. his Feme in
Tail, &c. T. died ivithcitt Heirs of the Body of El; and the Tenant faid
that after the Death of H. and S. ivho vcas the Mother of the Plaintiff, C. .
the Father of the Plaintiff' entred and -'joas fe'tfed ; and fo the Fine executed
&c. Judgment, &:c. a.nd the Opinion was; that becaufe \t y\'ns once exe-
cuted, it Ihould not be executed again by Scire F'acias of the fame Ellate
which was executed ; Buc the Heir is put to his Forniedon for the Mifchief
I tf }i''srranty; for tho' the Tenant in the Scire facias may have Writ of
' Warranty of Charters, yet his FeolFor lliall lofe his Warranty Para-
rnoiint, >\-hich he may have by ^va)■ of Voucher in a Formedon, which
he lort in Writ of Warranty of Charters, &: adjornatur. Br. Sci. fa. pi.
125. cites 24 E. 3 SI-
4. Land was gi\en to J. N. by Fine in Tail, the Remainder to P. in Tail,
the Renmindcr to the right Heirs of J. N. the rirll Donee ; and A. as right . ■ ,
Heir of the fir ft Donee filed Execution, becaufe the others zvere dead -x-ithoitt
IJfiic, and it well lay ; For the Fee 'S'as not executed during the Jirji Ef-
tafe. &. Sci. fa. pi. 89. cices3S E. 3. 17. 5. Scire
2^8
Fine.
5. Scire tiicias to execute a Fine was fued by the Hetr of S. bccaule
the Fine was kvie d to A. for Life, the Kemamder to J. in Tail, the Re-
mainder toS. in Fee; and that all are dead, and J. [^d!ed'\ without Ijftie ; and
the Tenant liiid, that A. farrcndered his Eft ate tu J. and after S. died, and
f. [died] 'Without IJfuc j and that A. entered as Brother and Heir to S. whAjle
E It ate he has, Judgment ii' Execution. And the other faid, that A. by
his Entry alter the Death ot'S. had only his firftEftate lor Life; which is
■ a a;re,it Error ; For it is a Surrender ; and then after the Death of J. and
S.^A. Ids in of Fee, and thtm the Fine executed in theFee, and never Ihall be
executed again ; and per rinch, becaule the Effate for the Life of A. merged
in the Seijin of J. and he is tn in tail, and not lor the Lile ot'A. the Wit«
of J. Ihall be endowed. Kr. Sci. la. pi. 21. cites 42 £. 3. 9.
6. Eltace b)' Fine is made to two, and to the Heirs of one ; and he \vho
h,id the Fee died; and Atter the I'enant for Life died, and ff. N". abated;
the Heir of him ivho had the Fee, may have an Affile of Mortdancefter, or
a W^rit of Kight, or a Scire facias, per Kirton, to which Finch agreed ;
quod miruni, that it Ikdl be executed to fome Actions, andto fmne not. Br.
Sci. la. pl. 21. cites 42 £. 3. 9.
7. Fine levied by him in Rever/ion, ivithofit exprefs mention of the Rever-
Jion, is not executory ; nor Ihall the Party have Execution where it is
levied Siir Conufance de Droit, or Stir Grant and Render. 43 E. 3. 15. but
fuch Fine was executed the lame Year, fol. 22, and there 'tis faid clearly
that the Right palles, tho' the Conulbr had nothing but ReverJlon in
Tail; but it feenis clearly, that by Fine fur Conufance de Droit come ceo, Sc.
Rcvcr/ion pajfes. Br. Sci. la. pl. 28. cites 43 E. 3. 22- per Thorp.
8. Scire tacias. The Cafe was, that Land was entailed for Life by Fine,
the Remainder to Baron and Feme in 'Tail ; the Baron died, and after the 'te-
nant for Life died ; the Feme entrcd and died-; and the Son brought Scire ta-
cias as Heir to his Father and Mother of their Bodies; and by Award it
is a good Execution by the Entry of the Feme after the Death of her Huf-
band, as well as if the Baron and Feme had been feifed ; quod nota, Br.
Sci. la. pi. 51. cites 49 E. 3. 22.
9. A Fine is levied to J. TV". /'// tail. Remainder to the right Heirs ; the
Heir Uneal Ihall not have Execution , For this is executed of the Tail ;
but the Heir collateral, after the Tail determined, Ihall fue Execution of
the Fee Simple in the Remainder. Br. Fines pl. 32. cites 7 H. 4. 16.
I o. If a Fine be levied to the Husband and Wife in fpecial talk, the Re-
mainder to the Heirs of the Body of the Husband, and the Wife dies ivith)i!t
JJfue ; the Remainder is executed in Poilellion in the Husband ; For the
Pjlate tail meeteth with the Freehold, and drowncth it. W'clt. Svmb.. S.
176. cites 7 H. 4. 23.
1 1. Some Fines are to be executed by Entry only, feme by Scire facias, or
Br. Fines, pl. Entry, as long as the Entry ol the Conulee is lawful. But at Common
97. cites 18 £azv, our Books fay that theConulee has no Remedy,if the Fine be not ex-
*-4--^- ecuted, but only H'rit of Fine Frado, which (as it leems to me) is to be
intended, when the Entry of the Conufee was taken away. For by the Or-
der of the Common Law, the Conulee might have entred ; But the Scire
facias is given by the Statute of Utjlm. 2. Cum de hiis qu^ recordata fuMy
^c. Co R. on Fines 3. cites 21 E. 4. 4. b. 45 E. 3.
If Conufee is i^- A Fine Sur Conufince de Droit come ceo, &c. is e.s.ecated; Be-
in PoJfeJJlon, caufe It fuppofes a Gift precedent; but tho' it be executed between the Par-
the Fine is f/if5, yet, as to all Strangers, the Conufor remains feifed oj the Land. But it'
executed, To ^^^,^ p-^^^ ^ levied of a Rent, Common, Advowfon, Liberties, or iuch likej
have Forme- ^^^ Conuiee has a Freehold in Law in him, before any Poiieiiion or actual
don or other Seifin had. Co. R. on I" ines 4.
Aftion ; and
If the Conufor be in PoffelTion, he may enter upon him or upon his Heir ; but if the La-id be recovered
or aliened, ^o that his Entry be taken awttv, the Fine ib void. Br Fi.ic-i. vi- li cit« 4.1. E. 3. 14.-= —
Weft's Symb. S. iid. ' ' * • ■. .
'irie, 249
(P. 4) Execution barred, by what. Diileifin, 2vc.
1. If a Man Sc.i'cd in Fee k-vies a Fine to another fur Conuftnce de *TIiisftiould
Droit Ct.w^ (vo, i?cc-. and, before Entry m^^dc by the Conn fee^ a Stranger en- ,1^(!(-ordl"2
iersy and dies i'cifed ; neither Conulee nor ConuK>r has any Remedy. 41 E. * i . jo gi.. Fines. •
14. b. per Fincli. But if\ alter the Fine levied, the Conttfor continues Poj- pi. 12.
feffion, and dies in Polieliion, the Conuiee may cuter upon the Heir, and it ^ p .^.^
lie enters after the Dclcent, he Ihall avoid the Ward. * 12 H. 4. 16. per pi"",! ^iS
Thirning. Co. R. on Fines 4. S.C
2. Bfit if fuch Fine (as it fcems to me) be levied of a Rcvcrjion expec-
tant upon the Ellate tor Lite, or in Tail ; in fuch Cale, after the Death of
the Leliee, or the Eltatc determined, the Conufee lliall ha\e Scire Facias;
and thereiore if the Leliee be dilieiied, and a J)efant, and atter the Lelicc
dies, the Conufee is not without Remedy, as I think. Co. R. on P'ines 4.
3. 'Tis faid in the i E. 4. 6. that it a Fine was levied before Time of
Memory^ a Man ihidl not have Scire Facias at this Day to have Exe-*
cution of it. Co. R. on Fines. 12.
[ See CN. b. 5) ]
(P. 5) Abatement. By Death of the King.
1. If a Juflice takes a Conufance, and after, the King dies before any Br. Fines, pi.
Writ of Ccvenant, or Ded. rotejfatan upon the Conufmce, 'tis utterly Sj-andii^.
void. So it fliould be (as it feems to me) at Common Law, if the Writ of "^''^ ' ' ■'^'
Covenant or Ded. Pot. had been Sued, and (^onufince taken, and after
the King dies, that fuch Conufance Ihall not be received : But now at
this Day, 'tis otherwife ^ For now a Writ Ihall not abate by the Death
of the King. Co. R. on Fines 10.
2. I ylnn^e. 8. S. 5. Efiaffs that no Original IJrit, Procefs, or Proceedings
•mhatfoe'vcr, frail abate or dtfcontinuc by the Death of any King or G^mu of
his Realm.
(P. 6) Execution, by Entry, at nhat Time it may be,
and in what Cafes tolled by Deicent, Alienation, Re-
covery, &e.
1. If a Man levy a Fine to another, fur Conufance de Droit Ccme ceo.
Sec. the Contfee may enter upon the Conufor, or his Heir, quod nota. But
if Recovery or Alienation be, fo that his Entry is toU'd, he is without
Remedy, nota ; and io it leems, that he cannot enter upon the Alie-
nation, Quaere inde. Br. Entre Cong. pi. 7. cites 41 E. 3. 14.
2. In Ward, 'twas agreed, that where a Man levied a Fine, Siir Conn- Br.Fincs, pL
^ance de Droit to another, and yet continued Polleflion, and died feifed, and 41. S.C.
his Heir entered ^ yet the F.fitry of the Conufee is good and lawful upon tha
Heir, per Thir. clearly, which, nong denied. Br. Entre Cong. pi. 23.
cites 12 H. 4. 16,
(P. 7) Execution of Fines. What amounts to it, or what
Fines need it.
I. Sci. fa. was brought ro execute a Fine, becaufe the Fine was levied
to A. H. and C. and to Ihe H.irs of the Body of B. the Remainder to the
right Heirs of C.- and becaufe^// -xere dead f and B without Iffue, the
Plaintiff, as R ight Hetr cf B, brought Writ to execute the Fine. "The De-
^. • - ' S 1 1 fcndant
I
2^0 Fine.
faidiintfdid that A. dud^ and E. a/fo, ivithoiit IJIiie, hvifig C. a>id fo the Fee
Stmpk executed in his Life, and therejore Set. fa. does not lie ; For it now is
as if an Eltate tor Lile hud been grunted to C. the k.emrinder to his right
Heirs, in which Qile he has Fee Jimple. Br. Scire Facias, pi. 16. cites
40. E. 3. 20.
2. Bat where a Fine was le-Jied to Baron and Feme and C. and the Heirs
of C. and Cdied^ and then the Baron and Feme died, and the Heir of C.
brought Sci. la. It was agreed that the Fine was executed for a A'Iciety in
the Life oj C. Quod Xota. Br. Scire facias, pi. 16. cites 40. E. 3. 20.
But Brooice lays it is Centra in the Cafe above:, For B. had Efiate Tail^ and
therefore the Fee Simple in that Cale could not be executed lor any Part.
Note the Dilil'rcnce.
3. If at the levying of Executory Fines, rhe Party, unto whom the
Eltate is limited, be /// PofJ'eJjon of the Lands patfed, heneedeth no Writ
of Execution for the famci for then fuch Fines do enure by Way of Extin-
guijhment of Right., but alter not the Eltate nor Poiieffion of the Cogni-
fee, but perchance better it. Well's Symb. 6. S. 20 cites 7 H. 7. 12 and
22. 2 Ed. 3. 6 21 Ed. 3. 44 8H. 48. 41 Ed. 3. 14. 7 H. 4. 23.
Wcft'sSymb 4- ^'•otic, that a Fine is eitlier executed by VV^rit of Viabere Facias
S. 177. Seifmam^ which is a Writ to the Sheriff to put the Cognifee or his Heirs
in Polielfion j and this muft be fued forth within a Year alter the Fine
fued forth, or alter Judgment upon a Sci Fa. Or elfe he mull: have a
Weft'sSvmb ^^ ^it of Set. Fa. which is to be fued forth alter a Year and Day after
S. 17S. the Fine is levied j and thereby the Sheriff is to warn the Tenant to ap-
pear and Ihew Caufe, if he can, why the Cognifee or his Heirs Ihould
not have Execution: At the Return whereol, \ixht 'tenant appear, and
can pew Canfe to the contrary, the Plaintiff Ihall have an Habere Facias
Seijinam to the Sheriff, to put him or his Heijs in Polfelfion j or the
Wefl'sSvinb. Cognifee, where the Fine \?, far Cognizance de Droit Come rco, que il ad de
S. i-6.cires fon done J may obtain the aftual PoUeffion ot the Land connmed in the
4.1. t. V and Pine, i^j ^jf Fin try : For in this Cafe of a Fine executed, if the Cognifor be'
14 ■ D- 5- ^jji jn pQflellion of the Land, whereof the Fine is levied, the Cognifee
may, without any W'rit of Habere Facias SeiJinam, enter upon him, and
fo get the Seifin and Poiieffion of the Land. Brown of Fines 167.
5. And note, that if a Fine be levied to a Husband and Wife in fpccial
Weft'-sSymb. tail., the Remainder to the Hens of the Body of the Husband, and the Wife
S. 176. cites dieth "without Iffue, the Remainder is executed in PoUellioa in the Huf-
7 H. 4. 23. bandi For the Eltate Tail meeteth with the Fee Simple, and is drowned.
Brown of Fines 167. cites 41. Ed. 3. 14. 14 Ed. 3 5 7 H. 4. 23.
{QJ) What llial] be good Caafe to ftay a Fine,
s. p.
miT'; ^ ^ ^ j^....^,.j, ^ —
S P. 2 Lev. of Mav, ti)e King's Silver not being entered';' pet tKlipOit €caUUn;ltfan
(H b) it appears, mt tijc CIcrh tian enter'D tlje mm'& g^ifoer m Paper ht-
fore anj) ej:ception tafecn to it; anD tf)at noiu t)c {)an entcrcir
m ll^inn; 0 g)nt3cr upon tlje tack of tlje XBtit of €o\3fitant a0 it
* orig. is ouQl]t to 13C, ti}c ifine fljall not be aaiD* ]3. 7- ' Ja* '^3, b or/Zs Cafe
(ju. b.) per Cur, prcter fotter, Jfor uiljen ttjiiS i? entcicQ, it Ijm Edation
to tijc Return of tJjc l©rit of Covenant*
2. 3'f J- S. with the Feme of another {tW0 a jflP.C (by the Name of
J. S. and fane his Wife) of the Inheritance of the Feme hnD l)t UlfjO iS
l)cr true X^nron conies into Court, ana fljems [tW] $9attcr, anD
pM to ftau t{)c .fine, pet tlje Court imll not ftap it. for toe Courfc
UJill not Dcrejnunc tl)c legaliti) of q^atrunonp, ana if rbc Wmti) bt
tljat flje 10 not tlje n9ifc ot j, ^. tlji0 mill not Durt tIjc Etijljt Idaron*
Cr. 7- 3a. 15. per Cur. bctuiccn jticbletbioattc ann tjtxitjc.
sit
VVcfl.S.:.;^.
Fine. 2 c; i
3- 3f a ^att k'MU a Jine, anO bclbre the king's Silver is entered,
•here IS Ihewn to the Court an Oftce, bP tDt)iCt) It JSS tOUilD that the Land
is held in.Ciipite, and a Licence ot Alienation betbre granted of the lame
Land, tijc Court uiiip ftap t!)C jfinc till he Das purcljalcD a Licmce
cf laiicaation, ant> a i^rit of €11100 pc^niittat cajiic.s ta tijcuu i^*
II. 3 a* 05* per Cur* ID arunlicl js caic»
4. It a i-V;;^^ fo/c by iJedimus Poteltateni ackno'ckdgcs a Fifie^ and /»!-
/off the Return rheretjt" m:iyrics ; this Fine 7nay be csrtijied^ and ingrolled^
as oj a Fei/jc Sok^ hecaule the taking oi' her Huyband, atcer the 1^ ine ac-
knowledged, is her ov\n \oluntary A6t, and I'uch Fine Ihall barr her and
her Heirs for ever ; and the taking the Baron was alter the Telle of the
VVtit of Covenant; and it was held, that a Reliafe of the Bjrcu to the
Conufee of all his Right made all clear. D. :i46. pi. 66. Mich. 7 and 8.
Eliz. Anon.
[ Sec (H. b) J
((^ 2) Stay'd, by Death of any of the Parties,
t. A Fine was ready to be ingrofled, and Laicon came and fliewed tijat
the Co?iicfor had before levied other Fine to aiicthtr, and prayed that it be
not ingrofled. & non Allocatur ; For the tirll Conufee may have his Re-
medy by Affile, vel aliter, upon the firll Fine. But if the Court he afcer-
taihed, that the Cvfiufor is dead, the Fine Ihall not be engroiied, per Pri-
fot J wherefore Licence was Ihewn upon the firlt Fine, and that the Land
was pield of the King, upon which they ftayed the Ingrolfing; and by
him no Fine Ihall be furtered u^on Condition, mr to divers Perfoas, and
their Heirs ^ but fueh as are held of the King; and b\' him, notwith-
llanding the Licence, the Fine Ihall not be engro&d without IFi-it out oi
Cane, of J^uod permittat. Quaere of this Writ. Br. Fines pi. 10. cites 33
H. 6.52.
2. A. Tenant foi* Life, arid B. Remainder j^.Ian in Fee, acknowledge Winch. 4,
a Note of a Fine; A. dies; per Hobart, the Conulee might proceed with Pafch.19 t.ic.
the Fine, as againfl B. only, and take his V^rit of Covenant accordingly. ^:.^ ^'^'^^'
Hob. 329. Ersheld's Cafe. Eamsbv.
3. A Feme Covert one of the Cognizors died after the Caption^ and
after the Tefte, hut before the Return cf the JJrit of Coverinfit ; and a Ca-
veat being enter'd, it was infiftcd that the Kiiifs Silver ivas not paid be-
fore the mfe's Death ; and thcrciore the Fine ought net to pals. But it
was anfwered, that Fines are common Afluranccs, and that the Acknow-
ledgment makL's the Fine compleatj and that the King's Siher is the
Fine, pro Licentia Alienandi, which is the Prje-fine paid .at the Aliena-
tion Office, and for which a Receipt ivas indorfed on the Writ cf Ccvcnant
and is not Part of the Poll-Fine, which is never colIeiRed till after the
Fine is complcated ; and the Court after Coniideration v.as of that Opi-
nion, .ind ordered the Fine to pafs. Barnes's Notes of Cal'es in C. B.
1,141. Mich. 6 Geo. 2. Harneis v. Micklethwaite.
4. A liar having lapfedfmce the Caption of a F'ine, it was flopped at the
King'? Silver Office, for Want of an Affidavit^ that the Parties ivere liv-
ing ; and one of the Conufors being dead. Application was made in the
Treafury, to the Judges, to llrike him out, and that the 1' ine might pals
as to the other, which they denied, but made a Rule, that the f'urvmng
Conufor fheiv Caufe, ivhy the Fnie pould not pafs generally, as to all Parties ;
and upon Affida\it of Service, the Rule was made abfoluTe. Barnes's
Notes of Cafes in C. B. 142. Cotton Sc Tyrrel, Bart. v. Baylie & Ryder.
J. In a like Cafe of Want of Affidavit, the Court, upon infpefting the
Writ of Covenant and Conulance, made a Rule upon the Clerk of the
King's Silver Office to fhe-w Caufe^ ivhy the Fine (honld not pafs^ and upon
hearing Counfel for the Conufee, and the Clerk of the Office, and it ap-
pearing that all the Partus -'.cey- living at the Itimc, Xi:hc,t the Kt/ig's Silver
uas
252
rmc.
luas paid ; the Fine was ordered to pals. And the Court faid, that fuch
Affidavit was all which the Office ought to require. Barnes's Notes oi'
Cafes in C.-B. 142 Mich. 7 Geo. 2. Gregory \. Croucher. •-:
6. A Fine acknowledged in South Carolina^ fivorn to before the Chief Jaf-
tice there to he diicly acbio^nlcdged, was attejied by a Piiblick Notary. Buc
it was held by the Judges in the Treafury, that it cannot pais without
Oath before one of the Jitjlices of C. B. ol" the due Acknowlcdgincnr.
Barnes's Notes ol Cales in (J. B. 143. Pafch. 8 Geo. 2. Dean v. Tidmarfh.
(R) + In what Cafes the Fine being received, ihall be
good. [ * Lieu Comis. ]
Adjud-M, I. * Tjf a fine Ije le^ietl of a Common of Failure in A. tljtSS i^ ffOOtlj
that tlicFine j^ fj);)' A. be no "V ill, Hamlet, or Lieu Conus out of the Vill, &c.
is good c- j,^|f jjj^jj, jijj. ji^an^e of tfje pafture, Mmt tlic Coniiiion is to be
h°Sut the"' taltcn, nnn tijis within a vni. p. 17. ja. 05. K. Hot* 13« Cut,
jfrreewericf tijo' ^utiffmcttt siwu of tl)C otbec pstt fot otljct Cattle.
the Fixrties,
which being recorded is good enough. Ci'o. J. 5 74. Trin. 18. Jac. B. R. Monk v. Butler.
IZtvIac" ^- * W "^ ^"^^ ^^^ ''^^^^^ of Land in Eallon, aitn tljC^ is a Farm called
'cordviTtolhe Eallon in the Pariili of B. aUO tljCJe is not any Lieu Conus, bv Name of
miiofC-i^^ Eallon out of the Vill ; PCt tl)i0 10 a pOO JFltte, bCittQ; tCCCiiJCtI IJP Con-
rar,u which fent of tf)c patttcs, tulrOoiit (£rccption to tl)c l©nt, auti it beins aifa
!; '^rfV^ ^ common Aifurance, {^. 8 Cat. 15. H* aDjttOlj'tJ pCt Cllt. tipOtt S
Zd t'lT fpecial iDcrtiKt, factmccu £1;^%^ aitD £V7/?(^«. :jittratu? ipiiu 15.
mentoftle ROt. I075. ,
Parties, viz..
WHiat tlicy agree to pa(s by fuch Names, and it ought not to vary, and if it v/iries from the Deed, the
other is not bound to lew tlis Fine. Cro. C 269, z'6. Faveley [alias Stavelev] v. Eafton. Jo. 301.
Mich. S. C..r. B.R. S. C.
3. * Scire Facias upon a Fine of a Honfe^ three j^cres vf Land^ rjid of the
Manor of U. and becaul'e he did not pe^jo in ivhat Fi/I the Tenements are,
the Writ was abated, by Reafon of the Vifncj For in the \V"rit of Co-'/
venant there was a Vill, and this Writ Ihall not be brought out of the'
Vill, Quod noca. And yet Thorpe faid, that he had leen- a Fine levied in .
a Hamlet., and the Writ brought tn the Vill where the Hamlet "lias, and A\'as
iK>t abated for the Variance. Br. Briel^ pi. 141. cites 38 E. 3. 20.
4. 4: If a F'ine be to two and their Heirs, or if the Conufance de Droit be-
to two, or if Fine be on Condition, vet being received, fuch and like Fines "
ihall Hand. 5 Rep. 38. b. Tey's Cafe.
5. :j: If a Feme Covert is of full Age, and joins with her Husband to
levy a Fine of her Lands, ihe mull be privately examined, whether llie
parts with the Right in her Land freely, or by Compulfion. But tho'
llie is not examined, if the Fine is received and recorded, it is good.
Wood's Inft. 241.
[ See CO) (E. a). ]
(R. 2) Bound by the Fine. Who? Perfons that muft
mention the Conufor in conveying their Title.
I. If the 6b/; dijfefes the Father, and levies a Fine, and afterwards tb^-'
Father dies, and then the Son dies, the Land Ihall not dclcehd to the 2d,\
Son ; but itthe eldeil had dud in the Life of his Father, it load been other-a
wife. Arg. Lat. 66. cites 8 H. 5. 7. ^ si ''^'^
2. Grandfather
Fine.
253
2. Gri'.ndjathcr Tather and Son arc, and the Father rfi[feifes the Grand- ■'>»« if my
father, and levies a Fine, and then the Father dies, the Son is barr'd, ^''"'p '^'^'"'^^
becauie he mull make bis Conveyance ironj his Father. Arg. Lat. 73. ^fa helevies
cites 19 H. 8. D. 3. aFincinLife
otmvKatlicr,
it fliall not barr me, becaurc my Uncle is not memion'd in the Conveyance to the Larsd. But if the
Father dies, and the Uncle after levies a Fine, the Son fliall be barnd'. Arg. Lat. 7 ;, 74. cites D. 3.
5. A. Tenant for Life, Rever/rofi to B. an Idtct in Fee, C. {who was Jones J. who
B's Uncle) [and Heir apparent, as Mar. 95, S. C. calls hinij levied a Fine h'^'JtlieKine
Come ceo, &c. with Proclamations to J. S. and akerwards C. died; then Hdr'^orthc
A. died ; and then B. died w ithout Iliiie. C. kit Iliue D. his Son and Uncle, re-
Hcir. D. entered as Son and Heir of C. v/ho was Heir oi B. It was ports that it
held by Crook and Barkle\- J. that the Entry of D. was lawful, and that ^^'^ydjudg'd
the Fine of C. his Father was no Bar. For tho' there uas a KccelRty of ""^ s''[^_i^'
naming the Uncle in deriving the Defccnt of tlie Inheritance to D. his And'scricunt
Son,_ as C. the Uncle (Father of D.) was Heir to B, the Idcotj who was Kolls, who
laftleifed of the Inheritance; yet the naming him licrc, is not by Way cf ^■'sorCoun-
Titk, hat Pedigree only: But Jones J. Contra. Cro. C. 524,543, Adjor- [^ J! "'^/„^^,
natur. Hill. 14 Car. k R. Edwards v. Rogers. mentotthe'
•Serjeant's
Cafe (which was the very Point) faid, that this Crfe wasadiudjrcd no Barr. Mar. os- S C
[ See CD. 2>-
(S) Who fhall be bound by the Fine. Party.
I. T jr a $0an bp JFinC acknovyledge all his Right Of ccttiim laiitt
\^ tome, and I render to him again in F"ce, UJfjCtC none of us had
toy Thing m tljC LanD, anti atar I purchale the Land ; tlllSi jftllC Ullll
6tnD nic, fijc it \^ cjcccutorp upon me. 17 €» 3- 53- fa. 776-
2. If a Son dtjjeife his Father, and levies a Fine with Proclamation to
a Stranger, upon whom the Father enters and dies: The Son may re-enter
againlthis own Fine. Pafch. 4 Car. C. B. Het. 97. Ilham v. Lawne.
(S. z) Bound who. Conufee of a Fine, by Leales, &c.
preceding the Fine.
1. A Stranger levies a Fine to Tenant in Tail in Remainder expeftant on
two Eftates tor Lite, and he renders to the Conid'or for 54 Tears, and dies
before the Proclamations are any of them made ; alter wards the Proclamati-
ons are made, and the Tenants for Lite (alter theTime in which the Years
are limited to commence) dye. Adjudged that the Term was good a-
gabft the IlTue in Tail. PI. C. 437. b. Palch. 15 Eliz. Smith v. Stapleton.
2. A. Tenant in Tail, Remainder in Fee to B. A. ?nakes a Leafs for Life,
according to the Statute, and dies without Ifue; afterwards B. grants his
Remainder by Fine betbre any Entry ; the Conufee cannot now enter oa
Tenant tor Lite, and avoid his Leafe; For by the Livery to Tenant lor
Lite a Freehold palles, which cannot be avoided without an Entry ; and
then, when B. grants his Remainder, the Grantee pall have it but as a Re
maindtr, and fo the Eftate of Tenant tor Lite, which before was voidable,
is now made good; per Fenner and N\ indham J. but per Mead and
Dyer, by the Death of Tenant in T^^il, the Leafe for Life is become
void, the Eftate out of which &c being determined by the dying with-
out Iflije. 4 Le. 118. 23 Eliz.. C. B. Anon.
3. A. leifed in Tail of the Manor of S. Icafcs W. Acre, Parcel thereol^
to W. for 40 Years, and alter to G. G. tor 70 Years. G. G. affigned to
C. and M. the Wife of A. — A. aiterwards by Indenture gave the faid
Manor to the (aid G. G. by the words (D?di, Conceiri,£arganizavi &
T t c Yendidi)
2 54
Fine.
Vend'idi) upon Condition, that G. G. pay to A. within 15 Days looo/.
and on tailure, then alter the 15 Days, G. G. Ihould be feiied oi' a Tert^i,
ment Parcel of the laid Manor ol" the yearly Value of 60/. until he haci
levied 500/. lor Payment ot tlie laid ^i. s Lebts, &c. and alter to the
Ufe of 11 the eldell'Son of A. in Tail^ and of the Relidue of the laid
Manor, to the Ule of the faid A. and M. for their Li\'es, &c. A. made
Li\erv to G. G. in a Place, Parcel of the laid Manor, which was in his
own Occupation, in name of the whole Manor; the looo/. is not paid at
the Time; the Indenture is InrollediW. AttornesjM.dyes; A. grantsth^
Lands to R. by Fine, and before Prodamation B. (the Dekndant) enters fori
Fcrfettnre ; Prcclamations are madt ; A. dies ^ the 40 Years Leale expires;
C. enters and leafes to the Plaintilf Adjudged that the Moiety of M. th\
Wife of A. and Jffignce 'xith C. by G. G. was estiutt by the Livery ; an4
as to the Moiety'of C. it ts in bang ; P'or here is uo Remitter to B. For '\i
any Remitter had been in theCale, it Ihould be aii;er the Ule railed, wliich
is not as yet railed ; lor the Land ought to remain in G. G. till the 500/.
be levied,' and that is not found by the Verdift ; and therefore lor the
laid Moiety, the Plaintiff had Judgment. Mich. 25 and 26 Lliz. B. R.
Le. 7. Stonely v. Bracebridge .1
4. I'enant in lail makes a Leafe for Years not warranted by the Sta-
tute, and dies, the i[lne aliens the Land by Fine ; before Affirmance o?
Difaffirmance by Acceptance or Entry, the Counfee cannot avoid this
Leafe i For the Liberty is not translerred; per Gawdy J. Mich. 29 and
30 Eliz. B. R. 3 Le. 154. Jo. 61. in Caie o'l Crocker v. Kelfey.
+ Arg. 5. ^, Husband and Wile are feiied of Land in the Right oi the \\'ife:
Buls. 2T5. j^nsl^and alone makes a Leafe for Tears //>'W"o>v/i afterwards the Husband ana
--^b Har- Wife ^^vy a Fine, and both dye^ per tot. Cur. the Conulee Ihall a\oid the
vcy'sCiife" Leafe. Mich. 30 and 31 Eliz'. B. R. Le. 247. * Harvy v. Thomas. J
put inCrom- Becaufe it was merely \oid by the Death of ihe Husband. 2 Le. 141. S.
veirsCafe. Q ^-jj-^jj ^ L^.^ j^_ per Wrav Ch. J the Leafe is void, but Gawdy. ?•
Husband Contra, S. C. Becaufe all p'afs'd Irom the Feme. Arg. S.^ C. cited RoW
makesaLeafe R. 402. Arg. Bridgm. 45. S. C. cited. Cro. E. 216. S. C.
of the Wife's ^
Land for ico y'ears;the Wife may avoid it after his Death; butif aher they both Icvi- aFine, the LeaSs
fhall be good for ever. Arg. Goldbb. 15. Pafch. 2i> Elii. S. P. agreed Arg. ibid. 14.
6. A. 7'enantfor Life, Remainder to B. in 'fail, join in a Leafe to J. 1^\
for Life, Remainder to J. S.Jor Life Rendring Rent; A. dies ; B. ;iccef)ty
the Rent and die? ^ the Iffhe cf B. accepts tke Rent of J. N. and after en-
ters and makes a Feoffment, and levies a Fine to W. R. Afterwards J.N.
re-enters and dies ; J. S. as in his Remainder enters. Adjudged that the
Eltate of J. S. in Remainder was good, and could not be avoided by ^
Purchafor. Cro. E. 252. Mich. 33 and 34 Eliz. B. R. JefFry v. Coyce.' -'i'^
7. Alienee of Ili'ue in Tail by Fine may enter, and a\oid a Leaie w/.'Tiyt!*
1y a Jointrcfs Tenant in Tail for 3 Lives contrary to the 1 1 H. 7. 3 Rep.*
51. Hill. 36 Eliz. Sir Geo. Browne's Cafe. cited- Show 378. A'*|J
Pafch. 4. W. and M. ' " \'-- ■ ■ -^ ■«
A. fuffered a jj. A. Lcflee for Life^ Remainder to B in fail; B. leflfe's fo' C. for 77AW^
^^"•y^'T commence after A's Death ; B. futters a common Recovery to D. and dfei^-^
^■!c. aiiddiel, ^"^^ Leafe for Years is good againlt D. Dyer 51. b. Marg. pi.' 17. cites M.^
the Leafe to' 41 and 42. Eliz. '" -^^'-^
C. is not dc-
ftroyed. Cro. E. 718. Mich. 41 Eliz. C.B.Plcdgard V.Lake. . . ,. .,.,,■,.
9. A. conveyed Land to the Ufe of himfelf and bis JPlf& Tn faif^'^e-
mainder to his Right Heirs ; and had Ilfue a Son and a Daughter, and dy''d ;
and the Son leafed Jor 7 ears to begin after the Death of his A<fcther, and'Jyai
laithout IJae ; the Daughter levied a Fine ; the NViie, w'ho was T&riiQ\t in
Tail, dyed. The Queltion v\as, if this Leale for Years iflRicd out oi the
Eltate 1 ail by way oi' Eltoppie j For then the Conulee flv.lll not avoid
it. It was adjudged, that this Leafe was dniwn oUt of the Rever-
lion in Fee,-andthe Conufee of the Daughter Ihall avi.i^d5t.-Arg^. Winch.
'• ■ ■ . - - ^^ ^.i^;eg
tim. 2y3
_^_ ■ ' '" ' "" ' ~" '"—■ ■"~' ' '™ ■- ■ -■ — " — ' ■ ■ ■ ■ ■ ■ ,
44, citQs it as 10 J:ic. B. R. Erringcon v. Erringnon. 2 Buls. 42. Mich,
10 Jac. S. C. bun l-iys, that no Judgment was given. Coke Ch, J. was
llrong in Opinion againll the Leale oi the Son to bind the Conulee^ and
podderige for it ; and that the Caule was ended by Agreement as he
heard.
10. A. le\ies a Fine to B. to the Ufe of C. at Tai!^ Remainder to his o'xn
right Heirs; A. in the Lite ot' C. makes a Leafe lor loo Years- C. dies
without Iliue ; it is u good Leafe againll A. For tho' it is called a Re-
inainder, yet it was a iiei)ei-/io;t in A. and in fuch Cafe his Heir Ihould be
no Purchafor, but iLould take by Defcent. Jenk. 267. pi. 78. 2 Rep. 91.
Bingham's Cafe.
; II. If tenant in 'Tdil makes a Lealc for Years, and levies a Fine with * ^ Rep. 53.
Proclamations to the Donor and dies having tiiue, tlie Donor Ihall a\ old \ "^"'^'J
?he Leafl-. Arg. Bridgm. 28. cites 6 Rep. Ld * Abergany's Cafe. ■''"'
■ 12. 'TeiiaHt til 'Tail makes Leafe for Tears^ and le'-:ies a 'Frne to another, ''^" "''^'^''^^''s
this makes the Leafe una\oidable. Arg. 2 Roil. R. 490. Hill. 22 Jac. f,!']]'i'ZZ"'
B. R. Crocker v. Kelley. and the Tel
nam in Tail
levied zFim to the'Kitig, he fhall hot avoid the Leafe ; Bccanfe lie came in in the Reverter. Bur if Tenant
in Tail was Attainted of Trcafon, the King fhould avoid the Lcafc. Arg. Godb. 524.. cites z Mar.
3luQin'fi date, cued in VValii[igham's Cafe.
13. Barofi and Feme [■Tenants in fpecial Tail, by a ConA-eyance made bv s.C. Brido-m.
the Baron during Coverture. Cro. J. 688. S. C] — Remainder to the Heir's ^^■ but die
of the Baron, had Ilfue a Son; the Baron dies; the ^Son levies a Fine with l^eport there
Proclamations to the Ufe of himfelf and his Heirs ; the Feme makes ^p}^^^ ^^'\^
Leafe for * 21 7 ears, rendring Rent; the Son having deviled the Land ; //Je fohied
the Feme dies; adjudged that the Leafe continues. Hill. 22 Jac. B. R. in the Fine,
2 Roll. R. 490. 499. Crocker v. Kelfey. Jo. 60. S. C. but when the ^"^ thataf-
JJue are all Dead, then the Conufec having the Reveilion flrall avoid the ^'-"'■ja''d'* 'I'C
Leafe ; but till then the Eftate Tail continues in Right as to a Stranger. '^Cro 1 6SS
Jo. 62. S. C. atRrmed in Error. Ibid. S. C. report-
ed as in Roll.
-Hutt. R4. S. C. Bridgm. 2S. S. C— S. P. Sid. ^2. Mich> 13. Car. 2. B. R. CllDmore v SitKoll, in
which the Leafe was made for loo Years Bridg. 29. S. C — S. C. cited Sid. 62. in Cale of Cud-
more V. Betifon * Roll. Eftate (L a) S. C. pi. v Reports the Leafe to be for 50 Years. The
Eftate Tail in the Feme, was by the Providon of the fiaron during Coverture ; and the Leafe made by
the Feme, was for 21 Years liithout rcferzing th .-Indent Kent, and then fhe died ; the Son devifed the
Land and died leaving a Daughter: This was adjudged a good Leafe to bind the Deviiee. Cro. J. 6SS.
Trin. 21 Jac. Crocl<cr v. Kelfey.
The Juftices faid, that the Refolution of CirOi'ftfr and jlj:tlfe}>'S CTafe went very far, and perhap.s, if
to be adjudged at this Day, it would be Contrary. Skin. 31. Hil!. 95 and 54. Car. i. [i R. in Cafe of
Bettilbn v. Elways.
14. If there are Father (Tenant in Tail) and Son; and the iSon levies a
Fine, and the Father afterwards makes a Leafe for Tears and dies ; the
Conufee Ihall not avoid it; For fuch Leafe was good at Common Law a-
gainlt the Iliue ; and the Statute of W. 2. fliall aid none but the IfTue in
Tail; and when the Ilfue are extinft, fhall aid only the P^cverlioner. Jo.
61. H ill. 22 Jac. B. R. in Cafe of Croker v Kelley. And in all the
faid Cafes, when the Ellate Tail is fpent by Death of all the IfTues, the
Revcrjioner lliall avoid the Leafes. Ibid.
15. Baron and Feme, Tenants in Tail, and to the Heirs of the Rarcn., they
have iffiic two Daughters ; the two Daughters levy a Fine to a Stranger and
his Htirs ; the Baron dies ; the Feme makes Leafe for 100 I'ears and dies,
under >vhich Lcale the Plaintiff in this Ejectment claimed, there being
Ilfue in Tail alive; and if this be a good Leafe againll the Conufee of the
Fine, was the Ible Queltion. And thole lor the Plaintiff cited the Cafe of
CrOCUcr and l^elfcp. 2 Cro. 688. fof Authority in Point, that the Leafe was
good as long as there lliall be any Ilfue in Tail alive ; which Cafe is more
fargely reported in Bridgman's Rep. 27. And thev alio cited Mack-
.williaras's Cafe. And this Cafe not being within the Stat. 11 H. 7. the
'Feme may, '.vitbout doubt, have and difpofe of all the Eltate as long as
there
2^6 Fine.
there fhall be IflueinTail. And ot" this Opinion was all the Court in the
Principal Cafe; but they oill-red co the Counfcl ol the Defendant to have
Special Verdit't if they thought neceliary ; but they knowing the Autho-
rity before to be againlt them in Point, and perceiving the Opinion ot" the
Court, would not pray fpecial Verdict; wherefore the Court direfted the
Jury to find for the Plaintilf! And they gave their Verdift accordingly,
Mich. 13 Car. 2 B. R Sid. 62. Cudmore v. Bettifon,
See Eftate 16. It" Cmufee of a Fine by Tenant in Tail lliall avoid a voidable Leafcy
(Y. z)pl. I. made by the Tenant in Tail, as the Iti'ue in Tail might have done? Per 2.
J. that he may, Twifden J. Contra. Lev. 167. Trin. 18. Car. 2. B. R.
Opy V. Thomalius. Adjudged, that he cannot. Hiil. 2 VV. and M.
*S.C. ad- B. R. 4 Mo(.l. 4. * Simmonds v. Cudmore ^In the Cale of £)pp and
judged Garth. "CfjClUiilfUijS, the Leafe was a Leafe in Futuro^ made by the Father Te-
258. and I f,.j;^|- in Tail, and the Fine was levied by the Son, before a former Leafe
C— Sid 261 determined ; and therefore the Court thought the Cognizee not bound by
S. C. and P. i^i otherwife, had it been a Leafe in prtefeiiti. 4 Mod. 6. ibid.
17. ji. 'Tenant for Ltfc, Remainder in 'fail to B. B. makes a Leafe to
commence after A's Death ; A. fuffers a common Reco\ery with Voucher
of B. and dies. Held that the Lcafo is not dellroyed, and that fuch Leflee
might well Falftfy fuch Recovery, both at Common Law and by the Sta-
tute 21 H. 8. 15. Arg. Pafch. 4 VV^ and M. Show. 381. cites Cro. E. 718.
Pledger v. Lake.
„ ., ^ „ i^. A. Tenant for Life, with Po'j^cr to 7nake a Leafe for 3 Lives, executes
S C Show. '^'^ Power, and dies ; and alter B. being feifed hi Tail of the Reverjion
570. S. C. 12 (after the Determination of the Term, for which the 3 Lives was grant.
12 Mod. 5 2. ed) and alfo of the Remainder to him in Fee, makes a Reverjionary Leafe for.
Skin. J 28. 2 Lives, and dies, (the other 3 Lives being ft ill in Being) ; upon B's Death
the FJlate Tail and Remainder in Fee defended to C. and afterwards C.
levied a Fine with Proclamations to J. S. and R. S. to the Ule of F. and
his Heirs. It was adjudged that this Reverlionary Leale itfued out of
both the Eftates of B. (viz.) as well out of the the Remainder in Fee as
out of the EllatcTaili and that the Eflate Tail being extinguilhcd by
the Fine, the Revcrfionary Leafe (iifuing out of the I'i.cmaindcr in Fee,
which B. had at the Time of the Leale made) was good and unavoidable.
Hill. 4 W. and M. B. R. Carth. 257. Simmonds and Cudmore.
12 Mod. ^9- ^^'^ P^'" 3 J- Contra Holt Ch. J. if B. had been only Tenant in Tail,
55. S. C.and without having the Remainder in Fee at the Titne of the Leafe made by
P. Skin.j^o. him, the Cognizee Ihould not avoid the Leafe j becauje the Power cfavoid-
S.C. and P. j;/^ f^-^ Charges was annexed to the Eftate Tail, and rells in Frivitv there-
ot, being given to the Iliue by the Statute De Dams, and is not transferrabk
by the lllue to the Cognizee, or any Stranger, but is as a Pow er ot" Re-
vocation, which is determined by changing or dellioying the Eltate, to
which it is annexed j nor is fuch t'uture Leale merely void by Death oi Te-
nant in Tail Lelibr before the Commencement. But that after his Death
it is voidable only by fome A6t of Illlie in Tail. But per Holt Ch. J.
even in fuch Cafe the Cognizee, or Feoffee of the Iifue in Tail, might
avoid this Leafe ^ For he held, that by the Death of the Tenant in Tail
before the future Intereft could commence, the fame would become Ipfo
fafio void as to the Leflee ; For Le^or, Tenant in Tail, dying befort the
Leafe is to begin, is the fame in Reajon, as where Tenant in Tail makes a
Leafe to commence afierhis Death, which is admitted to be void ab Initio ;
For upon the Death of Tenant in Tail the Ellate defcends to the Ifftte,
and he is in Paramount the future Intei-eji ; and the Leffee, in that Cafe, has
only a Right or Poffibility of an Eflate, which, by the Death of Tenant tn Tail
before that Right is to vefl as an EJiate, is exttnff and gone. Carth. 259. in
Cafe of Simmonds v. Cudmore.
(T) Fine
Fine. 257
(T) Fine of Land. What Perfon might, and may be
bound by it at Common Law. \_BaroH and Feme, or
Feme 'without her BaronJ\
i.Tif Feme Covert ICiUCjS a JFiUC as Feme ioh; if tIjC Baron docs not coveit'^sa
X deteat it, it fljnli tUlttl tIjC jfClUC aitO \)tt IpCitS tor ClJCC* 7 Ipt Feme fole,
4. 23. 17 ain 17- DlUlitatUr, 17 €. 3- 52- b» 79. '"ies a Fine
Executory,
and after Execution is fued a^inft hor and her Baron, the Baron makes Def.iult, and the Feme is re-
ceived, fhe fhall defeat her" own Fine, for the Benefit of the Baron ; as in one Book i; adj idged, and
yet fhe appears in manner as a Feme fole. Co. R. on Fines 9. cites 1- AfT i".- But if fhe, without her
Husband, levies a Fine by the \'r.nic of .■/. the J fife of J. S. (her Husband) the Fine is merely void; Be-
caufe it appears hythe Record that Jle is Co-vert, per Bridgman Ch. J. Sid. ill. Hob. 225. 7 Rep. 8. 10
2. Jf Feme Covert take fecond Baron, and they levy a Fine, tljIiS It fhall not
fljatl biiiti tlje JTemc anti Ijcc Ipeitgi for cucr. 7 ^» 4- h- 9 Ip» 6. 33. ti, bmd • For
iltc is Nam'd
by the Name of the fecond Baron, and not of the firft, and fo it is not good. Br. Fines, pi. 55. cites 7
H. 4. 2;. per Gafcoignc. Br. Eftoppel, pi. 55. cites S. C. but adds a (.^ui^rc. Br. Scire facias pi. 60.
cites S. 0. Weft's Symb. 2. b. S. S cites 7 H. 4. 22. 25. that it fhall not bind her, becaufe fhe is mif-
ttamed. — Tet if fhe •with her riuht Pliishand, by a ii;roj:g Chriftian Name, levy a Fine, fhe is eftopped during
her Life. Ibid, cites i All. 11. Br. Fines 17.
3. But ilt tljOfC CafCei tfjC Baron may defeat it. 7 Jp» 4. 23. 9 j^* 6. But if the
34. bo 17- <£♦ 3- 52. b* 79- 17 3fl"- 17- frji Baron
dies before
Entry bv him, this fhall bind her and her Heirs for ever. Co. R. on Fines 9. and yet he cites a Book
to the Contrary. 52 H. 6. 27. Br. Entre Cong. pi. 129. cites S. C. — Kelw. 203. b. pi. 7 Dal.
50. pi. 16.
4. autl if the Baron avoids the Fine, it IljaH a^OItJ tIjC iFiltC ajjatllff He may En-
tlje ifCme ann IJCC IptirSi fUt t\iZX* * 1 7 aiL 17- ter and De-
feat it, as to
the Franktenement, which he claims for his Life in Jure Uxoris to be 'fcnavt by the Cm-tefy. Br. Fines
pi. ;;;. cites 7 H. 4. 25. per R. Hull and Hulls Kelw. 2oy. b. pi. 7. Dyer Ch. J. doubted, but he
faid that Fineux was of C>pinion that the Fine was avoided in toto. Dal. 50. pi. 16. * Br.
Fines pi. 7 5. cites S. C. and 17 E. 5. 52. and 78.
5- Jf 13arOn anll .feme ICUD a fine, and after they are Divorced,
Caufi Pr^contraaus, pct tljC ifUtC Eemaitt0 gOOH* 9 Ip.* 6. 34- &*
6. ^m tl)I0 remains e;ood as tnell agaimt the Heirs of the Feme aiS
agamft tije jf cmc ijcrfelt; Contra^ 1 8 ]^. 6. 34. jj.
7. Jf a Fine be levied by Baron and Feme during the Nonage of the Feme^
the Reverfal mull be during the Nonage of the Feme, but Cejjit Execiitio
during the Life of the Baron ; For he has Authority thereof given lor his
Lile. Br. Error, pi. 28. cites 30 E. 3. 5. 6.
8. In Scire tacias, the Cafe was, that a Feme had tivo Barons together,
and the fecond Baron levied a Fine and died, and xhtjirfi Baron furvived and
died, and the Feme v;as ahjuays feifed, and no Party to the Fine, and after
died, and the Heir of the Feme entred, and Scire facias was brought againft
him to execute the Fine, and held that the Fine does not bind j and the
Tenant pleads that M. his Mother was feifed before the Fine, at the
time of the Fine, and always after, and was the Feme of Rich, and
never the Feme of Rob. who levied the Fine ; and by fome, he fhall fay,
that thofe, who were Parties to the Fine had nothing, but M. whole Ellate
he hath, &c. and per Finch, the IfTue fhall be, whether M. Feme of Rob.
who was Party to the Fine, had anything ' qusere, quia non adjudicatur.
Br. Fines, pi. 16. cites 42 £. 3. 20.
9. i^ a Feme Covert only -without her B-iron levies a Fine executory, tho'
the Baron continues in Po[feJJion during his Life, and after die.s, yet this
Hiall conclude the Feme and her Heirs ; but if Execution had been fued,
U u u And
2^8
Fine.
and after the Baron had died, this had avoided the Fine for ever. Co.
R. on Fines 1 7.
♦Becaufeflie 10. If the If-lfe alone, without her Husband, levy a Fine of her own
^!f p^H p'""*^ Lands, whereinlhe hath Fee Simple, it will be a * Bar againlt her and
cr over thc^" her Heirs, unlefs the Husband avoid it during her Life, or after her
Land. 10 Death, if he is Tenant by the Ciirtefy. Wood's Inft. 243.
Kep. 45. in
^O^fingtOH'5 Caff. — And (after fo Solemn an Aft) iTie Ihall not be admitted to fay that fhe was Gjvert,
tho' her Husband fhall, and he may enter and reftorc the Land to himfelf and his Wife botli. Hob.
ii^. For by the Entry of the Baron the Eftate of the Conul'ee was defeated and the Ancient
Eftate of the Feme reverted in him, and he is feifed of the Intlie Eftate as in Right of his Wife. -
Rep. 8. a. b. in Countefs of BtDfOrD'^ Caff, and cites 17 E. 5 52. b. 17 Aff 17. ; H, 4. 25. 2 R. 5. 20.
9 H. 6. 55. Wcft'sSymb. S. 8. cites 17 E. 3. 52. and 78. 17 Aff. 17. 7. H.4. 23. Co. R. on Finerji.
II. Husband and Wife levied a Fine of the Lands of the Wife, fhe
being within Age, and afterwards they fuftered a common Recovery ; the
Husband died; the Widow married again, and her Husband and Ihe
brought a Writ of Error to reverfe this Fine and Recovery ; the Court was
of Opinion to Reverie the Fine, but would advile on the Recovery 5 be-
caufe it was had againll them after Appearance, and not by Default.
Golds. 181. Sir Henry Jones's Cafe.
(U) Bound. Corporation.
i.Xjf, upon a Writ of Annuity againll a Prior prefentable, tD!jO !jtt0 ^Q-
X ^cnt auB Common Seal, t!)c priot \tW^ a ifme ; tW Hjall
bind the Succeifors i bCCaUft tIjC atinUitP 'm% UUlZ, aUO ti)I0 IS l-tlt
a:5 a Siunsment 1 2 jp» 4. 21. b.
2. jf an Abbot iciiicsi a Imc Uir Conttfance tic Droit of lanti of
tlje ElffiJt of 1)10 ^m% t!jt0 fljaii not btnn tlje €)UCccflor3 but Ije
There ought fljail XZZ^\iZX It apl'm 2o I), 6. 46. ^
to be a gene- 3. If they be yz/ti? civil Bodies or Corporations, as have in themfelves .
ralConfont of abfoliite Eftate and Authority of their Poffeliions, fo as they utay maintain a,
^^^f^^^^^jf^^""' Writ of Right thereof, as yI/^;o/- and Commonalty, I)<:'jtu and Chapter,
Manb. of Colleges, Societies Corporate, and fuch like, imd their Succellors ; tlit;v ai-e
Fines 24. barred by Fines preiently. Welt's Svmb. S. 181. cites PI. C. * 338. a.
♦ It Ihould Trin. 20 Eliz.
be C 538) ^_ But Deans, Bipops, Priors, Abbots, Mafters of Hofpitals, Parfons,
\rn'j^^i^u Vicars. Prebendaries, Chauntrie Priefls, and iLich like, which may not
bifliops and have a Urit of Right, but either a J arts utrum, r . N. B. fcl. 48. (R) or '
Eiihops from yifie AJfenfii capittili F. N. B. fbl. 11 8. (1) are not barred by fuch Fines il'the
granting Patrou and Ordinary join not with them. Weil's Svmb. S. iSi. cites PI.
thlir'po^T- C. 538. a. 20 Eli.. 375- b. n Eliz.
fions to any
but the Crown, and afterwards the l Jac. I. 3. enaBed that /ill JJfurances of the Lands cf .^rchhi[J:ops or
Bipops Jhould he -void, tho' made to the CroKri- And the .Stat. 1 3 Eiiz. I o. makes void all Eftatcs made, or
futfered by any Majier, or Fellows of any College, Dean and Chapter of any Cathedral, or Collegiate
Church, AlaJlerorGuM-dun of any Hofpital, Purfon, t'lcar, or any other having any Spiritual cr Ecdqiaf-
tical Living, of any Houfes, Landi, Sec. Parcel of their College, Sec. Promotion, or belongiiij; tivjre-
unto, other than for 21 fears or 3 Lives from the making, and ■^-hereupon the AccuftomaWe yearly Rent,
or more fhall be relerved and payable yearly during the Term. Wats Comp. Inc,427. fol. and 47S.
S. P. and fo j. If a Dean be feifed of certain Lands, as of his diftin^ Poffeffions, the
nd Co.uiHonalry,
^onulunce. But
J ., , -, J,. ..„ , and the Re.don is, Bccaufe none
they are Sole ^^^ jj^^j^^ Co/iifance by Attorney j and Corponttions aggregate cf fcveral
inRi-^htof^ cannot appear in proper Pcrfbn. Co. R on Fines 8.
the Church. B:it a Parfin cannot difcontinue ; For he is not feifed in Fee to all intents. Br. Difcontinu-
-anccde Polleffion, pi. zz. cites 21 E. 4. S«i. 0. A
*'^/r;''"/'" Dean may make Conufance j but if he be feijed Jointly with his Chapter,
'ccntraoi'ln ^^ ^^^ '"'^'^ Ciiapter can't le\'y a Fine j fo 'tis of a Alayor and Co.ninonalry,
Jihct or Bi- and of all other Joint Corporations, the}' cannot- make any Conulunce. But
j}:op; For otherwife, 'tis of all Sole Corporations ; a
Fine.
259
6. A * Corporation^ that has abfolute Ellate and Authority of itlckj is "^ Hill. 15
bound by 4 H. 7. 24. of Fines. But Bilhops, Deans and Chapter, th.it ^'^-•■•^^. K.
cannot bind their PoUeliion without y]£cut of others^ and fb P.uibn, Vicar M^ytj^of
are not. But by Ibme of the Juftices tho' every Rijhofs Succe[Jcr^ &c. lluill Lo-idon v.
have 5 Years to claim, or enter, yet every one that luffcrs the 5 Years to A!fo;-d,
pais Ihall be hound during hisT'tmc ; but tho' he is bound, his Succellbrlhill ^^"O'i's 1"^-
have other 5 Years by the Saving and Proviib in the Aft; fo oi Olficcrs ^'^''
fw Life, as Parker, Foreller, Gaoler, &C. Pi. C. 538. b. Trin. 20 Eliz.
Croft V. Howell.
7. Devife was to a Corporation upon Limitation, that they fliall pay fo
much to a Charitable Ufe; a •Stranger enters into the Land, and levies Fine *
with Proclamations and 5 Years pafs ; and Tota Curia agreed, that this
Ihall bar the Corporation, tho' they have no Notice of the Devife. Hill. 15.
Car. 2. I. Jo. 452. the Mayor and Commonalty of London v. Alford.
(W) Statute 27 £. I. Cap. 1.
27 £. I. Cap. I. §. I. EnacVs, that for afmuch as Fines levied i" The 3f//-
I.
our Court ought and do make an End of all Matters, and therefore are called chhj before ,
Fines principally, where after IVaging of Battail, or the great AJftfe, in thei" ^"^ '^l^^^'^
Cafes, ever they hold the laji and final Place. when tlic
Conufiznce de
4roit, &c. was made to him that had never any Thing before, and the Conufee granted, and rendered the
ikmc back again, at the fiime Inftant to the Covnjor for LiJ'e, or in 7'ai!, with RemaiKder oz-er to one, wha
always was feifcd, and in Pcjfejpon oi the Land ; Privies (by Colour that there was no Travfmut ii.-n of
PeJfeJJion) were, againft Law, permitted 10 avoid Fines by the Averment aforefaid. 2 Inlt. 254. Co.
R. on Fines, 1 5.
So, -where Tenant in Fee had accepted an Eftate by Fine from him, that had Nothing /or Life, or in T'.~,I
fb that by the Law the Conufee and his Heirs are concluded, and Ellopped for ever to claim other £!hitc ;
vet before the making of this Statute, the fr.id Jverment was received in Avoidance of fuch Fines, a-d
for thofe two Caufcs, and in Affirmance of tiic Ancient Common Law of England, this Statute was
made. Co. R. on Fines, 1 5.
But it fcems to me, that the firft of the faid two Errors, or Mifprifions of the Law, permitted and
fuftered before this Statute was made, was very ahfurd, and manifeftly contrary in itfelf ; Fcr the Heir of
the Conufor endeavoured, by fucli Averment, to avoid the particular Ellate re-taken by his Ancellor by
the Render ; becaufe he, that rendered, had Nothing, but, as Ixhink, in ende.ivoiirin!!: to gain the Fee
Simple he hfes not cniy the Fee Simple, but alfo the Eft ate for Life, or other particular Eftate, which alio
was rendered ; For tho' the Render was void, as then Minus julle was allowed, yet the Fine .Sur Conu-
fance de droit come ceo, &c. was good, and then the faid Fine being good (for the impe;-fc<"l or infutfi-
cient Render cannot impeach it) and the Render being void, the Recognifee flja'l retain the Land, .md
tht Heir of the Recognifor is utterly barred for ever ; and therefore the Words of this Statute are true
viz that fuch Averments were contra leges & confuetudines Regni noftri antiquit. ulitat. and thofe (.is I
think) were the Caufes of this Statuta. Co. R. on Fines i 5.
§. 2. yind now by a certain T'ime pafjed as well in the 'Time King Henry cf \ InR. 524.
Famous Memory, our Grandfather as in our Time, the Parties f fuch Fines J''>'^' "^'^'"^ ^^^^
and their * Heirs contrary to the Laws cf our Realm of Ancient Time ufed, the RcjIVof
were admitted to adnul and defeat fuch Fines alledging, that before the Fine h. 5. indie
kvied, and at the levying thereof, andftnce, the Demandants, or Plaintiff's, or Time of In-
'le
of
Cliredi fiis Realraj
and that it
was Ufed by the Maintenance cf the Grandees, that Parties and Privies might avoid Fines b/ fuch Aver-
ments, which Averments in theReign of Ed. i. were continued until the nuking of this Act.
* In this Ait Earum Partium Hicredes, is to be undcrltood of fuch Heir, who Claims the fnherifance of
that Jnceflor who levied the Frne. Arg. 9 Rep. S9. in the Cafe of Fines.
Tho' this Statute faith, that the Parties to the Fines and their Heirs flial! not have Averment againll
Fines levied, &c. viz.. that they, or their Ancellors were feifed, &: yet our Books are adjudged, that
againft a Fine levied bv my Father, I fhall fay, that before the Fine, and at the Time of the Pi le and
after, I my felf was fcifcd, and fo avoid the Fine ; For as I have faid bcfjrc i > ■ .:s C.\'h, I en ■ ot
Heir to my Father; For Hoes dicitur ab harreditate. And I do net Claim this Land by hhrita'!-. Co.
R.on Fines 15 -This is not intendedof an Heir in Blood only, but of the Hcif of the Land of .\vhi,h
the Fine was favicd, and no: of Land which he h.i; othcrwife than as Heir. See 2 Inft. 52;.
This
26o Fine.
Tills Statute i.s intended of' f/^/z/pj tn Fee Simple only, wlieix the Heir claims only by the fame An-
celloi- ; but, upon an Ellate Tail, he claims by the Gift, per Brooke. Br, Fines in pi. 5 5.
■f A Fine may be faid to be Rite Lev.Uus, the' Partes Finis nihil habuerunt; For Rite Levatus is, with-
in the Jileanipc of this Aft, the lame as l;uly levied, that is, hi due Form of Latv, and a Fine may be
faid to be levied in due Form of Law, tho' it be only ly way of Covclttfnii. Arg. 5 Rep. 89 in the
Cafe of Fines- Thefe Words Rne Levatus, as to the external Form of a Fine, arc to be taken as to a
Fine levied arnni EiimiwA Jtuierfor. (via. the Name of the Chief Juftice) &= Scciis fuis, where all the
Juftices ougiit to be named ; per Windham J. and fo it feemed to Periam and Anderlbn. Mich. 29 and
30 Eli/.. Le. Sj. in the Cale of Zouch v. Banifield.
§. 5. We therefore intending to provide a Remedy in the PremiJJcs in our
' Parliament at Wcjfminjier, have Ord.nncd that fnch Exceptions, Anfwers or
Inqtiijitions of the Country^ pall from henceforth in no zvife be admitted con-
• trary to fuch Recognizances or Fines. And further., 'vce PFill, that this Sta-
tute Jball as well extend to Fines heretofore levied, as to them that Jball be
levied hereafter,
(W. 2.) Statute 24 E. 3. 16.
Before this I- 34-E. 3. i6. Enafts, that the Plea of t^onchlm of Fines pall be
Statute no Bar hereafter. • . -^ -^
Stranc^crs
having prefent Right ought to make Claim, and their Claim availed for all in Remainder, or Reverfion.
For all had but one Year by the Common Law after tlie Fine levied, and this Mifchief was a great
Reafon of making this Statute. Arg. PI. C. ; 59. The Statute 4 //. -. only intended to Remedy
the Mifchief wh^ich tliis Statute ;4. E. 5 16. introduced. Jenk. 192. pi. 97.
This Statute oufts Nonclaim only to Fines levied, and extendi mt to a Judgment in a (frit of Ri^ht
at this Day, and therefore the Common Law in that Cafe remains to this Day, vii. that Claim muft be
iTiade within a Year and a Day after Judgment. If a Fine be levied without Proclamations, or without
fo many as the Law requires, then this Statute extends to fuch a Fine. A Feme Covert had no Privilege
of Nonclaim, as fome have faid ; For flic had a Husband, that might make Claim for her. Al!o,
they in Re^erfon or Remainder expeHant upim any Eflatc of Freehold were barr'd by the Common Law,
and yet they could make no Claim ; For it bclong'd to the particular Tenant and not to them ; be-
caufe their Entry was not lawful, which was one o^ x.ht ^\-\.ni:\Yi\Caufes of makini^ this Statute; but
thefe Cafes of Coverture and of them in P..emainder or Reverfion are now holpen, and their Rights
and Titles faved by Statute 4 H. y . 24. as by the faid Att appears. Co. Litt. 262. a. b.
(W. 3) Statute I A\ 3. 7.
Per Dyer ^" ^ -'^- 3- 7- Enatted, t\\-M Fines pall be VxoclaAvntd. /^titnes, ^ fe-
this Statute "^eral Terms, and at the Affijes, Sc.
has all the And that a Fine fo Proclaimed fJ.mll conclude all Pcrfons, both Privy
Words of 4 ^iid Strangers (except Women Covert, other then fuch Women as are Par~
ins'thc Pur- ^''^^ ^° ^^^ Fine, Perfons under Age, ;;/ Prifon, out of the Realm, or not
vieu & Body °^ found Mind) if they pttrfue not their Right, Title, Claim, or Interefl, by
oftheAci:, Way of Atiion, or laivful Entry, within S J ears after the Proclamation fo
but the made and Certified as aforefaid.
whichisaifd'' "^^^ Right of Strangers which happens to come unto them after the
edto4H. T. ■^'"'^ '^ Ingrolled, is faved, fo that they lawfully purfite their Right or Title
PI. C. 572 b. within 5 Tears after it fo comes to them : and here an Aifion againji the Per-
nor of the Profits is maintainable.
If the Parties, to whom fuch Right or Title comes, be Covert, under Age,
in P rifon, out of the Land, or not of fane Memory, they or their Heirs have
^'nie to pur f lie their Right or Title within 5 J~ears after fuch Impcrfeffions re-
ovcd i fo alfo, have they in Cafe thy had Right of Title at the Time of the
(W. 4) 4 H. 7. dp. 24.
This IS an I. 4 iy. 7. Ca[). 34. Enafts, that after Inp-o,'f/n^ of every Fine, to
not'fn^Ex- ^^ ^"^'^^'^ ^fi"' ^'^^ ^""^'^ ^/ -^^/^''^ thatpalfbe in the Tear of Our Lord 1490
planatory i>i the Ktng^sCo lift iff Ore his Jajiices of the Common Place of any Lands,
Statutt, per Tenem:nts,
tine. 261
'Tenements^ or any other Hereditaments^ the fame Fine le openly and folemnly Robert Ch.
Read and Prockiiiied in the fame Courts the fame Tenn, and in 3 'Terms J- Winch.
* then next following the fame ifigrojjing, in the fame Court ^ atfotirfevtral '^^;.'" ^'*'"^
Days in every Term, and in the fame time that it is fo Read and Prcclaimed. ° &",,,l''^'"5
allPleastocedb. -ItSS
thcPrciinblc
of this Aft, that Fines otit>ht to he of tletrreatef} Sfi-e7\cjh to aioid Strifes and Dehates, &c. ;u;d therefore
this Statute docs not extend to any Fines levied by Cjim?. See 5 Rep. 77. b. Former'.s (life.
This Statute extends only to Fines, and not to Nonclaiin on a Judgment 112 alf'rit of Right. Co. Litt. 262.
So it extends not to Land in .Ancient Demefne ; for the Lord may avoid fuch Fine bv Writ of Deceit
PLC. 5-0. b.
And it does not extend to Lancafter. Arg. i Roll. R. 505. Holland v. Lee.
The Lord Keeper's Opinion was, that howfoevcr 4 H. 7. was, at the making thereof, as to Barring, or
not barring an Ellate Tail, yet when 52 H. S. comes, and declares upon 4 H. 7. now all Fines are
good to bar Eftatcs Tail. Skin. 9-. Hill. 3 5. Car 2 in the £. of Derby's Cafe.
This Statute enures and operates b'j v:ay of Bar to the Rigit, which anfwcrs ^aul and (llevk'0 Gale,
Jo. 210, 21 1. 2 Salk. 422. Hill. i. Anni. B. R. in Cafe of Hunt v. Bourne.
* If one of the Terms limited by this Statute be itdjcumed, (becaufc the Statute fays, then «ext enfu-
itig) all the Proclamations before are void, till the Statute i. Mar. 7. Raftal. Fines 12'. becaufe the time
limited by the hit, ought to be purfued, and once attached in fart ought to be continued. PI. C. 37 1. b.
See words {Term adjorncd.)
§. 3. .'ind the faid Proclamations lb had and made, the Fine to he a * final * By thefe
End, and conclude as ivell Privies as Strangers ro the fame, except Uomcn words it
Covert, other than being Parties to thefaid Fine, and every Perfon then heing ^"'^^ Eflates
■zvithin J?e of 2 1 I'ears in Prifon, or out of this Realm, or not of whole Mind. p!!lli!.^.L
at the Time of the faid rme levied, not Parties tojuch tine. Ch. J. Skin.
95 Hill. 35
Car. 2. B. R. in E. of Darby's Cafe.
Per all the Judges but 3, the IlVue of Tenant in Tail was barred by a Fine levied by his Anceftor,
by Virtue of the Stat. 4 H. 7. before the Statute of 32 H S. Hill. 31 and 32 Car. 2. in Scacc. Raym.
559. Murray v. Eyton, & al.
The Fines levied according to this Statute are, nb initio, as ftrong again (1 Entails, 3532//. S. Hob.
352. Mackwilliams's Cafe. And therefore if a Woman b>e Tenant in Tail, having ijj'ue a Son and
a Laugher, and the Son (being the firll liTuc of the Entail) leiies a Fine, liviiig the Mother, and dies, and
ihe furvivcs him, this fliall not bar the D.uightcr, to whom the Land Entailed defcends immediately
from tlie Mother, adjudged by 3 Judges a^.unlt i. Hob. 332. Mich 19 Jac. Markwilliams's Cale
Eiit in Cui'e of Collateral fjfites it is otherwile. Ibid. 333. S. C. Jo. 32. S.C.
Tenant in Tail, having Iflue, levies a Fine, and dies before all the Proclamations are made, and after-
wards (the IlTuc beii7g beyond Sea) the Proclamations are all made, and then the Illuc Claims ; and it was
refolved by all the Judges, that tho'a Right dcfcended to the IlTue, becaufc the Father died before all
the Proclamations, and a Fine without Proclamations, or Proclamations without a Fine, will not bar the
Ilfue in Tail, and tho' there was no Fine with Proclamations levied after the Death of the Father, yet,
as he Claims as Heir by Force of the Eftate Tail, he is barred by the Words of the Statute. 3 Rep. S4
Pafch. 44 Eli/., the Cafe of Fines.
NeithcrthisStatute, nor the iS E. i. of Pints, fays, in exprefs words, that Fines ivith Prcclamations jVall
bar the htait ; thefe Statutes only lay, that Fines with Proclamations j7;<?// fe Bars to all Parties and Privies
and to Strangers, if the Stranger doth not bring his Action, or make his Claim within 5 I'ears after fuch
Fines levied with Proclamations ; and the true Intention of the 4 H. -. was to take away the Statute of
l^onclaim enacted the 34 Ed. 3. ch. 16. and not to Bar the Ellate Tail any more than 18 Ed. i. had
done ; as appears by the Statute ot 32 H. S. 36. which ordains Fines levied, ut fup. & Nonclaim ut
fup. to Bar th- Tail. Jenk. 8-. pl. 63.
As the Saving is general to all Perfns and their Heirs, notwithllanding Nonage, Infanity, &c. lb is
the Condition general, to all Heirs whatfoever they arc, the words being, fo that they pirfue their Titky
Claim, ^'c. ivilhin 5 Tears after Proclamations; for otherwife the Saving fnall be for all Heirs, and thd
(So) flia'l be of all Heirs within Age, and then the {So) is not fo large as the the Saving ; and fo the
Heir within Age is bound to the Condition of the hrll Saving, as well as he is faved in the fame. PI.
C 3 "I. a.
Heir in Tail and Heir in Fee are all one by this Statute. 3 Le 227. pl. 304. Anon. M. 31 El. C, B.
Tenant in Tail levies a Fine with Proclamations, and the 5 fears pafs in his Life time, and he dies ;
and per 5 Judges againft 3, his IlTue fhall be barred by this Fine. D. 3. pl. 3. — cited 3 Rep. S-. in the
Cafe of Fines S. P. Br. Tail & Dones, &c pl. 2. cites 1 9 H. 8. 6. that by the bed Opinion, the
in'ue fhall be bound by the Statute of 4 H. -. c 24. Brook fays, and jfo fee that this Statute, and the
Kew Statute of 32 H. 8. 36. are of one and the lame Etleft:, except that the one is an Explanation of the
ether, and by the one and the other, Privies f:all be b::iiid immediately after Proclamations which may be
finifhed in 4 Terms quod nota, and the 5 Tears is J or Strangers.
§. 4. Jnd fiiving to every Perfon or Perfons, and to their * Heirs, other ♦HobertCh.
than the Parties in the faid Fif/e, f fuch Right, Claim and Interejf as they J- laid that
have to, or in the faid Lands, Tenements, or other Hereditaments at the Time "^.■■^•'j|jy'^S-
cf fuch Fine ingrojjed ; lb rhat they purfue their Title, Claim or Intercjl by Ca(i-of(SoD^
X X X --jjay frep v.
262 Fine.
tai'Dt tint ""^^J °^ ■A^'O", or lawful Entry within 5 )}ars next after the faid Proclama-
thcVine of ttons had and made.
the Toungeft '
Scit m.iy net Bar the Eldejl ; and yet, within the words, the EUeft is Heir to him ; but he faid that this
word (Heir) fha!I be expounded as (/vV Heir) and that fo they ufe to expound this Statute wiiich binds
Parties and Privies, and that in luch Cafe the Eldej} is vot Pmy to the Toungejl ; Fir he Chrinis before him.
Winch, i;;. Hill, zz Jac. C. B. in Cafes of Hilliard v. Sanders. — 2 Roll. R. 5C0, 501.
Stich Rtuht, Qairn, and Intereft, gPc. It was Refolvcd, that thcic uords extend to the Intcreft of a
Lejjee for lears, Tenant by Statute Merchant, Statute Staple, Elegit, Guardian by Chivalry, Executors ba-
1/ing Lands till Debts and Legacies faid, and every other luch Intereft. Pafch. 5. Jac. C. B. 5 Rep. 124.
iialiyn's Cafe. cites PL C. 574. a.
Copyhold Lands are within the Words and Meaning of this Aft. Pafch. ic. Jac. 9 Rep. 105. Podg-
er's Cafe.
A Fine with Proclamations and 5 Years bars all Corporations, which have abfolute Efiafes i>i their oivn
Ri^ht, and their Siiccejj'ors, for ever, (by Equity of this Statute tho' it fpeaks only, of JNlcn and their
Heirs) as Mayor and Commonalty, Dean and Chapter, &c. but 'tis otherwi'e of Corporations which
have r.ot ahjolme EJiate, without other.-, as Bifliop, Dean, P.irfon, &c. but theiiifehes fhall be b;u-red by
Ncnclaim by 5 Years, and every Succelfor, fhall have a New 5 Ye.ii-s. PLC. 538. Trin. 20 Eliz.. Croft
V. Howell.
So an Officer having Land pertaining to his Office, as a Parker, &c. ftall be barred by a Fine levied by
his DiiTeilbr and 5 Years palTcd ; but not his Succejfc.r, unlets 5 Years pafs in his Time. Ibid.
It waj; Refolved, that this Aft fliall bar a Woman of her Dower by a Fine levied by her Hu.'-band
■with Proclamations, if Ibe aoes not bring her Jf'rit of Dower within 5 tears after tie Death of her Hif-
band. 13 Rep. 20. in Cane. cites Hill 4 H. 3. Rot. 544. C. B. 5 El. D. 224. PI. C. 37';. b. Roil.
R. 3o(<. Arg. cites 15 El. D. Graves's Cafe.
If the 5 yearsCorriier.ce in the Life cj the Jncefcr, the Heir, tho' within At^e, muft Claim within
thofe 5 Years, or he fhiU be barred ; adjudged. Trin. zoEliz. PL C. 356. Stowcll v. Zouch.
A. Lcjfee fr Life, Remainder in Fee to B. — A. levies a Fine, B. fliatl have 5 Years for the Title, and
the Forfeiture, and after the Death of A. he fhall have other 5 Years for the Title to him accrued by
the Death, and Determination of the EUate of A. D. 3. b. Marg. pi. 5. cites ;2 El. Davies's Cafe.
^Tenant fcr <;9 fears, if I.e Hies fo long, leiie a Fine, and dies ; and it was Refolved, per Cur. that he
in Reverfion fhall have 5 Years after the Death of the Tenant to avoid the Fine, md. per Hale Ch. J.
there can be no Dijj'erence betiieen a Fine levied by Tenant for Life and for Fears, the Reafon being the
fame in both Cafes ; and faid that Lord Coke's Opinion, 9 Rep. ^oDgcf's Cafe was made to be a (^uef-
tion. Trin 24 Car. 2. B. K. 2 Lev. 55. Whaley v. Tankard. — Raym. 219. S. C. ace. — 2 Vent. 241.
S. C. 3 Keb. 5c. S. C. 2 Vent. 334. in Cafe of i^ial)fon v. (B^ZiiUiJlll, Ventris J. in his .\rgument
cites both the Cafe of ^ODgtr, and this Cafe ot (illl)SltJ' v. STanfeiarD, and (ay.s, "that tho' he" admits
this Cafe to be good Law, yet he obferves that it is a Refblution carried beyond the words of the Statute ;
For the Right is not purfued within 5 Years after ic firil came, and fays, it is only a Conftruftion by
Equity, and that he fhould not have gone fo far, if not led by Authority.
§.5. Jnd a(fo, faving to all Per fans fuch JBtofi, Rifht, Title, Claim and
Interejlin^ or to the faid Lands., 'Tenements, or other Hereditaments, asjirfi
fhall grow, remain, or defcend, or co?He to them, after the faid Fine mgroffed^
and Prcclamation made by Force of any Gi\t m the Tail, or hy any ether Catife
or Matter, had and made before the faid Fine levied : fo that they take their
Action, or pitrfne their faid Right and Title, according to the Law, within $
Tears next ajter fuch Jiiiion, Right, Claim, Title or Intcrcjl tu them ac-
crued, defcended, fallen, or come.
§. 6. And that the faid Perfons and their Heirs may have their faid Affi-
on againjl the Pernor of the Profits of the faid Lands, and Tenements, and
other Hereditaments, at the Time of the faid All ion to be taken.
^"t^'tfeFme ^' 7' -^"^ -^ ^^'"^ ^""'^ Perfons at the Time of fuch Aiiion, Right and
who is of '^^^^^ accrued, defcended, remained, or come mito them, he Covert de Baron,
good Memory, or Within Age, in Prifon, or out of this Land, or not ol' w hole Wind,
^becomes oj not then it is Ordained by the faid Authority, that their Allien, Right a.ud Title^
'ff r ^d ■ ^° ^^ referved and faved to them and to their Heirs unto the Time they come
the^A^Telr and he at their full Age of z\ Tears, out of Prtfun, within this Laid, mi-
tf/iffcthePro- covert, andofivhole Mmd,{o that they, or their Heirs, take their faid Ati ions ^
clamation.s ^r their lawful Entry, according to their Right and Title, within 5 Teari
made, ""^ fo next after that they ccvie and he at their full Age^ out of Prifon, within this
the 5 Years Land, uncovert, and of whole Mind, and the fame Alficns pnrfic, or othet
are expired, lawful Entry take according to the Law.
and after he
Recorders his Memory, or is out of Prifon, hef-all ret be barred : For Laches cannot be aiTigned i'l fuch
Calc. Hut if in the ^d. Y car the Strav ger to the Fire goes Leyor-d S'ia, or takes Cann, and (b contiiucs till
the 5 Years are pall thev fliall bt bound; For thcfe a^ei ohn.tary j^cls, wliich tjie Othci- arc not; pef
Browne and Saunders J. PL C. 366. a, in Ca'e of Stowell v. Zouch,
The
Fine.
26c^
Tho' tiic fjjjte in Tail La heycru'. .Se.i, yet inafmucli as he is pniy nr.d cut of the .iVjw;.;^/ of the 4 H. -. he
is boui'd notuithftaiidipg. A^ if the Illue in Tail be '■j.itinn .-J^c, cr under Coziertui-e, or Ken Compos, or in
Prif.r. ;. Rc'olved by all the J. ; Rep. 91. the 'jtb Rclblution in the Cafe of Fines. Ai-rl the Reporter
inters, that if Infincy, Coverture, NonlaniE Alemori.c, or Imyrilbnment of the Heir ja Tail, fliould
give him Power, in fuch Ca(e, to avoid the Fine, no Man could be allured of the Land conveyed to him
by any Fine, ard denies wiiat is faid by the Counlcl PI. C. 430. in ^!TlIt!) ai:d ^fr.ylCtOU's Cafe. -•
Rct\ 91. b. PaCcIi. 44 Eliz. in the Cafe of Fines, '
But it the Dijj'eifee dies, the Feme evfeint with a Son, and the Diffeifcr levies a Fine, and after tiic Son is
born, now he is not exxcptcd by the Letter of the Acr ; for the ACt excepts no Infant but lach who at
the tin-.e ot the Fine levied was within the Age of li Years ; and none is within the Ap-e of 21 Years
but only fiich who is in rcrum natura, and the Son in this Cafe was not born,' nor in rerum Katui-a at
fuch time, nor could he fav, that he was within tiie Age of 21 Years at the time of the Fine levied ;
For his Age is accounted from the time of his Birth. And he was not born at this time, and fo he is
out if the Letter, but yet is a.'itii>: tie Intert, and fhall be aided by tlie Exception. PI. C. 566. a. 366,
b. Stowell V. Lord Zouch.
,■/. Ten/int for Life, Remainder in Tail to B. — B. being beyondSeii,mA leaving a Son civZ/vK Jge in Eng-
land, A. Levies a Fine; B. never returned, but died, immediately after the Fine, abroad ; and it w'as
agreed by the whole Court, that the Son was not barred ; for tho' the Condition of the Saving is that
the Party purfue his Riglit within 5 Years after his Return, and this Co.nion was never performed,
becaufe he never returned, yet tliere was no Default in him to exclude him from the Saving, and then
the Son is aided by the other Saving Avhich relates to Infants. Trin. 32. Eliz. S.iv. i23. Sir Robert
Cotton's Cafe. — Lc. 21 1. S. C- And 264.
§. 8. j^fid alfo, it is Ordained by the Jlnthority nforefaid, that all fuch * So that a
'Perforis as be Covert de Baron, not party to the Fme^ and every Ferfon ^wc with
being within Age of 21 Tears, in Prilbn, or out of this Land, or not otp,',"*^;,!™*'"
whole Mind at the Time of the [aid Fines levied and ingrojj'cd, and by ttis fuch onh as
faid JB afore excepted, * having any Right, or Title, or Caitfe of Jitlion, to bave Title to
any of the faid Lands, and ether Hereditaments, that they or their //f/j-j, ^hcLand.and
Inheritable to the fame, take their faid yi ft ions, cr lawlitl FJitry. according to '^ f r.ctjuch
, . r, ■ , I A- 1 ■ 1 ■ •>- /I -^ "■ ; 7 ■ .. " "^ nitve Kent,
their Right and Title ivithin 5 1 ears next after they come and be of Jge of 21 Common, Ef-
1 'ears, out of Prifon, tmcovert zvithin this Land, and of 'whole Ahnd, and toz-en. If 'ay
the fame Adions ftie, or their lawjal Entry take and purfue according lo the °'' '^'^^ ^''^^
■^^"^'- i<»;^/,fothat
thev Ihall
not be concluded of their Rent, Common, Eftovers, Way, or the like, tho' they Claim riot within
the 5 Years. For the Statute fpeaks only of binding the Lands, and fays nothing of the Profit ap~
frendcr out of the Land. Br. Fines, pi. 123.
Soofa-. Jiithffrity to fell Lirnd,hc, who has fuch Authority, may fell after the 5 Years after Proclama-
tions ; For he has no Intcreft in the Land, but has Power only to fell it. Br. Fines pi. 125.
§. 9. And if they do not take their Anions and Entries as is aforefaid, that If Tenant in
they and every of them and their Heirs, and the Heirs of every of them be ^.^^^ ''^^y ^
concluded by the faid Fines for ever, in like Form as they be that be Privies j!n^f. ^ .,
cr Parties to the faid fnus. is pHvy, a'nd
therefore
barred of averring Quod Panes Finis nihil habuerunt, adjudged, per tot. Cur. Lc. 85 Mich. 29 and -o
Eli?.. C. B. Zouch V. Bamfield cited 3 Rep. 88. in the Cale of Fines. Mo. 250 S. C- -Ilfue
in Tail is Privy ; becaufe if the Fine be Erroneous he may have Writ of Error, which he could not
have, if he was not Privy. And. 1 7 1. S. C. Arg. cites 19 H. S. 6.
§. 10. Saving to every Ferfon or Perfons, net Party nor Privy to the faid This Statute
Fine, /'/-ar Exception to void the fame Fine by that that thofe "which ivcre f'^ysjthatim-
Partics to tic Fine, nor any of them, nor no perfon cr Perfons to their Ufc, "'^'^'"t^ly
nor to the Ufe of any of them had Nothing in the Lands and Ifenenients lH^Jj^f^'''^
ecmprtfed in the faid Fine, at the Time of the faid Fine levied. Perfon, Jnd
Proclamaticn
peffed the Confers and their Heirs a>r barred ; vet if the F.-ther dijfeife his Son, and levy a Fine, and Pro-
clamation pafs, and the Father dies within the 5 Years, the Son is not barred ; For he is ixt IJcir to his
Father, as to this Land ; For Ht^res dicitur ah. [hrcditate. Co. Pi., on Fines 16.
§. 1 1 . Jnd it is Ordained by the faid Atithcrity, that every Fine, that here-
after pall le levied, in any cf the King's Courts, of any Mancrs, Lands,
'Tenements, and ether PojjcJJions, after the Manner, Lfe, and Form, that
Fines have been levied afore the making cf this Afl be of like Force, Effect
and Authority, as Forces, fo levied, be cr "were afcre the making of this Act.
this Act, or any other Aci in this faid Parliament made, cr to be tnade not-
"wiikjfviding. ' "§■ J2. -And
264 Fine.
§. 12. y^f/d every Pcrfoit flot^il le at Liberty to Levy any Fine hereafter ^ at
his Pkafitre, whether he will after the Form contained ami ordained in and /■>
this A^^ or after the Manner and Form aforetime tifed.
(W. 5) 32 H 8. cap. 36.
This Statute 32 H. 8. cap. 36. § I. Enafts, that allFines levied before the Jttjlices (viz.
is «ot properly ^^ ^^^ Commoii Place) with Proclamations^ according to the Statute, (viz. 4
do Fines' "6°"^ H. 7. cap. 23.) by Perfons of fill Jge of Lands * before the Fine levied tn-
ceive any tailed to the Perfons levying the Fine, or to any Jncejhr of the fame Perfon,
Strength or pall be, after the Fine levied, ingroffed, and Proclamations made, a Barr a-
Virtue by it; ^- ;/;^ ^/,j; Perfons and their Heirs claiming the f aid T^ands, by Force of fnch
aConftluHiIn tntail, and agatjifi all other Perfons claiming the fame to their Ufe, or to the
of4H.-.ar.d Ufe of any Heir of the Bodies of them.
■whereas this '
Statute conftrues 4 H. :. to extend to Fines levied by Tenant in Tail, the Eftate Tail fhall be adjudged
in Law, to be bound by 4 H. -. and not bv the Statute, which is rather a Jud;;nienr upn 4 H 7. than
any new Statute. Per Periam J. Le. •/)■ Mich. 29 and 50 Eliz. C. B, in tlic Cafe of Zouch v. Bamfield.
* W. devifed Lands to J. li-hen he Jlcii/d come to the Age of 25 Te,irj ; J. after 21, and before 25 Tears,
Inks a Fh:e with Proclamation, and then attains to the Age of 25 Years, and had Illue Jsl. and died;
and the Queftion was, whether the Ep.iie T'.ril in futiiro, and Contingency, at the Time of the Fine le-
vied, was barred or not ; and it was rcfolvcd that it was, and yet theConulbr had but a mere PeffbiHtj, ta
have the Eltate Tail, at the Time of the Fine levied, and tho' he was not felled by Force ot the
Tail, at that Time, yet by Force of the Words, ( hejore the Fire levied is any v.ij'e eiitailed) Ellate Tail
in futuro is comprehended.; but no Judgment was entered. Per Warberton J. 10 Rep. 50 in JLanipff^
Cfiff. cites Hill 29. El. Rot. 824. Grant's Cafe. Raym. l 50. S. C. cited._ PcJJeJ]}c>i in the
Conn/or is not requifite to the Fine's being a Barr of an Eftate Tail. See Fines (D. 2) By the
VVords of the Statute, a Fine doth barr the Entail in many Cafes, zchere the Conn/or cani^ot gi-ve the
Lavd, becaufc he has it not. Per Hobart Ch. J. Hob. 25S. Mich. 16 Jac. in the Cafe of Duncombe v.
Wingfield.
Tenant in Tail difcovtiniics and Dijfeifes the Difctntrnnee, and leiies a Fine with Proclamation to A. Sur
Conulance de Droit come ceo, &c. and takes back an Eftate in Fee by Re>:der, in the fame Fine . The
Difcotitir.uee, be'cre all the Proclamations are m.rde, claims, and aher the Protlamattous pafs, and 'Uiilh-
in a Fear after I.e claims ; and after, 'Tenant in 'fail dies feifed ; and by all the Jullices of C- hS. the Heir it
nJ remitted to the faid Lauds; and this was by Vertue of this Statute, which barrs Tenant m Tail and
his Heirs by the faid Fine. Kelw. 210. b. pi. 17, Trin. 4. Eliz.: Anon.
A. before this Statute gave Lands in Tail, Remainder to the King in Fee ; Tcnatit m Tail had IlTue
5 Daughters ; oi.eof the Daughters, in f^^ Elizs. Time, levies a Fine of her Part with Proclamations, and
they arc had during her Life, imdjhe dies 'iiilhotit ffiie; and it was adjudged, that this Fine, by Force of
this Statute barred the Daughters and their Heirs, and yet it did not make any Dilcontinuauce. Mich.
15 and 16 Eliz.. Bendl. 223. pi. 2j4- —Tenant in Tail, Remainder to the King, levied a Fine,
had Iffue, and died ; and it was adjudged, that the IlTue was barred, and yet the Remainder, which
■was in the King, was not difcontinued ; for by that Fine, an Eftate in Fee Simple, determinable upon
the Eftate Tail, pafliid unto the Conufoe . Mich. 16. Eli/.. C. B. 5 Le. 5-. Jacklbn v. Darcv.
The Statute 54 H. 8. 20. has a Provifo generally, that no Ait done by Tenant in Tail fiiall prejudice
the IlTue; but this fhall be intended where the King is Donor, and not otherwi<"e, as appears by the
Preamble of that Statute; and therefore the General ^^'ords in that Act cannot reftrain the General
Law, made by 52 H. 8. and this Statute fays nothing of Reve-'-Jions, but only of Remainders. Mo. 1 1 5.
S. C. And. 46. pi. II S. S. P. and feems to be S. C.
It was refolved by all the Judges of C. H. that this Stature extends to Fines lezied ly Ccncluficn, and
fliall bind the Eftate Tail, tho Partes Finis nihil hahiierunt. 3 Rep. 90. in the Cafe of Fines, cites Pafch.
28. El. Rot. 13. Zouch V. Bamfield. Le. 84. S. C.
Tenant in "Tail to him and his Heirs Male, the Re-jerfcn being in tie King, fufters a Common Reco-
very, or levies a Fine, and by the Opinion of the Judges, the Heir is barred, tho' it be no Difconti-
iiua'nce of the Tail, nor againtt the King, of the Rcvcvlion ; and Englefield fiid, that he had known
this Cafe, and the Cafe was held by good Advice to be a Barr ; bur Shelley doubted. D. 32. a. pi. i.
it was relblved that if Tenant in Tail, of the Gift of tie King, levies a Fine, and fullers a Fvecovery of
the Eftate Tail, 'tis no Barr ; For 54 H. 8. liives it ; but othcrwife if the A';»^ for M:ney grants in Tail,
per C^oventry, Hide and Richardfon. Ibid, in Marg. cites Hill 5 Car. in C.wc. £. of Nottingham v. Ld
hlunfon.
Pafch. 28 H. S. Fine levied by Tenant in Tail, the Reverficn in the Crcxn, bound the IlTue by 4 W. 7
and 32 H. 8.' provides, that the lame Statute fhall rot extend to Fines levied by Tenant in Tail, the Re-
verfion in the Crown ; but that the fame iliall be of like Force, as they fhoutd have been, if that Ad had
not been rtiade, w hich amended not their Cafe. Whereupon in ^tafforO'fi Caff, tiic Judges dcvifed
to help that Slip, by a very obli'iue and indirect Strain, upon the Statute of 54 H S 20. Whereby it
was provided tli.it no Common Recovery in that Cafe fhould bind the IlTuc, but that he might enter
afier the Death of Tenant in Tail, the faid Recovery, or any Thing done or fuik-red by w againft
)lu-h Tenant in Tail, to the contrary notwithftanding. 8 Rep. ■; 8. Stafford's Cafe ^ and Notlcy's Cafe. ■
Per H(jbart. Kob. 332, 333. Mich. 19. J.ic in Mackwilliams'sCafe. —^ Sav. ioj._
A Point intendiii for a Special Verdict w.is, whether a Non -Claim for five Y^avs after th? Fi'ie,
fhoiid
Fine. 26 c;
fiiould Larr tie Jjfue ih^tt ottiitteii to claim, to as to bind liim for his Life, tho' it would be !!o jian- ro iiis
Uluc. But the jury found a Claim by him, and l"o tlie Point came not in <>uclHon. Jice Sii. \66. Loyd
V. Pollard. ^^ — and i Keb. 620. S. C. — ■ — and cites Cro. E. 595. where 'ti< tlie Opinion of lomc of
the )ud<;cs that iucli Fine fo levied by DilVeilbr, &c, fli.iU barr the Tail, and that it is<'.ifus Oniilllis
out of the Statute, and according to it this Cafe i'; ci'cd i Ir.lK ; - v a. but fccms tha' 'tib not Law ;
And lb held Levins in the C/.ife of the C*. Of ©tTb)', in the Exchequer Chamber. Sid. 166. .Mich.
1 5 Car 2. B. K . in Cale of Loyd v. Pollard.
A. a Woman Tenant for Life, Remainder to B. in Tail. A. marricJ, ind then flic and her Hnf-
band levied a Fine to B. the Remainderman, and took back, by Render, ttRfnt-charge-, A.aid B die, and
the Ifiuc in Tail enters ; and by the Opinion of the Judges, the Grant and Render by the 'aid Fi'.c is
out of tliis Statute, and fliall not bind the IlVue in Tail. But the Parties agreed. Kchv. jio. P.irker v.
Paynet. The Ld Keeper's Dpinion was, that howfoever 4. H. 7. wa.i, at tiic m.ikinjr tiiereof,
as to barring or not barring an Eftate Tail ; yet when %2. H. 8. comes, and declaiei upon 4 H. 7. uow
all Fines are good from 4H. ;. to barr Eftatcs Tail. Skin 92. Hill 35. Car. 2. B. R. in the Earl of
Derby's Ca!<:.
§. 2. Provided that this A^ Jhallnot bdr any Pcrfons by Reafon of any fiiie
levied by any Woman after the Death of her Husband contrary to the
Statute 1 1 H. 7. cap. so. of Lands of the Inheritance or Purchafe of the
Husband^ or his Aiicejiors^ ajjigtied to any fiich Woman tn Dower, for -Term
of Life or in T'ail.
§. 3. Provided alfo, that this Aii do not extend to any Fine levied of
Lands, the Owners \s hereotj by any exprefs Words in any Aft of Parlia-
ment made fince the 4 H. 7. are reltrained trom making any Alienations.
§. 4. Provided, That this AtJ fhal! not extend to any F:ne to be'/evied by any In two Cafes
PerfoH of any Lands, before the levying of the fame Fine, given to the Per- this Statute
fans fo levying the fame, or to their Ancejrors, in the Tail, by Letters Pa- *^^|^ '° ,
tent, or by A£ts oF Parliament, the Re\ erlion whereot^ at the Time of the statute of 4
Fines levied, being in our Sovereign Lord, his Heirs or Succellbrs. . H.-. in the
Cafe of Fine
by 'fenant in 7'ai!, by JB of Parliament, and Tenant in Tail with Re-veirfton in the Cro-xn. Per Hobcit
Ch. J. Hob. ;52. Mich. 19. Tac. in Mackwilliams's Cafe. See the Notes againft Sett. i.
See (D. a. 2) pi. 5. Recovery.
See more Matter, as to the Statutes relating to Fines, under the proper Divifions of this Head of Fines.
"A
tague.
(X) What may h^ grje?i by a Fine.
Man cannot give a Right by a Fine, unlefs to him, who has
the Policflion. Arg. Godb. 304. cites 27 H. 8. 20. per Mon-
(X. 2) Privity. Barr. In what Cafes a Fine fliall be
no Barr for Want of Privity.
I. If my Unck diff'eife my Father, and levies a Fine with Proclamations,
and my Father dies, and then my Uncle dies -Juithin the 5 I'ears j I am not
barred to claim, tho' I am Heir to him that levied the Fine; For my ,
Title is not as Heir to him, but as Heir to my Father. Arg. Lat. 66.
cites 19 H. 8. D. 3.
• ±. Land is gi\'en to the cldefi Son of J. S. in Tail, Remainder to J. S. in
Fee, or in Tail. If the eldejl Son leV'ies a Fine, and dies without Iffii'e, and
the Father dies ; this is no Barr to the 2d. Son. Arg. Lat. 66. cites
2 Eliz. Dal.
[ See (D. a)
(X. 3) Pafs. What ^^^j.^' a Fine. '^'
I. if a Man levies a Fine Sur Conufance de Droit Come ceo, &ic. ]inH ."
does not limit to the Coniifee, and to his Heirs ; yet the Coniifcs has Fe-j Stm-
yk. Co. R. on F^in&S 4; ' ' " •' »' -' " ^'"- "• - " • ' ^' ' "'
Yyy 2. But,
266 Fine.
2. But, it' he levy fuch Fine with esprefs Limitation to the Conulee, and
his Heirs of his Body ; this Limitation is a Qualification of the general
Intendment. Co. R. on Fines 4.
3. AFifje of itfelf is fiifficient to pnfs an EJlate without the AfTiftance
of any other Conveyance ; and i'o it appears by the Pleading of a Fine,
which is ^cidajii i Jims fe kvavtt and Jmce the Statute of Ufes it vejis im-
mediately ^ if no Confideration, then to the Ufe of the Conufor ; but if a '
Confideration, then to the Ufe ol' the Conufee, per Peraberton Ch. }.
Sicin. 184. Trin. 36 Car. 2. C. B. in Cafe of Herring v. Brown. " ■
1
(X. 4) Pais. Hofw much pafles by the Fine.
So where it^ I. If a Fine be levied of the Manor rf D. in D.and the Manor extends \
'b. andC. and into Other Fills ^ nothing palles but that which is in D. only. The fame Law
theFineisle- feems of a Leafe, and luch like; Contra if it had been of the Manor of '
vied of the 2). there all paffes. And if Feoftinent be made of all his Tenements in D.
Tb^ No ^^^ there is a Manor, which extends into D. and S. nothing pafles in S.
more pafles ^nd fo fee that a Manor may pafs by the Word Tenementum. Br. .■
than what Fines pi. 66. cites 9 E. 4. 6.
lies in A. and
B. Br. Fines pi. 89. cites 5 E. 4. 105.
2. The 'Ttnant levies a Fine to the Lord of his Chief Rent, he pall Ren-
der two Rents. Br. Fines pi. 97. cites 18 £. 4. 22.
3. A. and his Wife were feifed of certain Lands in S. in the County of
W. called Kirkian, in Tail General, of the Gift of the Father of the faid
Wife in II H. 8. Afterwards in 25 H. 8. R. S. the Son and Heir of J. S.
the Donor, levied a Fine Sur Conufunce de Droit Come ceo, &c. with
Proclamations to A. of the Manor of Dowman, and 100 Acres of Land,
300 of Meadow, ^00 of Paflure, and 1000 Acres if Furze and Heath in
D. S. and 'T. and feveral other Tovsns named in the Fine ; and A. rendered
the fame back to R. S. in 'Tail 'with diverfe Remainders over. After which
the Poliellion continued with A. and his Heirs according to the firlt En-
tail ; And the Manor of Dowman, and the Remainder of the Lands in
thofe Towns, which were [limited] to A. and his Heirs by the Render,
[continued in the Poflelfion of A.] until abc>ut 9 Years palt, when, by
Nifi Pfius in the Country, upon the Opinion of Manwood late Ch B.
the Land called Kirkian was recover d agai nft theHetr of the faid A. bv Vcr--
tue of the faid Fine and Render, becaufe all the Land, which the faid R. S.
and the faid A. alfo had in all thefe Towns named in the Fine, were not
fufficient to fupply the Contents of Acres comprifed in the faid Fine ; and ^vhat
the Law was in this Cafe, was referred to the Chief Julticcs, the Mailer
of the Rolls, Egerton, and the now Ch. B. o^it of the Chancery, who ail
*/t^'d'A^ agreed, upon all this JVIatter appearing, that * nothing pall he faid to be
not pafs by a ''^w^^^^^j l^ttt that which indeed was given by the Fine, and Kirkian does
Fine, than not pafs to the faid A. by the Fine ; For as to that, the Fine is but asaRe-
tbe Fine men- leafe of R. S. to him, and therefore Ihall nor be laid to be rendered to the
^'ff'ff*^" faid R. S. by the Fine, where no Matter appeareth, whereby it may be
that leaX the kuown, that it wos the Intent of the Parties, that this Ihall be rendered ; and
Ufes of it it was decreed in Chancery accordingly. Poph. 104. Keliie's Cafe.
mentions more, ,
than are in the Fine ; For the Fine is the Foundation of the Eftate, and the Eftatc ought to ri(e out of
it. Jenk. zj4. pi. 45.
4. And therefore, if a Man be to pafs his Manor of D. to another iy
Fine Executory, and he levy the Fine to him, by the Name of the Manor of
D. and ofyi) many Acres of Land in D. and S. (being the Towns in which
the Manor lies) after which the Conufor purchafeth other Landi in thefe
Towns ; the Fine, before the Statute of ufes, fhould not be executed of
thefe Lands purchafed after the Conufance; and the Fine Ihould work to '
thole.
Fine. 267
thole, which he had Power and Intent to pafs, and no further, per Po-
haiii. Ch. [. Poph. 105. in Kellie's Cafe.
5. ^///therelore, liippole / have 100 Acres of Land, in a Clofe in D. ,
and J.S. hath another 100 Acres tn the fan/e Clofe afid S'owh, and J S. R j'''- ''•
hatii 1 00 Acres of Land in the fame 'Tcwa, not in this Clofe ; and my In- (-,„, \ ^^wi^il
tent is to levy a Fine to 'J. S. of the whole Clofe^ hy the Name of 200 Acres cited by Yd-
of Land, with a Render, as before, and I levy it accordingly ^ {hall the vei-ton,Pa'ch.
Render enure to the Land which J. S. had in the fa,nieTown? It is ^^'^^''^.P:,^'
clear, that it fhall not, altho' it be withour Deed ; why then ihall the adjudo-ed b
Fine here be taken to work rather to the Land called Kirkian, than to 21 Epu. that
any other Lands, which any other had in the fame Towns, when it ap- the Lands of
peareth plainly, that it never was the Intent of the Parties, that the Fine J ,?''^*'!"1^
Jhould extend to thole Lands called Kirkian ^ (and it was decreed in Chan- Crew"lnthe
eery accordingly.) per Pophani Ch. J. Poph. 105. in Kellie's Cafe. Argument of
the Cafe of
TE>l!n V. ©UrcrfU. Mich. \6. Jac. I. cites this Cafe alfo tojbc adjudged; but that, upon a like Cale
Verbatim between feellic and ©OlOJlljatn, Hill ^8. Elii. retei-red out of Chancery to the two Chief
Jufticcs and Chief Baron and the Mailer of the Rolls ; and by them refolved, that the Land, which
the Conufec himfelf had in this Vill, fhall not pafs to fupply the Imall Number of Acres, of which the
Conufance was made ; For this Render is a, Releafe to the Conufor, and no Intent appears to pafs the
Land of the Conufce himfelf
(X. 5) Pafles. How much. Where the Things lie iny^-
'veral Coimtks \ and where there muft be one only, or
feveral Fines and Recoveries.
I. A Fine may be levied of Shares in the New River Water, and
jC\ wherever a Fine and Recovery are necelTary for cutting off the
Entail and Remainder of fuch Shares, one F'ine or Recovery only, is
not fufficient, in regard the New River Water runs thro' 3 Counties viz.
Hartlbrd, Middlefex and London, there mtijl be 3 feveral Fines and Re-
coveries palled as to any of thefe Shares (viz.) a Fine and Recovery in
each County. This is a Note in 2 Wms's Rep. 128. in the Cafe of Dry-
butter V. Bartholemew.
(Y) Barred, what. Copyhold,
IF I cujf a Copyholder, it is a Difleilin to the Lord, and if I levy a Fine
of fuch Lands, and 5 Years pals, not only the Lord is bound, as to S. P. OfCo-
his Freehold and Inheritance, but alfo the Copyholder for his Polfeffion. py.^oW" to"*
Arg. per Popham, Att. Gen. Le. 99. Mich 30. JEliz. in Scacc. in Cafe of pgg^'^°|jj*j^g
Suliard v. Everard. Lorf.in fuch
Cafe, fhall
not have <; Years after the Death of the Copyholdef for Life, per Coke, fn a Note, 9 Ren. 105. b.
Pafch. 10 jac in Podger's Cafe. The Right of che Copyhold does not pafs by the Fine, but
I|js barred by the B'ine. Cart. 24. Pafch. 17 Car 2. C. B. in the Cafe of Taylor v. Shaw.
2. So, If a Copyholder makes a Feoffment in Fce^ and the Feoffee levies
a Fine with Proclamation, and 5 Years pafs, the Lord is barred. But if a
Copyholder levies a Fine^ and 5 Years pafs, the Lord is not barred ; For the
Fine levied (the Copj holder having no Franktenement) is utterly void.
Coke's Cop. S. 55.
3. Copyhold was granted to A. B, andC. to hold fucce^vely for then L,ives; 2 Brownl.
the Lord grants the Freehold to A.- — A. levies a Fine, and 5 Years pafsj i?4^^"^_,''9'
it feems no Bar to the Remainders. See Brownl. 181. Trin. pJacJ*"^*'^'
Eicknall v. Tucker.
ij,. But, ii z Copyholder for 7'ears be put out of Pofleffion, and a Find
leviedj and no Entry by Him, he is barred by the Statute (but in the Cafe
above.
268
'ine.
above, the Remaindermen were not out of Pollelfion). Brovvnl. i8i.
Trin. 9 Jac. Bicknall v. Tucker.
S. C. cited 5- -^ Copyhold Eltate is is not barred by Fine and 5 Years Noncluim.
Vent. 81. Noy. 23. Mich. 15 Jac. in Cale ot" Archbold v. Cook.
Trin. 22 Car.
2. in the Cafe of ^frftmail v IBarUfS, where Twifden fuid, that he wholly rcjcftcd that Authority,
For it was but an Abridgment of (-afes bv Serjeant Size, who, when he was a Student, borrow'd Noy's
Reports, and abridg'd them for his own {Jik.
[ See Copyhold. ]
(Y. 2.) Barred, what. Efitiy.
Becaufethe I. Forfeiture for DifiOfitiimmice hy 11 H. 7.20. Afterwards, and before
Tenant in Entry, the Remaindennun m Tail levies a Fine. He cannot now take'
d" hd -^^"^^^^ of the Forfeiture; nor can the Conufee ; For 'twas 3. Fine ly
nothing^ at EJioppel only, and no Interelt paffed. Pafch. 5 Jac. R R. Noy. 123. Ward!
the Time of V. Matthew alias Walthew.
the Fiiic, nor
the Conui'ce ; yet the Heir has given his Right to the Entail, and concluded himfeiP, that he cannot enter ;•
and tb.eCoirafee cannot enter, becaufe he has nothing, but by Eftoppel, and no Reverfion. But in Sit
<il>. l&rClvH'i! (iafk\ where the Heir in Tail had a Keverfion in Fee expedtant, and by his Fine gave
that Rcvcrtion to tlie Conufee, he had the Reverfion of the Conufor's Eltate, and might well enter
in Regard of the Prejudice. Cro- J. 175. Ward v. Walthew. ■ Yelv. loi S. C. & P.
2. Feoffment to A. and his Heirs &Hotfqtie fuch Sums be paid, and
on Failure, the Feoffees to enter, 6vc. There is a Failure ; Feorfbr levies
a. P'ine, and 5 Years pafs ; Feoifees enter not ; the Fine barrs. Cart.
82. Trin. i8 Car. 2. C. B. Tliomalin v. Mackworth. Before the
Fine levied, A. makes a Leafo and Releaie, then A. levies a Fine, and 5
Years pafsj per Bridgman Ch. J. by the Leafo and Releafe the Eftate
is now turned to a Right. For after Failure, A. is but Tenant at SuiTe-
rance, and his makii.i: a Leafe is a Dilleifm, and fo the Eltate turned to
a Right ; and alfo by the Releaie which was a medling with the Land j
and being fo turned to a Right, ¥me and Non-Claim barrs. Ibid.
3. Feoffee tipon Condition is diffeifd^ -and a Fine levied, and 5 Years
pafsi then the Condition is broken ■, the Feoffor may enter ^ For the Dif*
ieifor held the Eitatc fubjeft to the Condition, and fo did the Conuleej
Becaufe he cannot be in of a better Eltate than the Conufor was himielt*
Mod. 4. Mich. 21. Car. 2. B. R. Medlycott v. Joyner.
(Y. 3) Barred, what. Error and Pleadings. ^
1. 23 Eliz. 3. This ACt pjaJl not barr any from a IVrit of Error upon
tiny Fine or Recovery heretofore had^ and piirfited 'J.ithin 5 J'ears ajter this
Parliament^ or tvbich^ before the Jirfi of June 15S2. ivas exaitplijied under.
the Great Seal^ nor a Feme Covert Infant^ Non Compos Mentis^ one in Pri-
fon^ or beyond Sea^ fo as they, or their Heirs purfue fuch Writ •'Within 7 Tears
ajter fuch ImperfeCfion^ Rejiraint^ and Ahfence renio-ved, and if any of them
happen to die hanging the Suit, their Heir may undertake it it^ithin one Tear
after the 7 2 ears ; and if the Heir be under Jige^ then within one Tar (^er-
htsfull Age.
zLe. 211.8. 2. A, Tenant in Taifhad Ifilie two Sons B. and G and dies. B. levies
C- — f:\y^ two Fines of the Land, and dies without IfTue. C. brings two Writs of
^5^ ■ ■ Error on thefe Pines. Defendant, to the firit Fine, pleaded the fecond Fine
not reverfed , and to the fecond, he pleads the hrlt not reverfed. Per Cur.
you may plead that tlie faid Fine pleaded in Bar, is alfb erroneous,
and lb aid yourfell". Crt). E. 151. 31 & 32 Eliz. B. R. Molton's Cafe.
cites 7 H. 4. 39.
An Erroneous ^ Tenant in Tail levied an erroneous Fine, and afterwards fuHered a
fliall bar a ComvwH Recovery ^ in which he came in as Vouchee^ and \ ouch'd o\ er, &c.
'.VmofEr- This
Fine. 269
This is a Bar to the llFue, to briing NV'rit of Error, to revcrfe fuch Fine, i-oi-of an f/-
Mo. 365. Barton v. Lever and Brownloe. circs * Carington's Cule. ro^ifun />>ey
until) it be
reverfed, but a wid Recovery is no Bar. Ci*o. E. 590. Palch. 9- Eliz. B. R. B.irton v. Le.c:- 6c .tl
* Roll. -SS, -89. pi. 14.
4. hfccotid Fine rightly levied is a Bar td a Writ o^ Error upon the
firll Fine. Mo. 366. Barton v. Lever and Brownloe.
$. Fine, and 5 Years Non-claim will bar Writ of F.rrcr brought to „. , ,,.
re\erfe an erroneous Recovery. Roll. R. 37. Trin. 12 jac. B. R. Ben- Barthol-''"
field V. Baftlemew. mew v.
iilowfcld. S.
C- 2 Buls. 244. S. C. by Kanieof Bart^olcmew v. Bclficld.
6. hifiuit levied a Fine, and beiore reverfal came to full Age; if he k- ?."'."^'''^ .'^1'.
vies a iecond Fine ot" that Land to another, 'tis an Fxtuiguijhvicnt of his pleaded
Title of £n-or, per Popham, but Gawd}', contra, (but tlie other Juilices Roil.-SS.pl.
feemed to agree with Popham) Nov. 59. Hart v. Ameredith. 15.S.C .
7. A Fine with Proclamation and 5 Years pall doth bar the Lord in The Pcrfon
ancient Demefne of his * Writ of Difceit ; and likewile a Writ of Error is ^}°, '"'^ j,
alfo thereby barred. 2 Inft. 518. lJdsin°\n-
cient Dc-
mefne fhall be barred, yet the Lord fhall not be barred to defeat it; For his InUnfi comes .zjter tk Fine
levied. And. 74. cites it a.s fo held in Plowdcn in Stowell's Cafe. So * And. 172. S. P. Bccauf'c
the Lord docs not claim the Land, but to correct Difceit to him done. PaCch. 28. Elii. in the Cafe of Ld
Zouch. V. Baimfield. — S. P. That a Fine levied in Ancient Demefne fliall not he pleaded in Bar to a Writ
of Difceit brought by the Lord. Skin. 14. Mich. 55 Car. 2. B. R. in Cafe of Cockman v. Farrer. S. C'.
Raym. 462. where 2 Inft. 51S. is cited, and fays it is intended another Fine, and not the fame which was
Hrft levied.
8. A Fine tipoti a Grant and Render was levied in the 'Time of E ^. upon
which afterwards a Scire Facias was brought, and Jttdgmait given^ and
a Writ of Seijin awarded, but not executed Afterwards a Fine Sur Co-
tiufince de Drat Come ceo, ^c. ivith Proclamations was levied, and s J'ears
pajfed, and now another Scire Facias is brought to execute the firft Fine, to
which the Fine Sur Conufince de Droit come ceo is pleaded ; fo as the
only Quellion is, whether the Fine with Proclamations lliall bar the
Scire Facias, or not ? And it was faid by the Judges, that here is no a- ■' '
voiding of the Fine, but it Ihall Hand in Force ^ but yet, notwithltand-
ing, it may be barred ; and they all fiid, that he, who hath Judgment
upon the Scire Facias upon the hrll Fine, might have entered ^ and they
Itrongly inclined, that the Scire Facias is barred by the Fine, and doth
not dijfkr from the Cafe of a Writ of Error ^ but they deiivered no Opinion.
Mar. 1 94. Pafch 1 8 Car. Apfly v. Boys.
9. Conufor Tenant in Tail after Con if ance by Dedimus Poteftatem, andRavm. 451.
before Return of the Writ of Covenant, dies Zfithout IJfue. Proclamations ^- C— 2 Sid.
are made, and 5 Years pals, after Death of the Conuibr, yet he tn Remain- ctV^Row"^
dir may have Error to reverie this Fine. 2 Jo. 181. Mich. 33 Car. 2.B. R. Evelyn.
Cockman v. Carrer.
10. Where there is Error in the Fine, 5 Years Polleffion cannot be s;.;„ j, sc
pleaded in Earr. Raym. 462. Mich. 33. Car. 2. B. R. Cockman v. Carrer. -L—^'jo '
181. S.C. ad-
judged in both Reports. The Court inclined, but adjournatur. Vent. 355 .Anon. S. P. and Iccras t*
he's. U
(Y. 4) Barred what. Lifant and Truft.
I. \ Fine,fuppofed to be levied by an Inlant, was examined in Chan-
Jf\_ eery after it had ban allowed by kxajnination of the jujiices of
the Common Picas; but whether thele and fuch other may feem rather to
examine the Manner, than the ^•ery Matter and Subltance of the Thino-
adjudged, it is worthy of Confideration. Gary's Rep. 5. cites Ann. 3.
and 13. Eliz. D. 2oi and 301.
Z z z 2. Fins
270
Fine.
Cro. C. 109. 2. Fine of a Leafe made to the Conufor's L'ie is iutiicient to bind the
mium V. yj./,/?_ 6 Oir. I. Ibl. 644. Chan. Rep 51. Earl of Newcaltie v. Earl of
^^°'-'''^- Sulfolk. . .
3. An Fjf'ate is made to Friends in 'Trujl^ to the Ufe of the Wmnan^ to
commence cijter her Husband's Death -^ ihe joins in a Fine with her HuC.
band of the Land Jealcd in Truft ; this Fine Ihall cut off the Truft.
Toth. 148. cites Trin t$. Car. Lilter v. Yelverton.
Chan. Ciifes 4. The Fine or Recovery of a Cclty que Trutl Ihall bar and transfer
215 in Cafe the Trult, as it Ihall an Elhite in Law, if it were upon a Cunfideration;
ot jaiafi)* But: otherwile, Windham J. doubted oi it^ For he look'd upon the Court
Sums it *^^ Chancery as remedial to thole, that come in upon a Confideration.
•wasfaid.that Refolved Chan. Cafes 49. Pafch. 16. Car. 2. Goodnck v. Brown.
this Cafe was
•without a Prefident, and that the Plaintiff did not rely on his Decree, but the Matter was afterwards.
compromifcd.
- 1
5. Fine and Non-claim will bar a Irufi^ if levied by a Stranger^ arid
not bytheTruftee himfelf; For then the Truft will go along with the
Land. Hard. 512. Trin. 21 Car. 2. in Scacc. Woollton v. Alton.
A Fine with ^ Y\nt and Non-claim bars all fraft and Equity^ per Finch C. who
on'and Non- ^^'<^» '^^ "'^^ ^o reibl\ ed, by all the Judges, in the Cafe of <^'^X^ V.
claim will 'COlUtt, where the Equity was of a Practice in gaining a Conveyance of
bar a Truft, Lands, and lince refolved in the Exchequer, where a Truft was barred j
per LdKeep- ^j^^ j^^ yiiiVi could know, when he was fure of an Inheritance. Eat this is
it was lb re- On fJuo Differences 1. Where the Equity charges the Land ^ as in the
folvedinthe afbrefaid Cafts, there the Fine bars; but where it charges the Perfon in
Exchequer. RefpeB of the Lands ^ it does not bar, as in tiie Ld Knowls's Cafe. r—
o'^ Ch ^' ^^^ Equity or Truft be created by the Fine; that Fine iiiall never bar
Ca'fes 268. iri ^^^e Equity, which it created. Tr. 28 Car. 2. Chan. Cafes. 278. Salisbury
Cafeofciif- V. BaggOt]
ford V. As-
hley. A 'fitle in Equity or a ^mfi, is and fliall be barred by Fine and Non-claim, but that muft
be where the Perfon, to whom the Fine i.s levied, ha.'; ot Notice, and in fuch Cafe, the Claim muft be in a
proper way ; if it be of a Truft or Title in Equity, it cannot be by Entry, but by S-.ibf^na ; and if he
liave Title by Writ at the Common Law, and that his Entry is not lawful, an Entry is not good to fave
the Right, per Finch C. Mich. 34 Car. 2, 2 Chan. Cafes 126. Bovy v. Smith and Bony. See Veru.
144. 150 S. C.
7. A. leiled in Fee devifed Portions to leveral of his Children o/c
Friends payable at fever al Times by 50/. per jinn, with which Sums he
charged his Lands to be thereout paid and died ; 50/. one Payment in-
curred due, and then the Lands were aliened by Fine with Proclamations;
5 Years palled — Devilee fued in Chancery for the whole — Decreed
for the Plaintiff lor what grew due after the Fine was barred by the
Fine, but not the 50/. due before. For a Truft is barred by Fine, &c.
Hil]. 31. Car. 2. 2 Chan. Cafes 247 Wakelin V. Warner,
"rfsthefame 8. The Ld Keeper put the following Cale. A. feifed in Fee, in 7]-iiJt
ai a Fine ly for B. for full Conlideration conveys to C. the Ptirchafor having Notice of
F ■^h'c^^*^ the Truft; and afterwards C. to Itrengthen his own Eftate, levies a Fine-y
Chan. Cafes ^"^ ^^^ Counfel were all of Opinion, that the Cefty que Truit was not
125, 126. S. bound to enter v/ithin 5 Years; For that hereC. having purchafed with No-
^ tice, notwithftanding any Confideration paid by him, is but a Truftee for
B. and fo the FJlate not being difplaced^ the Fine cannot bar. Hill. 1682.
Vern. 149. in Cafe of Bovey v. Smith.
Cro. C no. 9- Fin*^ ^"<^ Non-claim bars a Term in Trnji for Securing Childrens
in Cafe of I- Portions. Cumb. 67. 3 Jac. 2. B. R. Hanmerv. Eytoh.
iliam V. Mor-
ri".. The Truftees of a 'term, to ajteiid tie fnleritance, are barred by a Fine, by the LefToror
Parchafor, andean never afterwards claim any thing: But yet the Term is not fo b.irreJ, but that
Ptiifi:e Inaimhynnces may be let in upon the Purchafbr ; For a Fine (hall barr no Efl.ites, but thofc which
were intended by the Parties to be barred Per Holt Ch- J- Carrh. i;,. Mich. i. VV. & M. B. R. in C.ife
of Smith V Pearce.
10. A,
Fi
ne.
271
10. A. rievifes Lands to Trnfices till Debts paid, and then to J. S. an ^^'otc, it aid
Infant^ and his Heirs 3 Defendant entered on the Elbite, and levied a Fine, "°^ ''}' ^.'^.^'j',
and Non-claim palFed. J. S. when of Age, brought Ejeftment, but was Dcb;s"\vcrc''
Nonfuit by the Fine and Non-claim, the Trullees (in whom the legal all paid, nor
Eftate was) not entering as they Ihould have doncj yet being then an ^vht;thcv the
Infant, and having as foon as of Age made his Entry, and brought EjetV *^''^™."^. ^^-
ment, and alfohis Bill, before ; Tears incurred ajter hts fiilUgc^ the Court ^„ ^y^,^ P„f_
decreed him the Polieflion, and an Account of the Prorits, declaring the il-flion. Ibid.
Fine and Non-claiin Ihould not run upon the Trult in the Infant's Mi-
nority, and he fhall not fuffcr for the Laches t>f his Trujices. Mich. 1699.
2 Vern. 368. Allen v. Sayer.
(Y. 5) Barred \vhat. Leaies.
I. Wlicre one is Lellee tor Years, and affigns over his Lcaie /;; Triiji
for htmfelf\ and then purchafes the Inheritance, and occupies the Land, and
then levies a Fine with Proclamations, and the Tru/fce does not claim hia
Leale within the 5 Years, the Trultee is barred ; For the Conufor has th«
Polielfion, by reaibn of the Truft, and this Trult is included in the Fine,
and the Trultec's Interelt barred by his Nonclaim. Cro. C. no. Pafch.
4 Car. C. B. liham v. Morris.
2. A Sleeping Leafe which the Ledee never knew or accepted of, and of g, j g
which he ne\'er was in Polieflion, is bound by Fine and Nonclaim. 8 Car. p p^.^ Holt
I. Chan. Rep. ^6. Harding v. Countefs of Sufiblk. Ch. J. in the
Cafe of
*^itTCe V. ^ITiitl). Mich. I W. and M. that where there are A6ts done, and a Poneflion continued a-
gainft a Termor, a Fine may bar; but where another Perfon continued the PoffciTion for 5 Years, it
may be a (.^uiEre, ut ante. * S. C. argued. Carth. 100.
3. % Leafe to begin at Eajlcr next is not barred by u Fine levied in the L^;- 99- per
mean time; For Lellee could not enter, his Right being future. But i* Cgp^'^^ I^^*^'
the Leale had been in * PolIefPiOn, tho' the Lellee had never entred, yet he t.^ i^^ j-^u
had been barred. Brownl. 181. Bicknall v. Tucker. — 155. S. C. and P. iftheiame'
Cro. J. 60. fSaffinv.Adams. S. P. 5 Rep. 124. S. C. Arg. 2Le. Point was to
157. cites the Cafe of Saunders v. Starkey. Cart. 82. Bridgman Ch. J. J^,^^"Jf/
cites Saunders's Cafe. Cro. J. 60. cites it as adjudged, M. 21 and 22 'ila\v would
Eliz. in B. R. in Cafe of Saunders v. Stanford. be taken
otherwiie
But if he makes not his Claim 'xithin 5 Tears after lis 'fitle Comes in ejfe, he fliall be barred;
Adjudged per 5 J. againft 2. Cro. J. 60. Saffin v. Adams. — * Cart. 196. Arg. cites Cro E. 1 5. Bruertoil
V. Rounsford. ■\ cited per Hale Ch. B. Hard. 415. in Cafe of Edwards v. Slates. Show. 40. Arg.
4: Goldsb. I -I. cites Stamford's Cafe. S. P.
4. --f. leafed for fears to B, hit yet A. continued the PoffeJ/ion j and after- This Cafe
wards A. levied a Fine with Proclamations, &c. It was laid by War- was denied
burton, W'inch and Hutton, that it is no Bar to the Lellee for his Term, ^^ ^u^^P^
but only as a Grant oi the Reverfion by A. But otherwife of a Lejfee in tharthlsRe-
PoJjeJ/ion. Mich. 15. Jac. Noy. 23; Archbold v. Cook. portofNoy^
was but an
Abridgment by Serjeant Si/.e, who when a Student borrowed Noy's Reports, and abridged them for liis
awn V\'c ; .ind tliat this is directly againft the RcTolution in ^a{fin'.0 Cafe, and relied on the Cafe ol
Cro. C loy, I ic. Jjft'fiaiU v. ^QXXlS, and adjudged accordingly, tho' the Cafe there was much ftrongcK
Vent. Si. Trin. 22 Car. i. B. R. Freeman v. Barns.
5. 4 //. 7 of Fines, extends to bind a Right of a Term, if the Lefle
I/Sere or might have been ever in Poffeffion, before the Fine, per Anderfon.
Goldsb. 171. Cootes V. Atkinfbn. :^ t r . 0
6. Leafe for 100 Tears in 'Trnji for him in Reverjton, (* to attend the In- j^ c.— Cai-t
heritance; Lellee enters; then he in Reverlion enters and leaies to ^\^ 16!. 195. S.
for 5 Years, and at the End of the 5 Years, ho) snakes a Leafe for 50 liars ^- >". C^- -J-
to another, and lc\ies a Fine to corroborate j and 5 Years pais j Refolved, '<^^t' ^^'
The Jirji Leafe is devflcd by making the yi, but at tkeEleffion p/'him in y^^t 55. So.
RiverfiGn , S. C.
272 rme.
RcvcrfioH -j and that the Leafe tor loo Years is barred by the Fine, be-
caiiie this was turned to a Right, by making the Leale ior 50 Years be-
iore the Fine, and 5 Years Nonclaim ; and the Chiei Jultice laid, and ic
was not denied, zhAtL/ci/nibriiiices kept on Foot byPtircbafvrs^ih.-i.\\ not be bar-
red by Fines; nor where Mortgagor retains Pollelfion, and pays the Intered,
a Fine by Mortgagor, fo holding the PoHeffion, ihall not bar Mortgagee.
1 Lev. 270. Trin. 22 Car. 2. B. R. Freeman v. Barnes. And lb Judg-
ment in C. B. was allirmcd. Ibid.
7. Dc-vife of a 'Tervi for Payniefit of Debts, Rmiainder in 7'ail ; He in Re-
r,ui!ider enters with confent of Trultecs, and levies a Fine, and Settles the
Land on his Wife lor Lite, and dies ; The Wile Survives, the Debts un-
paid ; Quaere whether this Term is barr'd by Fine and Nonclaim.? 3.
Mod 195. Pafch. 4 Jac. 2. B. R. Smith v. Pearce.
8. In an Eje£lione Firmae tor Lands in Waks, the Cafe upon a Special
Verdift was, that a Man fetfed in Fee of Lands, for the Continuance of them
in his Name, and for the Maintenance of his Brother makes a Leafe for
500 Tears, in Tntfl, that hitnfelf pctild receive the Profits during his Life,
and that -xiterw^vds his Brother fhould tn]oy thtm, with Ibme other Trults ;
And afterwards being in PoJfeJ/ion according to the Trult, he covenanted
with other Perfons (not with the Leflees) to Jiand feifed of the fiiid Lands
upon the fwie Confideration, as was mentioned in the Leafe, to the Ufe of
htmfclf for Life with Remainders over, according to the Trufts ; and fur-
ther, that the faid Leafe and all EJiates made, or to be made by himfef\
floould be, and «nure to the fame Ufes ; and levies a Fine, and S Tears pafed,
the LeJ/or being in PoJ/ej/ion according to the Trull, and enjoying the Pro-
fits during his Life; afterwards the Lejfor dies, and one of the Leffees en-
ten into Part of the Lands tn one County, •■jchich was not comprifcd in the'
Fine, claiming all the Lands 2n the «ther County. Hale Ch. B. held, that"
nothing had been done here to difplace the Kilate of the LelTce; For the
Ltflbr continued in Pollelfion by the Lellee's Leave and Permillion, ac
mult be prefumed, and lb is a Tenant at Will, as Littleton fiys. Hard.
401. Palch. 17 Car. 2. in Scacc. Focus v. Salisbury.
9. I'io if Lelfee for Years be, the Remainder over for Life ; and
Lcliee for Years levies a Fine, and 5 Years pafs ; the Lellbr is not barred
by any Nonclaim, becaule the Fine operates nothing, & Partes ad Finem
nihil habuerunt may be pleaded to it ; otherzvife it is where Tenant (or Lije
levies a Fine; Ibr he has a Freehold i and his Fine difpJaces the Remainders ^
and therefore an Entry is requifite within 5 Years ati:er the Death of the
Tenant IbrLife ; for which reafon when aLelleelbr Years or at Will is to
levy a Fine, 'tis ulual for the Lellee to make a Feoffment firft, to difplace
the other Ellates. But here the Leafe far Tears is antecedent to the Fffate
of the Le[for, who levies the Fine, and he has a Freehold expectant upon
the Leafe, and not precedent to it, per Hale Ch. B. Hard. 401, 402,
Focus v. Salisbury.
10. And a Fine witji 5 Years Nonclaim mull bar an EJlate precedent to
the Fine, not fubfequent to it. And there is here a Privity betwixt the
Lelibr and the Lellee, and therefore the Fine Ihall not bar; as in Gife of
a Mortgage, where the Mortgagor continuing in PoffefTion, levies a Fine,
per Hale Ch. B. Hard. 402. P^ocus v. Salisbury.
11. And this very Cafe was adjudged in Terminis for 2 Reafons, lit
By Realbn of the Privity betwixt the Perfons. 2dly, Becaule the Lelfor
was in the Nature of a Tenant at Will, and there was a mutual Confidence
betwixt the Parties, per Hale Ch. B. Hard. 402. cited it as the Dutchefs
of Richmond's Cafe.
(Y. 6) Barred what. Legacies and De\"ifes.
I. A, devifed Land to B. an Infant 3 Years old in Fee, and dies. The
Heir of A. enters and levies a Fine with Proclamations. B. dies within;
Age,'
Fine.
: ■ 4
Age, leaving M. his Siiler and Heir; Dci-ifcc uevev entered; M. \^as a
Fa/ie Covert i H\e Years palled. Relbhed that the Baron of iM. u-as bound,
and all daiining under him; butM. ihall have s Years after Baron's Death
to claim. Cro. C. 200. Mich. 6 Car. B. R; Hnlm v. Hevloclc.
2. A deviled Lj//(is to B. in Tvufi^ Remainder toC. in Trufr, fitlji:^ to
the Payment of Legacies. C. levies a Fine, and 5 Years Nonclaim pafs,
and then mortgaged the Land. Fine and Nonclaim is no Bar of the Lega-
cies. C. having no Title but under the Will, the Mortgagee mult be
f iippc fed to hai'e Notice of the Will, per Cowper C. Tr. 1^7 10. 2 Vcrn.
662. Draper's Company v. Yardley.
27
(Z) What Things are barred by Fine.
I, TF Falfe Recoverj be had againll Tenant in Tail, and the Recovcror
JL le-Jies a Fine^ the Ilfue Ihall not reverfe this ali:er five Years. D.
Marg. 3 pi. 2. cites 34 Eliz. B. R. Holme v. Gee.
2. Baron had a PoaYv to declare that his Feme Jhoiild have an FJlate for
Life in certain Land ; but, before any llich Declaration was made, the
Baron and Feme levied a Fine come ceo, &;c. This FoJJibility of the Feme
was included in the Fine. 7 l\Iay. 41 Eliz.. in Cane. Mo. 554. Poole \'.
Veere.
3. Feoffinent by A. to the Ufe of himfelf for Life, Remainder to fiich,
as Feoffor jhoiild name at his Death, in Fee. A. and the Feoftees levy a
Fine tor good Conlideration to a Stranger, and afterwards A. names and
dies. The Party named lliall have the Land, notwithlhinding the Fine.
Arg. 3 Le. 253. cites it as adjudged. inB. R. in Ld Paget's Cafe.
4. Attending 'Term., by Fine and Nonclaim by him that has the Inhe- Per Holt Ch.
ritance, and is in Pollellion of the Land, is barred. Cro. C. no. Pafeh. ]-^\'^^-
4 Car. C. B. in Cafe of llham v. Morris. _ of Lkh v.
5. Ceffirvit is not barred by a Fine and Nonclaim, becaufe the Title is Pierce,
puifne to the Fine. Arg. Roll. R. 306.
6v Collateral Ufes, not depending on the other Eflates, may be deftroyed
by Fine, if they are contingent Reviainders. But it there be a collateral
Claufe, by \s hich aL^le limited, as Provifo, if 100 /. be not paid, it fhall be
to fuch Ufe; that contingent Remainder is not dellroyed by Fine. Arg.
Het. 98. cites i Rep. 130. 134 Chudleigh's Cafe. ,
7 A Thing, that 'juiU not pafs hj a Fine, may be barred by a Fine; as a ^''^ .'*^';i^.':
Right to a Copyhold ; and fo of a Rent Charge, by levying a Fine of the ^^\^ ^^_ ^'
Land, as is COniUffSbp'S) Cafe\ And fo ot a Triifl, as Feme Covert has maindci- in
a Trull, liie cannot transfer it; but if llie and her Husband la^y a Fine of Fee to him,
the Land, as the Rent is gone by way of Difcharge, fo the Trull is gone ^^'\^j''^!''"
by way o^ Difcharge; per Bridgman. Ch. J. Cart. 24. Pafch. 17 Car. 2. which hehas
C. B. in Cale of Taylor \-. Shaw. to moid a
Leafe of his
J?icepcr Tenant in Tail, is deftroyed by a Fine with Proclamations. Hill. 4, W. and M. B. R. Cartli.
259. Simnionds V. Cudmore.
8. Fine and Nonclaim lliall not bar an EJlate, that is mt * turned to a jj,,^ ^ ^^ ^,^
Ri^ht. Cart, 82. iSCarth. 2. C. B. Thomalin v. Mackworth. to\,! Effate
l:y Extent
will be b.irred hy a Fine and Nonclaim. per Vcntris J. 2 Vent. 329. cite.s 5 Rep. 125. SalTin's Cafe. — If
one, that has htereJJ'e 'Tcr,i:i>,i, enters after the Term commences, and is cujied, then 'tis not any
Intcrert in liim, but a Ri<^ht. Cro. J. 61. Hill. 2 Jac. B. R. in Saffin's Cafe v. Adams.
* The Law conllrues liich Acts to iiwetDittc a dcveftin<^ or not develling, as is »;.•','? Afnr.xhie to the
htentia: of tie P.irtics, .:>!rl the Rijrht of the Thit'.cr.^ per the Chief Jullicc. Vent. Si. in Cafe ot Freeman
V. Burne-.," \'ern. 149. Hill. 16S2. Bovey v. Smith.
9. Thofc that ha\c neither prcfcnt, nor fttttire Right, nor PoJ/lbility of
Right to the Lands, &c. in the Fine at the Tinie of levying it, but a
A a a a Right
27+
P'lne.
Right to fomething iliumg out ot the iaine, as Rent, Common, a NV'ay,
&c. are not bound at all. For the tine extends only to lecure the Right
or Title ot" the Eltate, but docs not bind the Profits to be taken out ot
the Eltate. Wood's Inlt. 246.
S C citcJ -y ^°- ^'"^ ^'''^^^ Proclamation according to the 4 H. 7. by Devifee on
Vern. ii>o. " Ccjiidition of Non-payment ot' Money to her, (and the Condition not
being pertbrmed) will bar an Equitable Power c^~ RedempticH, as well as a
Right ot A£lion ; per Hale. Hard. 512. Trin. 21 Car. 2. In Scacc. Sir
N. VVoolftan v. Allon.
Vei-n i-*2 I''- ^"^ ^'"^^ ^y ^or/g'^^'^^' ^^i'l ^'^^ bar Equity of Redemption. Hard./
Hill. 1 6S2. 5 1 2. WooUton V. Aflon.
VScldcn V.
Duke ot York. Fine levied on the mortgaging the Eftate, and to ftrengthen the Tilortgagee's Se-
curity, is no Bar to the Equity of Redemption. For the very Ellatc which then paffcd by the Fine was
a redeemable Eftate, per Lord Hutchins. Mich. 1690. 2 Vern. 190. Lingard v. GrilHn.
60 of a Fine levied by Mortgagor. Sid. 460. it was fo faid for Law, in Cafe of Freeinan v, Barnes.
12. Lands extended upon Elegit are bound by Fine and Nonclaim^
Bui if a Man within 5 Years; otherwile, it the Land had not been attually extended.,
hLjiidgment I Mod. 217. Trin. 28 Car. 2. C. B. Ognel v. Ld Arlington &i al.
in Debt., on „. .
which he may l«ve an Elegit, and after Judgment the Defendant aliens the Land by Fine with Pro- .
Clamation.s, and 5 Years pafs, the Plaintiff may hxwi. Scire facias &= Elegit, per Lord Keeper. Ch. Cale&i
aCS. Mich. 2.7 Car. z. in Cafe of Clifford v. Afhley.
13. If an Ittqitifitim upon an Elegit be found, the Party before Entry'
has the PolIefTion, and a Fine with Nonclaim ihall bar his Right ; For
before aiiml Entr)\ he may have Ejectione Firms or Trcfpais, and lb n«t
like an hiterejjc Termini. Ch. Cafes 268. in Cale of Clitibrd v. Alhley.
But Wood's 14 dignity of Peerage is not barrable by Fine. Parliament Cales 11.
Inft. 44. fays The King v. Ld Purbeck.
that a I3aro- . . ^ •
iiet by Defcent levied a Fine of his Honour to another who enjoyed it, and took Place in Seniority from '
the Date of the Patent, as if his Anceftors had been Bavomts. [But lee the Cafe above Contra.]
15. A Fine flmll bar no EJlntes^ hut thofc ivhiih were intended by the Par-
ties to be barred, per Holt Ch. J. Garth. 103. Mich. i. W. and M. B. R.
in Cale of Smith v. Pierce.
16. A Fine and Nonclaim 13 a good Bar to a Rill of Reveiw, per Hut-
ehins Commiifioner. Mich. 1690. 2 Vern. 190. in Cale of Lingard v. Griffin.
Adiudged. ^7- A i?£wr/?o;/ may be barred by Fine and Nonclaim. Arg. Show.
Mich. 39 and 42. cites PI. C. 374.
4oElii.C. B.
Cro. E. 594. Edwards v. Peel.
But after- jg. One Co/)^rff»fr in Conlideration of 4000 /. paid to her by C. who
wards the ^^^^ about to marry B. her Siller, joined with B. in a Conveyance to B.
reverfedin^^ ^t'd C.Jcr their Lives, Remainder Z'o the IJfue of the Marriage, Remainder
the Houfe of to the right Heirs oj C. Provided if no IJJiie be living at the Death of the S.>/r~
Lords. Ch. w^'or of B. andC. and that the Heirs of B. within 12 Months atter the De-
Prec. lod. S. ^,g^fg Q^' B_ .^j^^ Q fjallpay 4000/. to the Heirs or AJftgns of C. then the^
Cafes ijv Remainder to C. to ceafe, and the Prerailies to remain to the right Heirs of
S. C. ' B. Jer ever. B. and C. levied a Fine to extinguilh this Provilb, and de-
clared the Ufe to C. and his Heirs and directed the Trultces to convey
accordingly. B. and C. died without Iliue; a Bill was brought by the
Heir of B. to have a Conveyance on paying the 4000 /. but was dilmilled
by the Mafter of the Rolls^ but was afterwards reverled. Palch. 1697. Ch.
■ Prec. 72. Sir Evan Loyd v Carew,
(Z. 2)
tine. inc,
Ji ■ ■
(Z. 2) Bar. In what Cafes in Qoieral.
r. When an KJiate is put to a Right ^ and then comes a Fine and Non-
claim i it is a perpetual Bar. Cart. 82. in Gtfc ot Thomalin v. Mack-
worth. — Butwhere theEltate is not turned, aRight,it is no Bar. Cart. 164.
Arg. cites ^affilVjH Cafe, and 9 Rep. 106. Marg. poOg^cr'g Cafe, and
8 Rep. @>pmniC.0'0 Cafe, and PI. C. Stowell v. Zonch.
(Z. 3) Good. In Refpe6t of th^ Form.
1. Fines levied in C. B. iiithoiitJhc^viHg in the Fine the Names of the Jiif- _ .
tices, \s goodi. DenJh. R. on Fines. 4. Conaa '
2. And Note, that the Form in C. B. aiid the form in other Courts, where
Fines iiidy be levied, is all one, and no otherW'ords in the one, than w as and
is in the other; but the one part of the Fine Ihall be fent into the Trcafu-
ry,and the other deliver'd to the Parties, and Ihall be indors'd Deliberatur
per proclaiiL ijc. and a Record of this is put in B;Tnk. Denlh. R. of Fines ^i.
3. And if it be levied before f. D and others who are fujlices, it is void j
hut if it be before the fufiices, and others zvho are * juftices: it Is goodj * The woi-d
and the Names of others void. Denlh. R. of Fines 4. [not] fttms
4. And if the Fine be levied to one of the Juftices, he fidllbe named in °"""'-'"
the Coram fc?c. and among the Juitices by the Conufance now uled ; yet
albeit he be * named, (as to me feems) the Fine is good. Denlh. R. of + The word
Fines 4, 5. [not] feems
5. The Statute of 4 H. 7. 24. does not alter the Form and Sublhuice oi^i"ed.
bf the Fine, but the ancient Form remains, per Omnes J. Mich. 4 and $
Eliz. B. R. PI. C. 265. b. Filh v. Brocket.
(Z. 4) Good. In Relpeft of the Defer tptlon.
1. In Allife againll A. of the 4th part of a Mill, Defendant faid, Aflifi Br Partition
hon; P'or fuch a Day and Vear before Herle, Fine was levied between A. P' ^4 cites
B. Plaintifl; and C, F. Deforceants of the Manor of G. with the Appur- \^y^ '"'IxHl
tenances, of which the Mill was Parcel; by which yf. acknowledged the Ala- le „itsnM
mr to be the Right oj C. cwic ceo, &c. and C granted and rendered the Ma- that every
nor to A. and the Heirs of his Body ; the Remainder of the fourth Part °"« ^■^'^
of the Manor, again /I theWeJt, to Alice the now 'Tenant and her Heirs ; and f-jJi^^thPa
another fourth Part of the Manor againft the Kajl, to J. the Plaintiff ; and ;„ equal Fa-
another fourth Part againft the South to remain to Richard in the fame /w, and mt
Manner; and the Remainder of the fourth Part againft the North, tore- '"■'•"■'''"^ '»
main to IF. and her Heirs ; and that after, A. died without IlILie of his por^ri"""K'
Body, by which Alice entered into the fourth Part againlt the Well, as Part may be
in her Remainder in which the Mill is; and the Plaintiff entered into the in Value of
4th Part againlt the Fall, as in hisRem.iinder; and the Plaintiff, fuppoling 2 fourth
that the Mill was in his Part, entered, and the Tenant re-enter'd, Judg- -j^'"] ' p^-,
ment if Aflife. And the Plaintiff faid, that after this. Partition was made, true, 'v;he>-e
and the Mill allotted to the Plaintilij who was (eiled thereof, till dilleiled it is limited
by the Defendant ; and the other laid, that at the Time of the Partition, ^y ■'^"■etirs, ^
ife was Covert Baron, and her Part was too little; and the Affile was p'l'"'f.-\
awarded. Br. Fines, pi. 83. cites 44 Alf 11. other Detei"
mhiatwii, but
when it is- f.iiJ, the Part aj^ainO the E.ift to tbs one, and the Part againft the Weft 'o an )thcr, &c.
there it Jh.jli lie !>i/>>h{et{ .iri-Li. ill Jig to tie ^tant-.ty, and not according to the Value. £ rook f us '^ii^rt,
for the AiTilc was awarded. ' "^
2. ^Vhere a Fine and Recovery is offo many Acres in D. the Parties in-
terelted Ihall have thdvElecJion, in what part oftheEftate it ihall operate.
MS. Ren. fiid to be Ld Harc.uirt's cites 27 March 1723. Ld Blaney v.
Mahon. (Z. 5)
276 Fine.
(Z. 5) Limhnt'iojjs in Fines. What good or allowable.
• I. Two acktwxkdgcd a Fine of four Acres to be the Right of W. afjd
granted that the 2'enunents ajorcfaid^ rjohich N. held for his Life^ and in- hie h^
after his Death ^ ought to revert tothem^ to remain to P. and his Heirs yMvX the
Court would not accept it without limiting the Fee in one of the Conitfors
certain ; by uhich they acicnowledged the Tenements to be the Right of
W. and granted, that the fiime Tenements, which N. held for hisLile, and
which att.r his Death ought to revert to them and to the Heirs o^ one of
them, ihould remain to P and his Heirs j and this Fine was accepted.
Br. Fines, pi. 46. cites 21 E. ^j. 13.
2. In Dower, i?f«? was granted by Fine, ivith Condition, that "li} hen any .
Heir is within Jge, that the Rent fkoiihi ccafe during the Nonage ; and the
Feme recovered Dower during the Nonage, & celiet Executio till the full
Age of the Heir. Nota. Br. Judgment pi. 41. cites 24 E. 3. 61.
3. A Man acknowledged the Tenements in the VV^rit, to be the Right
of one A. come ceo, &c. except four Acres of the Land, and granted that
the Jour Acres (which J. S. held by Rcccgnizance, till 10 1, was levied) al-
ter they Ihould revert to him, pould remain to the fiid A. and his Heirs
lor ever i and the Fine was received. Br. Fines, pi. 19. cites 44 E.
3. 21.
If A. levy a 4. A Man cannot by Fine, by Way of Remainder, referve a lefs EJiate to
Fine, Re- himfelj, than Fee. And therefore if A. acknowledge a Fine to B. in Fee,
rnaivderin and he render to A. in Tail, the Remainder to himielf for Life, this Re-
/'' ^1 gi^'^'-^_ mainder is void; For A. had Fee Simple before. Well's Symb, S. 30.
dei-'/o /?. hi cites * 24 E. 3. 28. 14 H. 4. 31. ,
Fee ; tliis _ _ ,
Eemiundcr in Tail is void; For he cannot give to himlelt". Br. Fines, pi. 115. cite? 14 H. 4. ;i anii '
j-42 E. 5. 5. where he fays it is not adjudged ; yet he fay,s it feems to be a void Remainder. — * i3r. Fines.
pi. 61. cites S. C Br. Eftates. pi. 23. cites S. C.' f Br. Elbtes. pi. 66. S. C,
5. Tho' a Fine be acknowledged to fevcral, yet the Right fhall be li-
mited to one of them only, and the Heirs of one, and not to the Heirs of
all. Br. Fines, pi. 7. cites 9 H. 6. 42.
6. A. B. C. and D. were Sillers and Coheirs of J. S. and A. B. and C.
and their Husbands brought Writ of Covenant to levy a Fine againlt D.
and her Husband. And thereby D. and her Husband acknow ledged the
Tenements to be the Right of A. as thofe which her Husband, and She,
and the other two Husbands and their ^^'ives, had of the Gift of D. and
her Husband, and further releafed accordingly. A.B. and C. rendered to
D. in Tail, to hold of the Chief Lord by Services due et Ji contigerit
ipfam chirejine Hxrcde de Corpore ^c. tunc poji decejjiim ejus pr^ed' Tencmen-
ta Integra remanereut prad" A. B. & C. ^ Hieredibus de Corporibus earuni le-
gitime Procreatis tenendum, ^c. remanere ulterius redis Hceredibus J. S.
defunct. D. died without Iflue, and A. B. and C. and their Husband'^
brought n Scire facias to execute the faid Remainder in Tail to them as
above; and the VV^rit was o/?e;////r' fc?f. quare Tenenienta pr^ed' p'ft Mortem
prjsd^ D. pr^efatis A. £. S C. and their Husbands, as in the Right of their
Wives, remanere non debcant justa Formani Finis prud\ F.o quod prxd' D.
Mortua eft fine H^rede de Corpore fuo exeunte, Sc. Palch. 29 H. 8. D.
69. a.b. pi. 32, 33.
7. A Fine Sur (^onufance de Droit come ceo que il ad de fon done gene-
rally implies a Fee Simple-, but it is only by Implication, and therefore there
is no Repugnancy to limit an FJlate for 'Lite to the Conufec ; for the precc-
dent Donation or FeoHinent, which is luppofcd, might be for Lite onl\-,
1 I- cTtes ^^ * '" Tail, and the general Intendment ol' the Conufans, may be qiuh-
41 e'-. 14. Jiedby an exprefs Limitation. 1 Salk. 340. Hill, i Anuif. B. R. Hunt v.
Bourne. cites 41 Ed. 3. 14. Co. Litt. 9. b.
(A. a)
¥
ine. 277
i-A.
(A. a) Extinguillied. What. ^
Seifed o'c dhers Manors in the Counties ot'B.a/idC. hy Iiideii- n ,.. |
_ tiire enrolled in Chancery lor 200/. did demife^ gr^nt, and co ns.sc.ajr.-
tarm let to D. and his Heirs his laid Manors, reiidcruig thereout annually Hncstlie
to the laid A. and his Heirs a Rent^ with Dijlrcfs and Re-entry for Ncn~ ^'-'^5 ^^ the
Diivfuent, and covenanted to do all A6ts, which lliould bedevifed, ibr Aliii- f !° ?"^ .
r'y '. , r-, TLi IT jTiy , /- ■ 1 , 11 and the fame
tance ol the laid Manors, to the Intents and Ules alorelaid ; alter which, Manor. And
ly other Indent/tre between them, it was covenanted that the laid A. Ihould \h v.hei-c it
levy a Fine to the laid D of the fiiid Manois, and that the faid Fine and '^ cited m
all other Aliurances to be made ot'thc faid Manors, by the laid A. to the ,0°" !j°j\,
faid D. fhould be to tlm Ufes or Intents cofit dined in thejirji Indenture^ and to XiTd. 85. and
m ether Ufes or Intents ^ alter which the fiid A. infeott'd the faid D. to the 2 Rep. 73.
Ufes and Conditions in the faid firlHndenture mentioned ^ and after the faid i'^)- and
A. at Requeli: of the fxid D. and to the Ufes in the faid firlt Indenture, levies K'^^'^' ■^°^'
a Fine to the faidD. of the Manors in the County of C. and upon all this mention of
matter found by Office in the Court of Wards it was, bv the Opinion of more than
the Jullices, ruled that the Rent remained not extinguiihed by the Fine, one Manor,
and yet the Fine is only of Part ^ I'iz. in the County oj C. and not purfuant
to the Indenture ; For that is, that the Fine fhould be of Manors in the
faid Counties, &c. Note, a ftrangeCafe, but it feems that this is Law by
Branch of 27 H. 8. which fee. 2, 3. P. M. Cur. Ward, i And. 18. Put-
tenham's Cafe.
2. A. fcifed of a Manor, made a Leafe for Tears reudring Rent, withClaule ^ l„ -^ S.
0^ Re-entry i and afterwards levied a Fine Sur Conufance de Droit ft) the C.
life of hinifelf and his Heirs. The Rent, being demanded, is behind. Per
Dyer Ch. J. A. cannot re-enter; For tho' in Right the Rent palfes with-
out Attornment, yet he is without Remedy. For it is without Attorn-
ment, and it would be h'Axd.'withoiit jittorninent to re-enter.— Per Manvvood.
]. tho' the Conufee himlelf could not, yet the Conufor being Cefty que
Ufc, who is in by the A61 of Law, Ihall avow, and fhall re-enter with-
out Attornment ^ For the Conulbr is in by the 27 H. 8. — Per Harper J.
The Heir of the Conufee ihall avow and re-enter before Attornment. 3
Le. 103. pi. 152. Pafch. 26 Eliz. C. B. Anon.
3. h¥\ne.by one Jointenant to his Companion enures by way of Releafe.
Mich. 21 Jac. B. R. 2 Roll. R. 398. 444. 472. 485. Euftace v. Scowen.
4. If I have Land covered with Water, and another has Liber am Pif-
cariam in it to him and his Heirs ; clearly if he joins in a F'ine with me
of the Land, this cxtinguiihes the Fiihery, per Hobart. 2 Roll. R. 500.
Hill. 22 Jac. B. R. in Cafe of Foliot al. Heliar V; Sanders.
5. Where a Fine is levied by him who hath the Fee and Fteehold in si^-r,_ 2(Jo. S.
him, whatever Right, FJlate, or Intereji, there is in him belides, pafles in- c Knight v.
clufively in the Fine, not by way of transferring the Intereft^ but (as it GreenviU.
■^ere) ctjnfolidating ivith the Fee, Jo as to determine end exttngiiip fuch Inte-
rejl. per Ventris J. 2 Vent. 332. in Cafe of Dighton v. GreenviU.
6. yi Term was vejled in 'Trufiees for raijing 1000 /. payable to "7- S. who
afterward levies a Fine of the Land, or fullers a Recovery of it; this is
an Extinguifhment of the Charge. 2 Wms's Rep. 605. Trin. 1731. in
Cafe of D. of Chandois v. Talbot.
(A. a. 2) RcJat'io?i of Fines to what Time, to az'onl Mcfm
Incumbrances^ &c.
I. It is no Plea to plead a Fine in Bar and the Fflate of the Plaintiff'
Mtfne iefiXeen the Conufauce oj it, and the Exeeiiticn ; For it Ihail not have
B b b b Relation
27B Fine.
Relation before the Execution, quod Kota. Br. Relation, pi. 27. cites
21 H. 6. 17. 8 E. 3.
2. A. covenants with B. to k'jy a Fifie, 0^. Mich, i Car. A. acknovo-
kdges a Statute to C. 8 Oft. the flime Vear ; the Fine is levied according to
' the Covenant, and theCo«///^?/7tt' taken the 12th Off. aiorelaid. ThisCo-
nulee HkiII avoid the faid Statute, by Relation to tlie Day of the EJJoin,
which was before the faid 8th Day of October. Mich. Term now begins
the 23d Oilober by an Aft made 16. Car. i. Then the Ellbin ^vas 7th
Oclober, and the lirlt Day of lull Ttrm the 9th. Jcnk. 250. in pl. 40.
(B. a) Of what a Fine may be levied.
' , I. TT^INES have been levied heretofore of a £o/7/o/«j o,r6'<;7/f, and by fuch
no Pr*cipe'^'^ X/ Name tile Profit of the Franktenement palled. Br. Ailife. pl.
lies of it. Co. 145. cites 9 Alf 12.
R. on Fine;;
II. cites 19 AS. 12. bur it lliould be 9 Aff. 12.
2. Fine has been levied of a Comnion, and ofaCorodj j & Sci. fa. lies of
it and Execution accordingly. Br. Common pl. 45. cites 4 E. 4. i, 2.
3. 32 i/. 8. 7. S. 7. Dire£cs Writs of Covenant, and otherWrits lor Fines
to be levied, and other Alfurances to be had and made of Parfonages,
Vicarages., and ether Profits called Spiritual., to be deviled and granted in
Chancery, as have been uled for Fines and Allurances of other Lands.
Sooi mJn- 4, A fine maybe oi^ -n* Rent-charge dc novo., which had no Being bei
muty ; and f^j.^^ ^i Ed. 3. 44. Or of a Chie{' Rent, or other Rent in Being. 1 8 Ed. 4,
Tiiint^'per- •22. Or of a Seigniory. 48 Ed. 3. 23. Or of an Acquittal. 50 Ed. 3. 23
fonal.''Co. R. Or of a Channtry. 37 Ed. 3. 33. ^\^cfl:. Symb. S. 25.
on Firies 1 1.
cites II H. 4. But fee pl. 11. — Covenant wa.s brought of a Alr.rket, and Kc1e-. would have drawn the
Peace, and the Court would not receive it ; For Praecipe lies not of it. Co R. 011 Fines 1 1. cites 13 £.
3 Tit Fines. 68. * Denfh. R. on Fines 14. contra Wood's Inft. 242.
S. P. For . . ,
that fiiould 5- .S//? Fines may not be levied of Z^Wj /'« yf«aV«? Z)f»/f///f i For if any
be a Wrong Fine be levied of fuch Lands, it may be reverled by a Writ ot Deiceit
to the Lord brought by the Lord of Ancient Demeine ; and thereby he Ihail be reitored
Land^°is ^ ^^ ^'^ ^^^ Seigniory ; and it feemeth to be void befjoeen the Parties, becaufe
holden ; For coram non Judice. 7 H. 4. 44. 8 H. 4. 23. 21 Ed. 3. 20. Reg. fol. 13. b.
by the Fine de Fine adnuilando, &c. Y ez \z\s holden spodi to bind the Par tics, 17 Ed.
it fhould be- ^ ^^ ^nd 7 H. 4.[44] Bro. Fines loi. which lecmeth not to be Law. But
fee"^and'^not 'f Fines be oj Lands in Ancient Demefne, and of Lands at the Common
impleadable Law, it fliall be Hill good for the Lands at the Common Law. Weft,
in his Court. Symb. S. 2j'. cites 7 H. 4. 44.
2 Inft. 513. 6_ Regularly a Fine may be levied of any Thing, 'whereof a Praecipe quod
Fines may be reddat or factat lies, as theWrit ot CuHcmus and Services ; or whereof a Prs-
Irt- -^ //'. cipe(7«0(i?/)en///>/^r,as to haveCommon aWay, &c. tr to be ihort, where-
ritahu, being Prscipe quod teiieat doth lie, as the NN'rit of Covenant to lev\- a l'"inc and
*inejfe the like. 2lnll. 513.
tempore Finis
and certainly exprefled iti the Writs. Weft's Symb. S. 25 cites 18 E. 4. 22. * S. P. Br. Fines. pK
97. cites 18 E. 4. 22.
7. But in ancient Times Fines were levied of other Things, than will be
at this Day allowed ; and yet thofe Fines Ihail be holden now as a\ailable,
as thev were taken to be, when they were levied. 2 Intl. 513.
Jenk. 275. 8. I'enant in Tail of a Rent ov'Connnon levies a Fine with Proclama-
pl- 96. tionsj it is very clear that the llfucs Ih.til be barred thereby; per Walmdey
J. 2 Le, 158. 21 Eliz. C. B. in the Cafe of Segar v, Bainton.
Of
'ine. 279
9. ij{ ^ Lcafc for liars, the Fine is void as co any Strangers ; lor a
Freehold mull be in the Cognizor or Cognizeei hovve\er it may be ^ocd
betivixt the Parties by W^ay of Elloppcl, lb as to conclude them. VVood's
Inft. 242.
10. A Fine cannot be levied c/ Money agreed to he laid out in a Par- ^-^ ii a
chafe nf Land to be fettled in 'Taile. But a Decree can bind fuch Money, j^'ijjo |;|!°Ld
equally as a Fine alone could bind the Land in this Cafe, if bought and narcourt's
fettled, per Cur. Wms's Rep. 130. Mich. 1710. Ec-nfon v. Benfon. ofCfesin
the Hou'e of
Lords, faid there to be decreed. 24 Feb. 1715. Lady Warwick v. Edwards.
11. Of an Annuity to a Man and his Heirs, no Fine can be levied. Par- Of ati Annu-
liament Cafes i. Arg. becaufe it is a Thing pcrfonal. Arg. a. in Cafe of i^/J" ^^ '5.-
the King V. Ld Purbeck. thfnvil: not"!
12. A Fine may be, and ufually is, levied of Shares in the N'ezv River- Dcnfh.R.on
Water. 2 Wms's Rep. 128. Pafch. 1723. Drybutter v. Bartholomew. Fines 14.
13. Fines may be levied o{ all Things in he'ing --^ hie h are inheritable,
whether Eccleliaftical and made Temporal, or Temporal ^ as of an Ad- n^^i-h r ■'f
vowfon, Refforj, Portion of Tithes, &c. of an Honour , Matior, Barony, y\\;c% 15,^—
Leet, Mefuage, Dove-Honfe, Garden, Orchard, Land, Aleadcw, Pa/lure, So of a free
Wood, Underwood, Office, Piping, Warren, Fair, Toll, Waifs, Strays, Sc, Ckajicl. \h\d.
Rent, Common, a Hundred, &:c. And * as P'ines may be levied of Things ^ V'* ^
in Polie/Tion, 10 ma}- they be levied of a Remainder or Reverjion, or ot a „Piepcivders.
Right in Flit tiro, ovoi'X PoJJibiUty. V^'ood's Inft. 242. Jbtd.— T.-iey
ai-. icvirib'e
of all 71 in^s 'xherec.f a Precipe quod rcddat lies. V^'eft. Symb. S. 25. — Co. R. on Fines U.S. P.-- Ai^d
of Ibme Things whereof ?;o Pr£iipe Irs, a.s oi Pa (lure (or fxo Oxen. Co. R. on Fines 1 1, cites 4. r . i. 2.
27 H. 8. 12. 6'd of an Offce. Ibid, cites 19 Afl.'i2.^ — Soof Ccmmon of P.if.we. Ibid. .^c of a //-"j i.i
a Quod permittat Ibid, cites 2 E. 15 So o\'iRci:t neivly cH.ited. Ibid, cites 22 £.4. — —SoofF.rieiers,
HoiifehoJ, Hsuybcot, Phm-icot, n>:d Fmbcot- Denfli. R. of Pines 14. So of an O fie e hi EJJ'c. DeiHi t 5.
So of a if: Bailyii-ick or IFardpif cf a Fore ft. Ibid. So of aiiy Projzt Jpprevder, which Is <e:t ••?.:;
but not where it is uvcert.-.w, as Common Sans Number, &c. Such Thin2;s cannot be granted by Fi'c,
becaufe Finis Finem litibus imponit, and that cannot be where the Thing is not certain. I id. — It ma» be'
of yii >i:ar.y Loads oj Bujles in Fee, or for Life, to be taken annually in fuch a Wood. But then this muft
be III effe, and one of the Parties pofTefled thereof before the Fine. Ibid. * Weft. Symb. S. 25.
cites 42 E. 5. 7. 44 E. ;. 45. ^ Co. R. on Fines 11. cites 27 H. 8. J2.
(B. a. 2) Of izjhnt EficTte a Fine maybe levied, inRe{pe6i:
of its haz>i}ia- been hi Pofieffion of the iGw.
1. Where the King is intitkd by a Diffeifor or other, who has a defeajibk
'Title, and the Hands of the King are amoved by due means, and after a Fifie
is levied, and then the Land is refeifed ; yet the Fine is good. Br. Fines
pi. 102. cites 24 E. 3. 65.
2. Rut where the King amoves his Hands by undue means, and after a
Fine is levied, and after the King for Caufe re-feife?i this fhall avoid the
Fine, by the beft Opinion. Br. Fines, pi 102. cites 24 E. 3. 65.
(C. a) Of what a Fine may be. By what Name.
I. A Manor may pals by the Name of a Tenement. Br. Fines, pi. 66.
Jf\_ cites 9 E. 4. 6.
2. The Thing of which a Fine is to be levied, ought to be in effe at
the Time of the Pine, and exprejfed in the Fine direffly, or by Implication.
Br. Fines, pi. 97. cites 18 E. 4. 22.
3. As where the Writ is Qi:od tene:\t Coircentionci-: de tali Terra j there Bi<t where
upon Conufmce of Right ot the Land by him to another, the other may the \N'rit is
grant and render a Rent, Common, &c. For it is implied ; becaufe it is if- ofa^'.^'""''
filing out of the fame Land as is in the IV; it. Br. Fines, pi. 97. cites 18 nMbekvici
£• 4- 22. _ 0! a fhiife.
And where it is of Lar.d in D- Fine cmnot be levied of Lavd i>i S. Br. Fines, pi. 9". cites iS E. 4, 22.
■ An
■^-
280 Fine.
4. An Honour may pafs by the Name of a Alaiior, or by its proper
Name; ixs de Honore de Tickhill, or de Manerio de Tickhill. VV^eil.
Symb. S. 26.
c S- I"^ fufficeth alfo to demand a Afamr by his proper Name, without
the To^wns° «^w/;/^ the TozvH --juhcrein it litth ; For ic may be out ot any Town, or ex-
into which' tend into feveral Towns and Counties, as de Manerio de D. cum Perti-
the Manor ncntiis; yet it feems bejl to exprcfs all the feveral 'Towns y into which it
extends, be extendeth -y as de Manerio de S. cum Pertinentiis in D. & E. Weft.
ESthe' Symb.. S. 26. cites 19 E. 4. io. 9. a. 43 E. 3. fo. 9. a. Braft. lib. 4. c. 31,
Manor in §. J. 9 Ed 4. fo. 61. 9. a. 16. a. 1 7. b. 1 1 H. 7. fo. 22. b. 49.
that Town
pafles. Weft's Symb. S. z6. cites 5 E. 4. 105.
6. A Cafile or an Hundred may be Parcel of a Manor, and pafs by the
Name of the Manor^ whereof they are Parcel^ 12.6 Afll 54. And one Ma-
nor may be Parcel of another, 2 Ed. 3. fo. 36. And a C^fik may be de-
manded by his proper Name^ as de Caltello de B. (cum Pertinentiis, i E. 3.'
fo. 4. and an Hundred may be demanded by itfelf^ as de Hundrcdo de S.
27 H. 6. fo. 2. Well. Symb. §. 26. • _
7. A Chapel or an Hofpital mult be demanded by the Name of a /T/^-
fiiagc. Welt. Symb. §. 26. cites 13 Alf 2.
8. Molendinum is good, without uddrngVentritieum or ^-fqitatiafm ^ albeit
. the hitter be more ulual. Welt. Symb. §. 26. cites 44 E. 3. 13.
In Sci. fa. It Qj.- ^ Rever^oa by the Name of tne Land, or otherwile. Welt's
wasa<rrcea, „ ^ , ^ , . -^ -T-j -"
thataFineis Symb. §. 26. Cites 43 Ed. 3. 22.
rood to fajs T-. - ■ r ■
aReverfio?' in Tail, viithoiit exprejjtng the Reverjton; For it was levied by him m Reverfion in Tail Sur
Conufiivce de Droit to two, and they rendered again to the Conufor in Tail, the Remainder to the Plain-
tiff in the Sci la- and he Tued Execution & habuit ; quod Nota ; and yet Thorp dixit pro Le^^e eodem
Anno. fo. 1 5. that where a Fine is levied Sur Conufance de Droit, or by Grant and Render, by him, '■jjho
hath twihin" tut the Reverjion, the Conufee fliall not have Action thereof, where there is no mention of
the Rever(!o7i ; Sc. it is not * comprifed, but it feems clearly that by Fine levied Sur Conufance de Droit come
ceo &c. 'tis good to pafs the Reverfion. Br. Fines, pi. iS. cites 4; E. 9. 21. pi, 59. cites y, H. 6. 5. —
Br! Fines, pi. 97- cites 18 E. 4. Z2. * The larger Edition of Brook in Folio, is '^e Contra), the fmaller
in Folio is CExa'min); the 4to Edition is (Exie).
10. Land is to be deinanded by the certain Meafitre of the fnperjicial
^lantity thereof^ Hida, Carucata, Bovata, Virgata, y\cra, RodaTerrae.
And in like manner, Bolcus, Subbofcus, Bruera, Mora, Juncaria, Marifcus
& Alnetum, &Rufcaria, mav be demanded bv the Number of Acres there-
of 16 Aff 9. Weit. Symb.' §. 26.
11. turbary may be demanded by the Name of Moore. Weft. Symb.
§• 26,
12. Houfeboot, Hayboot and Pkwboot, may be demanded by the Name
oi" E^overs: thus, de rationabili Eltoverio in Bolcis, \iz.. in decern Acris
Bofci iplius A. in D. &c. Weft. Symb. §. 26.
1 3. Parfonages, ReHories^ Advoivfons, Vicarages., or Tythes impropriate^..^
Jrid of all p,jj-g j^Qj. ^y j.j^g Name de Advocatione Eccleiut, but de Re[foria Kcck/ije de
d'owJdthV"' S- ftufi Pertinentiis. But when it is only ot a Prefentation, it mult be dis
Writ muft AdvocatioMe EccieliSd dt S. and fiot cmi Pertinentiis. W^ell. Symb. §. 26. -
be de Jdvo-
catione Vicarix Ecclefias de S. and not cum Pertinentiis. And where no Vicarage is endmved, it paflTes un-
der thefe Words de Advocatione EcclejU de S. &c. Weft. Symb. S. 26.
Js if tht.Ua- 14. If an entire Manor, Mefuage, or other entire Thing he div.'vied or
nor of D. be parted, and after a Fine is to be levied of frae of the Parts of the Thing
divided into 2, ^^ fevered, then mtift not the Fine be de MedtetatCy or qiiana Partem or other
VixK. of the P^'"'^ ^^ t^he Manor, Melfuage, or other Thing ; but luch Part mult be de-
oue Part (if manded by the name of the wloole Thing. Welt s Symb S. 26.
the Diviiion
be fo made, that the Manor of that Part be not extinft) muft be de Manerio de D. Weft. Symb. S. z6.
15. So if a Mefuage and 20 Acres of Land be parted into t'-jso P.-rrts; the
Fine of the one Part muft be de iiuo jMefuagio S decern Acns Terrce, &e.
and not de Medietatc unius Mefuagii, & 20 Acrariv.n Terrse; For the
TJiinis
Fine.
281
hiiigs new divided irom the rcll, arc now became whole Things by
ciiilclves, tho' lels in quantity than the wiioie was berbre Diviiion
thi
thci
thcicol made. If a Thing be twice named in a Writ of Covenant, it
hurtcth not, us a Manor and a Hundred, Parcel of the fame Manor. W elt.
Synib. §. 2 6. cites 27 H. 8. 2.
' 16. A i'ine was le\'ied r/e daobtis T'efiemeHUS^ and for that reafbn was re-
veried ; For the Word Tenement docs not comprehend any Certainty ;
For it takes in Mefuage, Land, Meadow, Paiture, &;c. and wliatlb-
evcr lies in I'enure ; and it will pais Rent or Common. Le. 188. Trin.
31 Eliz. B. R. Steed v. Courtncys.
17. K Mmor in Refutation^ which is not a Manor in Truthj does not A Manor, ia
fafs by the name of a Manor in a bine or Recovcrj; tor they are ground- Rcputuion
ed on original \\"rits, which ought to be certain, and not to be taken by ""'.>' ^^''^
Intendment ; but otherwife of a Grant, or Feoitiiient; For there the In- Jljlme of t
tent of the Parties lliall help it. Noy 7. Johnlbn v. Heydon. Manor, tlio*
not demand-
able by it. Lat. 6;. in Cafe of Hems v. Stroud. Cro. E. 124.. 70-. Mich. '58 and 59 Eli/. B. R. Mal--
let V, hluUet. Lev. 28. * STIjIUIl v. 2ri)Ulll, contra to i\oy -.the Indenture to lead rhc Ufes, Ihewing
the Intent to pais the Manor and all Land Parcel and by tlie Grant of fuch a reputed Manor, an
Jdvoii-foji, fhall pafs as Appendant. Midi. ;2 ard z,% EVvl. C. B. Lo. 207. Long v. Hemmings.
Dod. of Adv. 2S. See Prefidcnts (B).— S. P. Savil. 115. jPaf.h. zS Eliz. Thetford's Cafe.
* S. C. adjudged accordingly. Vent. 51. And ^Sid. 190. I'afch. 16 Car. 2. B. R.
18. AFinc oi Lcvid will not be a Bar of* Rent ; as LelTee for Life, Re- For Rent i.-;
mainder lor Life oi Rent j the hrit Lelice purchafeth the Land, and le- -i. collateral
vies a Fine oi' that ; this ihall not bind him in Remainder of the Rent, V-%^ ^".'^
• -••. . tlic L* inc Is
per Winch J. 2 Brownl. 155. in Cafe of Bicknell v. Tucker. citfes Pal- „ot levied of
mer's Caic, f and Smith and Staplcton's Cafe. it. Sec Cro.
J. 60.
The fame oiConimcyi. Ibid. But where the Rent was granted in Tail, and iffuing out of a Manor,
a Fine of the Mar.cy^ with an Aterme>:f, ih.it the .^grcemeiir iias to b.;r the Rent, per Hobert Ch. J. ard
Harvey J. v. Hutton J. is a Bar of tlie Rcrt, Cro. J. 699. Hill. 22 |ac. B. R. Helliar v. Sanders
2 Roll. P.. 500. Foliot V. Sanders. S. C. Winch. 109. 121. adjudged by two J. againft Hutton. S,
C by the Name of Hilliard v. Sanders.
* Jenk. 275. pi. 96. contra, cites it as adjudged, that by Fine with Proclamations the Rent pafles iti-
clufivcly. 20 Jac. i. Hilliard's Cafe. ^ PI. Com. 455.
19. If Tenant in Tail of any 0_^ce levies a Fine of Ltrmi htlofiging to Winch. 123.
the Office, this Ihall bind his Illue; yet the Land was not entailed, but '■ , P*^*^
the Olfice j per Hobart Ch< J. 2 Roll. R. 500. Hill. 22 Jac. in Cafe of Fol-
liott V. Sanders.
20v A Fine may he levied o^^Share in the New River Water, by theDe-
Icription o'l fo mueb Land, ylqua Cvopcrt. 2 Wms'sRep; 128. Palch. 1723.
Dr\ butter v. Bartholomew.
(I), a) Who ihall be barred by the Fine.
t. T F one hath a Remainder, or a Reverfion, depending tipon an Efiate
\^ for liars, or by Statute Slnple, Statute Merchant, or Elegit, and
the ■lenmr he dpffcifed, and a Fine levied, &c. and 5 Years pafs ; they be
all barred thereby : tor that theflT'crmors might prejhitly have entered, and
he in the Reverficn or Remainder, for fuch Dilleilin viight have had an Jf-
Jife. So the Stat. 4 H. 7. 24. leems to bar the Termors thro' Negli-
gence,, hv this Word Intereft, which comprehends a Term. Well's Symb.
S. 183. cites PI, C. •?74. a.
2. If an Infant h'eir of one Irycnd Sea dying there, mak&s not his Vid. (ri. a)
Claim within 5 Years alter the Death of his Father, being of full Age, ^J^u
and without any Impediment, &Lc. he fhall be barred ; perAnderfpn, Ch. t'liTNamco^
J. Le. 215. Mich. 32 and 33 Eliz. C. B. in Cotton's Cale. Panic v.
Howes.
. ■ — Cro. t. 219. S. C. by Naoie. of Sray V. June alias- GhowrSj
Gcc c 3. Divife
28'
'ine.
3. Devifec rs hirred bv Fine, iho" levied before his Entry. Cro. C. 201.
Mich. 6 Car. B. R. Huhn v. Keylock.
4. Fine and Non-claim bars not a Man in Ireland; but not becaufe Ire-
land is not a Member of England^ but becaufe of Abffue^ as in Cafe of
Imprifonment. Arg. Cart. 187.
S. C. cited 5. If there be Tenant by Elegit of Land, and a Fine be levied of that
Arg Show. Land, and 5 Years with Non-claim pafs ; the Interelt of the Tenant by
'•°' Elegit is bound, according to ©iJtFpn'0' Cafe. 5 Rep. 124. Otherwile if the
Land had not been a^ually extended; and if an Inquilitron upon an Elegit
be ibund, the Party before Entry has the Polielfion, and a Fine with
Non-claim ihull bar his Right ; for before aftual Entry, he may have
Ejeftment or Trefpafs, and lb not like to an Intereile Termini. Mod.
217. Trin. 28 Car. 2. C. B. Ognel v. Ld Arlington & al.
6. A Fine and 5 Years Non-claim will bar the Intcreft of Tenant bv
THn iSv. •^i^'^tute Staple, after Liberate, before Eutry. See 2 Vent. 3-21, &c. Dighto'ir
& M. S. C. V. GreenvLll.
dcb.ated.
Skin. 260. Knight v. Greenvill. S. C.
7. A Fine by Mortgagor to a fccond Mortgagee will not bar the frff
Mortgagee, tho' more than 5 Years pafs ; the Mortgagor being all that
Time in Poiieffion, and paying the Interelt, and fo was Tenant at Will
to the firft Mortgagee. Carth. 414. Trin. 9 W. 3. B. R. Hulm. v. Hatcon.
(D. a. 2,) Barrd. Who. Iffue In Tail. Where Tenant
in Tail is Cognizee.
I. A. by Fine gives an Eftate Tail to B. Remainder in Tail to C.
afterwards A. the Donor, by another Fine limits, (viee 'verfa) vi?.. to C. in
1'ail, Remainder to B. in T'ail; yet the firft Intail llands unahered. For
the Fine being levied Co the Tenants in Tail, the ^Vords were all the
Words of A. and net of B. and C. and tho' B. and C. could be cli:opp"d,
yet their Ilfue fhould be remitted. Br. Fines, pi. 73. cites 8 Alt 33.
i:.WhereaF/;./e/o>" Life is levied to Tenant in Tail on\Grant and] Render, his
Eftate by this is changed. But Brock makes aQ^uiere, and lays, that it
leems the bell Opinion is Contra, unlefsit be a.Fi/ie Executed : but a Fine fur
Grant and Render, &c which are not Executed, is no Difconti nuance
nor Con^lulkm to the Heir in Tail^ nor does the Statute de Finibus of
Averments hold Place, but of Fee Simple, and where he claims as
Heir^ but the Heir in Tail claims by the Donor, therefore it feems, his
Entry is lawful. Br. Eftoppel. pi. 60. cites 8 H. 4. 7.
3. 2Vb Fine levied by Tenant in Tail barreth his IlTue immediately,
but where the Tenant in Tail is Cognifor. Welt's Symb. S. 180.
After the 4- ^-s if Tenant in Tail bring a Writ of Covenant againjl a Stranger,
Deathof the and he recognize the Land to be the Right of the Tenant in Tail, as
Tenant in that which he hath of his Gilt, &c. and tht Tenant in Tail grant and
fail, the render the Lai>d to the Cognifor for Tears, yielding Rent, &c. and dies j
cd^the^Rent' ^his Fine is void againft the IflUe in Tail.' Well's"^ Symb. S. 180. cites M.
The ducf- 10 and II Eliz. Dy. 279. pi. 7. 36 H. 8. Br. Fines. 118.
tion wa.s, if
this fhould bar the Iffue of his Entry ? D. 279. pi. 7. but no Judgment.
by the bf ft iq s. to the Conufors for Term of their Lives, with Claule of Diltrefs ;
fu'''^" th" t'^h ' ^"^ '^^^^^ ^' ^' ^^"'> ^"^ ^^^ ^^"^^ dcfoended to H. C her Son and Heir
Ca4'was"c- '" 'faiJ^ ^vho leafcs the Land to one P. for Years, and after M. dies; A.
diftreined
Fine. 2^^^
diltreincd tor the Rent, and he brought Replevin ^ and in this Caie 2 vei- argued.
Points were relbl\ed and adjudged, i. That, ag'^inlt Inch Fine accepted — Kciw.210.
by Tenant in I'ail, the IJfiic may aver continuance of the Seilin by Force P'- '5- S- C.
oi' the Tail, and the Illue in Tail is not eitopped by the Admittance p^rkt^vf
and Acceptance of his Anceftor. 2. That the Grant and Render of the Pavne —
Rent was not within the A61 of 4 H. 7. or 32 H. 8. becauie the Fine And. 6. pi.
was not levied of the Land itlelf, that was intailed, but of the Rent ii;^,,*^-: —
newly created out of the Land. 3 Rep. 89. b. 91. a. cites it as adjudged j,- ^^j;^* '-^™'
M. 3 and 4 Eliz. C. B. Rot. 1483. Conisby's Caie. PI. 04-' 5.6.
1 jtii?.. per
Thornton. S. P. Jcnk. 2;j. pi. jif.
6. Grandfather, Father and Son ; the Grandfather by Indenture
makes Feoffment in Fee, rendering Rent to him and his Heir.s, and dies,
the Father accepts the Rent ; the FeolTee levies a Fine with Proclama-
tion ; 5 }iars pajs, and then the Feather dies. The Point was, whether
the Acceptance ot' the Rent by the Father had extinguiilied his Right
to the Intail, or whether 'tis an Eltoppel only ? For if he is only es-
topped, then he having a Right at the Time the Fine was levied, and
the 5 Years incurring m his Time, the Son was barred j but if he had
extinguiilied his Intereft, then the Son, being the hrll to whom the Right
came after the Fine levied, is not barred by the 5 Years incurred in
the Lite of the Father. 'Twas adjudged per W^almfley and Clench, J.
at Lancalter Affiles, that the Iliue was barred. But the Court here
thought that he is not barred. Becaufe tht Acceptance is aComiiiJion only,
and does not extinguijb the Right. Mo. 301. Palch. 33 Eliz. Hulme v.
Jee, alias Ice.
7. If a Fine be levied to "Tenant in Tail^ and he grants and renders the
Land to him and his Heirs, and dies before Execution, this is n© Difcon-
tinuance ; otherwile it is, it it had been executed in the Life of the Ten-
ant in Tail. Co. Litt. 333. b
8; It Tenant in Tail accepts a Fine, ivith Render to another for Tears,
this fhall bar him, becaufe it works a Difcontinuance ; but otherwife,
•where it is for Life ^ per Hutton. J. Winch. 123. Hill. 22 Jac. B. R. in
Cafe of Hilliard v. Sanders.
9. Tenant in Tail accepts a Fine fur Conufance de Droit come ceo, and
then futiers a Recovery ; this makes no Alteration of his Ellate. Vent.
257. Pafch. 26 Car. 2. B. R. Anon. Per Hale Ch. J. Mod. 117.
Green v. Proud. S. C.
(E. a) Of Lands, &c. in Lieu Conus.
1. A SSISE of Tenem.ents in W. t:i3 Defendant pleaded EJfoppel by
X\ Fine levied of thefrme Tenements by the Anceltor of the PlaintitF
in O. Jud^'^ment, if the Plaintiff fcall fay that they are in W. and the
Plaintiff f aid, that O. is a Hamlet of W. and a good Plea^ by which they
pleaded over. Br. Brief pi. 292. cites 20 Afl' 6.
2. Affile brought in Nova Forrejfa is good, and yet no Vill nor Ham-
let. Co. R. oft Fines 12. cites 18 Libr. Aff 30.
3. And yet in Scire facias to execute a Fine levied of Lands in D. the
Tenant Jball not fay, that there is nofnch Vill. Co. R. on Fines 12. cites
18 E. 4. 51.
4. A Pine may be levied of a Caflle, or of a Manor, without cxprefjing
in '■^hat Vill, or Hamlet. Co. R. on Fines 12.
5. A Fine is good in a * Hamlet. 38 Ed. 3. fb. 19. 18 Ed, 4. fb. 6. Co R. on
and 7 Ed. 6. Br. Fines 44. and 91. or in a Town decay d, 7 Ed. 6. Br. F'nes 12.
Fines 91. Neverthelefs it is Mo good to name the Town wherein the Ham- S^^^p^ c
let is, as it feemeth ; and that with Addition for Dillinftion, if there be Lands in a
divers Towns of the fame Name in the fame County, W'eit's Symb. S. 27. Hamlet^
ocfht not to
be '
1 iue.
be received, but if it is received, then it is good. —Hale laid in i H. S. 9. a. That if a Fine bt-
levied in A. B. and C. and none of them is a Vill, nor H.iiulet, but certain AianJioKs, or Hcnfcs^ ,if it be
accepted 'tis good. Co. R. on Fines iz.
A Scire J-i!cias lies on a Fine levied in a f-f,injlet which proves fucli Fiiie to be good. Br. Fincf.
pi. 9;. cite'i 8 E. 4. 6. * Co. R. on Fines iz. cites -f 3S H. 3. 23. per Thorpe, and 8 E. 4. 6.
. 1 This fliould be 38 E. 3. ao. a. in Principio.
But if a Man 6. If a Manor extend into di\eis Towns as J. B.C. it is good to ex-
have diuers prels all Or none : as de mnncrio dc S.m A- B. C. lur ii anv oi the Towns
Manors oi one be Omitted none of the Manor in that Town palleth. .Yet a Fine of a
Soi^b's. ^Ld a Manor, cum pertincfjtiis Avould have carried the whole Manor. 9 Ed. 4. 6.
NortbS.it is Welt's Synib. S. 27.
good, in a
Writ of one of the fume Manors, to exprefs certainly which of them is intended to be palTed, 4- Ed.
5. 12 H. 7. 6 Albeit it is thought good enough by the Name of the Alanor of S. without ^Addi-
tion ; For Certainty is always bell. V\' ell's Symb. S. z".
7. An A£tion of Covenant was. brought upon an Indenture of Feoff-
ment by Defendant's Wife before Marriage of Lands lying ;« I/ton in the
Parip of Mar/ham, whereb}- ihe Covenanted to allure, &zc. the Plaintiff
alTigns a Breach, that he tendered a Note of a Fine to the Defendants,
belore certain CommiiFioners, oj Lands in the Partjh of Aiarjbam.y and
.requeued the Defendants to acknowledge the Fine, but that the Delenr
danrs refufed. To this Defendants plead, that they lyere fcifed of ether
Lands^ in the Parifh of Marlhaiu^ no Part -xhercof were contained ui the
X)tW,and becaufe thofc Lands not contained in the Deed, were contained,
in the Note of the Fine, therelbrQ they rel'ui'ed to acknowkxige it. To
this the Plaintiff demurred. But after Argument, the Court were of
Opinion for the Defendants ; tor tho' a Man is not obliged in a Fine, to
fet out the Parcels exaclly agreeable to the Deed, and it is ufual to put
■in rather iTkore, leall, in Cale of' a Millake, he may lofe Part of the
Land j yet liere the Covenant h as, to levy a Fine of Lands in Ilton, in
the Parifh of Marfliam, and the Note tender'd^ is o^ Lands in theParilh
of Marlham. Now a Fine may be levied of Lands lying in a Vill ; and
therefore thole, not being Lands in the Vill, of which J3efcndant Cove-
nanted to levy the Fine, it fecnis :i good Excufe. And thereupon Judgr
ment was. given for the Defendants, unleis Caule, <?cc. before the End
of the Term. Palch. 12 Geo. 2. C. B. Danby \. Gregg and Ux.
(E. a 2) of Lands in feveral Vilts, &c.
.i'ifMvhere in j. A Fine was levied of Lands in Blandford Forimi. Refblved that
the Hamlet ^\y^^ jj.jjjj| j^q^ p^^f^ Lands in a Hamlet in that T'oivfj^ there Lxinz Confiabks
cvh a 'T\th- ^'J^'f^^ iri Blandford Forum from others that were in the Hamlec ; So
ing-Man and that they were as 2 Vills. Vent. 143. Trin. 23 Cur. 2. B. R. Anon.
the Coiifia-
hles of the J^ill ejccrcifei Jtithority in the Hamkt, (which proves it to be but as a Hamlet) it was re-
folvcd that tlie Fine conveyed tlie Lands in tiie flamlet. A I'.trijh may cont.iin Ten Vills, and il a Fine
be levied of Lands in the Parifh, this carries whatlbever is in anv of the Vills. So where there are
diverfe Fills., if the QnftaLlevick of one * gees oier all the refi, that is tiie Superior or Mother Vill, and
the Land, which is in the other, fhall pals per Kont'.ji of all the Lands in that. But if found that they
had dilUnft Coiillables, and could not interfere in their Authority, it would be other wife. Yint. i;o.
Mich. 15. Car. 2. B. R. W'aldron v. Ru'cari-it.-r.-^ — Mod. jS. S. C.. * In luch Cafe thefe m.iy gd
for Icveral Vills, or pne Vill. per H.ile, Ch. J. Mod. U 7 in Cafe of Green v. Proude.
If the Parijh of D. c-ji:t.ti>is 10 fills, and a Fine or Recovery is had of Land in D. this does not ex^
tend to the Lands in the other Vills out of the Vill of D. Trin. 4. Jac. B. R. Cro. J. 120. Stork v. Fox.
. S. C. cited and agreed. Sid. 10. in Cafe of Wefton v. Carter.
If there be a l^ill called R ivithvi tie Parijh cf R. and a Recovery is fufFered of Lands in R. and (ay«
not in the Parifh of R. but in the Deed, to m;ike tlie Tenant to the Prxcipe, and in which lie cove-
nanted to fuller the l^ecovcry, the Lands were mentioned to be in the Parifh of R. The Lands in
the Parifh of R.do pals ; For the Indenture and Recovery make but one Conveyance ; and it w.is round
by Verdift, that the Intention of the Patties was ts pafsi both. And as to this Purpole, the Cjuit waf
all of Opinion, that tlierc was no di&renijt; bytuwisn a Fine and a Recovery. 2 Mod. 233 Trin. 2f
Car. J. C. B. Addifon v. Qttfa^-
5 Bu)
Fine. 2 St;
2. But if a Fine be levied of Lvids in a * Pcirip^ it Ihall extend to all * -pj^^ q^,._
the Vills in that Farilh. Vent. 143. Anon, ut iup. fitors of hr'
have been dr.
re6Vcd to make out Writs of Lands in Parochia. 2 Vent. 32. in Sir John Otway's Cafe. 1 Mod-
238. S. C.
(E. a. 3) Claim, or Entry to avoid a Fine. Made Hcnv.
Entry into Part of the Land, &c.
li If a Dijfeifor of 2 Acyes levies a Fine of both, the Dilleifee may
enter into one Acre only, and this ihall not be an Entry in both, tho'
they are in the Seijtu of one and the fame Perfon, and of one and the fame
I'ttle. Co. R. on Fines 13.
2. But if the Dilleilbr kafethfor 20 l^ears Part of the Laud, whereof the
Diileifm was committed, and the Diffeifee afterwards entereth into the
Land, which continueth ;// the Poffeffion of the Diffefor, in the Name of
the Whole, the lame Entry ihall not extend to the Land leai'ed ; for here
the Leliee is in by Title. Le. 51. Pafch. 29 Eliz. C. E. Potter v. Steddall.
3. But if T'enant for Life, of Land, leafe Parcel thereof to hold at
Will, and being in Poileifion of the Relidue, levies a Fine of the Ji'loole ;
the Leilbr enters into the Land, which was let at Will, in Point oi^ Forfei-
ture in the Name of the Whole ^ it was holden, that the fame is a good
Entry ior the Whole ; for in this Cale he is not in by 7'itle ; becaufe when
Tenant ror Life leaieth it at W\\\, and afterwards levies a Fine, the
fame is a Determination oi the Will. Le. 51, sz. Pafch. 29 Eliz. C. B.
Potter V. Steddall.
4. If Dilleiibr, &c. m-xk& feveral Leafes of feveral Parcels, viz. oflfthefeve-
diverfe Houl'es, for Tears to feveral Pcrfons, the Entry into one, in the '"aj Leflees
Name of all, is good for all. But otherwife it is, if the Leales were '^^ ^'Tt>^^~
for Lives. D. 337. b. Marg. pi. 37. cites M. 42, and 43 Eliz. B. R. "^^^
Goodman v. Gerners. der the fame
I'itle, the
Entry upon one Parcel, in the Karr.e of all, is good for the Whole. D. ;;;. b. Mat^. pi. 37. cites M.
42 and 4.3 Eliz. B. R. Dalton v. Hammond.
In tlie Cafe of Leafes for Years (as above) of Lands in the fame County, it was held good by Jones,
Doderidge and Crew, becaufe x.\\<t Fnehohl is tn One an.', the f.xn:e Ccunty. D. 3;-. b. Marg. pi. 37.
cites Hill. 22 Jac. B. R. Rot 153. ArgoUl (Lady) v. Cheyney — Lat. 7 1. S. C. Palm. 402. S. C.
(E. a. 4) Claim or E!7try to av^oid a Fine. How, into
Part. In Rejpsci of the Place where.
I. In anEjeclione firms ibr Lands in Wales, the Caie upon a Special Difleifee of
Verdict was, that a Man feifcd in Fee of Lands, for Continuance of them Lands in the
in his Nctmc, and for the Maintenance of his Brother, makes a Leafe for 500 /("g'and C
Tears in ^rufi, that himfclf pjov.ld receive the Prof.ts during his Life, and entered by '
that afterwards, his Brother ftjould enjoy them ; with fome other Truits. Attorney in-
And afterwards being in P'offcjjicn according to the Trull, he Cow«^»/frt' ?° '^'''c Lands
V)ith other Pcrfons, (not \vith the Leffees) to fland feifed of the faid Lands, •" fi^e'^^'^Jje
upon the fame Confiderations as wcyq: mentioned in the Leafe, to the Uie of ^\\ ^f^
oi himfelf for Life, with Remainders over, according to the Trulls- jrWLandsinA.
llirther, that the faid Leafe and all Ffiates rnade, or to be made by himfelf, B and C.
Ihould be and enure to the fame Ufes 3 and levies a Fine, and 5 Tears pafs, the J\^ \^^w
Lefiir being in -Poffcfjiou according to the Trull, and enjoying the Profits ^^"J^^ not a
during his Lile 3 afterwards the Lejicr dies., and one of the Lejjees enters p;ood Entry
into p.irt of the Lands /'/; one County {-x'hich teas not ccmprifed in the Fine) ?'>•■ theLands
claivnn? <?// the Lands /// the ether County. It was inlifted among other '?"a~^"'^
Things, th.it this Claim was not well made, being in another County. L'ic'w'ho.is
/ii;d Hale, Ch. B. faid, th:'.t if a Claim had been requihte in this Caie,
Dddd . (which
286 Fine.
the Conufee, (\\.hich he thought it was not) there was no Colour whereby to make
&"^wifeS-' "^h's Claim good. Hard. 400, 401. Pafch. 17 Car. z. In Scacc. Focus
fbi-e the V. Salisbury.
Plaintiti" had
Judgment to recover. D. 537. b. pi. 57. cites 9 H. 7. accordingly.
(F. a) Claim to avoid Fines. JFhen to be made. And
in what Caies it may be made at any Time.
1. 1 2?. 3. 7. Confines^ the Claim of all Per [tns^ both Privy and Strangers^
(except Women Covert not Parties to the Fine, Perfons under Age^ in Prifon^
out of the Realmy or not of found Mind) to $ J ears after Proclamation.
Strangers^ to whom a Right comes after the Fine engrofs'd, r/iiijl claim
within 5 J'sars after fuch Right accrues.
Baron fcired Pemes Covert. Sc or their Heirs maft claim "within 5 I'ears after fuch
m Fee levy d i r a ■> j
, Fine with hi'perjeatons remov d.
Proclamations, and then was cutlaw'd of 'freajon, and died, the Feme living. The Conufces convey 'd
the Lands to the Queen. The 5 Years pafs after the Death of the Baron. The Attainder is tevers'd
for Errcr by the Heir of the Baron. It was refolved, that the Feme was not aided by this Claufc
to demand her Dcwer ; For in refpeft of tlie Baron's Attainder, fhe had no Right of Dower after the
Death of her Hn.^band, nor can have Aftion to recover it accordin<r to the faving. But by the former
Claufe fhe is to be aided ; For in this Cafe the Aftion and Ri^ht of Dower accrued to her after the Re-
verfal of the Attainder, by Reafon of a Title of Record before the Fine, becaufe of tb.e Seifm in
Fee and the Marriage before the Fine levied. 13. Rep. 19 !Ninian Menvil's Cafe. 3 Inlt. 215. S C.
. Mo. 639. S. C.
3. The Tear and Daj^ in which a Stranger was to make his Claim at
Common Law, was to be computed Jro?n the Thxe of the Fine levied, and
r •.; ^F ., fiot from the Execution filed. Co. R. on Fines i^.
Infant being, 4- ror that Perjons out of the Realm, at the Time of the Fine leviedy
Party to the amongll others having a prefent Right are excepted out of the Body ot*
Fine, and j^e Att, (which worketh the Bar ,) therefore, where he, that is beyond
/h'lt'Riffh''-'' ^^^ ^^ ^^^ Time of the Fine levied, and never returns^ is within the
if he did ' Exception, ot the A61:, he and his Heirs may enter or take his Afiiou at
during his In- any Time ; but in Cale he doth return, he and his Heirs mult enter, or take
jancy, he or j^jg ^ftion within < l^ears after his Return, z Inlt. 510.
his Heirs .
may enter or take his Aftion at any Time. 2 Inft. ^ 1 9.
So 'tis of a Perfon that is Non compos mentis, which is by the Aft of God, if lie die while he is Noit
compos mentis. 2 Inft. 519.
Or a Man in Pri/on, which is by Aft in Law, if he die in Prifon. 2 Inft. 519.
Or a Feme Covert, (which is by her own Aft) if flie die while ftie is Cozcrt, being no Party to the
Fine ; For all thefe are within the Reafon of the Cafe adjudged of hiin that is out of the Realm (whichf
going out of the Realm was his own Aft) and never returned. 2 Inft. 519, 520.
2. Wefton J. faid, that upon the Word (Accrue) in the Stat. 4 H. 7. if
the Father die feifed, and bis Eldefi Son be in Religion, and the J'viuigejt
Son [enters and] is diffcifed, and then a Fine is levied with Proclamatimis,
and 5 Years pafs, and after the 5 Tears the F.ldtfi is deraignd, he ih.iJl be
aided by the 2d Saving. PLC. 373.
2. If the Tenant ceafe one J ear, part whereof was before theFine, and PrcK
clamations palled, and another 2 ear ended afler the Proclamations. Now
thole 2 Years are but one Caufe or Matter which gives the Ceiiavit, and
not two Matters, and therelbre the Lord pall have his Cejfavit 20 Tears
after the Proclamations, and iliall not be bound to 5 Years. For the
Purview was not againit him, he having no Right at the Time of the
Fine, nor was this Title in Efle at the Time, tho' the Cefjer commenced
lefore the Fine, but the Title accrued all after, viz. at the End of the
2 Years. PI. C. 373. a. b. a Nota of the Reporter.
Wcft'sSymb. 9. Thofe that have neither prefent nor future Right, but only a Pofjihility at
^\% ^ %1 ^^ Time of levying the Fine, or whofe ^\<iyi\. groweth either entirely after
(j_,'., 'the Proclamations, or partly before and partly after, vci'dv Emer a.nd Chlm
when they pleale. As if the Husband doth levy a Fine of his Lands,
whereof his Wile is Dowable, and dies, and then 5 Years pals, &c. Yet
the
Fine. 287
the Wile is not burr'd of her Dbzvcr. For before his Death theWite
had only a PoJfibiHty of Dcjocr^ and not a Titk to It. Wood's Inft. 246.
10. A MiJfi feifi'd in Fee ot Lands, makes a Leafe for $oq Tears iu Traji^
thJt h'niifclfjhotild receive the Pro/its during his Life, with Remainders o\'er,
and ajterii^itrds being in PoJfeJ/ion, according to the Trult, he Gj'.'enanted
W!th other Perfons, (not the Lellecs) to ft and fei fed of the faid Lands, upm
the fdnieConJidcratiou-, as was mentioned in the iaidLeale, to theUle olhiw-
fe/fjor LiJ'e^wlih Remainders ovet- according to the fliidTruits, ^rW further,
that the faid Leafe^ and all Fftates made, or to be made by kimfelf fhoiild
be, and enure to the fame Ufes, and levied a Fine, and 5 'Tears pajfed, the
Lejjcr being in Poftcffion according to the Trults, and enjoying the Profits
during his Life; afterwards t\\c Lefjor dies, and one of the LeJJees enters
into Part ot the Lands in one County, not comprifed in the Fine,
claiming all the Lands /';/ the other County. It was inlilled among other
Things, that this Claim was not well made, being after the Death of
the Leffor, and Hale Ch. B. faid that if a Claim had been requijjte in
this Cafe, (which he thought it was not) there was no Colour whereby
to make this Claim good. Hard. 400, 401. Pafch. 17 Car. 2. In the
Exchequer. Focus v. Salibury.
II. A. deviled Lands to B. for Life, and if B. leave I[fiie Male, then to
fuch IJfneMale and his Heirs for ever, and if B. leave no Ijfue Alale, then to
C. in Fee, Remainder over. B.fitff'ered a Recovery to theUfe of him and his
and died. Ld C. Parker held, that upon this Recovery by B. he being
but Tenant for Lile^ and the Heir of A. having the Revcriion defcend-
cd to him, he had a Right of Entry commenced on B's f /firing the Re-
covery, but had no neiv Right of Fjitry on B's Death j and that this was
not like the common Cafe of Tenant for Life with Reverlion in Fee
to J. S. where Reverlioner may flay 'till the Death of Tenant for Lite^
but that here, the only Title, ivhich the Heir could pofftbly have, muft be by
the Forfeiture of B. For if there was no Forfeiture, the Remainder muft
go, upon B's Death, either to B's IfFue, if any, or it none, then, to the
Remainder Man. VVmS's Rep. 505, 506, 520. Mich. 1718. Carter v.
Barnardillon.
(F. a. z) Chmn or Entry to avoid a Fine. By ojohom to
be made.
I. Cefty que Ufe in 'fail. Remainder over in Tail, after the Statute of Bendl -"oc
£7 H. S. levied a Fine with Proclamations, and hadlllue and died within fcems to be
3 Years after the Fine levied. And the Ifllie after dies without Iffue, S. C. faysj
before any Entry made by the F"eofiees ; and after, within 5 Tears a ^^?'^Jf"^ ^^*
Stranger, (Friend to the Remainder Man,) -without any Warrant, Reqneft, with "the D--
'or Commandment oj the Feoffees, or any of them, entered pro * [et in'] Nomine mandant, and
of the Survivor, or the Heir of the Survivor of the Feoffees, to the Intent to that nojudg-
revive the Ufe of the Remamder Man, without naming the Survivor in "^'^"^ ^^''^ „
certain, ivko he was. This was found fb by Special Verdi£k. And the ?72^b J^i-k
Queltion was, if Good or not ? See D. 312. Trin. 12 Eliz. pi. 87. Anon, pi S-. fays, '
the Verdift
vas uncertain and void, becaufe the Entry was uncertain. Ld Sands v. Bray. Br. Entrc Cong. pi.
115. S. P. cites ; 1 H. S. that it is good and ihall avoid the Fine ; for that the Frank-tenement is in
the Feoticcs 'till they difagree, or 'till another enters. But Vid. Poftea Ld Awdley'sCafe. * Bendl.
307. Pro & in Nomine Fiend. pndiB. If^. Epfcoti L. tunc defiiniii fi idem Epifcopus fitit fuperviiens
torundem, iifc.
This Fine is
not avoided ;
2. It was agreed by the Ch. JuHices, that if the Difleifor levy a Fine
v/ith Proclamations according to the Stat. 4 H. 7. and a Stranger within p . .
5 Years after the Proclamations enter in the Right of the Dijfeifee, without ^°LJ^ ^ *
the Privity or Conlent of the Difleifee, that this fhall not avoid the Bar Words of
of the Fine, unlefs that he ajfent to it within the 5 Tears ; for the Words St-uute of
of the Statute are yo, that they purfue their Title, Claim ^ or Interelt, by way 4 ^ ','*T""
of JiJion, or lawful Entry within 5 I'ears, L^c And that,which is done bytf"al"Jd"d'
vf
Fine.
by Entry, another without their Alient, is not a purluing by them according to the
cy.T;^/;, or Intent of the Statute ; lor otherwile, Dy fuch Means againlt the vVill of
\vhoh,uRi'->}'t ^^'^ Difieiicc, every Stranger may avoid fuch a Fine, which is not the
ti:ereio,'xiihin Intent of the Statute. Poph. io8. Pollard v. Luttrell.
ile 5 Years.
And it is not fufScicnt for aSlranncr to enter, unlef;, it be ly Command oj Inn that has theRight.hm Gawdy
J. faid, that |-eradventui-e the .■lffrec)nei:t of Dijj'eijee 'xithin the 5 7'ears after fiicli Entry mnle in his
Name would ferve. But Agreement afterwards would not. ()uxre. Fopham, Ch. J. iaid, that all the
Julticcs in Seijcant's-Inn were of the lame Opinion in the Principal C.a(e. Cro. E. 561. Ld Audley v.
i^ollard This was an Ejeftment, and in Evidence in B. R. it was du'CCted by all the J u dices,
Popham, Gawdy, Clench and Fcnner, that if one be fei'ed of Land, to wliich another has Right ot
Entry, and the Tenant in PollelTion levies a Fine with Pio.lamation, that he, who Right has, ought to
cTiter in Pen'on, or make Warrant fpecial or CommatiiiDieiit to cue to enter for /w/, otherwife he doe- not
pre'eive h.is Right ; Fortho' he has Right of Entry, which naturally by the C'ommon Law may be re-
duced into PoflelTion by the Entry ot a i'triinser in his Name, yet it is not To ot a Claim to avoid a
Fine. Becaule tie Body of tie Statute of Fines binds tie Right unlefs tie Party claims within 5 Tears,
by which Eleftion is given to him that has Right at the Time of the Fine to claim or not, and fo
he ought to determine whether he will claim, or not ; and a Stranger cannot make this Election with-
out his Direction. And Popham Ch. J. faid that it was fo refolved about the 4 Eli.'., in the Ld ^tur*
fOU'S^dsft. Mo. 450. LuttereH'sCafe M0.45-. is, that Ld Audley the Dilfeifor levie 1 a Fine
with Proclarr.ations in 5 Eliz,. the Difleilee not knowing thereof, and a Stranger entered to the \J^q of
tlie Difleiiee before the Proclamations and 5 Tears expired. ^4nd now tie DrJJ'eifee agrees to tie Entry.
And Popham a'-.d Gawdy reported that it was the Opinion of all the Jurtices of England, that this
Agreement is not fufficient to make tlie Entry fo perfeA to avoid the Fine. Becaufe the Statute of Fines
is to be taken JlricJIy, being for Repofe and Tranquility. Ld Awdlcy'sCafe The Entry by the
Stranger was 'u.itbcut a-ny Comn:andwent p-ecedet.t cr .I'Jfent fulfeqaent ziithin ile ^ Tears, and it was re-
folved that this Entry will not avoid the Fine ; for the Saving in the faid Act has afprofri.ited the Pur-
fiiit, by <iL-.iy of Aciicn or lofJjfid Entry, to him that Right has either by Command p-ecedent, er Jjfent fiihfe-
ijHcnt ziitlni'the 'j Tears. Omnis enim Ratihabitio rctrotrahitur, & Mandate K,]uiparatur. 9 Rep. 106.
cited per Coke, who faid, that Popham reported openly in Court that fuch was the Opinion of all the
JulHces in Serjeant 's-Inn in Fleet-Street, againft the Opinion in 5 1 H. S. Tit. Entrc Conge.ib'e Br. 1 23.
3 . I'enant for Life is dijfeifed^ a Collateral Ancefior of him in ReverJioH
rcleafcd to the Diffcifr ivitb U arranty^ he in Reverfion came to the Land,
and there he claimed his Reverlion to avoid the Warrantv ; this Claim
iliall not avail him. Co. R. on Fines 14.
4. So (as it fee.ms) if Lcfflje (or Tears be oujled^ and he in the Reverfion
is flifleifed, the Leilbr cannot make continual Claim ; becaufe every con-
tinual Claim ought to countervail in Law an Entry, and becaufe bis Entry is
not lawjul^ his Ctana is not good. Tamen quaere. Co. R. on tines 14.
(F. a. 3) Claim or Entry hy one. In what Caics it will
{pivQfor a/?other^ io as to revive it after a Lapfe".
4 Le. Z17. I. ^:i'o 'Tenants for Life are dijeifed ly A. and B. if one of the Tenants
^* ^' for Life releafes to A. and the other Tenant for Life re-enters, he has
the Moietv in Common with A. and he has revelled the entire Reverfion
in him in whom the Reverlion was belbre. Le. 264 per Manwood J. pi.
354. 19 Eliz. C. B. Anon.
2. If a Difjlifvr le diffeifd, and the fecond Diffeifor levies a Fine^ in this
lawTuUyTor Cafe if the /^y? DiffctfoY enter within the Year, this Ihall preferve the
Recovers by Right of the Difleilcc; becaufe the tirft Difleifor by his Entry avoided
Aftion the whole Eftate given by the Fine, and yet the Difleife might have
within tU entered himfelf (& lie de limiltbus i) but it muft not have been an
theDaTafter empty Fine that fhould have barred the Right of a Stranger, but a Fine
the Fine le- compleat, as hath been laid. 2 Inft. 51S.
vied, the
Fine is thereby defeated, not only againft him that enters lawfully and recovers, but alfo againft all
rhofe who had more ancia.t Rieht than he who entered or recovered, per Saunders. PI. C. 558. a. in
Cafe of Stowell v. Zouch. And Dver accorded and fiid, that if Lord hy Difeit avoids a Fini
at cojwict! LaVy he has rellored the Right to him who levied the Fine, and fo has he whole
Etwry was lawful, deftroy'd, hy his E'nry, the Fire, av.d fet at large tie former Right of others,
which otherwife without Claim or .'Vclion within the Year i.nd Day would be bound. Ibid. ^58. b.
-('o. R. on Fines i;. cites i<) E. 2. Fitih. continual Claim. Arg. Mo. j.j'j. cites 6 E. 2.
Fitih tit. Continual Claim.
3- If!
Filler. 289
3. Jt" ii Di/Jiijor hdd vihh Feoffment in Fee iipunCoitditioii, and th^: tcof- After tlvj
fee levy J Fi>ie^ and the Yc.ir and Day pals, now the Dilieilee is barr'a j fi"-'7 ^'''^
But iV the Feoffor enter for the Condition broken^ now the J)Hicilee may ),^y(. ^.(j-,',g
enter upon him. Co. R. on Fines 13. cites PI. C. Scovvell's Cale. oi-" Jsiort-
djiiccltor
ag.unil the Abator, ( DilTcifor) -and he has no Defence againft him; for he caiwot claim i\ tin Coi:!!-
fee, "or nvder I ii F.Jlate, becaufc he has defeated his Ed.ite ; and if he will plead the Fine in Bar of the
AlTile, and that he has the Coniiiec's Elhite, the Matter of the Avoidance of the Eilite may be fhewn
in Avoidance of the Conclufion ; for he cannot claim Pi-iviledije by the fume Elhite which he has
defeated. PI. C. 3 58.b;
4. Baron feiled in Fee levied a Fine, and afterwards was otitlarjced for 'frea- 19 Rep. 19.
The Conufce conveyed the Land to the Crown, and atcerwards the '^- ^- ^ ,"'^-
Daughters and Heirs Reverfed the Outlazury. And 5 Years after tl;»e "''"' '
Outlawry and Death of the Baron, but within $ Years after the Out-
lawry re\erfed, the Feme lued to the Queen tor Dower. Relblved that
rtie is not barred by the $ Years after the Fine or Death of the Baron,
hecaufe then the Outlawry of her Baron was a Bar to her, but that llie
might have 5 Years after the Outlav/ry reverfed. Mo. 639. 27 Eliz. ia
Chancery. Menvill's Cule.
(F. a. 4) Claim or Entry, at -jjhnt Time to be made
I . where there are feveral future Rights, by feveral dif-
' th/£f Titles.
; 1. If yl. has FJl ate for the. Life of B. the Remainder to A. for the
Life of C. the Remainder to A.jor the Life of D. and A. is diffcifed, and
DiJJiifor levies a Fine with Proclamations. Now for the prelent Right
he has 5 Years by the iirlt Saving ; and if after 5 Years B. dies, A. lliall
have other 5 Years tor the next Remainder, by the fecond Savintr^ which
^i-ves them to other Perfons uiho have future Right ; and if after the 5 Years
C. dies, he iliall ha\e other 5 Years tor the fecond Remainder; per VYalch.
iind Brown, J. ailented to it, and cited the Rule, .G)uando duo Jura con-
ciirrnnt in una Perfona, icquiim t/i ac Ji efjent in Diiobus^ (or Diverjis)
And f") ot' three feveral Rights, &c. and fo fixid the others of this lide.
PI; C. 368. a. Mich. 4 and 3 Eliz,. in Cafe of Stowell v. Zouch.
2. Baron, feifed of Land in Right of his Wife., makes Feoffment upon
Condition^ anil the Condition is broken, and atter the Feoffee levies a Fine
with Proclamations, and the Baron dies, in the fourth 7'ear after the Pro-
clamations, leaving lllue bv the Feme, and after the Feme dies, and the
5 Years pafs, the Heir is barred to enter lor the Condition broicen, as
Heir of the Part of his Mother for her Right, per Bendloes, PI. C.
367. b. in Cafe of Stowell v. Zouch.
(F» a. 5) Claim, &c. at what Time. Where there are Jc^
vciyil lwped//mv/ts or Defe6i:s.
i. If a FenU who had preient Right, or when the future Right hap- Wei:. S i8y
pencd, was Covert, and -Hy'itbin Age, and oj Nbn San£ Memorise, and inipri-
jii/ivd at the Time of levying the Fine. Kow if i or 2 or 3 of thefe De-
Icfts or Impediments be renv^ved ; as if the Baron dies, and the comes
to her tijU Age, and is let out of Prifon, yet the 5 tears jball not com-
ineme till the lafr hnpediment is removed ; and when the is void of all Im-
pediments, then the 5 Years Ihall commence. PI. C. 375. a.
2. Eat it" theie Impc;liments are .di once removed, and any of them hap-
pen again ivithin a Month ajtir fuch Removal, (as if Ihe be again im- Well. ^.185
prifoned, or become Non Sansc Mem .'rise, and fo continue all the rft
of the s Tears, ur if at the End of the Month Ihe dies, her Heir ivithin
y/^f,) the 5 Yciir.-i once commenced Ihall proceed, and the Non-cl.iim
E e e e wicliin
290 Fine.
within 5 Years fhall bind the Party and her Heirs, as well as if Ihe had
been void of all Delefits or Impediments during all the 5 Years. PI. C. 375.
3. yliid tho' the Perlbns comprifed in the Exception of the Act, as Non
Sanse Memoria?, &c. were not under fuch Imperte6tions.at the Timeof
the Fine levied, but became fo^ ^g^i^ili their Wills, after the Fine, and before
the lajl Procldiuaticn, and io continued at the lalt Proclamation, thev are
not bound to the 5 Ifears next after the lalt Proclamation, but'lhall
have 5 Years next utter the Impediments or Imperteitions removed..
Affirmed by leveral Juitices, and denied by none. PLC. 375. in Cafe ofi
Stowell V. Ld Zouch.
(G. a) What fliali be faid, a Claim or Entry to avoid
a Fine.
I. r I 1 O avoid Fines hy the cominon La-s^ were 4 Claims ; viz. 2 hy Re-
JL cord and 2 by A6ts in Pais : viz. Ry Recced, [One was] a real
ABtoH brought within the Year, according to the Truth of the Cafe j
and the other was an Rntry of the Claim in the Reco-rd at the Foot of the
Fine ; Ry Pais, [One was] a lawful Entry into the Land, by him who
had Right (and Expullion of the Cognifee, or Tertenant) the other was
Continual Claim. PI. C. 359. Mich. 4 and 5 Eliz. in Cafe of Stowel v.
Zouch.
2. Claim to avoid a Fine by Bill in Chancery is not fufficient, but
ought to be by AHion, per Catlin. Dal. 1 16. pi. 9. x6 Eliz. Anon.
3. But if an Action to recover Lands, of which a Fine was levied, be
brought and difcontinued hy the Demandant, this will not amount to a
Claim. Vent. 45. Mich. 21 Car. 2. B. R.
S.P. For by 4. Note, It was agreed by all the Jultices, and by the Prothonotaries,;
4H. -. it that if the Diflcifor levies a Fine, and the Dilleifee in Prefervatiorf
muft be by ^j.- j^jg j^jght againll fuch P^ine, enters his CLmn in the Record on the Foot
Entry"2 Inft. € ^^^ ^'"^i ^^'^^ ^^^ ^^'"^ '^ ^°^ ^"^' ^"""'^ Claim as Ihall avoid the Sta-
5iS.Cb.) tute of 4 H. 7- 2 Le. 53. Mich. 29 Eliz. C. B. Bralier's Cafe.
5. Bringing a Writ of Dower, within the 5 Years after the Death of)
the Husband, is not fufficient to avoid the Fine, unlels it be lliewn, thaE,-
the Writ was returned by the Sheriff" j and delivering the Writ to him,
only, is not a Purfuing, Sc within the Statute. Hill. 30 Eliz. C. B,,
3 Le 221. Fitzhugh's Cale.
But if Dif- 6. If a DiJJeifvr make feveral Leafes for Life, or Feoffments in Fee of
feiror be of divcrs Parcels, and the Dilleifee enters upon the Diffeifor tn Name of all, or
3 Jcres, and ^^^^^ ^^^ Lejee or Feoffee in Name of all, this lliall not divert the Frank-,
them To'j.S. tenement, which is in the other Perfon i tho' it is all of one and the
for Tears', and fame Title. Co. R. on Fines 13.
another to J.
N. for Lije, and the third he retains in his Pofleffion, and the Difleifee enters upon the Dijfeifor in the
Name of all ; this fhall veft in him, as well the .\cre which was_ in Leafe for Years, as the Acre
which was in the Scifin of the Difl'eifor ; and the Reafon of this Diverfity is, becaufe every Entry ought
to pirfiie the Nature of his JHitin, and as the Diffeifee ought to have feveral Precipes againft feveral
Tenants of the Frank-tenement, lb he ought to make feveral Eutritt. Co. R. on Fines 15.
But if the '^- ^^ ^ •^*'' dijfeife me of 2 feveral Acres, federally, now the Entry
one difftife the upon One Cannot be the Entry upon the other. Co. R. on Fines 14.
ether, fo that , . _ '
all comes into one Hand, there the Ertry into one Acre, in Kame of both, is an Entry into both ; for
he may have a Pricipe. Co. R. Fines 14. cites 9 H. 7. 25 Co. Litt. 252. b.
8. But if I enfeoff one upon Condition of one Acre, and after I enfeoff
)\\iXi of another Acre upon Condition, and aftea- Ictk th» Conditions are
Irokeit
Fine. 291
■i^rokcn, it" the i'eolibr enteri upon one Acre, in rhe Name of both, this Cn. Litt
Ihall net \ elt bcjdi in him ; For by one Title the Feoffor could not have -)-• ^
an A6lion, iind always un Entry ought to piirfue his Attion. Co. R.
on Fines 14.
9. If I be dijjllfcd of 2 Acres^ which lie liverally, and />; [eve-
ral Places^ orF://s, and 1 enter ^e«fm//>' into one Acre, 'tis not an Entry
into both. Co. R. on Fines 10.
10. So in all Cafes, when the Frank-tetieiueht is oat of a Pcrfo/i, if rhe
Dilleilee enters gefura//j into one Parcel, this Ihall not re-continae ^w>(?;
For it juay be, float the DiJJcifor, or the Feoffee hath Warranty, and there-
fore the general Entry into one Parcel Ihall not defeat both. Co. R.
on Fines 14.
11. But if a Man be fcifed of looo Acres in Fee, and dies feifedy
leaving IlFue a Son and a J3aughter by one Venter, and a Son by ano-
ther Venter, and the Eldejl Son enta-s into one Acre generally, this Ihall
caule Pojfeffio fratris in all i For the whole Frank-tenauent in Laic was in
him before, and no Frank-tenement veils out of any Perfon in prejudice of
him, by his W'arnmty, or otherwile. Co. R. onFines 14. cites 21 H.7. 33.
12. Continual Claim msde otit of the Land, when the Party may enter
without /t'^r o/ Death, or Batte-y, is void. Co. R. on Fines 14.
13. So Continual Claim ihall not avail the Patty, when his Entry is
7Wt lawful, if it be not in Special Cafes. Co. R on Fines 14.
14. As if the Diileifee dares not enter without fear of Death, or
Battery, and he comes within the View of the Land, and claims the
Land, the Claim is void ; and yet Livery may be of the Land within
the View, but nothing lliail pafs, 'till the Feoffee enters. Co. R.
on Fines 14.
15. 'Tis iaid in our Books, that if the Diileifee dare not enter into the
Land for fear of Death or Battery, yet he ought to come within the View
bf the lame Land, or otherwile his Claim Ihall not avail him ; and
Iflue hath been taken in fuch Cufe if he was within the View, or not.
Yet Littleton fiid, that he ought to go as near to the Land as he dares.
38 Afi; pi. 23. is that if the Diifeifee dares not enter. Claim made a-
mong his Neighbours is good enough. Co. Rj on F"ines i^.
16. A Writ of Dower was brought by A. againjt the 'Tenant of the
Land, and he pleaded a Fine with Proclamations Ic'cied by her Husband,
.1^ 'Jac. in which Year the Husband died, and the Wife had not claimed
Within the Stat, of the 4 H. 7. 24. the Demandant replied, that 15 Jac.
Ibe brought a W^rit of Dciver again/} the now "Tenants, and againft two
ethers, and that the Writ abated by the Death of the two others, and that
Ihe brought a Writ by Journey s Accounts, the Tenant replied, that the
others were not Tenants, but one B. and it was moved that this Rejoind-
er was evil, for they confeffed that they themfelves arc Tenants, by
which the Writ is good againlt them at leall: ; per Hobert, if ihe brought
a W'rit of Dower againlt one who is not Tenant, that is not any Claim
within the Statute ^ but if Ihe be brought a Dower againll tour, v\ ho
are Tenants, and two die, and ihe bring a Writ againll the others by
Journey's Acounts, this is a good Claim within the Statute, tho' the
lecond Writ was after the Time limited ; but quxre here, if the two
who died were not Tenants. ^V inch. 66. Palch. 21 Jac. C. B. Summer's
(Anne) Cafe.
17. Entry in FjeBmcnt is not fufficifent to avoid a Fine. Mich. 21 Car. ^^^ <; ^
2. I Sand. 319. Clark v. Pywell. cited Show.
93. S. C.
adjudged. Vent. 42. Clerk v. Phillips & al. Per Holt Ch. J. Comb. 249 Smart v. \Villi<tms.
18. Claim of an Equity to avoid a Fine can be made no other W^av if it be of a
h\i\.\)\ Suhpctna, in Cales of lawful Entry or A&ion, Equity makes not '7'r«/?o.'-7';//(r
an Entry lawful. Trin. 28 Car. 2. iCh. Cafes. 278. Salisbury v. Baggot "' 'i"?'"'>) «
" • cannot b;: by
Er.t.s, but mull be by Subpxna. Per Finch C. 2. Chan. Cafes. \z6. Mich. 54 Car 2. Bovy v. Sraitti
aid Bovy. S.P. per Ld Keeper, Mich. 27 Car 2. i Chan. Cafes. 26S Clifford v. Afhby
19 Entry
292
F
ine.
At the End
of the Cafe is
a Note, thiit
it did not ap-
pear whether
the Debts
were all paid,
nor wliether
the Plaintiff
became in-
titled to the
PoiTcifion.
hmunhchy 19. Efifiy of Ranaifider jyaa, -within 5 Years altera F'ine le\ied by
r\"'l^'"r\ Tenant in Tail, will not lave his Right ; lor the Fine being a Dilcon-
1-8. in Cufa '^'■"'"^"'-'^5 J""-' <-'>-ight to make his Claim by jidwn; per Xorth. K. Hiil
of" Salisbury 35 and 36 Car. 2. Vern. 212. Staplecon v. Sherard.
V B.is;";ot.
If 1 Nfan liai Title h If'rii at the Qyrwwn Ln<ii\ and his Entry not Ltil-juI an Entry is not good to fave the
Ri{;ht. per Fincii. C 2 Ch Cutis. 126. Mich. 94 Car. 2. Bovy v. Smith and Bovy.
7.0. J. "-jL^as Lejfle for 99 7'ears.^ Remainder to R. for Life, Remainder
to C. ill Fee ; B. levied a Fi>/e^ and living B. the Leal} detert/uncd; on a Trial
at Bar '"twas ruled that C. might enter, nothwithlbnding the five Years ^
lor ji. continued the F'ojjeffion, which amounted to u Continual Claim by
C. Arg. Skin. 262. in Caie of Knight v. Greenvil.
21. Lands devifed to Truftees 'till Debts paid, and then to an Inline
and his Heirs, a Stranger enter i and levies a Fine, and Non-claim pals'd j At
lull Age, he brought Ejeclment and was barred, becaufe the Trultees
lliould have entered. ^Vithin 5 Years alter Age he brought his Bill in
Equity, and the Court decreal him the PolIclTion, and an Account of the
Profits, declaring the Fine and Non-claim fliould not run upon tlie Trult
in the Intant's Minority, nor he fuller for the Laches rf his Triijlees. Mich.
1699. 2 Vern. 368. Allen v. Sayer.
22. \and sAmi(£ 16. S.xd. Enacts, That no Claim cr Entry pall avoid a.
Fine laith Proclamations within the Stat. 2 1 Jac. i . of Limitations tinlefs an
ylttion be brought within one 2}ar ajter the making thereof and profecuted
with Etf'eif.
23. A Special Verdift was found in Ejeftment, that the Lejfor of the
Plaintiff, Ibme Time after the F.ntry in order to demife to the Plaintiff'^
had entered to avoid a Fine levied by the Defendant ; and becaufe this
lall Entry ought to have been previous to the Former, in order to main-
tain the Deniife of the Lelfor o^ the Plaintiff, it was debated, whether
the firll Entry in Ejectment was not o^ itfelf fufficient to avoid the Fine.
But refolved per Cur' that it was not. For there mull be an aliual
F.ntry.^ made * aninio clamandi, which, in Cale of an Ejcftment, there is
not, but only a fitlious or fuppofed Entrv for thePurpole of making a De-
mile, and fo the Word Entry in the Statute has been always expounded, and
extends not to an Ejectment j for the Statute meant thereby only real ylc-
tions ; whereas an Eje6lment is brought to recover a Term only j and
tho' the Lelfor of the Plaintiff is conlidcred to Ibme Purpofes, as the
Plaintiff himlell^ yet that is only by a Fiflion of Law, and extends
not to the prefent Cafe. Berrington on the Demife of 2!)0rUlCt i). JJittk'
!)ltt(l & al. Hill. II Geo. 2. B. R. which Judgment was afterward?
amrmed in the H of Lords, with the Advice of the Judges.
(G. a. 2) Barr hnmediate. In Avhat Cafes the Fine fliall
be a prefent Barr.
1. By the Statutes, i Ric. 3. 7. y 4 H. 7. 24 Privies in Bloody as Heirs
of the Cognifors, claiming by the fd?ne Title, that their Anceltor had that
levied the Fine, be barred prefently thereby, whether they be void of
Impediments or no. Welt's Symb. S. 1 82.
2. As if Land of Socage Tenure be gi\en to Baron and Feme, in Spe-
cial Tail, the Remainder to the right Heirs of the Baron in Fee, and the
Baron alone levnih a Fine with Proclamations to his own Ule in Fee, and
alter devilcth the lame Lands to A. in Fee, and hath Iffue, and then the
Baron and Feme die; the Iliue in Tail is barred, becaufe he cannot
otherwile • onvey himlelf to the Title and Defcent in Tail, than as the
Heir of the Body both of his Father and Mother. \\'elVs Symb S. 182.
cites Trin. iS Eliz. Dy. lol. * 251. pi. 24. Anon, t 9 H. 8. Dy. fol.
pi. 6. 32 H. 8. Br. Fines 109.
* 6 Mod.S4
Jilich. 2
Annae. IV R.
Ford V. Ld
Grey.
Dal. 225. pi.
25-. Mich.
16 El Anon.
Dal. in
Kdw.2i9.b.
pi. 24. S. C.
Anon.— And.
59.pl. 101. S.
C Anon.
* It fliould
be(;5i.b.)
4: Itfhould
bcCi?.)
3
3. If
■,t^ ii\mim'*mmimi^
Fine. 293
3. So it' Husb;ind and N\'ile, Tenants in Special Tail, haz-c Iffhe, and
the \\ltc die, and the Hn^huud inan-ics dncther lilfe^ and has IJJtie^ and
levies a Fine Sur Cognifunce de Droit come ceo, ^c. and by the fant: i'lue
takes EJidte in Sptcial Taii^ the Remainder over, &c\ and dies ^ ths liluc by_
the firlt^\'it"e is barred, becaufe he is privy in Blood, the Continuance of
the Polle/lion, in the Husband notvvithllanding. ^Velt's Symb. S. 183. ^ j^ (j^ou^
cites 32 Ed. 3. * Dy. pi. 16 Elii. t'. 354. p. 31 and 32. be 16 Elu.
4. Ent it my Fa'ther's Brother dijjafc him and levy a Fine with Procla- Dy. 554. pi,
m.ition, and mv Father and Uncle "-jvithin 5 J'cars after JProelamation die, S^-
yet may I a\oid it by Entry at any Time belbre the End of the 5 Years,
notwithilanding that I am privy in Blood unto my Uncle ^ lor that w/y
^itle to the Land grozceth by my Fathsr. and not as Heir unto mv Uncle.
Weft's Symb. S. 182. cites Palch. 19 Eliz. Dy. 9. pi- * 3. ' */' ^"'■'J'^
J. Never thelefs, if ni)" Father dijjeife my Grandfather of an FJiate in Fee, '"^ <•? • - J
and thcreot' levy a Fine with Proclamations, and firji my Grandfathtr
and then viy Father dies ; 1 am now barred as Priv)-^ becaule I cannot
otha-jvife convey myfelf to tlie Lands, than as Hdr unto my Father the
Cognifbr. P. 19 H. .S. Dy. Ibl. 3. pi. 3. Well's Symb. S. iSa.
6. Tenant in Tail, fcifed of 300 Ares, levies a Fine of 100, 'tis no
Bar of all, or any Part, 'uil'Elefiion niade^ and 'till Ekition the Lands
remain entail'd. Arg. 2. Ch. Cafes. 185 and 187.
(H. a) Huz:j the Five Years Ison'dahn and Entry to be
AccoMitid.
I. A "fenant in 'Tail, 'Remainder to B. in Fee, A. levies a Fine v.Ith q^^ ^ ^j^
J~\,» Proclamations, B. dies, his Heir ivithm Jge, Ic. of the Age oi Hill. ;; El.
5 ^ ears ; A. dies without Ilfue j lb that the Jnfmt may bring his For- B. R. Smy v.
medon in Remainder, but fuHers 5 Years more to pals after the Title ^'i""°-
accrued ; yet he may ha\e his Action after, within AgCj nc;r\vithlland-
ing the 4 H. 7. 24. which faves and reler\es the Aftion or Claim of the
infant 'till his full Age, and tliat then he Ihall have 5 Years. Mich, 3
and 4 P. and M. Dy. 133. pi. 2. Ballet's Cale.
2. A. Difl'eifor marries B. the DiJJeifcc, and they have Ilfue; C. dijfeifcs A. if Tentint in
and levies a Fine with Proclamations, and A. dies in the tburth Year after Tail isdu-
the Proclamations, lea\'ing Ifl'ue of full Age ; afterwards B. dies ; the ''-"i'c'l, and
5 Years pais. The Ilfue is bound as Heir to A. his Father ; For in t\i:it [^ff'^'plfl
Refpecl he and his Father had 5 Years together. But, as Heir to .^vith Pro-
the Mother, he lliall have 5 Years from the Death of his Father ; P'or cUmations,
•thn"tis ihe fame Land, yet he hxs, feveral Rights -^ one as Heir to his a"d 5 Years
Father, which is the kit, and another, (which is firlt) as Heir to his P^*^' il^'^^
Mother ; and \'o h;is fiveral -Times ^ per \\ allh J. Mich. 4 and j Eliz. PI. ^.. q-^^,j ^,fj^
C. 367. b. in Cale of Sowell v. Zouch. the IiTuc in
Tailisbair'd.
For after the Fine levied, the Tenant in Tail himfelf had Right, To that the IfTue was not the tiril to
v.'hd'n the Right accrued aiui dclcciided after the Fine levied. ; Rep. S;. b. Palch. 4.v Elii. Ths
<;ale of Fines.
3. T-ji'o Jointenants are dilleifcd, ^vhereof one is -u-'ithin A^e j the
Diiieilbr levies a Fine with Proclamations; 4 Tears pafs aliier the Procla-
aivations ; and alter the Jointenant, being of fall Ah, dies before the j Tears
fafs^ the other withinAge; the InfmtSurvi\or Ihall ha\c j Years atter his
lull Age, as uell tor the Moiety, wliich was in his joint Comp.^nion, who
was of full Age, as tor the other Moiety ; For the Kight of this Moiety,
which was in his Companion of full Age, firft accrued to him after the
Proclamations made, by Force of the Caule or M.irtcr, \iz. by the
]t)inture made belbre ; And fb 'tis within the Words and the Intent of
of the Branch, notwithftanding that the Moietv \s;j? in his Companion
F f f f ' bclore
!294- ^'ii"J^'
bctorc; Itir 'ci.s in him now in other Form, per Bendloe. Serj. PI. C 367,
in Calc c^t' Sti^nvcU v. Zouch.
4. A JJiJJcijhy, or ;i FeoHec of a DilFcifor, levies a Fine ^^-i:h Procla-
mations, 4 J cars pufs in the Life of the Dijcifce -^ the Dilieill-e diesj his
Bc/r being -aithtii .igc ; he biTs only one I'e.'.r to claim in ; P'or fuch Fine
with Picclamatinns, \\ ithout any Claim in 5 Years, is as a Condition
annexed to the Eltate ; and altho' luch Condition del'cends upon an In-
lant, yet he is liable to the Breach ot" it, as well as an Heir ot lull Ao-e.-
Kspain Rcipiiblhw lit Jit Jiiiis litnivi. By all the Judges of England.
Jenk. 266. pi. 74. cites 5 Eli?,.
PLC. 5:5. 5- It ^ ^^-^r> has vuviy Inipcdimcnts^ he is not compellable to make his
('laim btlbre all the Impediments arc removed ; fo if the Jncc/ior has one
of the laid Impedimcnrs, and dies before it be removed, and his Heir
lutbin yigc^ or hath other Impediment, he is not bound to make his
Claim 'nil 5 Years after his Impediment is removed, per Andcrfon Ch.
j. Le. 215. Mich. 32 and 33 Eliz. C. B. Cotton's Cafe.'
6. Tenant Jor Lijc and J. S. joined in a Fine Sur Cognifmcc de Droit
come ceo, &:c. to a Stranger, who rendered to J. S. lor 80 Years, Re-
mainder to the Tenant lor Life in P'ee. Proclamations palled, and the
5 Years palfed without Entry by him in the Reverlion. 'fenant Jor Lije
died i the Quellion was, if he in Reverfion fliould have ctber $ ^cars^
and it was adjudged he Ihould, and fo it was adjudged in@ontC0'0 Cflff»
7 Eliz. Cro. E. 254. Trin. 33 and 34 Eliz. B. R. Laund v. Tucker.
* I'd the Er- 7- Graudlathcr, Father and Son, tha Grandfather is fcifedfor Life^th
iher in 7ail. Remainder to the * Son in Tatl^ Remainder to the right Heirs nf the Grcrnd-
Dai-i. father. The Grandfather covenants by Indentuae to make Alfurance to
(.10. E. ^570. j_ g 3j^(j jj-^^j. jj. j},^^ui(j i^g fQ j.}jg ufe of him and his Heirs ; and after
5 Rep. 17. ^^ fullers a common Recovery againft him, and levies a Fuie'to the laid
^ Rep. 6z. J. S. come ceo, i^c. and Proclamations upon it, and ajter the Statute of
^^?^J^'' ^7 H. 8. is made, and the Grand fither makes Feoffment to the Son and
V Dobk^^*^ dies. It was held, that the Entry of the Father upon the Son is
lawful, and fliall not be eftopped upon the Warranty of the Grandfather ^
lor this is gone by the re-taking of the FJiate ; For ivhen the Statute vejis as
high a PcfJcJ/ion in him^ as he had "X'hen be alicfid, the Warranty is ex-
tmtJ ; For the Stat, ot 27 H. 8. does not fave the Warranty.- And there
Dyer faid, that tho' the 5 Years are palled in the Life of the Grand-
lather, fo that the Entry which w as given by Caitfe of Forfeirure is taken
away, yet when the Grandlather died, now he Ihall ha\e other 5 Years
to make his Claim or Entry, for Caule of the Title coming to him by Re-
mainder in Tail ; and this by the Statute of 4 H. 7. Mo. 71. pi. 192.
A r-^odb^*^ 8. Difcontiniiec of Eftate Tail levies a Fine, thelll'ue ihall f not ha\e 5
-of' that "^^^ Years. D. 3. pi. 2. Marg. cites 34 Eliz. B. R. Holme v. Gee.
tho* 5 Years * Contra, per 5. J. againll 3, D. 3. b. Paich, 19 H. 8. Anon.
pals in tlie
Lite of Tenant in Tail, yet tiie IlTue fliall have other 5 Year.s. For lie is rhcfrfr to ii-hm the Ri_^l.'t
(foth accriit after the Fine levied. For Tenant in Tail iiimfelf after his Fine with Proclamations hath
rot any Rif^ht. Eut if Diffeifir of Tenant in Tail levy Fine with Proclamations, and 5 Years pafs
and afterwards Tenant in Tail dies, the Iflue is barred ,' bccaufe after the Fine, the Tenant in Tail
Jvad Right, and fo the lii'ue was tiot the firft to whom the Right accrued after the Fine- •; Rep.
5^- a. b. Cafe of Fines. Refblved accordingly Trin. 44 Elu. C. B. Cro. E. Sj'd.Penifton v. Lvfter.
PLC. 375. b. 574.- ♦ Arg. Godb. 515. Contra.
9. If a LrinMick, or Nbn compos, levy a Fine of Lands, the 5 Years
begin at his recovering his Senles, and he mull: bring his Action within
5 Years after; and in Pleading he fliall fliew, that at the Time of the
Fine, he was Niw compos, and all the fpecial Matter ; but if he die
without reccnering his Senles, his Heir ihall have his Action, or make
his F.ntry when he will ; for he is excepted out cf the .4[i, and is bound to
no Time. So oi being ever Sea. 4 Rep, 125. b. Pafch. i Jac. £. R,
Eevcrlcv's Cafe.
s
.10. A,
- •'-— — ^ — -
Fine*
29^
10. A. hiving cUi Ditcrejfe Tcniiifii died. The firlt Term expired. Lel-
Ibr enters and levies ;i Fine \virh Proclamations, before any Adniinillra-
tion committed, and After 5 77'ai's Admifiijiration is had. Refolded that
the Adminllrutor ll.all have 5 Ycary ; lor none had Title of Entry
before. Cro. J. 61. Hill 2 Jac. B. R. cites it as the true State of the Cale
of Sanders v. Stanford.
11. hifdiit ill Ventre fd nwe has 5 Years after he comes to full Age.
Mi'cll'sSymb. S. 183.
12. J. 'Tendut in 'fdil Mak^ Remainder to B. in Fee., makes a Leafe for J0209.S C
three LtveSy ivtth U'drr.nity againlt all Perfons, which was not Warranted hy yf I^l^.^-.^*
the Statute 32 H. 8. 2S. and atterwards levies a Fine with Warranty ^^^^ ^^ar-^
againll: all Perfons, and with Proclamations, and dies without Ifliie Mule, r.ntcd, but
leaving M. a Daughter. About 2 Years alter the Fine levied, the Leale bccauie it
lor Li\es expired J and about 12 Years after, B. died witlioutllfue, M. ^i;.'' Y"''
being Heir at Law to him as well as to A, Adjudged that M. was barred, that'^malic it
and that B's Claim mu*L have been w ithin 5 Years after A's Death, become not
and not after the Determination of the Lives, at which I'ime B. had no warranted )
other Title than he had before. For his Title was by A's Death, with- ^.^"^ p'"
out Illiie Male, and then he might ha\e brought his Formedon. Cro. C. of ^cen v'*^
156. Pafch. 4 Car. B. R. Salvin \'. Clerk. This differs from Sey- Copi- is o--
niour's Cale. For there the Reverlion was not difplaced, nor a Fee gaiii'd., tliei-wifcjviz.
as in this Cafe it was by the Leale ha\'ing in it a NN'arranty againlt all ^^'■^^ ^^ **
Perfons, and fo not warranted by the Statute. Ibid, cites 10. Rep. ^^^ bydieSw-
96. Sejmour's Cale. tute. .
Vaiijjhan Ch.
J. f:iid th.it this Cafe is all falfe and mif-repoited ; and that, i. bccaulc it fays that the Le.ilc for Live^
vas a D;f-oritixti^t>!ce of tie Rezerjion, and thereby a ?.tw Fee gained to '■Tert.i7it hi T.i:!, v. hich he piilled
away by the Fine v. ith Warranty, which (he laid) could not be; for that it appears in the C:ile,
that the Leafc was warranted by tlie Stat. ;; H. 8 28. and lb could make no Dilcontinuance, nornw
new Fee of a Reverlion could be gain'd, and tlien no Ellatc to which the Warranty was annexed, and
that fo it was refolved 40 Eliz. jiiCfUC tj. tope ; and idlv, that Opinion wss Extraiudicial, it bcinjj
concernint^ a Point not in the Cale, but fuppofed ; as iuppoling tltcrc had no Proclamitions been m;dc,
and no Non-claim; and ^dly, It was velolvcd upon the Point of Non-claim, and not upon the V\'ar-
ranty which was not a Point in the Cafe. Vaugh. 585. Midi. 25 Car. 2. in Cafe ot Bole v. Horton. .
The Statute of 4 //. 7. operates by way of B..ir t» the Right which aniwers Saul and Clerk's Cale. Jo.
210, 211. 2 Salk. 422. in Cale of Hunt v. Bourne.
13. A. devifed Land to J. .S. an hifant m Fee. The Heir at Law of A.' Cro. C. 129.
Le\ics a Fine and the I»fa//t dies., leaving AJ. his Sifter married to VV^ R. ^ Cii'^^ate.!
who lets 5 Years pals without Claim. Tho' \\". R. and all claiming c^,;vnberlairt
under him are bound, and the Wile herfelf during the Coverture ; yet v. Turner,
ihc Ihall ha\e a new 5 Years after her Baron's Death, (^ro. C. 200. Mich. HutonaD.P,
6 Car. B. R. Hulm v. Heylock.
14. A. felled in Fee, aikiwxledged a Statute Merchant to B. and
after a Recognizance in the Nature of a Statute Staple to C. and
then another Recognizance of the fame Nature to D. and E. — D. and F. •• »
extend and had a Liberate ; and aii;er R. extends and has a Liberate ^
<t»d then C. extends and has a Liberate; B. and C. ajfign to F. — A.
heing ill PolJcffion, levied a Fine with Proclamations to J. S. 'echo
being leifed ia Fee divifcd the Lands in Queltion to F. (ivho had Pol-
fejion of the Lands by Virtue of the JlJigmnent of £. and C.) and to his
Heirs Addle., Rimainder to the Daughters of yj. — And F. being fofeif'ed k-vud
a Fine with Proclamations, and died without Iftue Ahle ; and L. and
M. are the Daughters and Heirs of A. and alfo Heirs to F. — ^Te.irs
fafs ; and alter the Wile of the Defendant, teing Fsecutrix of the Sur-
vi\or oj E. and D. took Ainiiniftration de Bonis non to C. and acknoivledgcd
Satisfacfton upon Record., to the Statute made to (J. and upon this the De-"
fcndant entered, upon whom the Plaincitfs (having married one the L.
and the otherM.the Daughters and Heirs of A and Heirs of F.) brought
their Ejeclnients, & li, &c. It was argued, that B's Statute uas extinit,
and C"s in Eiie, but this is by their coming both into the lame Haml,
and not bv the Fine of A P'or when both B's and C's Statutes arc af-
figned to F. he is lolely polfelled by Virtue of the Statute to C. bccaule
B. had a lurrendcrabk Eftate, and C's Extent w as of a Reverfion-
aiid
25>6
Fine.
and capable of a Surrender, and tor this cited D. 280. COrt)Ctt'0 CilfC,
and that w lien the liicond Statute is extended it is oi' a Re\ erlion, and
beinii; alter ;;/ the fauic Hmid^ :s iin Kstiupjiilhiiiait of the firjtj and lor
this lites Crt).^ J . 424. jf lUTUlgtOlt V»* €»arrOU)aP, ;ind 4 Rep. 66. and fur-
ther that B's Statute is drown (1, and C's is nut, but the intermediate EX-
tate i>f D. and E. pre\ cnts it, and it this is in cff'c^ then after Satisfatiion
i:ckmi--xli:(hed a »viv 5 I'cjvs iucrtial ; For acknowledgment oi" Satisfittion
js a natural ^\'ay ,..) determine a Statute. And Judgment was given lor
the Detendant. Skin. 260 to 264. Hill. 2 and 3 Jac. 2. E. R. Knighc
\. Green\ill.
15. A. was I^Jfce for 99 liars. Remainder io B. for Life, Remainder
to C. in Fee j B. levied a tifie, and living B. the Leaje deter tinned, "twas
ruled on a Trial at Bar, that C. might enter notwithitanding the 5 Veans^
Vov yl. (cntinued the Poj}e[]wu, wliich amounted tJ a Continual Claim
by C. Arg. Skin. 262. in Cale of Knight v. Greenvil.
16. If 'Tenant for Life levies a Fine, and he in Rcvetjion docs noc
enter or claim within 5 Years, he cannot enter tor that Fi>rteiture ; but
mtiji flay ^ till a ncisj Right of Entry accrues to him by Death of the Tcr
nant lor Lite. Arg. Show. 43. cites PI. C. 573.
LelTor lias J7- Lellee tor Lite is dijlcifed, and a Fine is levied, and 5 Years pafsj
5 n.ns dur- the Leliee is barred, and ttie Remainder-nmn has 5 Years atter the Death
h'.g the Life ot" Lellee tor Lite. £ut can the Remainder-man ha\e 5 Years, if Lcjfif
'.' '''^ .^'i'" for Life fimcnders, or can he furrender atter his Kltatc is barred? per Pol-
claim in • or i^ixlt^ii, Ch. J. Show. 46. Trin. 1 \\". and M. in Cale cf Dighton v.
5 rears after Green\ il.
i !j De.ith, at
his Election ; fur he has 2 'fitles, one after tlic Death of Leffce for Life, the other by the Forfeiture
of the faid Lellee ; and if he does not thiiin within 5 Vcarsas above, after the laid Forfeiture, lie Ihall
have other 5 i^ears after the Death of the Lcilee for Life. Jenk. 254. pi. 45.
18. If an Heir in Tail brings a Forviedon ivithin 5 7~cars after Fine kv/d
ly n Difontinttee, and pending the P'ormedon, and alter the 5 Years, the
IHue dies ; Holt, Ch. J. thought it reafonable that the next Heir in Tail
Ihould have Benefit ot this l-'ormedon, by bringing a ne'jj one in convenient
Tini£. But he laid that this has not been determined. And that it is
plain that Journey's Jccottnts will not lie ; tor that mult be between the
Parties to the firll Writ; and the new W rit mu.1 be the fiime as the Ibr-
mcr ; and the Writ, which lay lor the Ancellor, is not the iiime, which
lies tor the Illiie, but is of another Nature. 12 Mod. 572. per Holt Ch.
J. Mich. 13 W ill. 3.
1 9. He that has a Right of Reverfton, or Remainder cxpeifant on an
FJiate Tail, or for Life, Ihall have 5 Years after their Title come unto
tiiem, as appears by the 4th H. 7. 2 Inll. 518.
S. P. and 20. Thole that ha\'e no prefent, but a future Right upon a precedent
Jo I a . ori- Q,,fr, r^f^^ whole Right and Title conies to them after the Proclamations:,
fcifed. Weft's ^uch Strangers to Fines, being \c)id ot Impedmients, ha\e 5 Years atter
Symb. the coming of fuch Rights to enter and make their Claim. (Vid. i Ric.
♦ pf ^" — 3' 7- 4 H. 7. 24.) Jls in the Cafes of a * Remainder or Reverjion. But if
' ■'•■'■■ thcfe ha\e Impediments, they Ihall have 5 Years too after the impediments,
removed, bclbre their Laches lliall be prejudicial to them. Theretbre if
a VYitc does iiirceafe her Time, and 5 Years pals, after the Death of the
Husband ^ upon a Fine levied ot her Inheritance or Freehold, Ihe is
barred of her Right, and cannot enter by Force of the Statute of the
32 H. 8. 23. Wood's Inft. 246.
VS'licve Le''- 21. jind if Tenant for Lite makes a Feoffment in Fee, {to one who has
fee for Years Land iu the fame Fill. 3 Rep. 79. in Fermor's Cale.) and the Feoffee
flakes a Feo] - Jcvieth a Fine with Proclamations, it ihall not bind the Lellbr; bat he
r'""' ""^ Ihall have 5 Years after the Dc.uh oi' the Tenant tor Lite. Wood's
ie\ies a tti.e, , ,, -
and 5 Years *"". 247.
pafs, the Court
¥i
\m
nc.
297
Court rclblvcd tiie Lcilcr ftuuld have 5 Ycirs ui'tcr tlic Tcmi cxjui-ed, ,i.> well m v, i-.trrc a F:r.c is-
levicd bv Lcll'ee t'ov Life, whkli ditlcrs r.ot t)-(;m t!iis Cull' ; for tiicre the Leiibr irav liavc hi.< \\"nc
dc Conltmili Cafu, as here he may briiw \,ix AJile. Vent. i^i. Hill. 24 and. 25 dr. 'i. B. Li. VVh.-slev'
V. Tailored. 2 Lev. 52. S. C Raym. 21;;. S. C.- ; Kcb. ;d. S. C. . '
22. But upon a Dijfcift/i of 'Tenant for Life, and Fine levied, theLcilur
and Lelicc ha\e but 5 "^ earn atler the Fine. Fur Diiieilor comes in openlv,
and withfjuc thie Conlent ot the Lcliee. But C^u.'ere ; For the Leiior
Icenis to be within the feeond laving ot" the Statute ot" the 4 /£ 7. Sj-j/u^.
to alt Perfoin fuch Atfwiis, ^c. as jhall come after the Fine levied^ ^r.
And therefore he fliall ha\e 5 Veur-s alter the Action accrueth. Wood's
Inll. 247.
(H. a. ^) Barr by Non-claim. The E/liitc hying tnrud to
a Right. In ^vhat Cales the Eftate ihall be laid to be
turn'd to a Right.
1. It was agreed, that Fcoffinent or Fine Siir Conufance de Droit ccvie
ceo, que il ad de Ion done, are difcontinuances ; P'or thele are executed
in themlehes, and- are a TranfiTiutation of Pollelfion ; contrary of Fine
Sm- Cauifance de Droit taHtuiii, or Fine of Grant and Render. Br. Difcont'
dc Poliellion. pi 2. cites 8 H. 4. 7.
2. Tenant in Tail, the Remainder in Tail; the Tenant xnTixA Bargains *ByInden-
and fells the Land * to A. and afterivards levies a Fine to A. Sur Cognu- ture inrolled
zance de Droit come ceo iviib U'arrantj ; this Warranty was made by in Chancery,
the Collateral Anceltor of him in Remainder, whofe Heir he is, ani l^F^'^.^' ^^'.-
therefore Hull not bar him ; For his Rehiainder iaas not dif-placed : It Cafe '
had been other-xifc //'the Fine had been levied by the Tenant in Tail/r,'(/ir S. C. cited
the Bargain and Sale; For then it had been a Difcontinuance ; but by the per Holt Ch.
Bargain and Sale, made as above, the Bargainee had a Fee determinable upon J'^ ^^^|f?""
the Fjjtry of the IJJiie, and he in the Remainder has his Remainder open barcains ard
upon Default of Ilfue of Tenant in Tail, who in this Cafe has/).r//t'^r' fell.sroB. and
rJl his F.fiatc by the Bargain and Sale, and has nothing more to pafs, hisHeirs;and
but to extinguilh the Ellate Tail, by Way of Releale, and to leave the i^^/'?"".
Remainder untouched. Jenk. 51 pi. 97. cites 10 Rep. 95. b. Mich. Bar-^aincx ''"
10 Jac. t Seymor's Cafe. had^'a de-
fcendible
Eftate, whereof his Wife was dowable, and that by the bare Bargain and Sale ; and tho" there was a
Fine after, whicli barred the Illue, yet that ottlj exclmieJ the fjfiie w'Tail, but tiot erJar(red Ihe Eftate of the
Bargainee ; For if he had not a Fee before, the Fine could not have given it to iiim ; tor it did
t:ot ivork by Jf'jy of Enlargement of an Efiate Farr. 24. In Cafe of Machlll v. Clerk. Holt Ch. |.
held this (Jafc to be good Law 2 Salk. (Sij.— — | Buls. 162. Trin. 9 Jac. B. R. S. C by the Name of
Hey wood v. Smith.
3. Tenant for Life, Remainder in TaU ; he in Remainder levies a Fine 3 Rep. 84.3.
Sur Conufance de Droit come ceo ; Tenant for Life dies , he in Remainder ^.•^p^•^'^
dies; his Heir claims or brings a Formedon after the Proclamations banvc'rs's
and s Years are palled ; This Fine burs the Ellate Tail. If the Procld- c.ire. Mo.
vLitwiis h.ixl not been made, there would have been no Difcontinuance 6iS. S, C.
in this Cale ; For he in Remainder was not feifed bv Force of the Intail.
if he had been feifed by ForLe cf the Intail ; liich Fine "xithout Proclama-
tions, had been a Dilcontinuance. By all the Judges of England.
Jenlc. 274. pi. 96.
4. If Land is de\ ifed to A, and before the Entry 'f Devi fee, the
Heir at Lazv levies a Fine, and 5 Years pafs ^vithout Claim, yet this is
no bar ; For Devifce not ha\ ing; entred the Eltate was not turned into ii
Right. Cro. C. 2co. Mich. 6 Car. B. R. Hulm v. Heylock.
5. Feofiinent to J. and his Heirs, J^uouf-ae Tuch Sums be paid, and M«>-( '^'
on failure, the Feoffees to enter ^ ^c. rl.ere is a Failure ; Feoffor levies a ^"^ ^"f^"'^'
Fine, and 5 Years pafs • Feofie ■^.• ciuer not ; the Fine bars. Cart. 82. u"'L'uA^.
Tnn. 18 Car. 2, C, B. Thumaf]n v Mackwonh. le.fe,x\Mn A.
G g g g levies
'**
298
F
ine.
levies a Fine, and 5 Years paft. Bridgman Ch. J. held tliat by the Leale and Releafe, the ElKit-Msnow
turned to a Rii'ht; For after Faih:re, J. ii tut Tcfi/int at fnffQrar.ce; and his making a Lealc is a DilTeifin
and fo the Eliue turned to a Kiglit, and alio by the Keleale, which was a Mcdling with the Land,
andbein" fo turned to a Right, i'ine and Monclaim bars. Cart. 82. Thomalm v. Wackworth.
6. The Law conftrues fuch A6ls to amount to a Develling, or not Be-
velling as is vioji agreeable to the Intention of the Parties^ and the Right of
the Things per the Ch. Juftice. Trin. 22. Car. 2. B. R. Vent. 81. ia Cale
of Freeman v. Barns.
7. A. feifed in Fee of Lands, makes a Leafe to W. R. and W\ ''^■fir Soo
Tears in Trtifi^ that himfelfpjotild receive the Projits daring his Life; and that
afterwards B.Jhould enjoy them, &c. Aftcnvards A. being m Pojfclfwn ac-
cording to the Truft, Covenanted with J. N. and jf. D. to Jtand feifed of the
faid Lands upon the fame Conjiderattons as mentioned in the Leafe, to the
Ufe of himfelf for Life, •\\'Ith Remainders over according to the Trult ; and
further, that the faid Leafe, and all Efiates, made, or to be made by himfelf,
potild be &n& enure to the fame Ufes ; and levies a Fine, and $ Tears yajjed
A. being in PoJJeJJton according to the Truft, and enjoying the Profits du-
ring his Life ; A. dies ; and W. R. enters. Hale Ch. E, held that No-
thing had been done here to difplace the Eftate of the Leflees ; For the
Leilor continued in Poflellion by the Leflee's Leave and Permiffion, as
muft be prefumed, and fo is a Tenant at Will, as Littleton fays.
Hard. 401. Focus v, Salisbury.
8. So if LefJ'eefor Tears be, the Remainder over for Life, and Leflee
for Years levy a Fine, and 5 Years pafs ^ the Lelfor is not barred by any
Nonclaim ; becaufe the Fine Operates nothing, and Partes ad finem ni-
hil habuerunt may be pleaded to it. Otherwtfe it is where a Tenant for
Life levies a Fine j for he has a Freehold, and his Fine difplaces the Ke-
maindersj and therefore an Entry is requilite within 5 "i ears after the
Death of the Tenant for Lite, for which Reafon when a Leliee for Ye.ar3,
or at Will, is to levy a Fine, 'tis ufual for the Leliee to make a Feoffment
firlt, to difplace the other Eltates ; but here the Leafe for Tears is antecedent
to the EJlate of the Lejfor, who levies the Fine, and he has a Freehold expec-
tant upon the Leale, and not precedent to it, per Hale Ch. B. Hard. 401,
402. Focus V. Salisbury.
9. A Fine with 5 Years Nonclaim muft bar an Eflate precedent to
the Fine, not Subfequent to it^ and where there is a Privity betwixt the
Leflbr and the Leliee, the Fine Ihall not bar ; as in Cafo of a Mortgage,
where the Mortgagor continuing in Pollelfion levies a Fine, per Hale
Ch. B. Hard. 402, Focus v. Salisbury.
10. ^Wthis very Cafe was adjudged inTerminis for twoReafons,Firft,
by Reafon of the Privity betwixt the Perfons ; Secondly, becaufe the
Leflor was in the Nature of a Tenant at Will, and there was a mutual Con-
fidence betwixt the Parties, per Hale Ch. B. Hard. 402, cited it as the
Dutchels of Richmond's Cafe.
11. If I make a Leafa for Tears of my Land, rendring Rent, and a
Stranger levies a Fine ot the Land ; and the Leffee for Years payeth his
Rent to me duly, I am not barred of my Reverlion ; becaufe I was always
in Pofleffion, and not put to a Right only. Wood's Inft. 248.
12. So if there is T^enant in Tail, Remainder in T'ail, or Tenant for Life
Remainder for Life, and thtjirjl Tenant in Tail, or the firft Tenant for
Life doth Bargain and Sell the Land by Deed indented and enrolled, and
after doth levy a Fine to the Bargainee j in thefe Cafes the Remainders are
not bound, the' the 5 Years pals without Claim ; For the Law adjudges
them always in PoirelFion. Ibid.
vJb
Fine.
299
I?. *So M^Tcficuit for Lite and the fir C^ Rnnaindtrr.ian in Tad levy a bmc ; ■t'"' if Te-
This is no Discontinuance ot the Remainders alter ; For each palled oniv "^"'^ f"'',-""if'^
■what he lawfully niighc. i Rep. 76. a. Bredon's Cafe. Rciiwindcr
in Till I ninke
a Fci'ffivent, it is a Difcontinuance contra to that Part of Bredon's Cafe in i Rep. -6. b. and that it wa?
io adjudf'cd bccaufe it is of a different Nature from a Fine. Sid. 8^. cites the CaCc of Baker v. Hacker.
* Mo. 634. S P. Peck V. Channcll. Cro. E. 827. S. C Ow. 1Z9.S. C.
(I. a) Emfre. How j mt being dtrecied by Deed of Ul'es.
1. A Fine Siir Rekafe cannot be intended to the Ufe of any other,
±^\^ hntof him to 'juhom it is' Ifvicdi^ unlefs an Uie be expielied in the
Fine, or by another Deed, per Cutline. 3 Le, 36. Mich. i5EIiz. B. R,
in Ld. Windfor's Cafe.
2. A. enfeofls B. and 'twas Covenanted between them, that if A. pay B.
at Midfimmer 47/. then the Feolihient Ihould be to the Ufe ot A. and his
Heirs, and if A. fails and B. donotpay A, 20I. at Michaelmas^ then alio the
Feoflincnt to be to the Ufe of A. and his Heirs, and Covenanted to make
further Aifurance. A. and B. both tailed of payment at the Day.s, and
afterwards in Hillary Term next after both the Fealts, a Fine is levied
to B; and no Ufe cxpreffed^ and all this was found by fpecial Verdift, and
that the Fine was only to the Ufes of the Indenture. The QuelHon was
if the Conufee of the Fine, or the Heir of the Feoffor ihould have the
Land ' and 'twas adjudged lor the Heir of the Feoffor. Cro. E. 32. Trin.
26 Eliz. B. R. W'encomb's Cafe.
3. A. was ieifed in Fee of Land, and he, and B.(a Stranger, and who had ^^ ^^"f ^S!?'-
Kothing in the Land) levied a Fine thereof to J. S. without Con/ideratioH;\"f^^^^^^-^^''*^'
the Ufe implied Ihall be to A.only, and his Heirs; For an Ufe is nothing Lands, do
but a Truft and Confidence; and a Thing in Equity and Confcience Ihall M Mo7,ey
be by Operation of Law to him who vi Truth was Owner of the Land with- «'"" '^eCtn«-
out havmg Regard to EJlcppels, or Conclulions, which ate contrary to pj^ ^^'^i^^
Truth and Equity. 2 Rep. 58. b. Trin. 27 Eliz. in Beekwith's Cafe. Time ofthe
Fine levied,
and there is no Ufe declared to lead the Ufe of the Fine levied of thefe Lands ; the Law will conftrue
the P'ine to be levied of thefe Lands to the Ulc of the Conufee, to whom the Fine is levied ; ♦ hut if
there be tio Momy paid by the Conufee, nor any Ule declared, the Fine fhall enure to the \]\'c of the
Conufor that levied the Fine. Pafch. 2; Car. B. R. For Nothing appears whereby it can be fuppofed
that the Parties had any Intention the Eftate in the Lands fhould be altered by the Fine, b t that the
Fine was levied for the Corroboration of the Title of the Conufor ; but where Money is paid, the Lav*'
will intend that he that paid it, is to have Benefit by the Fine. L. P. R. 614.— See 2 Rep. 58. b.
Beekwith's Cafe. 'Pig. of Recov. 55, 54. * Per Vaiigh. Ch. J. ir is common E.vperiencc.
Vaugh. 45.
4. A. levied a Fine to B. and C. with Render to A. for 80 Tears, if A.
fliould fo long live. Remainder to D. It was agreed per tot. Cur. that the
Conuzance mull neceffarilv be intended to the Ufe of the Conuzees ; be-
caufe othcrwife, they could not render by the Fine. But if the Render
ie void in all, as 'tis in Part, then they thought that the Ufe of the Conu-
fance would go according to the Intent cf the Render, but not in the princi-
pal Cale, becaufe the Render for the 80 Years is good, which makes the
Conuliince of Necelfity to be to the Lfe of the Conufees. Mo. 488. Pafch.
38 Eliz. Holcroft's Cafe.
5. Fine was levied /■; A. and B. to the Ufe of A. B. and C. they are all
Jctntenants tho' A. and B. were in by the Fine at Common Law. iN oy. 124. ,^- ~p^ A
Watts & Lee v. Ognell Say's, 'twas adjudged on a Feoffrne'nt, 21 5 £^?^ ^^^.'■
El. cites * D. 200.
6. A Fine, which Operates upon the Poffejfion, fhall not alter the Pofl'ef-
fion upon which it v\ orks, and tho' there are words contrary in the Fine,
vet the lame fliall enure upon the Eftate precedent and not otherwifc, per
Yclverton J. Buls. 164. Trin. 9 Jac. B. R. in Cafe of Heywood v. Smith.
']. \i Tenant fcr Life, andRema/iider-man in Fee join in a Fine, but declare
nt>
c^oo Fine,
no Ulcs, e.ich llull hnve clii Ule, \\ hich the Law veils in thcin accord-
ing to ttic Eltacc, which they con\'eyed over, -z Rep. 5S. a.
"S. A Fine WHS levied oi'a Kent /o^. dad li and tkc Heirs of y^.^Lndithi
Ufe WHS limited only by the l-'ine itlelij and there was no Dad to kad the
Vjls; adjudged, that A. and B. were in by the Stat. 27 H. 8. of Uics, and
were Jointenants ot' the Rent ; For elle tlicre would be liich x Fraction
oi" Eltatc that A. Ihould be in by the Common Law, and B. by t!ie Sta-
tute, ar.d that is not according to the Statute, which is, that where two
or three are feiled to the LMe of one or two of them, Cclty que Ule Ihall
be adjudged to have fijch Flhite in Polleffion, as they have in Ufe. Trin.
8 Car. H\itt. 112 Purnell v. Bridges.
9. A Fine, levied piirfiiaiit to a Uarce^ibr a particular End and Purpole,
fliallnot be lijiiered in E(juity to work farther than the Decree intended
it. Fafch. 16 Car. 2. i. Chan. Cafes 49. Goodrick v. Brown.
10. Upon the Trial of this Caufe at Nifi Prius in JVliddlefcx, before
Holt Ch. J. a Cafe was made for the Opinion of the Court, viz.. H. levied
a Fine, and afterwards fuflered a Common Recovery, wherein tlic Conu-
fee was Tenant, and there being no Deed in the Cafe, it was Objefted
that the Ufe of the Fine rcfulted to the Conufor; and tho' the Intent of
the Fine might be to make a I'enant to the Priecipe^ yet no Ufe or Truft
Pig. of Re- can be averred, fince 29 Car. 2. 3. Sed non Allocatur 3 Vox at Conmion
at^ S^'c ^ "^'^'^ ^'^^ ^^ ^'^•^^ always intended to be to the Feoffee or Conufee, and
in Pleading never was Averred. Co. Ent. 114. 273. Plowd. 477. But
if it be to the Ufe of the Feoflbr or Conufor, then it muft be ai'dred.
zdly, the Court held the Party ivas in hy the Fi/ie iMinedu'tely, and {o
there was a good Tenant to the Prtecipe. 3dl\', The Statute extctids not
to Ufes by Operation of La^v^ hut to fuch Vj'es as are to a third Pcrfon^ and
that neither the Conufo-, nor the Conufee could a\er the Fine to the
Ule of a third Perfon lince the Statute. 2 Salk. 676. Pafch. 8 \\ . 3 B. R.
Ld Anglefey v. Ld Altham.
11. Baron and Feme le\y a Fine of the Wife's Land ^ and no Ufes are
declared, or j'uch C/'^jr are declared as are 'void ■3S\6. can never take Eftecl-
luch Fine is to the Ufe oi the Wife and her Heirs, and the Elhite re-
..-;: mains as it was; or if the Fine Operates any Thing, 'twill be for the Be-
,.' nefit of the Partv, to whom it belonged before. Arg. Pari. Cafes 106,
Davis V. Speed.
(K. a) Enure. How. Where 'tis levied to a partkuJar
Fitrpofe.
■F
I INK levied by Feme Covert to confirm a Leafe ; after the Debt oil
the Leafe fatisfied by the Prorits, no other Debt ihail bar her of
her Thirds. 15 Car. 1. Chan. R. 132. Naylor v. Baldwin.
2. An Ellate Tail was created by the Croivn^ and afterwards, fbme Fa-
mily difputes ariling, an yiii of Parliament, Jor confirming an Award
made for the Peace and ^nict of the Fatmly, was Afiented to by the King,
and afterwards one of the Family, feiled of an Eftate Tail, levied a
Fine ; yet the King's Reverlion is not removed by the Aft, which was
not as a New Gift, nor did the King intend to pafs away any Right ^
but his Aflent was only to cc^nfirm the Auard i and the Reverlion is'flill
within the Proteftion of 34 H. 8. and therefore the Fine no bar to his
Ilfue ; per Pemberton Ch. f . who f^id, he was ordered to deliver Lord
Keeper's Opinion, that it was a A^ezv Ffrate by the Aft of Parliament,
vet within the Proteftion of 34//. 8. Hill. 35 Car. 2 B. R. Skin. 95. E.
of Derby's Cafe.
Decreed 3. Where a Fine is ordered to be levied by Decree in Chancery, if it be
i/J . Qh ^'^ ^0"^ ^^^ ^° P'^^"* ^ greater Ellate, or to Operate farther in Law than this
Court
irjiie. '401
Court intended it, this Court will yijh,\vii it to whut wari cheOriginal In- Ci'es^o
tention of levying it. Arg. Mich. 1682. Vern. 95. • Goodricliv
Brown
Arg. Pafch. 16S8. 2 Vern. j(5. cites it as I'.crolved in the Cafe of Goodrick v. Brown.
4. A. feifed inTail, and havinga tcrminThifi fc/^//-c;/,-/the Inheritaneei Tcnantin
that the Land was liable to all the Debts in general. Sed Quiere tamcq i lean, and
For it feems, he was but Teudus ui 'fail oi the Inheritance, and lb could then limit<
not charge it by his Willj unlefs it be intended he hud a lull Power of '^'j^^^ J^^^Jfo
doing it lodgfed in him by reafbn of the Fine, notwithltanding he had .,^d makes his
declared that after Payment of the looo/. it ihould go to the former will, and
Ufes. Mich. 1682. Vern. 99. Turner v. Gwyn. dcvifcs all lit
L.ij:di for
fa'
tors.
r*w(fw< of his Dthts, The Court thought the Equity of Redemption ITiould be Aflets to Citi.ty Crcdi-
rs, or a Subfequent Grantee of an Annuity. Note, the Redemption vjai limited to him, kit Hr.rs cr Jj-
fgtis. Hill. 1691. Ch. Prcc. 59. Foilct v. Auftin.
5. The iFije joins with her Baron in a Mortgage; and levies a F ne
with intent/oZ'.'?rZ)'o':w, and in Conliderationthereot, the Baron agrees^t\\M
the Wifefhull have the Redemption oj the Mortgage. The Baron atterwards
Mortgaged the Kftate tivtcc mere. This Agreement is Fraudulent as againlt
the lubfequent Mortgagees, fo far as to intitle the Wile to the whole E-
quity of Redemption. But, her Dower was decreed, in Cafe fliC Ihould
iurvive her Baron, notwithllanding the Fine, without putting her to her
Writ of Dower. By North. K. Hill. i684.Vern. 294. Dolin v. Coltman.
(L. a) Enure to make good Prior Ejiaks, and how.
I. TN Sci. fa. upon a Fine of an Annuity^ Thirne held that a Prior pre-
\^ fentable who has a Patron, may charge the Church in perpetuity
■with his Covent, if he has a Covent and Common Seal ; but contrary of a
Parfon. Becaufe the one may hnve a Writ of Right^ and the other only
Juris utrum ^ and tlierefore it ieems that a Prior prelentable by a Patron,
who has not Covent nor Common Seal, cannot charge but tor his Lite^
for he is but merely as a Parfon ; note a Diverlity j and then becaufe the
Annuity had Effence before the Ftne, and fo the Fine is but as a Judgment or
Recovery of the Annuity ; therefore, tho'the Fine was acknowledged by the
trior without the Covent, yet the Plaintiff fhall Recover the Annuity,
and the Church is bound by the Judgment, quod nota, and fo fee that a
Prior by his Fine --juithout the Covent may charge the Church in Perpetuity
of a Thing which had Efe before. Contrary of afhing newly Granted by him
hy Fine., nota a Diverlity. Br. Charge pf. 8. cites 12 H. 4. 11. 21.
2 If JDifeifee levies a Fine to a Stranger the Diffeifor Ihall have the Be- Mar. 105.
nefit of it. Noy. 59. in Cafe of Haft v. Amerideth. Pophain &"
Gawdy J. Goldsb. 162. pi. 9(5. If l^iffeifee declares the Ffes to Comtfee, it fhall be to tlie Conulee's
Ufc only, and not to the DilTeifor'.s; but otherwife if no VCc is declared ; For then it would be to the
Vfe of the Dillei'br and extint^uifh the Ripht of ConU!ce. Per Bridgman Ch. J. Lev. 12S. Hill, i 5 &
16 Car. 2. at the AfTifes at Somhwark. Co. of Peterbiirgh v. Bludworth. Per Bramfton Ch. J.
accordingly ; but by Jones y that whoever has the Land fliall have the Advantage of a Fine by Eltop-
ple. Jo. 462. Poph. 6-5 in Cafe of Harrcy v. Farry. But if the Diileifin hso.ly at ths Elc.-
tionof bifleilcc, 'tis othervvirc. Cro. C. ^05. in Cafe of Blunden v. Baugh. Or if the Difleilm
be/encf at:d iihkvcv:ti to D/Jfeifec, it (hall be to the Ufc of the Conufor. Cro. C. 4S4. per two Juftices.
Fuzherbert v. Fifdiei-bert.
3. 'Tenant for Life and Remainder-man in Tail pined tn a (jrant cj a c.—Cio.C.
Rent-charge in Fee out oi ihti La.n(\.^ and then they joined m a Fine to a 105 Hill. 9.
Stranger and his Heirs ; the Eftate of the Rent which was before deter- ^-|[,j^ g^^_
minable, is now made abfolute. Winch. 102. Holbeach v. Sambeach. ^^f^^ 3 (f^~
H h h h 4' ^-
302 F
inc.
4; A. by Will bequeathed loocl. to JJ. k'ls Neke^ f^yabie at 25 Years of
Age, and charged his Lauds -njith Pajment thereof ; JJ. intermarried with
J. T. her Hinband and Ihc, before her Jge of 21, afjigned over the [aid
loool. toW. ior 750/. atterwards D. attained her Age of 21, and her
Husband and llie (an Eftate I'ail being defcended to her in the fame
Lands) levied a Fine and i'utiered a Recovery of the Lands charged^ and
declared other Ifes. It was held, that this was a good Affignment, and
that the fubicquent Fine did not hurt it. Trin. 173 1. 2 Wms'sRep. 601.
607. D. of Chandos v. Talbot.
(L. a. 2) Em/re. How. By Eftoppdl.
whoVik-esb I- TF ^ Fine be levied to a Fettie Covert, of Land in which fhe had a
the Fine, be Jl better EJlate before the Fine^ the Fine ihall not conclude her to claim
ex.v!m!eH,{he it. Welt. S. 15. cites 3 H. 6. 42. 41 E. 3. 7. 50 E. 3. 9. 24 E. 3. 62.
Ihall be
eftopped to claim a better Eftate, as it Teems. Br. Fines, pi. 51. cites 8. H. 6. 4.
Br, Eftoppel, 2. If a Fine fur Render be levied to two, where the one is feifed before
pl. 60. cues ^^j^ ^f f^g cj'ime of the Fine, and the other hath nothing j there he who
Hank has nothing, has gained joint Poileflion with the other by Conclulion j
per Hank. £r. Fines pl. 35. cites 8 H. 4. 8.
3. If fdUo are feifed in Fee, and a Stranger levies a Fine to them and to
the Heirs of one ; in this Cale, the other Ihall be Eltopped to claim other
Eftate than for Lile. Er. Eftoppel, pl. 92 cites 15 E. 4. 28. per Catesby.
Butifrht 4- If there be Lord and Tenant by Knight's Service, and a Stranger
I'enitnt ac- levies a Fine to the Tenant in Tail, to hold to him and his Heirs j in
cepis a FtKe this Cafc, Herlc faid, that the Lord fhall be concluded] becaufe he is
ej t Straiieer not a meer Stranger, but is Piivy in Law. But this is not Law, (as I
'w!ta\\'mA think) lor no Man Ihail be Eltopped, but only Partus and Privies in blood,
after litis as Heirs j or Privies in F.Jiate, as thole who have derived any Eftate out of
•xithotitHeir; the Eftate of him that is Eftopped ; For Privies in Law, as the Lord is,
ihTi^b*^^'* fhall not be Eftopped, having regard to his Seigniory i P"or in relpeft of
eluded "(as"?' ^his he is whoil)' a Stranger ; For he does not claim the Land, but a
think) For Thing out of the Land. Co, R. on Fines 16.
how he
claims Eftate in the Land under the Eftate of the Tenant who was concluded Cr. E.. on Fines \6. ■
5. And Note, that as well he who claims Eftate en k Pcfi Ihall be con-
cluded, as he who claims the Land en k Per, if he da 1711 s the Fflate in
the fame thing, upon which the Concluiion is made^ as il a feme be
leiled of Land in Fee, and be Eftopped, and after flie takes Baron and
has IlFue, he ihall be Eftopped alfo. Co. R. on Fines 17. cites 8 AIT p.
33. Br. Fines 73. 21 E. 3. 3. 5.
6. Eftoppel is reciprocal of both Sides ; For he, that fhall not be con-
cluded by a Record, or other Matter of Eftoppel, fhall not conclude an-
other by it ; and yet in our Books the King eftopped the Succellbr to fay,
that M. had nothing in the Land, by reafon that M. held of the King,
and levied a Fine to his Predecellbr Sur Conufancede droic come ceo,
&c. and tho' the King was a Stranger to it and had Nothing but the Seig-
niory out of the Land, yet the King took Advantage of tliis Eftoppel.
* Or'tg. Quaere the Realbn of this Cafe j For this feems * to be the Prerogative ol
(d'cftate ) the King, of which I Ihail not fpeak ; but otherwife 'tis in the Cafe of a
Common Perlbn, as 22 E. 3. 17. and 40 E. 3. 30. are agreed See 41 E. 3.
per Finch, that a Stranger Ihall be concluded by a Fine le\ icd Sur Conu-
lance de droit come ceo, &c. Co. R. on Fines 17.
Cro. E. (5io. >7. The Statute of 4 H. 7. and 32 H. 8 extends to Fines levied by
rnVn Concluiion, and Ihall bind the Eftate Tail, tho' Partes finis nihil habue-
Huntv-Kin? ^""^j as if Tenant in Tail tnake Feoffment in Fee, or be dijfeifd, and after
levies a Fine with Proclamations to a Straufer, this ihall bind the Eft.ite
Tail
Fine; 303
Tail, and the Uriies in Tail are barred ibr ever. 3 Rep, 90. cites it as
Refolved by all the Jultices in C. B. in Ld Zouche's Cafe.
8. A Fi}ie may be by Way ot' Conclulion, tho' neither Conufbr nor Jfnt»:fDffh
"Conufee have any Thingin the Land at the Time; but if they Purchafe it P^ytiej h^e
tjfter, the Conulee Ihall have the Land againft the Conufor who purchaled I'l^ ^l^^'/'^f
it afterwards ; per Jones f. and granted by Barkley J. Jo. 495. Trin. tiieFine.then
14 Car. B. R. in Cale of Ldvvards v. Rogers. it isap'ineby
Concluiion
between the Parties ; but all Str.wgers ttiay avoid it by the Averment of Partes Finis nihil &C. Br. Fines
pi. 109.
9. A. made a Feoffment to the Ufe of himfelf for Life, and after the
Death of him and AI. his Wife, to the Ufe of B. (eldelt Son of A.') for his
Life, and after the Death of ji. M. and B. to the Ufe of B. and the Heirs
Male of his Body, and for detault of I'uch Illue, to the Ule of the Heirs of
B. B. had Ifae a Daughter, and then by Fine and Indtninxt granted to
G. for s 00 J'ears. B. dies; M. dies; A. Itill living; upon a Reterence
out of Chancery to the Lotd Ch. J. Hale, and alter hearing the Argu-
ments of Counfel, his Lordlhip was of Opinion, that the Eltace as above
limited to B. vvas a Contingent Remainder; and that the Eltate which
cometh to the Heir upon the happening of the Contingency ieeds this
Eltoppel; and then the Eftate by Elloppel becometh an Ellate in Intereft,
and ihall be of the lame Effeft, as if the Contingency had happened before
the Fine levied. January 3, 1672. Pollex. SS- 65 and 66. Weale v. Lowei.
(L. a. 3) Enure. How. By Eftoppel, Pleadings.
1. A Man has Iflue M. by his firfl: Feme ; llie dies; and he takes an^i-
other Feme, Ilabel by Name, and enfeoffed A. who by Fine gave back to the
Baron and Sibel his Feme (where his Feme is IfaleP) in T'ail, the Remainder
to the Right Heirs of the Baron ; he dies without IJfue by Ifabel ; M. enters
as Heir, and liiibel oults her. M. brings -Affife, and Ifabel pleads that her
Name was Sibel, and pleads the Fine to the .AJJife, and it was found that
llie had to name Ifabel; and it was awarded, that M fhould recover ;
and i'o Note, that the Fine is not good by a contrary Name. And after
Ifabel, by Name of Sibel, brought Scire tacias againllM. and had Execu-
tion by Detault, and M. brought Affife, and per G. Scrope, the faid Feme
Plaintiff' may plead the Fine by Conclulion againft M. to fay that the ^ ~ . ,
Name of the Feme is Ifabel, becaule the Fine was levied by Name of ^/^^'"^/
Sibel, and becaufe the Father of M. whofe Heir ffje is, was Party and took Feme. Br .
ly the Fine, * affirming the Name of his Feme to be Sibel, and that upon this Eftoppel, pi.
Plea M. Ihall be barred of the Alhfe ; it feems that this is good Law. Br. rVf"l^r?'
Fines pi. 72. cites I Air II. _ ^-Sz^M.^.
2. A Man levied a Fine Sur Grant and Render (which is Executory) of
Land, of which he had Nothing at the T'ifnc if the Fine, and after purchafes
the Land, he Ihail render Execution thereof, and cannot conlels it and
avoid ; it becaufe he had Nothing at the Time of the Fine; but ihall be
"Eltopped by the Fine, per Tanke and Finch. But per Finch Contra of fl
Fine Sur Conufance de Droit come ceo, &c. for this is Executed, and there it
fuffices 10 fay, that after the Fine his Ancejlor was feifed and died feifcd, and
■he entred as Heir. But Kirton faid that it lliall be a good V oidance of
the Fine Sur Render, but not of the Fine Sur Conufance de droit come
ceo, ficc. Qusre, for moll think the Opinion of Finch, to be marvellous,
and it fans that the one Fine, and the other Jhall be Efloppel. Br. Eltoppel,
ph4ii cites 46 E. 3. 5.
3. Note, that a Fine Sur Rfleafe, levied by J.N. to the Baron and Feme,
and to the Heirs of the Baron, is no F.Jioppel to the Feme after the Death of
her Baron, to fay, that pe never had any Thing of the Leafe of 'J. N. For a
Fine Sur Rclcile does nut prove a Leafe to her, but rather that flie was
Ten.mc at the Time of the Fine ; lor othervvile a Releale cannot Enuie to
them.
304.
Fine.
them, unlels chcy had Seilla before ^ quod Nota, per Cur. Br. Elloppel,
pi. 200. cites 50 E. 3. 6. 7.
Br Eftoppel, 4. In Alfiie, a Fine war. levied to the T'ennut iu lail in P oJfi][to)i for his
pi. (io. ciccs Lije Siir Grant ivjd Render, the Rentainder over in Fee to a Stnitiger ; the
^■^'■^^'•^^^^^^ Tenant t?i 7'ail hiid Ifffie and died ^ and the Iffue entred ; he in Remainder
h '^Haak & "■'/^'■''^ ^'"h ^""^ ^^ brought ^_l/ife, and the Tenant pleaded the Fine, and
Giifcoigne the Plaintiff' pleaded the Tail before, and averred the Continuance of PojfeJ/ion
and Others in his Ancejlor all his Life-, abfqiie hoc, that thofe -who levied the Fine had
that it is ;i ^i,y q'loifig at the 7'itne of the Fine, before or after ; and per f Cokine and
ance"-"' F'rwit, the Fine does not bind the Illue in Tail, but per Hank and
caufe'itwas Gafcoign contra, & adjornatur. Brook makes a Quaere, and fays, that
teiiedto hitn it is inconvcnicnt than where I am feifed in Fee, or in Tail, a Stranger
ivho h.ul the ^j not knowing of the levying of the Fine to me for Lile Sur Grant and
SSoreTe*^ Render the Remainder over) ihall make me lofe the Fee Simple, where
cannot other- all is the Aft of the Conufor and * I fay Nothing ; and an Intant fhall be
-xife execute in the fame Cafe by fame, and the beft Opinion is, that, if it be not a Fine
the Fine, and Executed, the IHue in Tail is not bound by the Statute de Finibus of
that by the ^^verment ; For this is intended of the Eftate of the Fee Simple, where
2. which i^he Heir claims only by the fame Anceilor; but upon Tail he claims by
fays, that the Gift. Br. Fines, pi. 35. cites 8 H. 4. 8.
Fines ipfo
Jure fit Nullus, it is yet a Dilcontinuance, and that the Statute of Averment of Continuance of PofTef-
fion againft Fines made 21 E. i. w.is 1 1 Years after the Statute of W. z. and therefore the IlTue in
Tail, not excepted, iTiall be bound by them. Br. Difcontinirapce of Pollcflion, pi. z. cites S. C and
fays, that the belt Opinion is, that it is a Conclufion to the Tenant in Tail for his Life, but yet he
iiiakes a Quxrc thereof where aii are the words of the Conufor and he fays Nothing, &c. But the
Iffue in Tall fliall not be bound, and that the Statute of Averment againft Fines, is of Fee Sim}'lt, and
■where he claims as Hei;-, hut in this Cafe he claims fer formam Doni, &c & adjornatur. 1 And by Hill.
iJr. Difcontinuance of Polfeilion, pi. 2. cites S. C. * Orig. (Jeo die rien.)
5. If there be Father and Son, and the Father levies a Fine of the Manor
cf D. and after fiirchafes the Manor, and the Conulee enters, and after
the Father dies j now (as I think) the Son IhaJl be barred. But
'tis good to fee the Manner and Form oi^ pleading fuch Cafe, Co. R. on
Fines i6.
6. If in the fame Cafe the Son brings an A^ion Ancejirel, and as Heir,
and the Fine be pleaded in Bar, the San can't fiy quod Partes Fines nihil
habuernnt ^ but if the Son enter and be oufted, and brings Alfiie, and the
Tenant pleads, that the Father of the Flaintiil was feiled in Fee, and fb
leifed levied a Fine, &c. the Son may fay, quod Partes Finis nihil habue-
runt, but fitch a one ivhofe Efiate he hath. By this way the Plaintiff Ihall be
(* Origi * trick'd ; and therefore the fure way for the Tenant in fuch Cafe ta
'^^^ plead, is \.o pew all the fpecial Matter, how his Father levied the Fine,
and after purchafed the Land ^ For be the Fine Executory, or executed,
the Fine Ihall bar his Heir, as I think. Co. R. on Fines i6.
(M. a) Declaration ofUfes, Good. In rcfpeft of the Per-
fbn, by whom.
Infant may j. iryArgain and Sale inrolledhy Infant, and a Fine afterwards levied to
Ufo oV*^^ 13 the Bargainee come ceo, &:c. during his Nonage. 'Twas held
Fine, a Lc. ^"^"^ ^ho' the Indenture was void againll the Infant, in refpeft of the
159.pl. 193. Thing which ought to pafs by the Deed, yet the Deed indented was but
21 Eliz. in voidable ; and then when the Fine was levied upon it, this makes the Bar-
Chamber ^^'"^ ^"*^ ^^^^ irrevocable, unlefs by Writ of Error ; For the Indenture
Anon ferves to declare the Ufe, and direft the Fine. Dal. 47. pi. 6. 5 Eliz.
And Mr Anon,
Plow den af- .
firmed, that 't was fo adjudged in his own Cafe, by which lie loft LanJ.> of 4c /. a Year.- — — Arg. 4 I-e
89. fays, 'twas adjudged Contra, in the Court of Wards.
2. ]")cL-laratioa
F
inc. 20^
2. Declaration of the Vk of a Fine, by a Man in Ditrcfs is goodj but
per Andcrfon Ch. J. Contra. 2 Le. 159. pi. 193. 21 Eliz. in the Star-
Chamber, Anon, r w h
3. If /rt'e'o? levy a Fine and declare Ufes upon it, the Declaration is *Y^ p _
void, and the Fine Ihall be to his onn Ufe, 4Le. 89. fays, 'twas fo ad- The Law of
judged in the Court of Wards. Ufcs and
Trufts pag.
42, fays, thata Man Non Sanx Mcmori;c may declare the Ufc of a Fine, and in the Marg there ckci i
Rep. 58. a. but I ,do not find fuch Point there.
(N. a) Dalaratlo/i Good. In refpe6i: of the Perfbn to
nx)hom.
I. 1 "1 S E of the Fine of a 'Thing in Grant cannot be declared to a
|^_^ Stranger without Deed ; yet it may be averred, that the Ufe was
to a Stranger, without ftewing the Deed, or making mention of it. The
fame Law of Reveriion. Roll. R. 73. Mich. 12 Jac. B. R. Parvis \-.
Yea ton.
(O. a) Declaration, &c. good^ in refpe6i: of the Mmmcr of
doing it.
I. A Seiled of a Manor and Advowfbn Appendant conveyed it to And. 2^.0
y^_« B. and covenanted for further Ailurance by levying a Fine, pro- \r^^X' ^^' "''
■p/'/o, that B.Jhall regrant the Advo-jofon to A. that he may prefent during his ,' p^^^ A
Life, and if A. dye before any Avoidance, then B. to grant the next Pre- S.C.— Mo.
fentation to the Executors of A. and a Covenant that all A[furances pould i°6- S. C.
be to the Ufes of this Indenture-^ a Fine v/as levied Sur Conufimce de o'.p'.'-''i^
Droit come ceo, &c. to J. S. who rendered the Rent to A. in Tail, Re- jre'w's Cafes!
mainder overj and B. died without making any RcgrAncto A. The — jcnk. 252.."
Church avoided, and in Qua. Impedit by A. Judgment was given for pi- 45
him J Becaufe B, in his Life did not perform the Condition, which re-
mains notwithitanding the Fine, which was with Render oi Rent, ac-
cording to the Agreement between A. and B. fothat the Fine upon Render
Ihall be to the Ufes declared by Indenture as before, and not extin£i or
determined by it. And. 17. Andrews v. Blunt.
2. A Declaration of the Ufe, either e>:prefs or in LaixJ^ is fufficient j as if
A. Covenants with B. for Money to do all A6l:s which B, Ihall require for
AfTurance to B. and his Heirs, and then levies a Fine to B. This Covenant
and Fine will give B. the whole Land. Hob, 275. Mich. 13 Jac. Clau-
xickard's Cafe.
3. If a Man makes a Bargain and SaJc^ and the Deed is not enrolled^ or
make a Charter of Fecffhient, and there is no Lhery; yet they will be
fufficient to declare the Ufe of a Fine afterwards levied between the
fime Parties. Hill. 9 W. 3. 12 Mod. 163. Jones v. Morley.
4. Before the Statute of Frauds, even a Parol Declaration of the Ufes And even
of a Fine was good. 4 Mod. 262. Tones v. Morley. /wethatSta,
^ ^ •' . tUte It inav
be good by a.riting cr.ly, widcut a Seal, yer Hoh Ch. J Farr "6 Mich, i Anns. B. R. in Cafe of Short-
ridge V. Lamplugh.
5. Ry 4 y 5 A'uue. i6. §. 15. Declaration ofl^s or Trnfls hy Deed, made
after the Fines, or ]^Qco\mQs jhall be good in La\/\ as // the 29 Car. 2, 3,
of Frauds had not been made. See Infra. (R. a)
I i i i (P. a) Deck-
■u^
306 Fine.
(P a.) Declaration of Ufes, good\ notvvithftanding Va^
nance as to the Vjcs.
SE imply'd in a Fine fliall not be averrd againftthe Ufe exprefled
_ in the indenture otUies. D. 311. b. pi. 84. Palch. 14 Eli 2^ An-
drews V Blunt 2. And. 70. Ld Cromwell alias Blunt v. Andrews
2 Rep. 59 b. 2. Covenant was to levy a Fine ot the Manor with a Render of Refit in
Hill 4'; Elii. Fee to the Covenantor and his Heirs, thcConiifeebyCo^'enantorscotiJhitRefi-
C. B. Lord tiers in I'ail only to the Covenantor^ and Remainder to J. S. in Fee ; This be-
Cromwclls jj^g Y,y f^onfent of the Covenantor, and the Conuiee being only an Inltru-
nient. Acceptance o'i the his Eltate by the Covenantor is good, aad as il"
the Fee of the Rent had been rendered to him. Jenk. 252. pi. 43.
3. In the Cafe of declaring the Ufes of a Fine, it is not ahvajs necef-
fary^ that the iPife's Name be fet to the Indenture, which declares the Ules.
per Coke Ch. J. Godb. iSo. Trin. 8. Jac. C. B. in Caie of Bury v.
Taylor.
This Writ- ^_ Where there \s.,a Deed, aad a lafi Writing by Husband and Wife,
a'f)ecd'be ^^^ ^'^'^ Writing, tho' not a Deed, amounts toafufficient Declaration of
tween the ^fcs upon the I'me, being levied * at a 'Time different from the Deed.
Husband of Cumb. 429. Hill. 9. \V. 3. B. R. Jones v. Morley.
the one Part,
and the V'N'ite of the other P.irt. But the Deed was between them and others. Garth. 410. S. C.
z Salk. 6:-. S. C. 4 Mod. 26-1. S. C. Parliament CaIcs. 143 S. C. and Judg-
ment affirmed. * Cart, v in Caie of Davis v. Kemp.
(P. a. 2) Declaration of Ufes, notwitliftanding Variance^
as to the Time of levying, &c.
♦Cro T w^ ^' ^^'^^'^^ '^hc Deed is, that the F'ine fliall be levied of certain Lands,
cite-; ^'Rep? h' ^^'^ Name of 100 Aeres to yl. and B. and that they Ihall grant, and ren-
i6. K Earl of der the fime in F'ee limple, which foall be to certain Ufes. The Fine is
Rutland's levied of the Land, but Ibme * Variance is in the Nmnler of Acres, or in
■"^' the Fine, 2s where the Fine is k'jicdto A. only, who grants and renders the
Land, yet it may be averred to be to the Ufe of the Indentures, and thaE
there was ?io new Conftderation, or Agreement between the Parties. %
Rep. 76. Hill. 43. Eliz. C. B. Ld Cromwell's Cafe.
But it may in 2. If A. covenants to levy a Fine before fuch a Day, tho' the Fine le-
fuch Cafe be vied differs from the Indenture in * Time, Place, Qtiantity of Acres, or in
'^■eerredhyPa- ^~^^Y(ixioxi that Occupied it; yet, when the Fine ' is levied, it lliall be
IkerUjes'.^iwi intended to be to the fame Ufes in the Indenture. Arg. 3 Buls. 251. cites
if the P'inc 2 Rep. 69. Ld Cromwell's Cafe.
be levied in
all Things purfuant to the Indenture, no Averment can be but by Writing; For in this Cafe, the In-
denture is DinBory to the F/rie, and in the other Cafe, it is tut EzUeme. Cro. J. 29. Pafch. i Jac. B. R,
Countcfs of Rutland v. the Ear] of Rutland.
Covenant to levy a Fine within the Year ©f 100 Acres, the Year expires, and a Fine is levied of So
Acres. The P'ine fhall be to the firll I'fc, cited per Coke J. und Montague Ch. J. Cro. J. 512. as the
C?arl of 3SutlailD"fi Cat't. 5 Riip- z6.h: 9 Rep. i. Downam's Cafe. ■ * Carth. 4IZ.
Jones V. Morley.
Carth. 411. 3. If a Declaratiort of Ufes be fubfequent to a Fine or Recovery, 'tis
S. C. Pari, g^pj . [J^^ there may be an Averment, that they were to other Ufes, but
cf andP — - with this Diiierence, that where the Declaration is fubicquent, there the ,
Per Holt Ch. Heir of the Conufor is ejhpped to aver other Ufes, but a Stranger is not.
J. He fhould But where the Deed is Precedent, there, neither the Heir nor a Stranger
""'^P'^'"^J^^'^ is eitopped to aver other Ufes, in Call- the Fine varies in any Circi/m'rance ;
Vularedlbya but if the Fine was levied purliaant to the Deed, no Proof whatlbever,
Deed fuhfe- either by VVriting or Parol, Ihall be admitted, that the Fine wa,s to other
■^iicvt. But \Jic<
Fine. '.^07
Ufes, thim what are contained in the J3eed, that being an Eitoppel to ^^^rt^^
the Parties, per Holt Ch. j. Cumb. 429. Trin. 9. \V". 3. B. K.Jones v „do'ha'hin
Worley. fuir,&;c. qu.B
quidem Re-
cuperatio in Forma preditt. habita fuit, to fucli and fach Ufcs ; and, in Cafe of a Da.-d Precedent, if
the Partv fet up other Ufes, he mull io?il>-fs Atui avoid; and if a Deed fubfciiue-it be iet up, the other
may traverCe thofe Ufes. Adjournatur. i'fealk. 6;6. Hill. S. 'W. ;. B. R. Trefjamc v. Fletcher.
9 P.ep. 10. b. Bowman's Calc. — i And. ;S. cites Vavafor's Cafe.
4. Where there is a Deed for levying a Fine,- but the Fine ii not le-jied Carth. 41;.
according to the Deed, other Ufes may be averred, tho' thole other are de- S. C. — 12
clared by W riting, and not by Deed ; For, b)' the Variance, there is ^.^°'^- ^.59- ^■
Room and Occalion to enquire, and receive Inlormation, that the old A- ,', ♦cJun-
greciiient was relinquilhed, and by ;the fame Reafbn, that the Ufe ot a tefs ol Rut-
Fine may be declared by Parol, upon an original Jirctmait, it may nOvv, land v. Earl
as in this Cale, where the original Agreement was reliiiqmjhedy, yet \vith- ofRuthnd.
out fuch Averment, the Fine'lhall be intended to the Ule ot" the firlt A- ~^ ^^^P'
greement, notwithltanding the Variance. 2 Salk. 677. Hill. 9 W. 3. B. in shelly^'s
R. Tones v. JVIorley. Cafe. -*
•' ^ 5 Rep. z6.
b. Trin. 1 2 Jac. B. R. Earl of Rutland's Cafe.
5. A. Covenants before the End of Eajler 'icrm, in Confideration of the Abi-. Equ.
Mariage of B. his Son with M.and a Portion, to levy a Vine to the Ufc of /'^fpiVs'c.
B. and M. for Life, and to the Heirs of the Body of B. Remainder to C. the_
fecond Son of A. and the Heirs of his Body. A Fine was levied as of
Eafler 7'erm, but the .Marriage being put olt till ati:er Ealter Term, the
Deed ivas not executed, nor dated till after Eafler Term, fo that the Fine was_
levied before the Date of the Deed, and fo the Deed was no Declaration ot
the Ufes of that Fine. B. dies, leaving a Son, who Mortgages the Land,
and dies without Ili'ue. Decreed that the Confideration ot B s Marriage
did not extend to C. {o that C. was no Putchafor ; and as he cannot, by
means of the above Defecl:, maintain an Eje£tment at Law, he being only
an equitable Remainder-man at belt, fo neither will Chancery relieve
.him, but he mull diichargc the Mortgage made by B who was Tenant
in Tail in Equity; And any fuch may, by any Conveyance, bar the Set-
tlement. Mich.' 1703. Ch.'Prec. 224. Staplehill v. Bully.
(Q^ a) Where there are ftvcral Dechratmjs of the Ufes.
.p
'Erne, before the 27 H. 8. of Ufes, being feifedof Land, fuffered a And. itfi.S.
, coinmon Recovery, and intending to marry A. B. Ihe, before the C. cited but
Marriage, declared bv Indenture that the Feofl'ees ftould be leiled to the "^^^Iy^^c
Ufe of%erfelf' and J.'B. whom Ihe intended to marry, and their Heirs. ^^^^^ ^e
The "Feofiees executed an Eitate after the Marriage to the Husband and bound, &c.
\\''ite and their Heirs, in Fee, without any Ufe'expreifed. Afterwards and it feems
the Baron and Feme by other Indenture, declare that thcfrrfl Indenture was ""«•
■1,/i/lakcn ; For that kjhculd have been to the Heirs of their fxo Bodies, and
for Deiault to the Heirs of the Wife. And they Covenant, Bargam, and
• agree, to ftand feifed to the Ufe of thcmfelves in Tail, and alter, tothe right
Heirs of the Wile ; and the Husband covenanted, it the W^ile died with-
out Iliue, during his Life, that he would execute an Eitate accordingly.
The Wite died without lUiie, and alter the Statute of Ufes the Baron
'died feifed; and 'twas held, that the frjl Indenture was corrcBcd by the
fecond, and the firlt Ufe is fulficiently altered without Eitate executed,
and the Conliderations are reafonilblc and fufficient, and adjudged tor the
Heir of the Wife. D. 307. b. pi. 71. Pafch- 14 Eliz. Vavalbr's Calc._
z. Fine by Grant and Render ; no new Declaration lliall be to crois the ^-^^^ ^^-^^^
Grant and Render; but the Regranc in the Fine fnall amount to a Decla- Render may
ration b. to a Ufe
'20
8 Fine.
cyprefiid in ^ition of the Uif, and it Ihall be intended done bv the Procurement of
Writinp;. A- the Conufor himleii. Clayt. 94. Jennings v. Chantery.
greed. i\lo.
472. in Calc of Ld Cromwell v. Andrews.
Cavth. 410. 2 A Deed is made declaring the Ufes oC a Fine to be levied; after-
%? S ^''c '^ wards (but before the Fine levied) a fccoH^ Deed of Dsckration of the
Cu'mb. 4ii;. ^y^'-^ 's made; by Reaft)n of this iecond Deed, other Uies, than according
S. C. Rirl. to the firlt iJeed, may ht averred. 2 Salk. 677. Jones v. Morlev.
Cafe."; 143. —
Two fcvcral Indentures were m.ulc Precedent to the Fine of different Ufes, hrtzi-ecn different Perfint ; and in
a rubfcquent Term, to what tlic Fine was covenanted to be levied in, the Conufor acknowledged two Jeveral
Fires the fame Day, to the differevt Coienan^ces \ firft, to the tirft Covenantees, and after to the fecond.
It was reiolved, tliat the Ufes cannot be directed by thefe different Indentures, and to make a Commix-
tion of different Eftates, tho', perhaps it was the Intention of the Parties ; but that the fecond Decla-
ration controU'd the firft. 5 Rep. 26. b. Earl of Rutland's Cafe In tiie Cafe of two Inden-
tures, it may be atcrred to tihich of the Ufes in the fecond Indenture the Fine was levied ; P'or the firft
Indenture does not bind the Land, nor create any Ufe, till the Fine is levied ; and upon thofe Indentures
it rtands indifferent, upon which Ufes the Fine was levied. 2 And. 46. Mich. 58 and 59 Eli/,. • .
S, C. cited. 2 And. -S. per Anderfon Ch. J. in Cafe of Cromwell v. Andrewcs ■ .■ Mo. 10--
in Andrews's Cafe. Clayt. 51. Allen's Cafe.
4. If a Fine is k\ied by Husband or W^ife of Lands, which he hath
in Right of his Wile, and there is a Deed made at the fame Time to
declare the Ufes thereof, and afterwards this Deed is lojl, and then ano-
ther is made to thejame KJle^, and dated as the firft ; that Deed is futfi-
cient to declare the Ufes of the P'ine, per Holt Ch. J. Holt's Rep. 735:
Mich. 7. Ann^e. in Cafe of Bulhell v. Burland.
(R. a) Declarations of Uies, Good ; where made after
tlie Fine or Recovery.
InD,
'owman s
Cafe. Mo. I. XF a Vine be levied, and an Indenture to lead the Ule of it be lealed
15)1, 192. and J^ and delivered afterwards^ this is not futficient to lead the Ule of
h ^T '■' ^^ l"'ine, except it can be averred.^ and proved, that the Conufor intended,
found the betorc the Fine levied, to levy it to this Ule. Qusere. Cro. E. 218. Hill.
Deedof Ufes 33. Eliz. B. R. Folkr v. Fountain.
•was iubfe-
quent; but that the Ir.ier.t of the Parties, at the 'fime of fui^ering the Recovery, was tj the tfes in the In-
W(w/«>-e declared Two, or three, or f(jur Years, or more, after a Fine levied, or Recovery fuffered,
the Ufes may be declared of fuch Fir-e and Recovery ; but Leafis and other Charges made in the mean
fT/me fhall Hand, and the Fine and Recovery fhali be to the f'aid \J'>es, lubjeCl to the laid Leafcs and
Charges. Jenk. 212. pi. 50.
InEjeftment 2. 4 afid s Aiime. 16.S.1S. EnaSls that aUDeclaratinns orCreations of Ufes
tT ^j-^''"'"^i <"* ^'I'lifs of any Fines or common Reeo-Jeries 7iianififted by Deed afer the ie-
Cafe in Sub- ''<-!}'"'£ or fnffering thereof pall be as good in La\je.^ as if the Aci of 29 Car.
(lance wa,s 2. cap. i.for Prevention of Frauds or Perjuries had not been viade.
this, \vr.. A.
and B. his Wife levied a Fine, and four Years afterwards declare the Uies ; in which Deed, are the
Words following, viz. .411 and every Fine and Fines levied or to he lezied, Jhall be to the Ufes of this Deed.
Holt Ch. J. delivered the Opinion of the (^ourt, that the Ufes were fiuhciently declared; (the Jury
having jcund, that tie Fine was ktji:d to the Ufes therein declared.) And that, notwithftanding the Statnte'jf
.Fr.-mds and Perjuries, a fubieouent Deed is now as good as it was before the Statute. And that it was
dctiktftil, whetler the Statute extends to Ufes, becaufe they are not mentioned there, bat only I'rufls ; yet
t!iat they took Trafls and Uies to hi the fame, in RefpeCt of Trufr. in tlieir larger extent, Sec. fo within
t ic St.itutc of Ufes. Holt's P.ep. 759. Mich. •. Anna?. Bufhel v. Burland And this Gife is much
ftronger than"y3cUiman'i) Cafe ; I"or the Jury there found, that the Deed of Ufes was fubfcquent,
and the (^uclHon was, whether the Deed was fuScient to declare the Uies ''. And in that Cife it was
objected, that there was a Limitation of the Ufc without .tny Impeachment of JVafc, which cannot be
witiiout Deed. At the Tinie of granting the Reverllon, there v;as no Deed ; but v, hen t!ie Deed came,
and declared the Intent of the Party, tiien it was a futficient Manifcftation of the Ufc, and the Intent
of the Party. And it is true, VN'ail: could not be difpuniiTtable without Deed, but when the Deed came
.md made good the Ufc, it was well enough, per Holt Ch. J. Holt's F.cp. 736. Mich. - -Ann.c. in t!ie
Cafe of BuflieU v. Burknd, ' (S. a) Enurf.
Fine. 309
(S. a) Enure how. Where levied by fevcral, and thz
VJes are declared by om o?ily, or differently by each.
I. "TF /cc'o * Jomtcaants fuflera Common Recovery, and one only declares So whci-z'fe-
I the U(es, that does not bind the Moietv ot' the other, unlefs the "p'fJZZ'!''
Conlcnt oi the other to that Declaration be proved, isoy. 77. m C^ale 7-^;/ pin in a
of ClrgOll V- C!)Cl>nCP. cites 2 Rep. 57. Common
llecovery, in
V hich the Remainder-man in Tail is Vouchee, but the Tenant for Life only declares the Ufcs, the Re-
mainder-man being neither Party to the Indenture, nor allenting to the XJ^cs. Koy. 77. \x^o\ v. Chcy-
ney. * D. 145. a. pi. 52.
2. If fwo JotHtcnants^ or tisjo having different FJtutcs, join in a Fine,
and one declares the Ufe in one Manner, and the other in another Man-
ner, this is good for every one o'i their Parts ; For the Declaration ot the
Ufc ihall be directed, and governed according to their filiates and Interelts.
Trin. 27 Elix. 2 Rep. 58. Beckn ith's Cafe.
3. li Baron and Feme, feifed in Right of the Feme, agree in Limi- 4Le. SS. S.
ration oi' the Ufe of Part of the Land, and vary in the Limitation of the ^^f ^'^"^
Relidue of the Land, 'zis gocd for Part^ and void for the Relidue. 2 Rep. BuJhev.Col-
48. Trin. 27 Eliz. Beckwith's Call\ pte.-- — But
if Baron a-
lone declares Ufes, and the Wife * not, it fhall be to the Ufes declared by the Baron. S. C. cited 2
And. 7S. ^Becaufe flic did nor dilaffent in her Husband's Life Time. Jenk. 25S. pV i".
Mo. I9<5. S. C adjudged. * If fhe docs notdifagreo, the Law intend.sth.n ihc confented there-
unto ; becaufe flie joined in the Fine, per Windliam J. Gold-ib. 69. in Cafe of Colgate v. BIythe.
If JJ;s c^.oes (iij\qree, yet the B^ron by his Declaration, \halt he ioirmi as to his hterefr, during the Co-
verture. Sec Mo. 19-. Beckwith's Cafe. : But Jfter, it fhall bi to the Ufe ot the Feme and her
Heiis. Jenk. 238. pi. 17.
4. Bat if the Feme alone declares the Ufes, the jflJcnt of the Baron Jba/l
not be intended, if nothing appears to the contrary, but the Declaration is
void, unlels an Exprefs Alient be proved, per Cur. Pafch. 2 W. & M.
B. R. Skin. 275. Johnibn v. Cotton.
5. If 'Tenant for Life and 'Reixrjioncr levy a Fine, and loth of them de- g p .j^ .,
dare feveral Ufcs, It Ihall enure according to their feveral Interells. Arqol v.
Koy. 20. feems to be Hill. 35 Eliz.. in the Cale of Yelverton v. Yelverton. Cheyney.
(T. a) Enui'e, how. Where the Ufes declared are reptg"
na7it^ or leemingly lo.
I. '\\AroH and Feme {ii\{<tdi of Lands to them, and the Heirs of theBa- And v. hen
_|3 ron bargain and fell the Land to J. S. upon Condition, that if both Clauies
they or any of them, or the Heirs, Executors, Admin iltrators or Alfigns CoMhoictioti
of the Baron, pay 500/. at fuch a Day to J. S. that then it ihouid be law- ftand toge-
fill for the Baron and Feme to enter and hold in their Jirfv EJlate, and that thcr, it is to
after the Payment, this Indenture and all Fines and other Jffiiranccs fhall be conihucd
he to the Ufe of the Baron and his Heirs. A F"inc was levied to J. S. be- And in"his'
fore the Inrolment of the Deed i the Baron dies, his Wife living j the Cafe was a
Heir pays the 500/. the Feme fhall havethc Land tor her Lite, becaule J. S. Claufeatlaft, .
was in by the Fine, and not by the Bargain and Sale^ and alfo upon the ^^'■^^ aUy.'JjH-
Payment^ the Ufe was re\iefled in the Feme, as was the ancient Ufe before ^^ /'/f/eT'c/
the Fine, and this, by the exprefs Words, in the firli Part of the Provifo contained in
aforefaidi ^"^^ t^^^e lall Part, which appoints the Ufe to tl).e Baron and his tie hdemuref .
Heirs, ihall be repugnant, and fo void, or otherwife lliall ftand in fuch •^^'^'^'"'^■^^'^'?
ConltruStion, that it fhall be to the Iblc Ufe of the Baron for the Rcver- if '^"n the"
lion only. Hill. 43 Eliz. Mo. 680. AVilmot v. Knovvles. Clauies can-
not ftand to-
gether, the firft fhall ftand rather than the laft. Hill. 42 Elii, B. R. Cro E -44. S C by the Name of
Southcoat V. Manory ■ Cro P.. 917 S (I
K. k k k 2. T-ixO
^ I o Fine.
2. J'^xo Deeds of Settlement^ the later vv;is contrary to the lormer, and lelc
out the Limitation to the Hairs Male, the firit was decreed to Itand a^^ainft
Fine levied to the Ufe of the kit. I'l Car. 2, tbi. 170. Chan. R.ep^ 192.
Bingham v. Hulicy.
(T. a. 2) Qies well limited, or Enure how; where the
Lhiutations in the Fine 'vary Irom the Limitation.-, in
the Deed.
1. A Fine was levied Vy Barcn and Feme, and the Cognilee rendered the
fame Lands to the Baron and Feme, and to the Heirs cf the Feme ; and an
Indenture was made, by which it was recited, that the B^qwAct poiili be to
the Ufe of the Baron and Feme, and of the Heirs of the Ba-ron ; the Quellion
was, it the Limitation of the Ule by Indenture Ihall hold' Dyer Ch. J.
thought that it is well enough ; For the Indenture ought to rule the Ule,
ultho' in the Render be a Ufe implied to their own Ule.-^ Per Rrowrt
J. the FoHeflion is transferred to the Ufe by the Statute, and therefore a
Ufe cannot be exprelled upon a Ufe. As Feoffment to J. S. to his own
Ufe, and that he Ihall be leifed to the Ule of R. H. this is void to R. H.
becauie the Ufe and Poileinon was to J. S before. And fo if a Man bar-
gains and fells the Land tor Money, and limits an Ufe upon it, 'tis void.
But here the Render, of Necelfity, mult be to the Heirs of one of them,
and for fb much, no Ule is implied. W'ellon held to the fime Intent, for
there is not any Ufe implied upon a Fine, no more than upon a Feoffinent,
by v/hich they thought the Limitation over good enough ; Dyer laid, if
the Render be m.ide in Tail, the Cognifee is leiz.ed oi the Reverlion to
his own Uie. Quod Bendlows and other Serjeants concellerunr. Mo.
45. pi. 138. Mich. 5 Eliz. Anon.
2. By the Rule of Law, a general Covenant dire£ls the fpecial Ules of
A Fine, and the Ipecial Operation of thefe is by the General Covenant,
and according to the Intent of the Parties ^ and tliis is proved by 6 R. 2.
Fitz. tit. Eftoppel. Placito. 2. A Feoffment was to t^m and their Heirs by
Deed, and a Fine to be levied ; which is [was levied] to them,and the Heirs
cf one of them ; thisfhall be to the Heirs of both of them ; which Cafe is put
2 Rep. 74. b. in the Ld CrOUlipCli'0 CilfC; where 'tis faid that the Prece-
dent Feotiment fhall rule and direft the fubfcqucnt Fine, and preserve the
joint Eftate in them of Fee Simple, againft the exprefs Limitation of the
Fine ; and the fine fhail be ruled, and diretled accordiug to the precedent
yigreement, and Eftate made bv the Parties* 3 Buls. 256. Mich. 14 Jac.
in Cafe of Havergill v. Hare,
[ See (O. a) Andrews v. Blunt. J
(U. a) 7'Fldat Eftate fhall pnfs by the Declaration.
Without I. \ Fine was levied, and the Indenture declared the Ufe to be to
mentioning J^\^ the Wife of J. S. It was adjudged in C. B. to be an Eftate lor Life,
^arti^ular '" ^'^ Judgment afHrrned in B. R. tho' 'twas not exprelfcd to be tor Life.
this isanE- For P^r Doderidge J. tho' the Fine be but as a Grant, yet an EJlate for
ftateforLife; Life may pafs. Hill. 16 Jac, B. R. Cro. J, 525. Egerton's Cafe.
F or it is as a
Grant. Jcnk, 332. pi 65
(W. a) Efiure
Fine.
qii
(W. a) Emu-e how. Where the Lm?ds lie h? federal
. Vills.
1. \ PARISH may contain lo Vills, and if a Finb he levied of j^^oj .g j;
]^\^ Lands in ihe i'arijh^ this carries whatfoever is ift any of thofe c. — '-i-%:
Vills. ii the Cofijlablci^ick of the one goes over all the reit, that is the i" C-irc of
fuperiour or Mother Vill, and the Lands which is in the other Ihall pals p''^""? ^'
fir NomcH of all the Lands in that; and tho' it bc ibund that A. had a
Tythingman, (Dccenarius,) which, prima Facie, is the fame with aCon-
ftablc, and diticred little in the Execution of that Office concerning
keeping the Peace; yet Hale faid, he was not the lame Officer and 'tis
found that the Conllables of A. have a Superintendency over B. and therefore
'tis but a Hamlet of A. But if found that they had diltinft Conltables,
and could not interfere in their Authoritv, it would be othervvife. Mich,
23 Car. 2. B. R.. Vent. 170. VV^alden v. k.ulcarrit.
(X. a) Second Fh?es. How they fhall enure.
ik T N Affile ; Fine was le\ ied to two Femes and to the Heirs of their Bodies^
\_ and after the Donor, iy Ftue Siir C'Uufa/Jce de Droit come ceo, &c.
in \v rit of Warranty of Charters, ackfiowkdg'd the Land to Loth, and the
Heirs of the Body of the one the Remainder to the ether in Tail ; and both ha\'e
Iliue and die, and the Illue of the elded claims by the Fine, and brought
Allife oi all againfl: the Baron of the youngell, who was Tenant by the
Curtel'v, and could not recover but only the Moiety. And fo fee that
this P'ine is only as a Confirmation, and Hiall not alter their Eltates. Br.
Difcontinuance de Pollelfion. pi. 28; cites 8 All! 33.
2. A. levied a Fine to the Ufe of himfelf lor Life, Remainder to his
Wile for Lite, Remainder to his Executors for 20 7ca"s, Remainder in
Tail to B. his Son, Remainder over ; afterwards A. levied another Fine
to the f elf fame Ufes, leaving out the FJlatc for I'ears to the Executors. A.
died ; Refolved that the Remainder to the Executors for 20 Years, being
in Abeyance, was extinii by the fecond Fine. Mo. 745. Trin. 42 Eliz.
Remington v. Savage.
3. A Fine is acknowledged to A. and afterwards a fecond is acknow-
ledged to B If the Jirfl is not recorded, the fecond Fine is good. But il
the firft had been recorded in Court, in Time convenient, viz. the next
Term, it had been good, and the firlt merely void. Cro. C. 284. Mich.
8 Car. B. R. in Cale of Burgame v. Spurling.
4. A. Tenant in Tail levied a Fine to the Ufe of B. for the Life of B. Lutw. 781.
'joith Warranty i and alterwards he levied another to the Ufe of himfe/f and S. C. and
his Heirs, with Warranty ; and afterwards bargained and fold the Lands Judgment.
to C. and his Heirs. Adjudged that the firft Fine thus levied by Tenant
in Tail made a Difcontiniiance, but 'twas only during the Lile of B. For
it remains no longer a Dilcontinuance, when the wrongful Eftate is gone
by which 'tis cuuicd; that the fecond Fine did not enlarge the Difconti-
nuance; becaufe the Eftate raifcd by the'Fine returned back to the Comi-
for, and by Confequence, the Warranty annexed to it was cxtinguilned.
I Salk. 244. Hill, I Annse. B. R. Hunt v. Bourne.
(Y. a) By
^ 1 2 Fine.
(Y. a) By Grant and Render. Enure How. Coj/ftruci'wn of
luch Fines.
'F
UNE is levied recithig^ that the Connfor held certain Land of the Co-
fnffce by $ Marks ^ the Con ii for acknozvledgcd aJid rendered $ Marks
Rent to the Conufee out of his Laud; tliis is taken to be a New Rent, and
not the ancient Rent, nor ftiall it have Relation to the Recital. Er. Re-
lation, pi. 33. cites 21 E. 4. 60.
2. Feoffment by Deed, rendering 3/. Rent, with Claufe of Dillrefs, ■
and Covenant by Feolibr to make further Alfurance of the Land ; Feoiibr
levies Fine to the Feoliee, who renders ■3,1. Rent-, adjudged that he may-
avow for rhe firft Rent, notwithihinding the Fine, and that the Render
is not a Grant of new Rent, but Confirmation of the old Rent, and the
old Rent was prefcrved by the Intent of the Fine. Mo. 298. Trin. 32
Eliz. Sherrot v. Hollovvay.
3. Where there was w Repugnancy betiveen a third and a fourth Rendery
the one limiting the Remainder in Fee to the Conufor, and the other
limiting it to a Stranger, it was refolved, that what w^as contained in the
third Render, ftiall be cf the fame Condition and Quality in ConflraHion^
as a Charter or other Conveyance betivcen Party and Party, and need not
have fuch precile Form as a Writ or a Judgment. But a Conulance of a
Fine, and a Grant and Render Ihall have fuch Conllruftion as another Con-
veyance between Party and Party ; For it has Words of Grant and Ren-
der, becaule it is a Conveyance of Record. Trin. 34. Eliz. B. R. 5 Rep.
38. a. b. Tey's Cafe.
S. C. cited I 4 If -^- Tenant in 'Tail, and J. S. a Stranger, levy a Fine to W. R. a
Rep. 1-4. b. Stranger, v^-ho grants and renders to J. S.for Tears rendering Rent to W. R.
and bv the fame Fine grants the Rever/ion to A. and his Heirs ; it is good i
and tho' all be by one and the fxme Fine at an Inllant, yet in Judgment
of Law, the Leafe precedes the Grant oi the Reverlion, as is held in 36
H. 8. Br. Fines 118. and fo was it adjudged upon a Demurrer, i Rep.
76. b. cites M. 41 and 42 Eliz,. C. B. Rot. 336. White v. White.
5. If Baron and Feme levies a Fine to B. who renders again jor Life,
the Rever/ion remains in the Conufor to his own Ule. Arg. Gouldsb. 68.
2 Salk. 590. (^ Fine with Grant and Render is Tantamount to a Feoftrnent and Re-
- Annx.B R feofEnent, and creates a new Eftate. Pafch. 2 W. & M, B. R. i Salk.
Abbot V. • 337. Price V. Langford.
Burton.
(Y. a. 2) Fine. Enure. By IFay of Surrender. In what
Cafes.
1. A. and B. Jointenants, A. for Life, and B. in Fee, make Leafc to J. S.
for Term of his Life, and after J. S. furrenders by Fine to A. It feems
to me, that this is a Surrender, and fhall enure to both A. and B. as I
think. Tamen Quaere. Co. R. on Fines 5.
2. But ^ J. S. had granted his Eltate by Fine to A. it fhall be a Sur-
render in Law jor one Moiety, and a Grant of his Eltate for the other ATo-
iety, and B. cannot enter into any Part with A. as I think, Co, R. oo
Fines 5.
(Z. a) Enure,
Fine. 3 1 3
(Z. a) Enure. Where Conufors, or one of them takes
back no greater Eft ate than before.
t. A Sold Land to the Husband and Wife, and the Heirs of the
X\^* Husband ; afterwards the Husband and Wile levied a Fine to
J. S. and J. N. to the Ufe of Husband and Wife during their Lives, Re-
mainder to the Husband in Tail Special, Remainder over. It was held in
the Court of Wards, that alter the Death of the Husband, the Wite need
not fue out Li\ery, becaufe the Lands Icing ovigbially purchaffd in the
Niwics of the Hiisbdiid dmi IVifc^ and then they joining in a Fine whereby
the Wife had no greater or lels Elhite, than Ihe had before, the Ellate to
her bv the Fine was no Conveyance lor the Advancement of the Wile within
the Meaning of the Statute of 32 H. S.Trin. 15. Jae. Ley 51. Mcnfield's
Cafe.
[ See (B. b.) pi. 7.
F
(A. b) Enure j By Way of Exthign'ipme}it,
F.offhient was made by Indenture refidcring 3/. Rait^ with aCIaule The like of
_ ofDirtrefs; -xnd. xh^ Yao^Rox co-miants for further J fa-rance otlf'^''f^^"-
the Land. The Feoffor levies a Fine to the Feoffee, and renders 3/. Rent Mich"i-. &
bj'the Fine; adjudged, that the Feoflbr may avow lor the fril Rent, not- iS. Eli/,. An-
withltanding tne Fine, and that the Render is not a Grant of a ncsi Rent ^lews's Cafe.
but Confirmation of the old Rent, and the old Rent was prefer\ ed by ''^^'^'
the Intent of the Fine. Trin. 32 Eliz. Mo. 298. Sherrot \. Holloway. ham's^Cafe"
__D. 15%,
b. 29. Hill. 4 and 5. p. Sc M, s. G.
2. Jl. 'Tenant for Life, B. and C. Coparceners being Reirr/ioners iji Fee ; A.
andB. join in aLeafe to J. S.ot the whole Eftate, tor 21 Years at lo/. Rent
per Ann. to A. during her Lile, and alter to B. Afterwards A. B and C.
all join in a F"ine to W. R. and W. S. to the Ufe of the Husband of B.-
The Court inclined that A's Eltate for Life was not furrendered by join-
ing in the Fine, nor the Rent extinft. For ever)' one granted what he
Lawfully might, tho' twas urged that the Reverhon, to which the Rent
was incident, was gone. Cro. E. 285. Trin. 34 Eliz. B. R. Farrar v.
Johnfon.
3. If Tenant in Tail makes Zfi^/tf //)' /»(^6'/7f«i-e /or ■}o 2ears, rendeiiniz;
Rent with Reentry, and after, for further Jf/i/rance, he demifcs the Land Oy
Fine for 30 Icars to Lfjee, rendering the Rent: This is no Surrender of
the firll Leafe, but a Confinnation, and the Lellee Ihall hold liabjctt to
the Rent and Reentry, tho' no Ufe can renew by the Fine being but De-
mife for Years. Arg. Mo. 3 84 Mich. 36 and 37 Eliz. in Perrot's Cafe,
4. Fine levied by A. and B. to C. with Render of the Land to B. yen- ^^^^y .1^1
dering 5/. Rent, with Claufe of Dilfrefs to C. the Conufee, Remainder t/"the Revei-fi-
the Land to A. and his Heirs ; the limiting the Remainder o\er by C. (to o" -ir-d Rent
whom the Rent was firll: refcrved upon the Render of the Land m Tail) P'''*^'-';!> temg
v.-as Extineuilhment of the Rent, and cannot go to the Remainder Mo '^^ ^'-'"n' """?
575. Pafch. 41 Ehz. W hite v. Gerilhe. ,„,,, ^,^,,,.,_
, .^ . „ ., . ral Fines. But
ir one by Deed makes a Gift in Tail rcndcniig Rent, Remainder over in Fee ; thi.s beine bv Deed, is a
eood Rcfervation of the Rent to tlie Donor, and tlie Remainder onlv flvall j^o to the Stranj^cr; but in a
Fine it is othcrw ifc, and fo is the Courfc of Fines, -and udjudg'd ace. Cro. £. -z-. S. C.. It
iTiall be taken as a Grant in Tail, rendering; Rent, and after a Grant of the Reverfion.' Ow. 126. S. C.
^ 1 Rep. -6. S. C. and P. cited, and 174. b. S. C. and P. cited.
The 'VN'ords were .^hoW 'Jer.eir.cnt.t PrxAi'da n-n:i>:eLn):t to J. It wa.sadjudgedaGrant of the Rcvcr.'lon,
and that the Rent paded. Ow. 129. White v. Gerifh -The Rent pafles to-him, <o whom tlic
Word Remainder limits the Eft.ire, and it palTes the Reverfion with the Rent. 2 And. i:;i pi -6
LIU li
I'
314-
Fine.
5. If one makes a Feoffment on Condition^ and aiterwards levies a Fine
to a Stranger, his Condition is gone. Cro. E. 665. per Coke Attorney'
General.
6. Fine to the Ufe of himfelf for Life, — Remainder to his V\ ife tor
L[te — Rciih^tudtr to bis Kxicntors for 20 Tcars^ Reiaainder o\er in Tail,
t<ic. After, he levies another Fine to the very iame Ufes, only omitting the
zo Tears to his Executors ; he dies and makes his Wile Executri.^:. It was
refolvcd per two Ch. J. that the Remainder to the Executors tor 20
Years, hc'in^ i// Jkyance, was extin£t by the Fine. Mo. 745'. Trin. 42
Eliz,. Remington v. Savage.
7. A. ieiled of Lands acknowledged a Statute^ to B. and afterwards
levied a Fine of the Lands to the Ufe of himfelf tor Lite, and alter,
as to Part of them, to the Ufe of ]. S. in Tail, and of the Rejidtie to B.
in Fee, and died. This Purchafc, in this Manner, is a fufficient Difcharge
of the Statute. Cro. E 756. Paich. 42 Eliz. C. B. Humphrey v. Harneage.
8. If the Party, to whom the Eftate is limited, is in FoJJeJ/ion, iuch
Fine enures by wliy of Extinguilhment of Right. Viell's Symb 6. S. 20.
9. A. by Indenture of Uies" raifes an Ellate in Fee to B. who regranta
Turbary to A. by another Deed, and after levies a Fine to confirm the
Ffiate and Ufes above declared 3 and 'twas ruled, that this Fine touches
nothing upon the Grant to A. of the 'Turbary to extinguilh it, or other-
wife hurt it. Clayt. 42. Barton v. Colethirft.
10. A. upon Marriage, fettles an Annuity on his Wife as a Jointure^ to
be iiTuing out of D. and afterwards the}- both join in a Fine to mortgagi
Part of the Lands ; but, before the Mortgage, the Mortgagee had Notice
of the Annuity, and it was excepted in the Mortgage; and it appeared that
it was never intended to extinguilh the Annuity by the Wile's joining,
and decreed accordingly, and that Ihe be paid the Arrears. Hill ip. Car,
2. Fin. R. 277. Solly v. ^\^hitl^eld.
G. Enu.R. II. A. on Marriage with B. gave a Bond for 600/. to a Trttflee^ and a
18. Trin. 9 Warrant oi Attorney to confefs Judgment thereon defeafxnc'd for Payment
Annx. S. C ^y ^qq/^ jq fjj^ /^y^^ 'f pe furvive the Husband ^ Ihe atterwards joined
sLtboh V ^^'''^'"' ^''" *" '^ Conveyance by Leafe and Releafe and Fine of all his
Bifcow. real Eftate. 'Twas agreed that the Leafe and Releafe did not extinguilK
her Intereft in the Judgment, but the Fine extinguilhed all her Right in;
the Land, per Ld Harcourt. Pafch. 1712. Ch. Prec. 333. Gooiirick v.
Shotbolt.
(A. b. 2) Enure J to make a D'tfcont'nmame. In what Cafes
•
Kl'enixtiiin I- 27 £. I. Stat. I. Cap. 1. Enafts that neither Parties to Fines nor
q'ail, tie Re- their Heirs may plead in Avoidance thereof that before the levying^ and at
maivAer in jf^g levying of the fame, andfmce.^ the Demandant or Plaintiff, or their An-.
Fine ^Sur^ ceffors Were always feifed of the Lands contained in the Fine, or cffome Parcel.
Conufance thereof 1
de Droit «»;e
ceo, &c. he in Remainder may aver the Continuance of PodcfTion, notwithftanding the Fine and Sta-
tute, becairfe he is neither tie Party ncr lis Heir; and fo may a Feme Covert, where her Husband alone '
levies the Fine, per Fairfiix. Weft's Symb. S. 191. cites 12 E. 4 12.
2. The Iflue in Tail may aver Continuance of Poflellion againft a Fine
Sur Conufance de Droit tantum, or Sur Render, but not againft a Fine Sur
Cognizance de Droit come ceo que il ad de ion done ; becaufe that Fine is
executed, and the other executory. Weft's Symb. S. 191. cites 12 E. 4.
15 and 19. II H. 4. 85.
3. A. B. and C. Coparceners of a Manor; A. infeoff^d J. S. of his Part,
to the JT/tf of himfelf for Lif, and after his Deceafe, to the Ufe ot' his 1
eldeff Son and Heir apparent in Fee. And after A. levied a Fine de Tertia '
Parte 200 Acrarum Terrje, 400 Acrarum Paftur-e, See (amounting to
more Acres than the whole Manor contained) Sur G.nufancc de Droit come
ecu
Fine. 5 1 5
ceo, &c. with U'lirraiity of him and his Heirs, and retook by the jhue Fine
for his Life only, and then died, and his Son entered. The Qiieition was,
it" the third Part of the laid Acres be fevered from the Manor by this
Fine againlt the Heir, or that againfl; this Fine, it fliall be taken, that he
had a continual Polielfion and Continuance of Seilin ante Finem, Tem-
pore Finis, & poll Finem, &c. in the Tenement for Term of Life ? k
was held itrongly by Plowden, Bromley Sollicitor, and Lovelace, that
this Averment by him in Remainder, who was -xStra>igcr to the Fine lliould
be received, G^uia neqtie Pars Finis nee Partitim Hurcs, Sc. But Dyer,
Saunders, Alan wood, Southcote, Harper, and Catlin, held the Law clear
contrary^ and that luch Fine amounted to a Feoftrnent of Record, which
malces Difcontinuance of the Remainder or Reverfion. D. 333. b. 334.
a. pi. 30. Palch. 16. Eliz. Anon.
4. It a Fine be levied to a tenant in 'Tail, and he grants and renders the
Land to him and his Heirs, and dies before Execution, this is no Difconti-
nuance j othervvile it is it' it had been executed in the Life of Tenant in
Tail. Co. Litt. 333 b.
5. A. Tenant for Life, Remainder in Tail to B. — B. levies a Fine to A.
and to A's Husband upon a Concellit Tenementa to the Baron and Feme
for the Life of A. and dies alter Proclamations. Refolved, that it was not
any Difcontinuance or Bar of the Entail, but during the Lite of Tenant
for Life^ nor is it any Bar or Alteration of the Entail after that Eltate
determined. Cro. J. 40. Mich. 2 Jac. in Court of Wards. The Earl of
Rutland's Cafe.
6. If Tenant in Tail accepts a Fine with render to another for Tears ; this
fhall bar him, becaufe it works a Dilcontinuance, but otherwife where it
is for Lite, per Hutton J. Winch 123.
7. The Statute De Donis fays, that a Fine fhall be Ipfo Jure niillus.
The meaning is not, that it Ihall be abfolutely void ; but only that it
fliall not be a Fine to bar the Ilfue ^ For it is a Fine to make a Difconti-
nuance, &c. Arg. 10. Mod. 179.
(B. b) By Baron or Feme fingly.
'USB AND and Wife Tenants in Special Tail. Husband aliens by Hushavd and
_^ _j_ Fine and Deed inrolled. If this bars the Heir, is left a Qucere? Pfijefmatits
MoTiaS. pi. 90. where, fome hold that 32//. S. 28. provides only lor u'^^l""'/f''
the Eftate of the Wile, and not of the Heir, others the contrary. T. 3. yks a^Fine^"
£1. Anon. with Procla-
mations, and
dies — Wife enters. — The IlTue in Tail is barred, — But if the IVife enters after the Death of her Huf-
band, and before the Prcclainathns fafs, the IlVue is not bound by the Fine. Le. 260. iS Eli?,. B. R. in
Cafe of Manning v. Andrews. Kelw. 205. b. pi. 7. Contra. — 215. b. Contra, tho' the Eftate was
inTruftecs. -He cannot claim as Heir to both j For by the Father he is barred. Arg. Godb. 912.
cite« S Rep. 72.
2. Husband and Wife Donees in Special Tail. The Husband alone levies She conti-
a Fine of the Lands. 'Tvvas held, that if the Proclamations be made in '.''"« 1^'^"-*"^
his Lite Time, or before the Wile, by her Entry, had avoided the Fine, ^^ make"
the Ilfue Ihould be barred ; otherwile, if the Husband had died before Lcaib for 5
the Prcclamations pafjed. 4 Le. 2. Trin. 8 Elii. Manning v. Andrews. Lives or
The Heir is bound by the Statute 32 H. 8. of Fines, which does T'^Y^'' ^l^
not bind the Wife. But Quaere what Eftate the Wile Ihall have, when the \^^^ nothin'^
Son of their 2 Bodies Ihall not inherit ? And. 39. pL loi. Anon. — Bend, in her Life,
225. S. C. Mich 16 Eliz. * She is Tenant in Tail, but iflhe make p-rHo^^''^
Feoffment, her Feoffee Ihall not have it ; For the Feoltinent of the Ba- '^^ \. J°
ron had difpofed of the Fee Simple, and took away the Poflibility of the jK^ep^'Ao^b.
Wife. Litt. R. 29. in 15CCK'0 Cale, cites 9 Rep. 139. Beaumont's Cale. Greenly 's
Cafe
After the Fine levied by the Baron, the Ferns ts not Tenant in Tail, hut is like to a Tenant in Tail
3 1 6 Fine.
after Poffibility of Illue extinct. Arg. z Roll. R. 42-. in the S'j;-;.-ant's Cafe ■ The IfTue is totally
and hn.illy barred, and lb are the C'afes, 18 Eliz. D. 55! & 269. & iSfaiimOlU'S Qilc ; yet the Entail
remains to the Wife in Right, as to herfelf, and to all Ellates and Remainders depending upon it ; and
to all the Cotilequences ot Benctit to herfelf, and to others by her, as Ion;; as flic lives, as amply as if
the Fine had not been levied. Hob. 257. in Cafe of Duneomb v. Wing&ld. — Per Omnes J. The Heir
fliall be barred ; For lie Cannot claim bv the Gift in Tail ; Becaufe, when he makes Conveyance to iMm-
lelf, he millt make himfelf Heir as well to the Father as the Mother; and this he is eftopped to do by^
the Fine ; and tho' the Feme might have entered, this was by Reafon of the Statute^ and not bv Force
of the Tail , :lnd the Right ^hoi by the Statute does mt liefcend to the Heir iy th-c Mother, hut only the,
Right oj the Extril, <ii-hich defcends from both. Dal. 50. pi. 1(5. Trin. iS Eliz. Kelw. 205. b. pi- -. Jj.
P..^.: — :— Mo. iS. pi. 90. S. P. — D. 351. b. pi. 24. Trin; iS Eli/,. Anoii.
3. Feme was Devifce for 30 years oi the Occupation and Profics of a
Term it' Ihe lb long Ihould li\e a Widow ; and ati;er her NVidowhood
the Remainder to B. his Son. She enters, and the Re-ccrjiouer^ by Indenture,
granted^ i^i:. the laid Tenement to the Feme and her Heirs. The Reivr/i-,
oner and his Feme levied a Fine to the Uj'es aforijaid, and aitcrwards the
Feme married. Rclbhed that the Wile otthe Reverlioner is concluded of
her Right ot" Dower, by the Declaration of the Ules of the Fine by her
Husband only, which was after le\ied by them jointly, becaufe no Con-
tradiction of the Feme appears, that ihe did not agree to the Ules declared
bv the Husband by his Indenture iblely. Trin; 28 Eliz. C. B. Ow. 6.
Haverington's Cale.
4. Jiaron and Feme exchanged the Lands of the Feme, \\-hich Exchange
■was executed, and they levy a Fine of the Lands taken in Exchange. Per
Rhodes & Windham J. the Fenie, after the Death of her Baron, may
enter into her o'ji'H Lands., notwithftanding the Fine; and Judgment tor the
Feme. Le. 285. pi. 386. Hill. 28 Eliz. C. B. Anon.
5. Feme., without her Husband., levies a Fine of her Land as a Feme
Sole ; the fame Ihall bind her after the Coverture, if the Husband do not_
enter on the Conuiee during the Coverture, and interrupt the PoflefTion
gained by the Fine, per Periam J. Le. 82. Palch. 29 Eliz. C. B. Zouch
V. Bamfield.
6. Baron Tenant for Life, Remainder to the Heirs of the Body of the Wife.,
hy the Baron to be begotten ; they have Iliiie a Daughter; the VVite dies ;
a Fine by the Baron only is no Bar to the Daughter. Yelv. 131. Trin.
6 jac. B. R. Repps v. Bonham.
7. A. and his Wife wsre feifcd in Special Tail., Remainder to A. in Fee ; A.
alone levied a Fine to King E. 6. in Fee, which Eftate came to B. in Fee;
A. having Ifluc, died; his VV^ite enter'd; B. confirm'd the Eftate in the
Wife, Habendum to her, and the Heirs of the Body of her and her
Husband. And it was ruled that the Confirmation wrought nothing, be-
caufe ihe had as great an Ellate before ; and alfb the Illiies could not be
made inheritable, which were before barred by their Father's Fine, and
the Elbte Tail, as againft them, lawfully given to another. And it was
further refohed by way of Admittance, that if the Remainder in Fee had
7iot been to A. himfelf, but to a Stranger; the Entry of the Wiie had re-
ftored that Remainder to the Stranger, and had left nothing in the Cog-
nifce, but a meet Poflibility; fo the hath the Tail not only tbr herfelf^ but
to the Benefit, and Advantage of other Ellates, growing out of one Root
■with his. And yet during the Life of A. the Entail had been barred,
and all had been in the Cognifee ; and the Wile had had ncuhing but a
Podibility, Hob. 257. cites 9 Rep. 140. Pidch. lojac. in the Court of
Wards. Beaumond's Cafe.
8. If Land be Specially entailed to A. and his Wife, the Remainder to B.
in Tail; the Remainder to C. in Fee; and A. the Husband levies a Fine
alone toD. in Fee, and dies, leaving Iflue, and the Wile cjiicrs ; Ihe is in of
her Eltate in Tail, and her Entry alfo remits B. and C. to their fcveral Re-
mainders, and hath put D. out of his ;\hole Eltate. And therefore I am
clear of Opinion, that the \V'ife in that Caie may fiffcr a common Recovery
againll herlclt, as Tenant in Tail, and vouch the common Vouchee; and
that fhall bar the old Remainders of B. C. For ilie c;yinot be faid to be in
of
r me. ^ i y
of other Eitatc at iiJl, much Jefs to them. If the Wile alter iiich common
Recovery pulled againll her die, leiu ing Ilfue by her Husband ; now D:
is to have the Land (as hath been liiid) neither can the Recovery had a-
gainll her, hurt him ; For as to him^ Jhc was cius dc autre Eftats^ and there-
lore the Value can't come to him. And ii Ihe had come in as a Vouchee,
yet it could not ha\e hurt D. For hisEltate and hers ne\er lh)od together,
nor had Dependance the one upon the otiier. And he had his Eltate di-
vided trom hers, and by contrary means ; tho' both out of the Root of
the Entail, per Hobart Ch. J . Mich. i6 Jac. Hob. 259. in Cale of Dun-
combe v. W ingfield.
'3'
(B. b, z) Amendment of Fines and Common Recoveries^
and of Writs relatins: thereto.
1. Scire facias iipoH a Fine levied ly Kiftg E. 2. Reddendo eidem Regi S
Haredibtts fitis los. per Annum 'Tencndtaii dc nobis S Htsrcdibus nojiris,
■where it (ijoiiJd be of E. 2. qmndarn Rcge i3 Harcdihiti filis ; and becaufe
it was a W rit Judicial, therefore it was not abated. Br. Amendment, pi.
104. cites 39 E. 3.
2. Scire facias upon a Fine, which was to him and his Heirs Male, and But where
the Mittimus was, ad Profecutioncm J. fZ! confinguinei S Hatred' without ^';'"'^ ^^'"t,. ,
(Maicul'j) and it was doubted, if it may be amended. £r. Amendment, ff^a,-/,! a^d
pi. 48. cites 9 E. 4. 15. Feme, avd ii
t'f.'i Heirs of
their Bodies, and Certiorari ifl'ued to remove the Record out of the Treiriiry into the Chancery, and now
it came into C. B. by Mittimus ; and the Plaintirt" brought Scire faci.xs upon it, as Heir to the Barcn m.d
Feme of their Bodies ; and in the Altttimus, he mr.de himjelf Heir to ihe Barcn cniv ; and i?i the Scire faci.ts
he had made himfelf Heir to the Barcn and Feme ; the Opinion was that the Scire faci.is fliould ab.ite ; For
the Fii.e 'xarrants the Mittimus, and the Mittimus tvarrants the Scire facias, and therefore they o/raUt to
a/rree. And per Vaviibr, Readc and Fineux it fiiall be amended, beGaufe it is founded rp.vj Reeordi
Contra of .Scire facLis, which is funded upon Surmifc; note the Diverfitv. Br. Amendment, pi. 09. cites
<jH. 7.1. S.
3. 23 FJiz. cap. g. ^. i6. Ena£ls that none of the Fines or RccO'Veriei
heretofore levied, pajji'd, or fuffhrcd, which fijall bi cximpltjied under the great
Seal according to the Form of this Aif, pail, after fuch Exemplifcation had^
be in any wife amended.
■ 4, 27 Eliz. cap. 9. §. ID. Enacls that no Fines or Recoveries heretofore Ic-
vied, pajjcd or fiffcred i which pall be cxcmplifcd under any Judicial Seal of
miy the Shires of Wales, or T'own cr County of Haverford-Vv'ell, or under
the Seal of any of the Counties Palatine, fhall after fuch Exemplifications had,
be in any wife amended.
:. The Return of the Writ of Covenant was Off. Pui-if 31 H. h. and in At j^^^ f.o"i
Lith was ingroffed Trinit. Sequent, but was entered thus, \\t. & p-ff Con- °llj^f,jl"^ffj
cff. S Recordat. in Craflin. Santfcs I'rin. Anno 30 H. 8. where it ihould be v,"sii'd7rjLi
32." " ■ '
Wr
Eliz. Kettle's "Cafe. 'Tl-.-.-.v. A
Wi'r. of Er-
ror was brought, and tliis alTigncd for Error. But it was aifiendcd by the Coui't accordiiif; to the Xote
of the Fine, which was 50 JhhH. 5 Kep. 44 b. cited as Mich. 5S & 39 Eli/.. C. ij. l)oiin',> Cile.
6. In a Formedon, the Tenant pleaded a Fine with Proclamations ; 5.1^cp^ 44. a.
the Demandant replied, Nul tiel Record ; and the Truth ot the Cafe was, '■"^J..^',l"'
hat the Record of the Fine, which remained with the Chircgrapher, did ["ipa^ Ca'e.
Warrant the Plea ; but that, which remained with the Cujlos Erevium, —5 Lc. icd.
did not warrant it ; and both thefe Records were flicwcd to the Court, pi icr.Trin.
And Rhodes 1. cited a Prelident 26 Eliz. Where, by the Advice of all ?,-^'"P *^-
the Jultices ot England, where luch Records rZ/jfii-, the Record, remain- ^fj^'^
ing with the Cullios Brc\ ium, nas amended and made accordfrig to' the
M m m m Record-
5
Tru
■v8
me.
Record remaining with the Chirographer. Which Windham conceffit.
And afterwards, the faid I'reccdent was Ihcwed, in which were let down
all the Proceedings in the Amending of it, and the Names of all the
Julticcs, by whole Direction the Record was amcoded, particularly;
and that the laid Precedent was written, and the Amendment of
the liiid Record, entered, by the Commandment and Appointment of
the laid JulHces in perpetuam rei Memoriam. And the Kealbn which
induced the fiid Jultices to make fuch Order, is there written; Eccaufe
they took it, that theNnte, rcmainmg -with the Chirographer^ ticPrincipale
Retcrdtim. 3 Le. 183. pi. 234. Mich. 29 Eliz. C. B. Anon,
p. 7. The Records, belbre Amendment, were ;;/ ConC Siijfes ; but were
wcre°rpend- iim'^ri'^ed and made Katw. as the Truth was. 5 Rep. 44. b. cited as the
ed, and in- Cafe ot Payn V. Covert.
ftcad of CrJ-
tate Eior, were made Ehor. 5 Rep. 44. b. cites Mich. 53 & 34 Eliz.
8. A. levied a Fine to B. of the Manor of D. and 1000 Jcres of Lcnd^
^c. according to the ufual Form of Fine,-;, which were valued at 20
JMarks a Year ^ fo that the Fine in the Hamper was i /. 6 s. Sd. and con-
fequently the Fine Pro Licefitia Concordafidi or poll Fine was 40 j. in the
whole, and ^ct the Clerk entred the King's Silver or Poll- Fine thus, B.
ddt. Do'iiiificeReginie ^os. pro Licentia Concordandl ^c. tn Placito Cmventtonis
cfioooJcres of Land ^ ^c. and purfued all the other Words, only that
he omitted the Manor. It was alfigned for Error, that the King's Silver
was not paid as well for the Manor as for the Tenements ; but becaufe it
appeared, upon Examination and View of ail the Parts of the Fine, on a
Motion to the Court of C. B. for Amendment of this Fine, that it was
only the Mifprijion of the Clerk that entered the King's Silver, and that
the liiid Sum of 40 s. in Verity was the Fine, as well ior the Manor as for
theReiidue^ and always the Value entered upon the Back of the Writ
of Covenant is the Warrant for the Entry of the King's Silver ; and tho*
the Tranfcript of the Fine was removed by Writ of Error ; yet iince the
Body oi the Record remained with them, they unanimnully refolved
that the faid Entry fti^iH be amended, and lliall be made in the Writ de
Ccnventione of the Manor aforefaid^ ^c. and of all the Acrcs^ ^c. as ic
ought to be. And after, upon Diminution alledged in the Omilfion of the
i;iid Manor in the Entry of the King's Silver, the \\i\t was direcied to
this Purpofe to the Ld" Anderfon, who, one Day this Term, moved all
the Jullices of Serjeant's Inn in Fleetllreet to know their Opinions con-
cerning the faid Amendment in this Cafe, pending the faid Writ of Er-
ror. And it was refolved by Popham Ch. J. ot Eng. Periam Ch. Bar,
Clerk, Walmfley, Fenner, Owen and Ewyns, that the faid Entry of the
King's Silver lliould be arrtended; and this pending the Writ of Error:
5 Rep 43. b. 44. a. Mich. 38 & 39 Eliz. Bohun's Cale.
9. Alfo where the Writ of Covenant ll:ould be Tefie meipfo^ the Writ
was Dede meipfo, which was inlenlible and \itious; and this was alfo a-*
mended by all their Opinions. Mich. 38 & 39 Eliz. 5 Rep. 44. Bo-
hun's Cafe.
10. TheCertificateof the Note of the Judge, &c. w\as thus — In Pr^-
cipe dednabiisPartibiis Rcfforiii^ & duabus Partibus. Tenement, by Mis-
take of the Clerk who wrote the Concord, the Cognizance was Partem uU
timam qtiam, &c. But the Foot of the Fine, and the Note in the Hands'
of the Chirographer, awf right, viz. Partes qaas, ut illas quas, &c. and
by thele the Certificate ot the Judge was amended, pending a Writ
ot'Error, which had been brought in B. R. Upon which the PlaintiiFin
Error moved the Court of C. B. that the Fine Ihould be made in Statu
Quo, as it was betbre the Amendment ; but all the Court denied the Mo-
tion, and directed that the Amendment lliould Hand, tho' made alter the
Writ of Error brought. 5 Rep. 44. cited as Hill. 38 Eliz. C. B. Mor--
gan's Cafe.
II. In
Fine. c> 1 9
11. In the Writ of Co\cnant, and the Note and Foot of the Fine,
the Village was Cakbtrrfi^ but was amended by the Court, and made
Sc'.khurfi according to the Acknowledgment to the Judge, which wa^
riglit. 5 Rep. 44. b. cited as ^\"ealch's Cafe.
12. In a \\ rit of Error to re\erfe a Fine the 4 Eliz. and ufligned for -q , j^ ^^^_
Errtir, that the /^r/f of Covenant bore'Tefie 2^ Apr. returuahk 15 Pafchj;^ tra. PI. 15.
'xbtch in 'friitb ivas 15 Apr. and fo the Return before the 'tcfh. Refblved Hill, 5 Eliz.
that it ihall be amended. Trin. 41 Eliz. B. R. 5 Rep. 45. b. Gages Cafe. p^^JJ^f^""" pj^
.- This was afterwards reverfed and adjudged not amendable. Mo. HoltCli" \.
571. Gage V. Toper. contra ly to
toCoke's Re-
port of (Jpiagfg Cafe, it was not amended, but Judgment reveiTed. (J Mod. 191J. Jenk. 25S. pi. 53:
13. A Writ of Entry Sur Difleilin en le Polt was oi \$ Acres of Land.,
•and one Acre of Meadow inAlphamfion and Lamarp in the County of Ellexj
whereas by the Feoffiiient produced, the faid Acre of Meadow lay in
<jreat Henney. It was ordered to expunge Lamarfi, and, in the Place
thereof, to infert the Name of the Village of Grcit Henney, and that the
Prothonotary's Clerk amend the Entry, &c. Pig. o{ Recov. 228, 229.
cites Mich. 6 Car. i. Skinner v. Land.
14. The Writ of Covenant in the Certificate, \s Ji fecerit eos fecur. ^c.
:Where it ought to be {vos.) But upon View of the Return of that Writ,
certified from Cheller, where the B'ine wixs levied, it was (vos ;) where-
upon it was aw arded, that the Roll lliould be amended, and the Fine was
affirmed. Mich. 11 Car. B. R. Cro. C. 415, 416. Done v. Smetheir &
Leigh.
15. A Fine, to make a tenant to the Precipe, was of two Mefaages and
me Garden, but the Recovery was ot'one Meftiage and one Garden. Ordered^
upon Affidavit, Examination in Court, and Confent of Parties, to be a-
mended. Pig. of Recov. 222, 223, 224. cites 13 Car. i. Drake v.
Biddulph.
1 6 . Praecipe and Concord were of Tenements lying in the Pariflj of Lan-
ceflon in Can Cornivall ; when in Fa£l there is no fuch Parilh within all the
County of Cornwall, but ought to have been z/V the Pariftj of Saint Stephens
near Lancejlon ; it was ordered by tlie Court, that as well the Praecipe and
Writ of Covenant, as all Entries and Records of the faid Fine in all
Offices, which it has pafled thro', be amended and reclified, bv inferting^
the Words (St. Stephens near) as b)' Law it ought to be done. Pig. of'
Recov. 218, 219. cites P. 34 Car. 2. Tregeare v. Gennys.
17. It was ordered, that the Writ of Covenant be amended, hy infirting ?• f; Pff°
thefe Words, (and Know/Ion) in the faid Writ ^ and that all' Entries and Name ol" the
Procefs made thereon, be amended by the laid Writ according to the Village of
liime Rule. Pig. of Recov. 220. cites Hill. 3 Annce. Courtenay v. Blake, ^f'.^terf.'-if,
Then he adds two preceding Orders made to fhew Caule why the "po" ^^■'''i of
faid \V>it, and all the Entries and Procelles ihould not be amended, and Conufces and
the fiid Words inlcrted. Ibid. 221, 222. Conufor '
tTudo in
Court, and Confent of Conufor. Pig. of Recov. 2-;j. jilicli. 1650. 2 Car. 2. Parker and Jolly v.
Cotton & Ux'.
18. Ordered that the Words (Clarendon and Clarendon Park) which S.P. astotlie
\vtxe mentioned in a Deed produced in Court, declaring the Ufe of a '^oxAfhew-
F/w ^/AVi^iYo-j^j levied and fijflered of Tenements in Laveritock, Pitton, p'e'JoJ'g'" ^
Purton, &c. in the County of Wilts, be, bv the Curlitor of .the faid County, Pig. of Re-
inferted in the Writs of Covenant and Entry, next after the Word Pur- cov.25o,2-r.
ton ; and alfb that all Parts of the flxid Fine, bctnecn the Parties thereto, '^"^" I^*--^''-
and the Recovery afbrefxid, and the Exemplification thereof^ and the ]^.^^y_ ^^^^
Writs of Seilin bet«'een the faid Parties, be amended on Record in the v. Maftors.' ■
fame aforefiid Words, (Clarendon & Clarendon Park) in all Places ne-
ceffiry. Pig. of Recov. 225, 226, 227. Hill. 5 Annse. Abney v. Ld Cla-
tendon. & Heck v. Abney & al.
19. Fines
320 Fine.
19. Fines were levieii of Lands in the Illand of Antcgoa, and Error
was brought to reverie the fame, the Lands being mentioned in theW'ritsi,
&c. thus, /// hf/{L! (ie Antegoa in Jmerica^ in Partibtts I'ranfmaruiis^ viz. in
P aroc hid jlr/iii .iMnrue Ijlinrton in Com' Mid d. and the fame was ordered to
be amended by itri king out the \\ ords (tnJmcrica in P ambits T'ranfinartnis )
And Articles of Agreement between the Parties to the Fines being read,
\\hich were to convey and allure Lands in the Illand of Antegoaj
the Court faid, that the Repugnancy inierted merely thro' want of Skill,
wnd which would vitiate tlie l-'ines, mult be rejected, and the Fines made
efteftual, viz. in common Form ; but that, if then they Ihould be infuffi-
cicnt, Advantage may be taken thereof Barnes's Notes of Cafes in C.
E. 143. Pufch. 8 Geo. 2.. Forlkr v. Pollington, & Forfter v. Brooke.
(B. b. 3) JFarra titles inF'ifies, Hozv they may be.
1. A Fine was levied by the Bcrron and Feme, who acknowledged the
Tenements to be the Right, &c. and releafcd,and quit-claimed lirom them,
and the Heirs of the Feme, and bound the Hetrs of the Feme tu Warranty,
without a Word of the Br.ron. Br. Fines, pi. 19. cites 44 E. 3. 21.
♦ Weft's 2. If divers join in a Fine, it is fiid the Warranty mull be by them,
Symb.S. 147. and the Heirs of one of them, who is the Owner of the Land. Yet
if there are divers Conufbrs, they may warrant feverally, and cither ge-
fieraliy or J'pccially; for * Warranties are fometimes general, that is, againll
all Men, Ibmetimes againji all except a Jingle certain Perfon, fometimes a-
gainjl certain Perfons only; fometimes againji every Con tifor and his Heirs
feverally, fometimes againJl one of the Coniifors and his Heirs only, fome-
times of all except a certain Part ; and fometimes of a Part only certainly
exprelied. Manb. of Fines 9. cites 44 E. 3. (but there is no Page, Plea
or Term mentioned.)
B
(C. b) By Baro?j and Feme.
I ARON makes Gift in "tail of his Wife's Land, and after they join in
_ ) a Fine of the Rever/ion; this bars the Wife of all. But if they had
granted the Rent only by Fine, then the Wife might have entred alter the
Death of her Baron, per Caril. as Brown and Walmlley J. \'ouch it. Mo.
91. pi. 224. Trin. 10 Eliz, Anon.
2. Baron and Feme are feifed of Land in Jure Usoris ; Baron alone fells
tht Land by Indenture in his Name alone, or without Deed indented, and
afterwards Baron and Feme levy a Fine to the Vendee. This lliall be to the
Ufe of the Vendee. For her Agreement by the Fine Ihall be intended,
unlefs fomething be to the contrary. Agreed per Omnes. And. 164. Mich.
29 & 30 Eliz. in Cafe of Colgate v. Blith al. Kenn's Cafe.
Ci-o.E. 2i6. 3- Biiron feifed of Land in Right of the Wife, makes a Leaft to A.
Hill. 9; Eliz. /or 21 Tears, and after he and his Wite lew a Fine Sur Cogn. de Droit
B.R. Harvy come ceo, &c. to C. and his Heirs; the Baron dies; the Leafe is dcter-
V. liomas. iT^ineji by his Death, and the Conufce Jhall avoid it; For the Baron join'd
but for Conformity and Necellity, 2 Rep. 77. b. cited in Cromweirs'Cale,
as the Cafe of Harvy v. Thomas.
4. ABaron and Feme /// Fa^o,^ non de Jure, levy a Fine of the M'ife's
Land, it Ihall bind the Feme and her Heirs. Mo.' 477. Mich. 39 & 40
Eliz. in the Cale of Prat v. Phanner.
Cro E. 917. S- Baron and Feme feifed of Land to them and the Heirs of the Baron.
S. C. by the They bargain and fell by Deed in Fee, in which is a Provifo, that if ci-
Karne of thcr of thcin pay 100 /. then they to rehavc as hi their former Fflate ; and
SnoSS ^' ^^^^ ^"^^^ Indenture, and all other Fines, &c. Jhould be to tks Ufe of the
laiththatthc Baron and bis Heirs, omitting the Feme. And Jattly It is agreed, that
all
Fine. 9j2i
all fines and Afllirances to be made between the Parties within &c. Ba,~a;n ^^d
Ihould be to the Ufcs, Intents., Sc and Agreements before herein expre£~ed. Sale wa'; m-
oiid to no other Ufe, Sc The Deed was not inrolled ; A Fine was levied rolled after
within the Time ; The Barcn dies ; The Feme pays the loo /. Relblved the Fine k-
fheihall have her Eftace for Lite. Hill.42Eliz. B. R. Cro. E. 744. South- EhcBaroit
cot V. Manory. paid the Mo-
ney at the
Day and re-entered. Mo. 6S0. S. C. Wilitott V. KnowleSi
6. If Baron and Feme join in a Fine Sur Concedit with Warranty,
and the Baron dies i Covenant on theWarrantj; lies agatnj} the Feme. Lev. 301. cVsP '
Mich. 22 Car. 2. Wootton v. Hale. admitted pee
the Counfel
of the Defendant, who then excepted to the Pleadings. 2 Saund. 180. S. C.
7. Feme Tenant for Life, Remainder to her firft Son in Tail j fhe and
and her Baron (before any Son born) Mcept a Fine oj the Fee. The Con-
tingent Remainder is dejlroyed, and not prelerved by the Pollibility of fur-
vivmg the Baron and fo waving the Eftate taken by the Fine. 2 Lev.
39. Hill. £3 and 24 Car. 2. B. R. Purefoy v. Rogers.
8. Feme Tenant in Tail., Remainder to her Sijiers in Fee. The Tenant in Mod. 2S1.
Tail and her Husband levy a Fine to the Ufe of Husband and Wife, and ^- ^■
the Heirs of the Body of the Wite, Remainder to the Husband in Fee,
with Warranty againfi them and the Heirs of the Wife. Feme dies without
Iflue. The Silters are barred by the Warranty. And the Husband by
taking back as great an Ellate -as he warrants, deftroys the VV^arranty.
Cart. 243. Mich. 25 Car. 2. C. B. Fowlev. Double.
9. An Annuity was made payable out of Lands for the Jointure of
the Wite, afterwards Baron and Feme join in a Fine to B. to whom A.
atter the Marriage, had 7nortgaged Part oi thofe Lands ; B. had Notice of
the Annuity betbre his Mortgage, and 'twas excepted in the Mortgage. De-
creed that her joining in the Fine was no Extinguithment of her Annuity.
Hill. 29 Car. 2. Fin. R. 277. Solly v. Whitfield.
10. Husband and Wife covenant to levy a Fine of the Wife's Land to Affirmed iti
the Ufe of the Heirs of the Body of the Husband on the Wife begotten. Here Dom. Proc
can be no Eltate to the Husband for Lite by Implication ; Becaufe the Ef^ Pari. Cafes,
tate was the Wife's, to which he was a Stranger, fo 'tis merely void; For ^°^'
taking it as a Remainder, there is no precedent Eltate of Freehold to ftip-
port it; and taking it as a fpringing Ufe, then 'tis afpringing executory Ufe,
to arife after a dying without Iffue, which the Law will not expefl ; lo that
'tis either way void, and it muft be one of thefe ; per Cur. Hill. 3 \V".
&M. B. R. 2 Salk. 675. Davis v. Speed.
I
I
I
N n n n (D. b) By
C^22
Fine.
(D. b) By Other Perfou of ths Lands of a Feme Covert,
either in Foiiellion, Remainder, 2<;e.
1, A Tenant for Term of Life, Ranahidcr in Fee to Feme Covert. The
/\_ 3^cnant for Life k'-jtes a Fim. The is'-^ro// ^/fj, and Feme takes
oEhcr Baron ; and T'enant dies. 5 Years pafs. The fecond Baron dies.
Tlie Fanelhall be barred. D. 72. b. pi. 3. .Marg. 43 Eliz. Whetllonev.
W'entvvorth.
(D. b. z) Proclamations. Made M lulmt Ttme. After the
Death of the Parties.
1. The Writ of Covenant, and Ded. Pot. with the Concord, was certi-
fied i and the KingsSilver eutrcd, the l-uije Tefln thiit tlie Fine was acloiow-
ledo-ed ; but tbeFi:;cwas not engrojfed, liit re 1,1. lined in the Chirograph Office-,
iind'J'now the Conufee being dead, his Heir mo\ed to have the Fine in-
sroiied with Proclamations j and becaufe a Formedon is pending now for
^^art of the Land, Curia avifarc vult ; & poftea, \iz. Michaehivas Term,
'twas held per Cur. that the Fine Ihould be ingrolled, but that the Pro-
clamations lliould not be entered nor erigrofjed ; becaule the Parties to the
Fine are dead, to whom by the Statute of 4 H. 7. Election is given to
have the Fine with Proclamations, or without. And no Party is here to
make Eleftion. D. 254. pi. 104. Trin. 8 Eliz. Compton's Cafe.
2. In Formedon. The Tenant pleads a Fine ivith Prorlamations in Bar,
^/ one Richard^ the Deumndimfs Ancefior. The Plaintiff replies^ that Ri-
chard entered upon his Father, being Tenant in fail., and k-vied the Fine i
^ijui before the Proclamation pafled, the Father re-en t red, and died, &c.
And by the whole Court it was held to be a good Replication, and the
Ear v,ell avoided. For when the Father re-entered before all the Procla-
mations pafledi the Fine thereby is avoided to all Purpofes, as well to
himfell^ as to the Son who levied it: But if die Proclamations had in-
curred before his Entry, altho' he had re-entered within the five Years,
and died, yet it ftou'ld have bound the Son and his Heirs for ever. Cro.
E. 361, 362'. Mich. 36 & 37 Eliz,. C. B. Archer v. Greeij.
3 A. Tenant for Lite of certain Land, the Remainder to B. in Tail, the
Reverfton to B. and his Heirs expeclant. B. levied a Fine to C. and D. and
to the Heirs of C. to tlie Ufa of them and their Heirs, and had Ifjue^
and died before all the Proclamations were palled, the IJfiie in I'ail^ then,
heino- beyond Sea ; the Proclamations are made, and after the Ilfue in Tail re-
turned, and immediately made Claim upon the Land to the Remainder
in Tail ; if in this Cafe the Eltate Tail was-barred or not, was the Quef-
tion. It was refolved by all the Juftiees and Barons oi the Exchequer,
nullo coutradicente, that tho' by the Death of Tenant in Tail a Right
of EllateTail defcended to the Ilfue, inafinuch as he died before all the
Proclamations were palled ; yet whsxs. the Proclamations palled without
any Claim made by the Iffuc in Tail upon the Land, this Right that
defcended to him is barred by the Statutes of 4 H. 7. and 32 Hen. 8. For
tho' the Fine -withoHt Proclamations, nor the Prochimations-ivithoiit the Fine,
cant bar an Fflate •'Tail; and tho' after the Fine levied, and before all the
Proclamations paifed, a Riojjt ts defcended to the IJJ'ae in Tail per Formant
Doni, which is Paramount )he Fine ; and tho' there is no Fine v,'ith_ Procla-
mations levied afcer the Death of the Tenant in Tail to bar this Right, ft)
defcended to the Ifliie in Tail; yet inaliiiuch as 'tis provided by the Stat,
ol" 32 //. 8. That alt Fines levied with Proclamations of any Lands, Sc en-
tailed to the Perfon, fo levying the fame, or to any oj' bis Aucejiors m Poffef-
Jton, Reverfton, Remainder, or in UCe, /hall be immgdimly after ttoe Fine I0-
Fine. 220,
wed, iiigroffcd and Proclamations in^de, adjudged a fufficient Bav againfi the
foidPerfon and their Heirs, darning the fame only by Force of any fuchEn-
.tail; and the IlFue in Tail, in this Cafe, claimed as Heir by Force of the
iaid Ertate Tail j therefore by the exprels Letter of the iiiid Aft, he is bar-
red ; and with this agrees tlie Judgment ing)ltlitl) and^tapletOn'0 Cafe.
PJ. C. fo. 430. 3 Rep 84. a. 86. b. 87. a. Pafch. 44 Eliz. Cale ol Fines-
(E. b) With Prochmat'mis. And how to bs read and
proclaimed. And the Effed thereof.
. i.i i?. 3. f. 7. §. I. EnaEiszhat a Fine pa III e openly read and proclaimed Bnt Tee ^16.
fhc fame Term, and three Terms after, at four fever al Days.
A Tranfcrtpt of the Fine pall be fent to the Jujiices of Jfpfe of the County
where the Land lies, to be there proclaimed.
§. 2. J T'ranfcript pall be fent to the Jujfices of Peace.
2. U Proclamations he before the higrojjment, 'tis void, and not granted * vid. Sea.
h\ the * 4 H. 7. 24. as I think. Denfh. R. upon the faid Statute. 2. of that
■^ T / T Statute, and
the Notes thereon at (W. 4\
3. I Ma. St. 2. cap.'].§.T. Strengthens Firies'-JuhenProclamati-jns are not it has been
made., Sc. by Reafm o/'Adjornment of the Term. lefoh-ed,
•^ tliat this Ait
extends, wliere but Part of the 7'erm is acijcrned. For it is a)>favourable Law, and to be taken by Equity.
% Inli. 519. D. 1S6. pi. 6S. Mich. 2 & 5 Eliz.
4. Nothing can dillurb the Operation of the Proclamations, but the jfj.,,^^..^^
Re-continuance of the Tail by Judgment in a Formedon, Entry, Clann ,/f^,,th'ns
pr Remitter, as the Cafe requires. Vid. PI. C. Smith v. Staplcusn. p.^js after the
Ccr.tifor 5
'Death, the Entry or Claim of the liTuc in Tail, prior to the Proclamations, will not render the Fire
inefFeaual. Vid. 5 Rep. 60. b. 6\. in Cafe of Fines, cites Purflow's Cafe. And Vid.Poph. 65, 6*5. cites •
ZJ Eliz. Ld Sturton's Cafe.
5. Fine to bar an Entail muft be alleged to be with Proclamations, o-
thervvife it will be intended to be without Proclamations; and fo the Bar-
gainee will only have an Eftate for the Life of the Tenant in Tail, be-
caufe it is no Difcontinuance. Mo. 220. Mich. 27 & 28 Eliz. Owen's
■Cafe.
6.31 Eliz. 2. Enafts that all Fines -juith Proclamations to be levied in the
Common Pleas, pall be proclaimed 4 Times onlvj viz. once in the Term in
which it is ingrrfjed, and once in every of the 3 Terms holden next after the
fame ingroffing ^ and every Ftue fo proclaimed pall be of Force, _ as if the
fame had been 16 Times proclaimed according to the Statutes heretofore made.
: 7. If the Conuieedies, the Heir has Eletlion to have the Fine with Pro-
clamations, as well as the Anceftor. For 'tis for his Benefit, and the
Statute does not reftrain it. And the reafon of 8 Eliz. 254. why the Pro-
clamations there made wsxt Jvayed after the Conufee's Death vvas, be-
caufe aFormedon -was depending, and that was onlv in the Difcretion of the
Court. Cro. E. 693. Mich. 41 & 42 Eliz. B.R. Wakefield v. Hodgefon.
8. The Proclamations do not make the EfrJe, but enure to the Eftate ^^^^ Pyo-la-
made bv the Fine, and make th^ Bar according^to the EftatCi which palled matior.s y>,-.ff
Utbre by the Fine. Poph. 63. in Cafe of Harry v. Farcy. on'y to dijn,:-
!^:;!jh, that it
is a Fine according to the St.,t. J,H.-. For tho' the IfTue having Notice b\' the Proclamations^brings his
'Formedon accordingly, yet it fhall not avail him. 5 Rep. 91. Pafch. 44 Ehz.. in the Cafe ol lines.
• 9. \Vher5 a Fine and 5 Years pall are urged to bar a Right, &c. by
Non-claiiw within the StarLue«,^hc my\i\ prx the Proclamations tind.r Seal;
. and-
'32^ Fine.
and the Chlrographers mentioning that 'tis a Fine with Proclamations, aS
is dual, will not ferve. Clayr. 51. 13 Car. Allen's Ca(e.
10. A Fine with Prockmatiofis when ^rjen in Evidence, ought to have
the Proclamations indajld on it; and 'tis not enough to iay that it is ft-
cundum Formam Statuti. Held on a Trial per Scroggs Ch. J. 2 Show.
126. pi. 105. Trin. 32 Car. 2. B. R. Anon.
(E. b. i) Reverjal. What muft be done in Order to re-
verie Fines. Scire facias againft Tertenants, &c.
1. In Scire facias, W. o.chwjoJedged the Manor of Dak to he the Right of
R. by Force of which Acknowledgement R. granted and rendered again to
the [aid IF. and his Heirs ; and atter IV. died., and F. his Son and Heir
brought Scire facias to execute the Fine ; per Fencot, Fine fur Conufance de
Droit, is to be executed by Scire lacias; For fuch Fine is Executory.
Contra ellewhere of a Fine Sur Conufance de Droit come ceo, &c.
neverthelefs it fcems in the Cafe above, that the Conuiee or his Heir
may enter., as upon a Recovery. Br. Sci. ta. pi. 199. cites 38 E. 3. 17.
2. Scire facias to execute a Fine, it feemed by the Aigument of the
Cafe, that where a Fine is levied to the Baron and Feme in Tail., the Re~
mainder to W. And xheRaron died ir/itlxnt Ifftie, and the Feme leafed herEfiate,
to W. and he died , his Heir Ihall not have a Scire facias, tor it was far-
rendered to his Father, and fo he is feiffid by Force of the Fine. Br. Sci.
fa. pi. 38. cites 45 E. 3. 18.
Br. Nontc- ^^ Scire facias upon a Fine, the Defendant faid that he had nothing
citets^C— ^"^ f°^ ferm of Tears of the Leaf of J. N. and that he is net Pernour ;
Br. Scire fa- and fo fee if he be Tenant of the Franktenement or Pernour, the Writ
cjas, pi. no. lies againft him. Br. Brief pi. 424. cites 8 H. 6. 32.
cues S,C. ^ Coke demanded the Opinion of the Court in this Cafe, M. being i?*^-
2 Le. 211. nant in Tail., had I/fiie two Sons R. and J. and dies. R. levies two Fines
S- C- of the Land and dies without Iffiie. J. brings two Writs of Error upon
thefe Fines 3 the Defendant, to the firjl Fine 'pleads the fccond Fine not re-
verfed ; and to the ftcond he pleads thefrji not reverfed ; theQueftion was,
"what is to be done? Curia, you may reply, that the fiid Fine pleaded in
Bar is alfb erroneous, and io aid your felf 7 H. 4. 39. Cro. E. 151. Mich,
31 & 32 Elii. B. R. Molton's Cafe.
5. Fine by Tenant in Tail was reverfed by Writ oi Deceit. The If-
ftie in Tail is remitted, and fliall avoid all Eltates made by him ; For the
Fine is void between the Parties. But the Tenant in Tail, after that Fine
levied, and before it was reverfed, had made a Leafe for years, the Re~
mainder over for Life. And whether the IfTue might enter to avoid thofe
Eftates, was the Queftion ? And 'twas held, that he could not, without
a Scire facias ftted againfi him, who had the Freehold ; for he, who is to
defeat a Record, is always to commence his Suit againfi him, who is
privy to the Record ; But when he hath reverfed it againft him, he ought
always to have a Sci. fa. againft him who is Tertenant; For it may be, he
hath fome matter to bar him of Execution ; And otherwife he fhall not be
bound, unlefs he be made privy by a Sci. fa. or that 2 Nihils be returned.
Cro. E. 471, 472. Pafch. 38 Eliz,. B. R. Cary v. Dancy.
6. A. & B. his Wife, the Wife being then within Jge, kvied a Fine of
the Lands of the Wife, and a Precipe qtwd reddat was brought againft the
Conufee, who vouched the Husband and the Wife, and they appeared in Per-
fen, and vouched over tlje Common Vouchee, who appeared, and after
made Default, whereby a Recovery was had ; and now the faid Wife and
her zd Husband brought a\\ rit o'i Error to reverfe the Fine, and another
Writ of Encr to reverfe the Recovery, bv reafbn of the Nonage of the Wo-
man i and the Court was of Opinion to reverfe the Fine, but they would
-advife upon the Recovery, for that the faid A. and his Wife appeared in
Perfon and vouched over j and iozhQ Recovery was had againft them by their
Jppearance
Fine. 525
■jippearance^ end not by Dsfanlt, and lo it feemeth no Error; and to prove
that, Gawdy cited i & 2 Mar. D. 104. and 6 H. 8. 61. Saver Delault 50.
Alfo, as this Cafe is, it leems, that by general Entry into Warranty, the
.'Error upon the Fine is gone ; but upon Examination, it was Ibund that
•the Recovery -mas kfore The Fine ; For the Reco\'ery was ^nindena Inn.
iand the Fine was Tres. 1'rin. and fo the Recovery doth not give c.'SJtzy the
.Error in the Fine. Goldsb. 181. pi. 116. Sir Henry Jones's Cafe.
, 7. It was agreed b)' the Counlell at Bar and Colce Ch. J. that Writ of ■}^J,'"^"^'J'*
Error mujl be brought againji a Party or Privy to Reverfe a Fine, cjnd not fo'"6orLrsi
^'gainjf the T'ertenant. Roll. R. 37. andafter-
8. But in a. Writ of JttaiHt or Difceit, the Writ flmll be againft the wards /cwfrf
Tertenanti and the Court was of the fame Opinion as to the firft Part o^' 'j{^^7,l%^
the Diver) ity ; but Coke only fpoke to the fecond Part. Roll. Rep. 37. Sui<;onu(ans
Trin. 12 Jac. B. R. Benlield v. Bartholemew. de droit c^e
ceo, &c. with
a Render to him and his Heirs in Fee ; and upon a Scire facias againjl the Conufees, fupfojing the Latids to ie
\Ancie71t Demefr.e, the De]er.Aant made Default, for which the Fine was avoided, and now the Ifluc in
Tail cntrcd upon the Lejfeefor rears, and he brought an EjeBio/ie frm.:, and it was found that tlie Land
vas Frank-fee ; and all the Qucftion was, if tlie Reverllil of the Fine by Writ of Difccit, without
fuing forth a Scire facias againft Tertenant, fhould bind him, or fhould be void only againll the Conu-
^, and not againft the Left'ee ? Kingfinill conceived the Scire facias brought againft the Parties only
is good enough, for they were Parties to the Difceit, and not Tertcnants; it was adjourn"d. 3 Le. 120.
^Trin. 1-. Eliz. Lee and Loveday's Cale.« 1 Le. 190. S. C.
9. The Court will not reverfe a Fine without a Scire facias returned
againll the Tertcnants ^ For the CoMufces a>'e but nominal Perfons ; and rho'
it wasotherwile in the Precedent in Co. Ent. and Hein's Plead. 375. and
the Law perhaps does not Itrittly require it, yet the Courfe of the Court
doesi per Cur. i. Salk. 339. Hill. 6 W. 3. B. R. Anon.
(E. b. 3) Avoided or Reverfed, &c. for Fraud j and Plead-
. ings.
1. Collulion may be averred contrary to a Fine. Br. Fines, pi. 115.
cites 27 AfT 53. and Trin. 33 H. 8.
2. If there be 2 R. -D.'s of one Name, and the one levy a Fine of the S.P. Br.Fir.es
Land of the other^ the other may avoid the Fine by pleading, that there P'"- P^^
are fwo of one Ncrme^ and the other R . D. levied the Fine, and not he. Weft's he^j'^i'J'it ^l^
Symb. S. 191. otherwife, if
there was
enly one of that Name, and a Stranger acknoviledi^ed the Fine i>i the Name of R. D. But Brook !avs, that
it feems to him all one ; For in pleading he fhall fay, that there are two, viz. R. D. of S. and R. D. of
P. and that R. D. of S. is and was Owner of the Land, and R. D.of P. acknowledged the Fine, abf-
que hoc, that R. D. of S. acknowledged it ; fo Nothing is in IlTue, but if R. D. of S. acknow led"-ed
it. Br. Fines, pi. 11. cites 54 H. 6. 19. Co. R. on Fines 9. S. C. Br. Fines, pi. 54. cite-; i9"h.
6. 44.- — r-Br. Difceit, pi. i;. cites S. C.
3. jind in like manner, if any Stranger levy a Fine /// the Name of an^ Jfa ^lari
ether, that is Owner of the Land, 34 H. 6. 19. Contra held 19 H. 6. ^«-'«'» -f^'"^
44. becaufe 'tis a Matter of Record j theretbre, he hath no other remedy %y%.^" '"
in fuch Cafe, but an Aificn of Deceit. Well's Symb. S. 191. and I am '
ouftcd by the
Conufee, I fhall have an Aftion againft him ; and if he pleads the Fine, I fhall fay, that 'twas another
«/' the fame Name ni-ho levied tie line, atfi-iie loc, that I levied the Fine, or was Party or e-ver r.f^earcd,
per Littleton, which Danby Ch. J. agreed; becaufe the Party can't reverfe it by Aciion of Difceit.
Br. Confefl'c and Avoid, pi. 40. cites 5 E. 4. 40.
4. A. levies a Fine in the Name of B. B. being beyond Sea ; and Sen- The Perfl)ii
tence was given that the Fine Ihould be void. Noy. 99. in the Star wasFmed
Chamber, Gillibrand v. Hubbard. fonedTnd"
Facdi enter' d
on the Roll. Cro. E. 531. S. C by Name of Hubert's Cafe. Mo. (5'3o. JSIich. 5S & 39 Eliz. in the
Star Chamber, S. C. 12 Rep. 12.5. cites S. C. but fays, that part of the Sentence was, that if De-
fendant did not re-ajfure the Land to the Plaintiff, he fliould forfeit a greater Fine to the Queen. But that
there was no Sentence to driw the Fine oft' the File, nor Damages awarded to the Plaintift' A Re-
conveyance was Decreed Roll. R 115 cites S C.
O o o » y j4.
^26 Fine.
44 Elii. ; 5. A. kafui to B. for 7'e^.rs, Land in D. rendring Rent ; B. has other
Kcp :-. Fcr- Ldiids of hiheritdiice in D. — B. Lecifes to C. for Life the J did Lands leafed to
Th '*"u'^~ '"0 himjorl'ears ; and afterwards B. levies a fine with Proclamations of all
were m'anv ^^'^ ^^'<^^ Lands vv hich were his Inheritance, and ot'thofe which were leafed
notorious' to him for Years ^ (the Number of Acres in the Fine amounted to the
Circum- w hole) B. paid his Rent yearly to A. during the Years ; the faid Fine was
ifancesof levied of all the fliid Lands with Proclamations ; and 5 Years palied ; A:
Ferroor's i^'M not be barred in this Cafe, tor there is apparent Covin in levying
Cafe which this Fine j by all the Judges of England. Jenlc. 253. pi. 45.
Co. in his
Report of it hys much weight upon ; yet it does not thence follow, that the Law is not the fiime where
there are not luch Evidence.s of Fraud. In other Booits where that Cafe is reported, the Refolutio;]
does not feem to go fo much upon the Particulars of the Fraud ; 'tis Fr.iud apparent in the LeiVce.
Vent. 241, 242. Hill. 24 & 25 Car. 2. B. R. in Cafe of W'haley v. Tancred.
6. If a Fine be levied tofecrct Ufes to deceive a pKrchLifcr^ an yivernient
of Frand may be taken againft it bv the Stat. 27 Eliz. 4. 3 Rep. SoFlilt.
44 Eliz in Chancery, in Fermor's Cale.
7. So if a Fine bele\'ied upon it furious CoutraB^ it may be avoided by
Ai'crnient by tiie Stat, of 13 Eliz. 8. 3 Rep. 80. in Fermor's Cale
8. By 21 Jac. 1.26. §.2. It is Felony without Benefit of Cler^', to ac-
knowledge^ or procure to he acknowledged any Fme^ Recovery^ Sc in the Name
of any Perfon not Privy, or confentmg thereunto.
(E. b. 4) Avoided or Reverfed for Error ; for what Errors
in General j and at what Time.
A Fine is not I . A Fine was levied to the Baron and B. his Wife, where her Name was
good by a J[^_ \i was iaid by Beretbrd, that Nothing palled to her; but per Scroope,
co?itraryName ^^ ^^-^^y j^onclude the Heir of the 'Baron, who took by the Fine with her
%Je!l Br. ^^ ^'^y? ^^^^ ^^^ ^'^"^ other Name than B. Br. Feohhient, pi. 20. cites
Fines, pi. -2. 1 Afi. II.
cites S. C. —
Br. Eftoppel, pi. 119. cites S. C Br. Grants, pi 65. cites S. C. Weft's Symb. S. 15. cites S.C.
2. A Fine was levied l/y A. arid B. his Wife, where the Name of the
Wife was Ad. yet this iliall bind her by Eltoppel, and the Tenant may
plead, that llie, by the Name of B. levied the Fine. Br. Pines, pi. 117.
cites Tempore H. 8.
3. 'Twas relolved that the Conufbr fhall not aflign Error, in the Grant
and Render, by which himfelf takes Efiate, no more than the Conufee Ihall
in the Conitfance; lor this is to defeat the Eftate, which by the Fine is given
to himlelf i neither Ihall the Recoveror bring a Writ of Error to defeat
the Record, in which himfelf was Recoveror ; For the Judgment in the
Writ of Error is to be refiored'to all that he lofi by the Fine or Judgment;
and not to avoid and lofe that which he had gamed by the Fine or Jiidgment,
7 £. 3. 25. b. a Man Ihall not reverfe Judgment for Error, if he cannot
ihew that the Error is in his Difad vantage, 8 H. 5. 2. b. and F. N. B. 21.
accordingly; and after the Fine was Affirmed. 5 Rep. 39. b. Trin. 34
Eli/.. B. r: Tey's Cafe.
4. In the Conufmce of a Fine falfe Latin, or Incongruity, will not hurt
the Fine; as where a Fine is levied de Maneriis (in the plural Number)
of B. and H. where (in Truth) B. and H. are only one Manor. 9 Rep.
48. a. Coke's Notes there, Trin. 8. Jac. in the E. of Shrewsbury's Cafe.
5. Fines and Recoveries being Conveyances by Confent, are as Feoff-
ments or Deeds ; and an Error to reverfe them, ought to be palpable, grofsy
and abfar'd i and ought to be in the EJfeiice oj the Fine or Recovery. Jenk.
258. pi. 53.
6. \oi3 iiW.-i, 14. ^. I. For quieting Men s 7'itles and Poffeffions undir
Ancient Fines and Recoveries, and ancient ffudgtnents ; ;; is enafied, 'That no
Fincy
Fine. ^^27
Ft fie J or Common Recovery^ nor any Judgment in any real or perfonal ABwn,
Jhall after i A^ay 1699, '^'^ reverfed for any Error therein; tinlefs the Writ
of Error or Suit, for reverfing fiich Fine, Recovery, or Judgment, be Com-
menced and Frofecuted with Eficf, within 20 J 'ears after fuch Fine levied^
Recovery faff ered, or Judgment Jigned, or entred on Record.
. Saving the Rights of Infants, ^c. fo as they bring their Writ of Error
within 5 Tears after fuch Impednncnts removed.
(E. b. 5 ) Error in Fines. Barred. By <what Ati.
I. By Releafe of all Right in the Land by him, who has Title to Re- Cro E ^ijp.
verfe a Fine or Recovery by Writ ot' Error, the Error is extinft; per Fen- (bis)S P ^ef
ner J. 0\v. 22. 37 Eliz. B. R. in Wright's Cafe v. Wickham (Mayor). ^^<=""" J
2 By general Entry into Warranty, the Error upon the Fine is gone. See
Goldsb. 181. pi. 116. Sir H. Jones's Cafe.
(E. b. 6) Pleadings to Reverie Fines 5 and where there is
Vhria??ce between }Fr'tt of Error a?id the Record.
1. Writ of Error on a Fine mention'd 105 Acres, and the Fine certified
WHS 150 Acres ; it was inlifted that this was good, becaule it agrees with
the Record which is with the Cufios Brevium. But Wray faid, that the
principal Part of the Fine is with the Chirographer, and it ought to agree
with that, or othcrwife it is not good ; and afterwards the Fine was
Reverfed, Quoad one of the Conulors only, he being an Infant. Cro.
E. 124. Hill. 31 Eliz. B. R. Pigot v. Rulfell.
2. Mr. Carthew moved lor Leave to quafh his own Writ of Error to
reverie a Fine, becaule one of the Parties to the Fine is omitted in the Writ
0/" Error; per Holt Ch. J. we can't do it ; how can we take Notice of any
Thing but u-hat is on Record > We can't quafh it on a foreign Suggefti-
on ; but let them Ihew Caufe why you Ihould not Difcontinue. Writs of
Error are rarely difcontinued^ but Ibme times they may be. 5 Mod. 67.
Mich. 7 W. 3. VVinchurlt v. Mafely.
3. A Fine was levied by three, and two of them brought Error to reverie
it ; perhaps the other had Nothing in the Land, and it was reverfed, per
Holt Ch. J. who faid it was fo done in time of Pemberton Ch. J. $ Mod.
67. Mich. 7. W. 3. in Cafe of Winchurlt v. Mafely.
(E. b. 7) Error in the Returji of the Caption^ what.
I. Error to reverie a Fine, becaule, upon the Backof theDedimus Potef-
tatem, it was Executio iftius brevis patet in quodam panelln huic brevi adneso ;
whereas it ought to have been, in quadam Scedula huic Brevi annexa. For
it is not any Panel, but a Schedule. Sed non Allocatur, tor it is but matter of
form, and not material ; For altho it be not properly faid to be a Panel, yet
a Panel and a Schedule are all one in Subftance, and no Caule to reverie it.
Cro. J 77, 78. Trin. 3 Jac. B. R. E. of Bedford v. Forller.
(E. b. 8) Pleadings. Setting forth the Title.
1. Note, per Thirning, that 'tis no Avoidance of a Fine to fay, that
thofe who were Parties to the Fine had nothing, without faying, but
one J. N. whofc Efiate he hath ; For he mult Jhew who had any'Thing in
the Land at the Time, &:c. but where a Recovery againll my Anceltor
is pleaded againlt me, 'tis Sufficient to fay, that the Anceftor had nothing
in the Land at the time, &c. without (Wwing who was Tenant thereof
Br. Fines, pi. 43. cites 14 H 4. 3^.
2. A
C^28
F
me.
2. A Man may confefs and avoid a Fine levied by his Anceltor whoft
Heir, &C. of the Manor of D. by fliying that there are t-ivo M.mors^ viz.
Over D. iind Ntther D. and that the Fine ivas levied of O'ccr D. &c. [ivhers'
as the] AHion is of Netker D. and a good Plea, per"\''a\iror, Davers, and
Brian Jullices J contrary Conltable and Woodc; For by them the Anceftor
was Elloppcd, and therefore his Heir fhall be Eftoppcd likewife, quaere ;
For the bell Opinion is, that he may Confefs and Avoid, if it be well
pleaded. Br. ConfelTe and Avoid, pi. 39. cites 12 H 7. 6.
3. Error co reverfe a Fine levied by A. and brought the Writ as Qnijtn.
and Heir of A. and alFigns the Errors, and brings a Scire facias ad aiidiend.
Errores, and doth not jbcw in either of the faid Writs, how he was Coulin
to the laid A. and for this Caule, the Detendant pleaded in Abatement of
the Writ, and it was thereupon dem.urred in Law; and after Argument,
the Court refblved, that it was good enough, without fliewing ho\v in
the Writx)f Error, or in the Scire tacias 3 For the one is but a Comiiulii-
on to hear the Errors, and needs not fuch certainty ; and the other is but a
W^rit founded thereupon. And therefore. How Coulia, need not belheu-
ed in the W rit ; nor is it requilite that the Title be lliewed therein, .ua-
lels it be in afpecial Cafe, varying from the Common Courfe ^ as 'where an
efpecial Heir in Tail brings a Writ of Error, or he in Remainder ; "becaule
he is to intitle himfelf, he ought to Ihew fpecially, Ho'-jj Coujiu, or luiw
he hath the Remainder ; but otherwife not ^ and akho' in lume iuch
Writs, 'tis fliewn, How Coulin, as in 33£UnCC'0 Cafe, and is good
enough, yet 'tis not of Necelfity, and the Omitting thereof^ is no Caufe
* Br. Fines '^^ Abating the Writ. See 33 H. 6. 54. 34 H. 6. ^4. * 38 H. 6. 17. &
pl. 4.5. S. C. 39- 45 E- 3- 25. the Book of Ent. 272. wherefore it was adjudged ac-
cordingly. Cro. J. 160, 161. Pafch. 5 Jac. B. R. Sir Rich. Champer-
noon v. Sir Wm. Godolphin.
(F. b) Reverfed by Reafon of fome Dcfauh as to the Proi
clamat'mns^ and the EffeQ: thereof; and Pleadings.
r
F the Fine with 'Proclamations be not read openly ; ox "be read for one
Day in every Term, or only one 'Term, or if the Pleas do not ceafe
iit the time of readings or if it be read there, and none of the J tiftices prcfent ;
and this Form, which does not accord w ith the Statute, appears there of
Record ; the Fine, fo levied, has not the Force of this Statute; but if
the Record be, that the Fine icas Proclaitned according to the Statute, the
Fine is good, and has the Force of this Statute. Denlh. R. 5. upon 4 H.
7. 24.
2. I Mar. 7. §. 2. Enafts that. Proclamations not duly made, by Reafou of
Adjornment of the Term, pall not prejudice the Fine.
Yet it ftands ^ Where 15 Proclamations were made, a.nd one of them out of Term, it
^ a good was adjudged, thy.t the Fine fhould ftand, and makes a Difcoiitifraaiue^
men Law. ' and the Proclamations be reverfed. 4 EI. D. 216. pl. 54.
Buls. 206.
Palcli. Jac. Anon. See D. iSi.b.pl. 55. 182. a. pl. 55 Pafch. 2 Elii. FifTi v. Broket.
Fcr the Fhie, by it/elf, is a Matter of Record perfect and full before the Proclamatic7is made, and binds the
Parties, and the Right of the Land between them before the Proclamations ; and the PrcdamatioKs, that
arc made after, are other Matter of Record, which have other entry in the Record after the Fine ; and lb
the Proclamation.s, tho' they arc grounded upon the Fine, and are puriuant upon it, -dre feveral from the
Fine, and they and the Fine arc feieral Matters of the Record, and therefore Error in them is not Error
in the Fine. Pl. C. 266. Mich. 4 & 5 Eliz. Filh v. Brokett.
4. If any Proclamation be t/iade on a Sunday, it is Error ; becaufe it is
not Dies Juridicus. D. 181. b. pl. 52. 182. pl. SS- Fi^h v. Broket.
5. Tenant in Tail levies a Fine, and dies before the Proclamations pafsj
a Writ of Error is brought before the Proclamations ; yet the Procla?natio»s
may pafs in the Common Pleas ; For only the Tranfcript of the Fme is
removed by the Writ of Error. Jenk. 193. pl. 97. cites 21 Ed. 3. 40 hS.
Dy.9j'.
6 Pyoehmation
Fine.
329
6. Proclamation made tn a fubfcqiient 7t?)7«, by Rcajon of jidjorHnieiit of
the former Term, was held good. 4Le. 202. Hill. 1$ Eliz. C. B. \\ ingate
V. Sands.
7. Error was brought upon a Fine, and the Error was afligned in the - Le. iS^
Proclamations ; whereupon iliued a Certiorari to the Ciijlos Bicz'inr/i, who PI.154.S. P.
certified the Proclamations, by which Certificate it appeared, that two of Anon.
the faid Proclamations, awt made in one Da)\ upon which the Defendant ~j" ^^|.°,''
prayed another Scire facias to the Ckirographery in v\hofe Office it ap-
peared, that all the Proclamations zvere -jcell and duly 7nade. \t was tlie
.Opinion of V\ ray Ch. J. in this Caie, that the Defendant ought to have
.his Prayer J Vox ^Q.Cbirographcr makes the Proclamations^ and he is the
principal Officer as to thcni^ and the Ciijlos Erevmm hath hut the AbJtraM
of the Proclamations^ and we may in Difcretion amend them upon the
Matter appearing ^ but the other Julticcs feemed to be of a contrary Opi-
nion ; For that the Proclamations being once Certijied by the Cultos Bre-
',viuni, who is the principal Officer, ^ve ought not aiterwards to refort to
the Chirographer, who is the inferior Officer ^ and afterwards the Clerks
of the Common Pleas were examined of the Matter aforeiiiid by the
Jultices of the King's Bench, and they anfwered according to that which
'Was faid by W^ray Ch. J. wherefore it was awarded by the Court, that a
•ftew Certiorari be dire&ed to the Chirographer, \vho certified the Procla-
mations to be well and duly made. And thereupon the Court awarded,
■that the Proclamations in the Office oi the Cuftos Brevium, ihould bea-
• mended according to the Proclamations intheCultody and the Office of the
» Chirographer. 3 Le. 106, 107. Pafch. 26. Eliz. B. R. Ragg v. Bowley.
8. A. Tenant for Life, Remainder to B. in Tail. B. dies leaving two s. c'^cited in
Daughters L. and M. — L. takes Husband, and ihe and her Husband levies the Qifcof
'a Fine Sur Cognizance de Droit come ceo, &;c. and before Proclamations Fjne.s, and
L. dies ; M. claims the Land, and afterwards Proclamations are made, l''"^ ^}f^^ "^''^
See the Arguments, 2 And. 109. Mich. 36 & 37 Eliz. but no judgment, cel'vcd i^n"^
Harvy v. Facy. r. i„ the
CafeofiJ^ar*
bp V. ^acp, was well Rcfolved in the Cafe -idjudged in C. B. reported by Serjeant Bendlocs Bcndl.
I22.pl. 15(5. (which iee fup. D.J, ) that the Heir in Tail was barred by the Fine of his Ancclror, tho*
the Ancellor died before ail the Froclamarion.s paffed ; tho' in that Cafe the Eftatc which palled by tlie
Fine was utterly avoided before the Proclamations palTed. But when they palled aftcrvtards the Ellarc
, Tail was barred.
9. A. by Fine was Tenant for Life, Remainder to M. his Wife for Life, j\lo. 62P. s'.
■■ Remainder to the HcirsMales of the Body of A. Remainder to the Heirs <-^ — ^ Kep.'
.'Males of B. — A. and M. levy another Fine to the Ufe of A. for Life, and "'f^'?'^ *--^'^
■ after to the Ufe of M.forLiie with diverfe Remainders inUfe; •^f^^'^'one of\^^^^'^^'^^
■theProclamations made^ A. died ; the eldeit Iliue of A. w^as beyond Sea ; After s. C. and
A's Death, the Relt of the Proclamations were made ; 'twas agreed by all there in the
the Judges that this Fine fliall be bar to all who might claim by the Ellate f'^"'^ '^'^'°'-
Tail, created by the firft Fine. 2 And. 177. Hill. 44 Eliz. Sir John Dan- Sv'^tis hdd
vers's Cafe. that the IiTue
inTail, being
Heir and Privy, cannot by any C/.t/w, which he can make, favc the Right of the Eftate Tail, which
defcends to him, but that after the Proclamations pafled the Eftate Tail fhall be barred by the St.uuie
CfH. 7. & 52 //. 8. notwithltanding any Claim, winch may be made by him.
10. Upon a Fine x.\\q. firfi Proclamation was made in 'Trin. $ Jac. and the
fecond in Mich. 5 Jac. and the third in HUl. 6 Jac. (where iz ftctdd be Hill.
S Jcu-') and the fourth and fifth in Eaficr 6 Jac. and this w^as agreed to be
a palpable Error ; For the fourth Proclamation was not entered at all,
and the fifth was entered in Hillary Term 6 Jac. (where it lliould ha\ e
been in Hillary Term 5 Jfi*^-) ^"d it ffiall net be amended ; becaiife it was of
another 'term, and the Court conceived that this was n Forfeiture of the
Office of Chirographer j For it was abullng of it, and the Statutes of 4H.
4. £3. and W'eltm. 2. are that Judgments given in the King's Court Ihall
liand until rc\erfed by Error. 2 Brownl. 300 Pafch. 7. Jac. C. B. Anon.
P p p p II. Ao
33^ ' Fine.
D. 2i(J.pl.54. J J No Proclamation mc.de the fiyfi T)ay\?,V.xxvix apparent to reverie the
Proclamations, but the Fine Itill remains u good Fine c.t Cciuvion Lazv. i
Buls. 206. Pafch. 10 Jac. B. R. Anon.
(F. b. 2) Avoided for what Caufc, Durefs, &c.
Co R. on ^- I^'Men, compelled by 1'hrcatnings or Imprifonment, fhould be admit-
ti^incsp. ted to levy Fines^ they fliould thereby be barred ; becaufe the Law intend-t
eth fach Perfbns are at Liberty when they acknowledge Fines. Welt.
Symb. 3. S. 11. cites 17 Ed. 3. 52. 78. 17 All' 17.
(F. b. 3) Reverled for Be fault hi the D^'dimus, or Writ of
Covenant.
Co. R.on 1. If the Dedimas Totejiatem bears Date bsiinc the JJht of Covenant,
Fines 10. Br. the Conaliince taken upon it is void ; becaule the Dednmis Potejlatem re-
'""^^P'- cites Ciihi Breve iwfiruni de coiiventhne inter A. yeteiittiH S B. dejoneanteiii,
^ ^ titcs 3 5 y^ ^ ^j^^^^ ^j^^ ConuUxnce was taken without Writ of Covenant ^ or other-
wile, Praecipe quod reddat, is void, albeit 'tis taken by the Juftices of C.
B. but they Ule to have Writ of Covenant pending belbre the Certificate^
find this makes the Conulance, and Note good ; l^ecaufe the Writ is in-
tended before Conufance. Denlh. R. o'l Fines 8.
2. The Caption of the Conufance of the Fine was before Sir Roger
Manwood Ch. Bar. 27 Martii 27 Eliz. and the Jlrit of Covenant, and De-
dimus Poteilatatem hovQ tejle 9 Aprilis ; fo the Conufance taken without
Warrant, and by the Stat, of 23 Eliz. the Day of the Caption is always
to be certified ; but the Court over ruled it, and would not hear it argu-
ed ; for they laid it is good enough, and otherwife they Ihould reverfe
diverfe Fines. Cro. E. 275. Hill. 34 Eliz. C. B. Argenton v. Weftover
& Lucas.
3. Error to reverie a Fine levied 21 Eliz. becaule the Writ o^ Covenant,
Where the whereupon it was levied, tore Tefle the zd.of January 21 KHz. and the
Writ of Co- j)f,^i„jii^ Poteftatem to take the Conulance lore Date the fame zd Day of
venant bore ^ , , . ; n 1 . -^ •'
Tefte aftey January, reciting quod cum breve convent loms pendet, &c. whereas it was
the Tefte of not depending until the Return, which was Oftab. Hillarii. Gawdv and
the Ded. Pot. Fenner only in Court held, that is was not Error ; For the Writ is pen-
rnanifcft^''^ ding prcfently upon the Purchafe thereof Cro. E. 677. Trin. 41 Eliz. B.
Error. And R- Arundel v. Arundel.
a Fine levied ^ t^ • , r-i /-, r. t
in Chefter was F.everred for this Caufe. Cro. E. 740. Hill. 42 Eliz. C. B. Goburn v. Wright.
But if fuch 4- If Dedimus Poteftatem be azvarded to two, and the one of them takes
erroneous Conufance of a Fine, and this Fine is after drawn up in C. B. yet the Par-
Conufancc ty may well have Error upon this Fine, \-iz. that the Conufance was with-
upon Ded. ^'^^ Warrant, for 'tis not contrary to the Record ; For the Dedimus Potefta-
and the Fine' ^^^'^ '^ Parcell of the Record, and the AlTignment of Error agrees with it,
hiiizrdrnivn pet Popham. Pafoh. i Jac. B. R. Yelv. 34. in Cal'e of Arundel v. Arundel,
nf as a Fine
achicavledged in Court, now no Mifprifion in the Ded. Pot. fhal! avoid it ; for it fliall be adjudged us a
Fine acknowledged in Court only, per Popham. Yelv. 54. in Cale of Arundel v. Arunael.
5. W'here a Sheriff was one of the Cognizees, the Writ was diretied to
the Coroners, with this Claufe at the end of the \Vrit, ^:::a pr^diii Jo*
hannes Done (one of the Cognizees) ejt vicecomes Co7nitatusCeJiri,t, fiat Exe-
cutio Brevispra-ditJ. per Coronatores, Ita quod Viceccmes nonfe introiiiittat ; and
R.efolved by all the Court, that it was not Error, tho' he is not tht; fole
Party
Fine. ^ -i^ I
Part}', but others are Joined with him ; For if the Writ be direfted to
the Sheriff, and he is Party, it is doubted in the Books, if he, as Plaintiff^
may execute a Writ for himfelf, and, as Delendant, may do it upon him-
felf And thcrelbre it is good, and the general Courle is to award the
Writ to the Coroners, to avotd the doubt oj Delay; and when the Party
appears, and levies a Fine thereupon, he never lliall alTign it for Error after-
wards, that it ought not to have been direfled to the Coroners, efpecially
upon this amicable Writ to make Alfurance, &c. Cro. C. 415, Mich.
1 1 Car. B. R. Done v. Smcthier & Leigh.
(F. b. 4) Error. Variance between the Caption and Fine
ingrolled.
1. By the Caption of the Fine upon the Dedimus Poteftatem the Land
'juas given to W. and his WiJ'e, and to the Mens of tho Body of the Baron of
the Body of the Fe?ne begotten ; and the Fine ingrolled was, to the Heirs of
the Body of the Baron upon the Wijc begotten, {o is variant. But all the
Tuftices conceived, that it was not material ^ For in both Cafes the FemeJ
had but an Eftate lor Lite, and the Baron an Eftate Tail, and the Words
are of the flime Senie. Cro. E. 275. Hill. 34 Eliz. C. B. Argenton v.
Weltover & Lucas.
2. The Caption was, _^ contingat the Baron to die without IJpic, that it
fhould remain over, and the F"ine engrolled was, li contingat, that the
Baron and Ftine die without IJfue, that it Ihall remain over, Co it is variant ;
but it was held all one ; For the FJiate in Remainder is always Innited upon
the 7nore long FJiate, which is the Eftate Tail, yet it was ail of one Senie ;
and afterwards, the Fine was affirmed. Cro. E. 275. Hill. 34 Eliz. C. B.
Argenton v. Weftover & Lucas.
3. Error, the-Wnto^ Covenant was de Manerio de Corthuther, and the
Dedimus Poteltatem was de Alanerio de Cortheder, and for this Variance,
it was inlifted there is no Conufance upon the Writ ; but it being with an
alias Corthkther, it Avas held good. Cro. E. 275. Hill. 34 Eiiz. C. B.
Argenton v. W^eftover & Lucas.
4. Error ftUigned was, that the Writ was, Inter Nicholaum Forflcr que-
rentem y Johafinevi Forjler detbrccantemiand/o was the Dedimus Potelta-
tem. And in the Caption of the Fine annexed to the Writ of Dedimus
Poteftatem (which was certified) it was in this Manner ; Praecipe Johanm
Fojler tniliti, quod teneat Nicholao Poller, &;c. fb it varies from the firil
Writ & Dedimus Poteltatem, fed non allocatur ; For they held, that the
Names are all one. Former and Fofter, and are of the liime Sound, & qua-
Jt one and the fame Name. Cro. J. 77, 7S. Trin. 3 Jac. B. R. £. of Bedibrd
V. Forfter.
5. The Writ of Covenant was, Prsecipe, &c. quod teneat, &c. de oBd
Mefaagiis, decent gardinis, &c. fo it varies from the firft Writ or Com-
Jniilion, and there is not any Warrant lor the Commilfion ; led non x-Mlo-
catur, it is not any Caufe to reverfe the Fine ; For akho' daobus Me-
fuagiis is pro ducbus Toftis, yet they held it not material ^ For the Con-
iQrd hath Relation to the VVrit of Covenant, and the Dedimus Poteltatem j
and the Entry of the Precipe upon the Tejle of the Concord, is a Rehearfal of
the Subftance of the VV^rit of Covenant, and is more than needs to be, and
being variant from the Writ of Covenant, is idle, immaterial, and meer-
ly void i wherefore the Fine is good enough, and it sw^s affirmed. Cro.
J. 77, 78. Trin. 3 Jac. B. R. E. of Bedford v. Forfter.
(F. b. s) Reverfed
^^0^2 Fine.
(F. b. 5) Reverfed for Errors, in the Cnpt'mi.
1. Error to rc\crfe a Fine in Chelter, the Covnfance was taken of it ly
of/e^ iind the Dcdn/ais Poccltacein was to him, and ajict her jointly ; and
this was Erroneous. Cro. E. 240. Trin. 33 Ehz,. B. R. Downes v. Savage.
(F. b. 6) Reverled in Refped of Payment of the King's
Sihcr. And what the King's Silver is, &c.
1. The King's Silver is the Fine paid to the King, ProLicentiaCoil-
cordandi.
2. J. and his Wife acknowledged a A^cte of a Fine the 26th of March
1621. before Commiliioners by Dcdimus Poteilatem, and the Wife died the
z'jth Day of the fmie Month. The zSth Day Cowpojrtion was made in
the Alienation Office upon a Writ of Covenant made ntitrnable in Hill. Term
Co. R. on before, and the King's Sihcr was entered in the Office of the King's Silver
Fines 10. ^j ^' j^^e f^ime Hill. Term, and fo the Fine was palled and engrolied, and
now in Eallcr Term the Heir of the Wite moved againft this Fine ^ but
upon Debate the Court relblved, that the Fine mult fland. Hob. 330.
Farmer's Cafe.
3. It was alllgned for Error, that one of the Conn for s died before the Re-
turn of the Caption, and alleged a Diminution in the Record before the
judge in Chelter (where the Fine was levied) and alter before the Fro-
thonotary there, who returned no fuch Diminution, but that in a Paper
Bock, in which the 7'hings of the Office were written, it was entred, that
fuch a Day was paid Jor the King's Silver (withonzihew'ing what). The
Queition was, whether this Fine was Erroneous for this Reafon (amongft
others) 2 Sid. 54. ss- ^^- Rovv v. Evelyn. And after^^ ards it wa?
held by Kev\digate J. and as itfecms by \^'arburton J. that it was ^ and
Glyn Ch. J. held the Fine Erroneous lor other Reaibn, and {o thought
that the King's Silver came not in Qiieltion in the Cafe j For to proceed
upon the Fine, the Conufor being dead before the Return of the Writ, is,
as to him, a Building without a Foundation. 2 Sid. 93, 94, 95. Trin.
1658. B. R. Rovv V. Evelyn.
4. yind Glyn Ch. J. faid, that if, in theCale above, one of the Conufors
had not been dead, he thought, that the King's Silver might well be paid;
For if it was not paid, yet there was a Composition for tt before the Origi-
*D. 220. b. nal; and in favour of Common Alfurances, we oui^ht to prefume that it
pi.i5.iaicn. is paid, it nothing appears to the contrary. 2 Sid. 95. 96. Trin. 1658.
5 Eliz.
B. R. in Cafe oi^ Row v. Evelyn. cites *Carreirs Cafe.
Sce(Q_) pi. 5. Four Conufors, Izvo die before the Fine ingrofjed, or King's Silver paid;
^—^f>i^:9^- whether the Fine Ihall be Reverfed for part, or lor all? It was argued
againit^GUoi ^^^^ ^"- '^^ ^ ^'"'^ without an Original, and therefore lliould be re\erfed irt
Ch. y. Row Toto, and cited Hill. 1662. B. R. to have been fo adjudged in Cafe of
V. Evelyn. Roe V. Yeatly, 2 Lev. 127. Hill. 26 & 27 Car. 2. B. R. Biddulph v.
Harrifon.
*Dy. 22o.b. 6. Husband and Wife levied a Fine of the 'Lands oi^ the Wik, and this
pi, 15. S. C. Yi'as by Dedimiis in the Lent Vacation, Jloe being then but 19 Tears of Jge";
s'c. Pafch.'^ ^^^ King's Silver was entered in Hillary Term before, andflje died in theEaficr
5. Eliz. Week ; and upon a Motion made the firfl Day of Eafter Term, to itay the
engroffing of the Fine, it was denied by the Court; For they held it to
be a good Fine. 3 Mod. 141. cites it as the Cafe of* U^irnecomb. \. Carrilk
S^C°c'^b 1' ^ ^'"^ ^^^ acknowledged before Herbert Ch. J. by a Man and his
66. S. C. Wile 7 December 1689. And b)- Reafon that the late King James had de-
ferted the Kingdom, and taken away the Great Seal, there followed a St(>p
cf Proceedings at Law ; and the WoJfian died the zoth of February Ibllow-
Fine. ^c*^-:^
ing, and apon the zzd of Febrnary^ the Kiiig''s Silver was paid, as npoit a
IVrit of CoTcnaiit tu King James's I'lnie, tho' no Writ was then fued out.
But afterwards a IVrit o/" Coveuant was taken out returnable in Michael-
inas Term, which was Sealed with the Seal of King Williain and QLieen
Mary ; and the Fine was engrofled, and made as a Fine in Michaelmas-
Term. The Court, (after the Caufe had been twice moved, and full
Conlideration of it^ gave their Opinions feriatim, that the Fine ihould
itand. For the Entrmg of the King's Silver after the Parties Death could
not be now Examined, in Regard the Fine was engrojfed, and compleated
as a Fine in Michaelmas-7'srm. z Vent. 47. Trin. i W. and M. C. B.
Ball V. Cock.
8. Fine acknowledged before Commiflioners in Long Vacation, and Jenk. \6q.
m Writ of Covenant taken out, the Party dies immediately.— They fhall ?■■ ^8.— The
after, enter the King's Silver, and take out a Writ of Covenant as of (^o^y'jo^.^bel^
the Term before, per Holt. Farr. 95. Mich, i Annse B. R. in Cafe of fore the En-
Oades v. Woodward. try of the
King's SH'jer^
is an apparent Error. Cumb. 59. Trin. 3 Jac. 2. B. R. Paul v. Claxton.
(G. b) Reverled or avoided for what Error,
1. 23 Eliz. 3. Ena£te that. No Fines, Proclamaticns upon Fines, or co?nmon This Statute
Recovery, pall be reverftble by Writ of Error j or falfe Latin, Rafure, Liter- extends only
lining, mifentring of any Warrant of Attorney, or of any Proclamation, mif- ^°^p,/i"^%^^
returning or not returning of the Sheriffs or other want of Forms in Words p^f and is
and not in Matter of Subjtance. only to regu-
late, and r.ot
to annul Fines. Arg. 10. Mod. 45. in Ld Say and Seal's Calc, But was Intended to protect and
fupport them, per Cur' Ibid. 45. Mich. 10. Anna: B.R.
2. A Fine is before fiich Juftices and aliis fdelibus, and if there be no
fuch Judge as one of them which is named, yet the Fine, being le\'ied
before other Judges, is good. Cro. E. 320. Palch. 36 Eliz. B. R. Wallh
V. Collinger. Obiter.
3. Writ of Covenant bore 7'efle after the Telle of the Ded. Pot. and
the Fine was reverfed for that Caufe. Cro. E. 740. Hill. 42 Eliz. C. B.
Goburn v. Wright. This is a common Error, and becaule 'tis a com-
mon Affurance 'tis not now to be difallowed. per Coke and Doderidge.
Roll. R. 223. Trin. 13 Jac, B.R. Herbert v. Binion.
4. A Writ of Covenant bore ^ejle 15 April, returnable Quindena
Palch. and that Year Quind. Pafch. was the 1^ April, and fo the Return
was before the Telle, and the Fine was reverfed. iS'oy. 171. Gage v.
Taylor.
5. A Fine levied in the Vacation was agreed, by the Court of Common
Pleas, to be, at the Ele&ton of the Parties, a Fine either of the precedent or
fubfequent T'erm. Now whether the Intervening of a Term can make fuch a
Difference, as that in the one Cafe the Fine fhall be good, and in the other
utterly void, cannot be difcovered irom the Reafoa of the Thing ; But
mult depend entirely upon the'Pra^ice of the Court of C. £. every Court
being Judge of its own Rules. Such Kind of Evidence was retufed in
the Cafe of ClCCb HWXi UBUtD, even by a Court of Equity, viz. the^
Chancery and this Judgment was coiifirm'd in Error in the Houfe ot
Lords, per Cur. Mich. 10 Annae B. R. 10 Mod. 44. In Ld Say and
Seal's Cafe.
Q.qqq (G. b. 12)
334 Fine.
(G. b. 2) Error to reverie Fines. By ^johom the Writ
muft, or may be brought.
I. A. made a Feojfvient to the Ufe of himfalf and B. his JVife^ and to
the Heirs of their two Bodies, the Remainder to the right Heirs of the Has-
I'diid. They had IJJhc M. — then A. died j B. the Wife fold the L.mdi m
Fee J M. married J. S. And afterwards B. M. and J. S. her Husband joined
in Fine, come ceo, &c. in Confirmation oftheEftate. But belbre the
Certificate and Ingrolllnent M died withoiit IJftie; now J. S. and B. and
die C. as Coiifiu and Heir of M. brought a Writ of Error to reverfe the
Fine, and then to avoid the Sale of B. the Widow, upon the Statute
1 1 H. 7. Note, that the Writ of Error is brought by C as Coulin and
Heir Collateral toM. and it appears, that noRight is defcended to him L>y M.
fo thzijhe had but an Eftatelail, which is determined by her Death
without Ifliie. And non Confiat, that the Fee Simple -was in her as
right Heir of J. her Father; lor it might be, that A. had Iiliie a Son and
another Daughter belides M. for any Thing that is fliewn to the contrary;
for Ihe is not named Heir to her Father, in any Ihewing before ; And
then he is not damnified by this erroneous Judgment, as the Writ fup-
pofes, as right Heir to M. from whom no Right is delcended ; And the
Writ of Error ihall be brought l^y him, "who jhall have the Thing; whereof
the Judgment was crroneoujly given, and that is the right Heir of A. fo
this judgment is reverhble by him in the Remamder by the common
Law, or by the Equity ot the Statute of 9 R. 2. 3. (Qusere hoc.) and not
by the Heir General of M. and admit that it Ihould be intended, that
M. was right Heir to A. yet becaufe this Fee Simple was not then exe-
cuted in her, but was expeifant upoU the 'Tail, he, who fliall demand this
Fee Simple, when the Tail is fpent, mufl: make himfelf right Heir to A.
according to the Limitation of the Remainder ; For tho' C. was ot" the
half Blood to M. yet he Ihall have this Remainder of the Fee-Simple
as right Heir to A. if he be of the whole Blood to him, by whom, &c.
D. 89. b. and 90. Mich, i Mar. Reynolds v. Dignam, als. Verney's Cale.
Ibid cites 3 H. 4. where the Iffiie Female in Tail Special brought a
Writ of Error, becaufe that ihe is to rehave the Land, and not her Bro-
ther, who was general Heir to the Anceftor. And cites alfo Hill. lo E. 3..
to the like Purpofe.
be aR^main- ^- ^^ '" Remainder, or Revcr/ion expeBant on Effate Tail, may ha\'e
<ier,oiRever- Error. Trin. 25 Eliz. 3. Rep. 3. b. 4. a. the third Refolution in the
(ion in Deed, Marquefs of Winchelter's Cafe.
and not in
Right, which is a fufficient Ground to maintain Writ of Error. Arg. Palm 25-. cites 50. AfT 5 Br.
Error 152.. And 52 E. 3. Error 75. where it was required X.ope<w how he came to the Reierjion,
and that he had a Revcrfton, and not a Right only. Le. 275. the Queen v. Braybrooke S. C •
S. S. cited per Haughton J. Palm 24^. S. C. cited and agreed per Counfel. Arg. Roll. R.
"oi, ■ See 5 Lev. 36. Hutchinibn's Cafe.
Le 270. S.C. 3. Mich. 21 & 22 Eliz. 'Twas argued, and 25 adjudged between 15caP=
bv the Name JjtOOkCand theLH JI5O2?t0, that he^in Remainder may have Writ of Error ;
*^ R*^^ ^"^ k" ^^^ if he in Remainder be attainted, during the 'Life of the Tenant for
UseeBray- -^{/^3 ? the ^uee» ihall not have it. D. i88. Marg. pi. 9. Mich. 21 and
brooks Cafe. 22 Eliz,.
— See Maro.
of VVincheiler'sCafe.
4. Jnd 17 Eliz. fo adjudged, as there was faid, between rpCUnittijIjiJni
and Jultice fJ^pnOljanU D. 118. Marg. pi. 917 Eliz.
S G ■ d D ^' ^" ^^^^''^ '■^^ " Writs of Error, one to reverfe a Fine, the other to reverfe a
89. b. Marg. Common Recovery, by Reafon oi his Nonage. Tanfield moved that the
pi. 2 \\'rit to reverfe the Fine, was not well brought. The Calewas, B. zcas, Tenant
Right
Fine. c> ^ 5
for Life, hiRight of his Wife, the B.eiiiainder to the Plaintiff in Fee, and they
joined iH a Fine toD. It was inlilk^d, that they all ought tojoinintheWiit,
and there ought to be Summons and Severances, and he can't bring it
alone ; but it was anfwered, that this Writ is well brought by the Plain-
tift' alone i For it is brought for an Error in Fait, viz. his Nonage, and of
his Nonage, the other can take no Advantage j lb the Caiife of the Jiiion
icing feixral, and not joint, they cannot join in the A6Hon, 34 H. 6 in
Cafe of Attaint, 7 H. 4. 44. and they relied upon the Cafe, 29 AfT 14.
The Court held the Writ was well brought, becaufe it is no Error in the
Record, but an Error in Fait ; and if tivo Injants bring a Writ of Error,
they mult aflign the Errors leverally ; and therefore it one be within Age
he mull bnng the Writ alone. Cro. E. 115. 30 and 31 Eliz. B. R.
Pigott V. Kullell.
6. If Husband and Wife levy a Fine of the Wife's Land unto a Stran-
ger, the Wife being within Jge, they fhall have a Writ of Error during
her Nonage. F. N. B. 21 (D).
.' 7. y/. levies a Fine of Lands to B. C. can't have a W^rit of Error to
reverie this Pine, altho' C. be in PoJfeJ/ion^ and 7'enant in Fee Si7nple of the
Land. Jenk. i6i.pl. 6.
(G. b. 3) Reverfal. How. Py Plea, without Writ of
Error, and by what Plea.
I. Where a Fine is pleaded, it is no Plea, that there is noftich Record
of Writ of Covenant, upon which 'twas levied ; For a Fine levied without
Original is not void, but Error; For they are Judges of the Thing.
Br. Allife. pi 397. cites 26 H. 6. and Fitz.h. AlTife. 13.
3. If Error be in the Proclamaticns of a Fine, they Ihall be reverfed by
Plea without Writ of Error j but that Fine neverthekls remains of good
Force Hill ; For they are feveral Matters of Record ; yet if Error be in
the Fine, the Proclamations are void ; becaule the Fine is the firll: Re-
cord, whereupon the Proclamations depend, and Sublato Stibjeifo tollitur
ejus Accidens. Well's Symb. S. 192. cites PI. 266. a. D. fol. 216. pi. 54*
4 Eliz.
(G. b. 4) Pleadings. Where a Fine is pleaded, How it
may be avoided by Pleading Partes Finis non, &c.
Or by confefling and avoiding,
1. The Fine is good, if any of the Parties hefeifcd at the 'Time, &c.
Br. Elloppel, pi. 26. cites 40 E. 3. 30.
2. If a Fine be levied to a Monk, by aflrange Name, it Ihall be Ellop^
pel to plead Profejfion. Br. Elloppel. pi. 2. cites 3 H. 6. 23.
3. Where a Recovejy, or Fine of my Ancellor is pleaded againllme,
I ought to fl.^<rjj how my Anceftor came to tt after, and ocherwile, he cannot
contefs and aNoid it ; For it is not fufficient to fiy, that the Ancellor was
feilcd alter, without fhewing how he came to it. Br. Confefs and Avoid
pi. 57. cites 6 E. 4. II. per Neale.
4. It hath been relblv ed, that againlt a Jcintenancy pleaded by Fine,
the Demandant may confels and avoid the Fine; as to fay that the Join-
tenanr /lot named, rekaftd before the Wi'it brought, or that they both infeoffed
oue ivbu re-iiijecffcd the -Tenant, or the like^ For thele, or the like Pleas,
Contelfing and Avoiding the Fine do in no Sort weaken the Strength or
Force ot the fume. 2 Intl. 524.
;. 'Tis
336
Fine.
Br. Fines, pi. 5- 'Tis faid in one Book, that a Fine may be avoidai hi t--joo Manners^
Sy.citcsS.C. viz.. either to fay Quod Partes Finis uec eoriim uliqitis I'evipore Levatioms
and thiit he ptnis nihil hubiurtint ; tiec eonim aliqms aliquid habtiit, St-', fed qiiidam J.
may coiifcis ^^ cnJHs Stdttm ipfe hcibet ; or to conftfs and to avoid the Fine, as to fliy,
avoid'h^by" ^^''^ f- '^'- '^''^•'' fi^fi'^i ^'^^ ^y ^^^ CoHufor dijjeifed, iiuho levied the fine^ viz.
elder Title that f. S. enter d^ -who enjeojfcd htm. Co. R, on Fines, 17. cites 3 H. 7. 9.
and Rcgrcfs ;
and where he, that fo pleads, concludes, &> de hoc priit fe fufer Patriam, he, who pleads the Fine, fhall fey
& iiier.! ^uerrns jhniUter: And there it a(ipears, (he iays) that there are diverfe Forms of Pleading in
Avoidance of a Fine Br. liTues join'd, &c. pi. 3. cites 35 H. 6. 21.
S. P. Br E- f^ Upon a Formedon of Gift in Tail by Fine, Ne Dona pas is a good
ftoppcl. pi piea^ and Averment agamft the Fine, and in Avoidance of the Fine, per
E. v"".ifhe Cur. Co. R. on Fines, 17. cites 38. £. 3. 3. a.
is a Stian-
ger to the Fine.
S. P. and 7. Et Notandum eft, if one plead in Avoidance of a Fine, Quod Partes
there is no o- pjnis, nec eorum aliquis, &c. the other^ in Maintenance of the Fine^ need
^'^■tde'^'^^The'" "°^ tojhew^ that the Parties had the FJlate; But he, that pleads in Avoid-
Kcafonfeems ance ot the Fine, ought to conclude^ S de hoc ponit fe fuper Patriam ^ then
to be becaule he that maintamed the P'ine, Ihall not fay more than, S Predtiius qtier.
the Defen- fimiliter^ &c. and if he, that pleads the Fine, can prove, that any of the-
daiit plcads^in p^^^^^^ j-q the Fine had any 'thing ; this is good enough for him. Co. R.
and thfntWs on Fines, 17
immediately, as Ne Dona pas, Nul Tort, Not Guilty, &c. Br. IlTues Join'd, &c. pi. 5. cites 35. H. 6.
21. per Littleton, who faid that it was adjudg"d by Sir John June in C. B.
Nor need he 8. And upon this, that hath been faid, it appears clearly, that if one
■ ^K'M hciu he plead Quod Partes Finis, &c. fed quidam J. S. cujus Statum ipfe habet^
kadtheEfiate ^ j^g ^^^^ gjr ^ ^^ j^ ^^f traver Cable ; but he, that pleads the Fine.
is as well as Ought to mauitam the tme, as is atorelaid. Co. R. on Fmes, 17.
if the Que
Eftate had been limited in him who was Party to the Writ Br. Fines pi. 70. cites 37 H. 5. 34.
9. If a Feme Covert only, 'without her Baron, levies 3, Fine exectttory ; tho*
the Baron continues tn Pofj'eJJion daring his Life, and after dies, yet this
fhall conclude the Feme and her Heirs j but it' Execution had been fued,
and alter the Baron had died, this had avoided the Fine for ever. Co. R.
on Fines, 17.
10. Scire facias to execute a Fine levied by D. where he had but tWQ
Parts in Common with J. S. at the Time of the Fine, who was feifed of
the third Part in Common with the faid D. who levied the Fine of the
third Part, &c. it is dangerous to fay that D. had nothing at the Time of
the Fine, hnt Jhall fay that he had nothing but in Common with J. S. which
E/late he has ; nota. Br. Sci. ta. pi. i. cites 26 H. 8. 9.
11. 'Tis a good Plea to fay, that J. S. was feifed Tempore levat\ and
before the Fine levied, without that, that the Parries in the Fine had any
Thing therein at the Time of the Fine levied. Weft's Symb, S, 291.
cites 9 H. 4. 27. 3 H. 6. 27.
12. Or to fay, that the Parties to a Fine had nothing, &c. hut A. B.
whofe EJiate he hath, Et de hoc ponit fe fuper Patriam, Weft's Symb. S. 191.
cites 33 H. 6. 18. 26 H. 6. fo. 9. 42 E. 3. 20. 4 H. 4. S. 14 H. 4. 33. 4
H. 7. c. 24.
13. K.devifedto B.for Life, and if B. have Iffue Mak,theHto fuch Iffiie
Male and his Heirs for ever;, and after B's Death, if he leave no Iffhe A^ale,
then to C. and his heirs. B. fuiiered a Recovery, in ■« hich he vs'as Vou-
chee, and the Ule was declared to B. and his Heirs. The Coheirs of A.
were E. and F. two Femes, then of Age and unmarried. B. by Will gave
the Land to J. N. in Tail, Remainder over. B. died, and C. entered ^ after-
wards, J. N. and IV. R. joined in levying a Fine, and fiijfcred a Recovery to
the
Fine. ^c^y
the Ufe of IV. R cvid his Heirs. It was objefted that Partes Finis nihil
habuerunr, in Regard, that before the levying ify W. R. (who was faid to
be the Diileifor ot the Premifles), by Leafe and Relcafe did convey the Inhe-
ritance of the Prc7!iijfes to JV. S. in iClortgagi^ and that tho' \V^ R. had the
Polieffion, yet tliis was under the Proviio of the Mortgage, as Tenant at
Will to the Mortgagee, until Default of Payment. But Ld C. Parker,
held, that in this Cale, it could not be fiiid, that Partes Finis hihil ha-
buerunt ; becaulc J. N. as Devifcc of B. bad a Right agatnfi all Pcrfons
but the Heirs of A. and that W. R. entering upon him ijcas aDiJfeifor, and tho'
W. R. aiterwards mortgaged in Fee, yet he continuing in Pollelfion, and
joining with J. N. in the Fine, it could not be faid, that Partes Finis
&c. when one of them, viz. IV. R. had the Pajfejicn, and J. 'N. the Right
againll; W. R. and alfo againil his Mortgagee ; and alfo that E. and F.
the Coheirs of A. being ot Age, and unmarried at the Time of Recovery,
fuffered by B. \stxt barred by the Statute ot Limitations. Wms's Rep.
505, 506, 507, 519, 520. Mich. 17 1 8. Carter v. Barnardifton.
(G. b. 5) Reverfed by one^ where it fhall hnejit others.
\. The Law, after the Statute of 4 H, 7. is, that if the ¥Jlate con-
tained in the Fine was defeated imthin the 5 I'cars^ the Fine thereby had '''^^ ^^° ^^•
hji its Fore, not only againll him, -vv ho had deieated it, but againlt '?// Pcriam^f "*
others that had Right or Title Paramount, and ivhv do not pat in their
Claim ivithin the 5 Jlars after the Proclamations y tho' he who defeated it
had brought his Aftion within 5 Years, but had no Judgment and Eseciitioit
till 7 7~ears were paff'ed after the Proclamations, per Saunders, PI. C. 358.
b. in Cale of Stowel v. Ld Zouch.
2. Tenant for Lile, Remainder for Life, Remainder in Fee ; if the
firll Tenant for Life alien, and the Jlienee levy a Fine, he in Remainder
for Life may enter, and deleat the Fine, and not he in Remaiader in
Fee J and if he enters, this Ihall give Benefit to him in Remainder in Fce^
For the Fine againlt him ihall be oufted. And by the fiime Reafon,
if he makes continual Claim, he in Remainder in Fee, at all Times after
Ihall take Advantage of it, and ihall avoid the Fine, as Saunders faid.
Pi: c. 359. . .
3 . Fme being levied by A. in the Name of B.a. Reconveyance was decreed.
and that a Vacat Ihould be made, if by Law it might be. Roll. R. 115. in
Cafe of Dap V. JpUnptC, cites 3 8 & 39Ei. the Cafe of Gellcr band v. Hubard.
(H. b) Reverfed or Avoided by Death of Conuior, or
Conulee.
1. If Fine be acknowledged before a Judge, and tlie Conulbr dies, it may
be inroU'd after. Co. R. on Fines, 10.
2. If one of the Cvmifees dies before Return of the Writ, this makes not
the Fine void, but voidable only by Writ of Error. Per two Jultices
againll Glynn Ch. J who held it void, for this Reafon. 2 Sid 94, 95.
Trin. 1658. B. R. Row v. Yeveley.
3. The Father and Son join in a Fine in order to nuke a Settlement
upon the fecond Wile of the Father, who was only Tenant by the Cur-
tefy, the Remainder in Tail to his laid Son. One of the Cognifors died
after the Caption, and before the Return of the Wnt of Orjenant ; and now
the Writ ot Error was brought to reverie it, and this was alfignec for
Error. Per Cur. If it had been in the Cale of a Purchafor for a valiiabk
Conjideration, the Court would have Ihewcd him ibme Favour j but it be-
ing to do a tVrong to a young Afan, they would leave it open to the Law.
3 -Mod. 99. Patch 2 Jac. 2. B. R. OkeLI v. Hodgkififon.
R r r r 4 Conufor
3'3B- Fine.
4. Conufor died hct^vcai the Tejh and Return of rlie Writ of Covenant,-
tibr which Reafon the Fine was revelled, Hill 3 and 4 Jac. z. B. R.
Cumb. 57, 71. Price v. Davis.
J. It the Caption of a Fine be taken in the Vacatio>;^ and the llrit be re-
tiiyn:iL!e tbi next Terni^ the Death of the Party determines it j but if it be
Ktmnxblt the Term before^ it Ihali be well, notwithlhinding the Party's
Death. Farr. 2. per Cur. Palch. i Annse. B. R. in Dr. Woodward's Cafe.
(H. b. 2) Reverfed by Error brought in B. R. How.
Per Rerklcv '• ^^ a Writ of Error be brought in B- R. to reverie a Fine le\ied in.
J. Mar. 10. C.. B. the very Record of the Fine itlelf is never removed hither, but
p). Z-. —Br. on a Tranlcript of it: B/it if this Court adjudge it trroneons, then a Certi-
E\-\oT. 15,-. f^y^^i gogy j^) [iie Chirographer, to csrtify the very Fine; and when it comes-
io'^2o S P "p3 "^ is acliiaJJy cauccl/eri ; per Hole Ch. J. i Salk. 341. Fazacharly v.
Br. Record.' Baldo. ■ " - .
pi. 4.S .cites
S. C. Ibid. pi. 46. cites 40 Ad 29. Upon a Tranfcvipt of a Record, a Man fhall nof
afTicii Error.-;, if it he not upon a Writ of Error fued upon a TMnfcnpt of a Fine, and there he Ihall
alngn Errors upon the 'fray.jcrip of tie Note cf tie tine ; and if the Jullices do conceive it Error, then
they fhall fend for the Kote ot tlie Fine, and iluill reverie the famer F. N. B. 20 (F). ■ But
Pir.' Record, pi. -9 cites 5 JMa. i. Kota, that in B. R. they have diverle Precedents, that in Writ of
Ervor upon Fine the Record itfelf fhall be certified, fo th.it no more Proclamations fhall be made, and_
if they are reverted, this makes an End of all, but if they are flfim'tA, then the Record f:. ill Le Jent into
C. B. hy Mittimtts to he proclaim d and ir.grcffed. (^od Kota, For if nothing be removed but the Tranf-.
cript, they mav proceed in B C. notwitliltanding. Certiorcri was awarded out of B. R. di-,
reCtcd to ihe Qijics Breiiuii:, which was to rervo'vC the Foot and Record of a Fh:e, levied Tempore Reg. anA
Regins P. £c Ma. (whereof, in Law and Truth, or.ly the Tranfcript was removed before by Writ or
Error, and Error foioid ai:d adjudged in this) to the Inteiit, that tlic Record of the Fine fhould be removed-
<? Filaciis in C. B.aed cancelled in B. R. and of this are Books and Precedents. And Egerton, Clerk of.
the Dffice of Chirographer, flicwed a Precedent Tempore E. 3. of Certiorari out ot tue C^hancery di-,
reftcd to the JulHces of C. B. & pro Tey.cre Pedis Fn.is fro Ernrtf and by .Uittinms fcnt over into B. R
Anno. 16 E. c. D. 274. b. p1. 44. Pafch. loEIiz. Anon.
2. Where a Writ of Error brought in B. R. was directed to the Cultos'.
Brevium vt tlie C B. to remove Recordiint & PrcceJJam (Ica^ ing out the'
Word ajorefaid) aim Omnibus- ea tangentibtts, which was done accord-
ingly, It feems that the Writ of Error, in Form, is not good, becaule^
the Tranfcript ought to be removed, and not the very Record itlelf, till'
Judgment be gi\eq of Reverlal. And this appears ia diverle Books*
and Precedents, as 21 E. 3. 40. Lib. AlT 24. Becaufe there is no Chiro-
grapher in B. R. if the Fine be ariirmed. D. 89. b. pi. 2. 4. Mich, i M.^
Reynolds v. Dignam al. Verney's Cale. ■*
3. \\ hen liPine is to be rev.erled lor Error, theCourle is lor the Plaintiff
in the Writ to have feveral Writs of Error; viz. one, directed unto the Ch.
-f. of the Court of Common Pleas, to certify the Record and Procefs of the]
t'ine, andanother ?■; the Ctiftos Breviiira, of the fime Court to certify the
'tranfcript of theFoot of the Fine, and the third, to the Chirographer to certify
the 'Tranftript cf the Record and Prccefs of the Fine. Well s Symb. S. 192.
*l'^ Tranf" 4" ^^^'^^ being brought in B. R. of a Fine in C. B. the Fine -was affirmed ; '
cript of the ^nd novvaWrit of Error, coram Vtbis Reftden. was brought here; and
Fine only. Exception was taken, that the Writ ought to abate; for that no fuch
and not the Writ lies in this Cafe, becaule * only a Tranfcript of the F'ine is removed
?^'^Fine fliaU ^"""^ '"'^'^ Court j and it was likened to theCales of Error in the E.xche-
be removed quer Chamber, v/here only a Tranfcript goes up, and if the Writ abates^
by Writ of no Writ of Error Coram Vobis lies. Sed per Cur. the Reafon of that is
Error, is, be- not, becaufe they in the Exchequer Chamber have only a Tranlcript, but
*'l"J'^'"^ becaule th^yhave only a particular Authority to affinn or to reverfe. It was ad- ■
Chnwrapher. mitted, that the Tranlcript of the Record oi a Fine is only removed,
Co. R. on becaule, upon Judgment of Reverlal, a Certiorari goes for the very Foot
Fines. 12. — of the Fine, and it is cancelled. But notwithftanding that, the Court
^risTp' ^^"^^^ ^^^"^ ^"^'" '^^'■'^"^ ^^^"^^ Reliden. lay- Palch. 4 \\'. & M. E. R.
citetio Afl" I Salk. 337. V\ inciiurch V. Belwood,
19. . ■> ' - : . CH. b. 3) Rc-
Fine. 339
(H. b. 3) Reverfed. Aiicknt Demefm. Fines levied
there Reverfed by Writ of Difceit.
I. Scire Eicias was fued upon a Writ of Difceit, which v/as to reverfe a
Fine levied of Land, which is ancient Demefne ; the Lord brought the
Writ of Difceir, and the Record of the Exchequer was Ihcvvn, proving
the Manor of E. to be in Ancient Demefhe ; and the Plaintilf laid, that
Parcel of the Land in the Fine, u^as Pared cf the AJamr^ a?id Parcel at
the Common Lavo^ and the Defendant cannot deny it^ and becaufe the
^ranfcrift was lent, therefore the Court fent to the Chamberlain of the Ex-
'chequcrfor the Fine itfelf; and upon this, they adjudged that the Fine, as
to this which was Ancient Demefne, ihould be reverfed, and * annuU'd ; * Orig.
and the Lord reltored to his Seigniory, and the Fine was marked of this (Ancient);
Parcel, and not draivn off' the File j For 'tis good for the relt, and there-
fore it feems here, that by thefe Words, (Void and Annulled,) that it is
void, as well to the Parties as to the Lord j and yet by 17 E. 3. the Co-
nufee iliail have the Land. Br. Fines, pi. 47. cites 21 E. 3. 20. and 7
JJ. 4. 28.
2. Fine was levied of Land in Ancient Demefhe at Common Law,
the Lord brought Writ of Difceit againft thof only, who levfd the Fine
and not cigainji the 'Terre-tenants, and had Scire facias againjt the Ter-
pnants, and well ; and it was agreed that the Fine Ihall be annidl-d agai?ift
the Lord; but quscre, if by this it Ihould be void between the Parties, and
fo fee in this A£tion Non-tenure is no Plea, if it may be againft thofe
who are not Terretenants. Br. Defceit, pi. 38. cites 7 H. 4. 44.
3. If a Man levy a Fine at the Common Law unto another of Land,
which is in Ancient Demefhe; the Lord oi Ancient Demefne iluli have a
AA^rit of Difceit againll him, who levied the Fine, and he, \vho is Tenant,
fliall avoid the Fine; and there he, who ought to give the hand, pall be '
rejlored unto his Poffeffion or 'title, which he had given by the Fine ; becaufe
the Fine and Gift thereby is avoided ; But if he, who levies the Fine,
had after by his Deed relcafcd unto him, who hath the Polieffion by the
Fine, or by the Deed conjirmed his EJlate in the Land; then he, unto whom
the Releafe or Confirmation is made, lliall h^ve and keep the Land, not-
withllanding that the Fine be avoided ; becaufe that Releafe, or Confir-
mation, made unto him being in Polieffion hath made his Eftate firm and
rightful againft him and his Heirs, who releafed or confirmed the fiime.
F. N. B. 98. (A.)
(H. b. 4) Rcverjal of Fines, of Ancknt Demefm.
At ivhat Time,
1. Where a /!/(?« recovers lu-xnd in Ancient Demefne Court, which was
iiiade Frank Fee before by Fine levied at Common Law, this Judgment in
Court of Ancient Demefhe is void, & coram non Judice. Br. Judgment.
19. cites 7 H. 4. 27.
2. 'Tvvas argued, and at length agreed, that a Lord in Ancient De-
mefne HkiII have a Writ of Defceit, afer a Fine levied, and the King's
Stiver paid, tho'' the Fine be not ingrojfed. Mo. 6. pi. 21. Hill. 3 E. 6. Anon.
(H. b. 5) Plead-
34^ Fine.
(H. b. 5) Pleadings. In Maintenance of Fines.
1. He, who maintains the Fine, nnay f-iy, that the Contifor ""juas feifed in
Fee. Br. Fines, pi. 50.
2. ^j in Ward, the Defendant intitkd himfelf hy joint EJlnte to the Jn~
cefior and himfelf by Fine, and that he fur-nvedy the Piaintift" laid that
thole who were Parties to the Fine, had nothing at the Time of the Fine,
&:c and the Defendant l^iid, that the Coniifors were feifed in Fee, at the
'Time (f the Fine, &c. Br. Fines, pi. jo. cites 7 H. 6. 21. and 33 H. 6.
tit. Replic. and Rejoinder.
(I. b) Avoided, SCc. ISot being perfecicd.
S.P.z54.Dpl. I. * in 33 H. 8. acknowledged a Fine oi^ certain Lands j the King's
p'tt^b^'tthc -t\-* Silver was encer'd, and the Conufance taken j but the F///e w^i
Proclamuti- ^'t^'-'er ingrojjed. *He who claimed under the Fine came into Court (29 El.)
otisdcniedto and prayed that the Fine be ingrolied. The Court examined them on
be en^roffed, their Oatiis, to what Ule the Fine was levied, and in the Seilin and Pof-
b^-^ d^'d* ^^'^i*-^" of what Perfons the Lands, whereof the Fine was levied, had been
Coni'iton's ''^^^^^ '^he Fine? On which Examination it appeared tully to the Court,
Cafe—The That, the Party, to whom the Fine was levied, was leifed after the Fine,
Rcafbnofihc and luliered a Common Recovery of the Land ; and that the faid Land
.^ ^fi jjjg had been lb enjoyed, according to the faid Fine, at all Times Jlnce, &c.
Proclamatl- whereupon the Court commanded that the Fine be ingrolied. 4 Le. 96.
ons there Trin. 29 Eliz. C. B. Sir J. Bromc's Cafe.
made, were
p.iycd after the Corufec's Death, was, becaufe a FormeJon was depeiuHiip, and tliat was only in the DiO
crction of the Court. Cro. E. 6t)i. Mich. 4.1 and 42 Eliz. B. R. Wakefield v| Hodgcfon.
yee (W) (I. b. 2) * Averment againft Fines. Conthmance of Pof-
JeJ/ion, and dying feiled, &c.
I. A Fine was levied bet'-jaeen Baron and Feme and H. R. by which Fine
H. R. rendered to the Baron and Feme in I'ail, Remainder to the P/aintiff' in Fee ^
and he in Remainder fued Execution, fuppojing the Baron and Feme to he dead
without IJfue of their Bodies ; the Tenant faid, that before the Fine H. R:
gave to the Baron, who was Party to the Fine, in I'ail, the Remainder over,
■who had IJftie F. by another Feme, and died, whofe FJiate P. the I'euant has,
^vA did not fhew where the Fee Simple was, and yet well, and averred the
Continuance of the Pojjejfton in the Donee, at the Time of the Fine, and
•was not ellopped by the Fine to the contrary thereof But per Thirning,
if it had been Conufance de Droit come ceo, &c. it had been contra, by
which the PlaintilF faid that H. R. was feiied in Fee, at the Time oi the^
Fine, abfque hoc, that he gave in Tail before the Fine. Br. Eftoppel pi,
67. cites 1 1 H. 4 85.
S P. Becaufe 2. The Ifjue in Tail cant aver Continuance of Poffejpon againji a Fine Sur
this IS hy the Conufance de Droit come ceo, &:c. but contrary of his life, and him in Re->
Statute of 17 mainder ; For they are not Parties nor Privies. Br. Averment, pi. 57. cites
b / and not ^^ ^'- 4" ^^- »-Neverthclefs, where the Baron is eltopped, the Feme,
at^Cominon who claim'd by him fball be eltopped. Br. Averment pi. 57. cites 4 E. 3.
Law, which r^ ■ n >-
was after the Statute of W. i. de Donis Conditionalibus, made 13 E. i. Centra cf a Pim Sur Conufance
de Droit tantum ; F^r this Kas at Cov:r?:oTi A.w Co R on Fines 4. cites I J E 4 I <:. 10 Br. Fines
pi -48, p. cites 13 Afl" S.
3. Agamft
Fir
iC.
3+J
3. hp\\n\i afhin 'Siir Cori:if,:iice lIc DroiT tiiDtiiiii, S I'ur Grant cX/ni Ren- B\: Aver-
(icr, fi?/vc/ againlt a Fine /«r Rckdf^, levied to the Tenant in Tail, i^r by m^" 6. circs
Tenant iu Tail, the Ifiiies may a\'er Continuance of the PoHtliion in '*'■■■■
their Anceftor. For, altho' the Statute tie JJonts Couditiiitidhbiis was Br. Afil'l- dI.
made 13 E. i. and our Statute made 2"^ £. i. vet 'twas not the Intention ■>' '^^itcsS il.
ot" thi:i Statute to take avsay.the Liberty and Benefit ol' the Iliac inTail^'^ ''
which the Statute, de Vonis Co?hi!t!niidhbus had gi\cn to them ^ For it
appears, that the Intention ot the Makers ot" this Statute was to relonn
fuCh Averments, which v,-ctc Centra Leges i3 Cotifuci itduies Jiigltx .^ntiqtih.
Vfitat. and not to toll fuch lawlul Averments, as by the Statute i)c Douts
Conditiontilibtis were given to the Tenant in I'aili but a^jainll a F'iue Siu'
Conufcuice de Droit come ceo^ &c. to which the Ancellor in Tail is a Party,
the Illlie in Tail ihall ha\c A\crment ot" Continuance of FoUeliion in his "•
Anccltor againlt the Pine in lome Caic, and in Ibme not. And therefore
I have taken this Divcrlity, that againll a YmQleiifd by tenant in 'Tail SurScs Br. Fines
Conafcuica de Droit Co?,/e cco^^c. the IlVue in Tail Ihall have no Averment pi- ; 5 <-itcs
01 Continuance of Pollelfion ; but if a F'ine Siir Coniifance de Droit ccme^ ^■'^- ^■
ceo, &c. be levied to the tenant m tail, this Ihall not conclude the Illuc '■
(as di\ers Books lay) to aver Continuance of PolielRon. Co. Read, oi'
J'ines. 16.
4. Jnd in fbme Cafes, Privies in Blood and inheritable alfo fliall h.axa
An Aier'merit againtl the Fine, notwithltanding the Statute of 18 Kd. 1.
And therelbre, if tenant in Jail accepts a Fine Siir Connfance de Droit come
ceo, i£c. }et the J[liie in tail, that is Pri\ie and Heir in Tail, Ihall avet
Continuance ot Polieliion in tlu- Father j For it Ihmdeth well with the
Fine, which is (Come ceo que il ad de Ion done). 2 Inft. 517.
5. So it is in the Cafe abo\e, it tenant in tail ^^^laA granted and rendered
the Land to the Conuibr, the IJJiie in Tail might have averred Continuance >
of Pojjel/ion in the Father j For the Fine was Executory, and nothing;
veiled in the Conufor until Execution. 2 Inll. 517.
6. But if Tenant in Tail lei'j a Fine Sur Coniifance de Droit come ceo ;
the Ilfue in Tail, tho' he be not barred by the F"ine, yet he Ihall not
againlt this Fine aver Continuance ot Poffelfion in the Father; and that
Diverfity was holden lor Lav/ after the Statute iS F.d, i. neither alter
this Statute could the Ilfue in Tail have generally pleaded, that Partes
Finis nihil habtiernnt, but was oufltd thereof by this Statute, albeit
feme have relied much upon thefe Words in th\^ k£t Rite Levatns ; now
the Statutes of 4 H. 7. and 32 H. 8, and the Expolition thereof makes-
this out of Qtielton. 2 Inlf 517.
(I. b. 3) Averment jjgainft Fines. Death of Conulor hc"
jhn the Tefte of the DedimuSy Return of the Writ
of Covenant, Exccnt'ion, &c.
1. In Alfife, the tenant pleaded in Bar by Fine of the Ancefior of the
Plaintiff, whole Heir, &c. It is no Title tor the Plaintiff, that the fame
Anccjior rsjas feifed, and died feifed ^ For if he died feifcd before Exec at wh
of the Fine, the Entry oi the Conufee is lawful. But 'tis a good Title,
that, after the Fscaitwn ot the Fine, his Father, or the fame Party to the.
Fine, was feifed, and died feifed, and he entered as Heir, and was feiied
until, ^:c. Quod Nota, Diverlity of dying feifed betbre Execution, and
dying leiied after. Br, Allife. pi. 4S3. cites 33 E 3, and 10 11. 4. 9. and
Fitzn. Title. 4. and 14.
2. A Man may be rccei\ cd againft the Conufmce of a Fine taken before
the Ch. J. of the C. B. (vvhich may be without aDedimus) to lay, that the
Cr^n.'ifor died icjcre the Return of the Writ of Covenant, per Pt'pham Ch. J,
Cro. E. 469. (^bis) Pafch 38. Elii B. R. in Cafe of Wright v. the May(,r,
^c. of \\ ickham.
S fiT ^. A
34-2 Pine.
D.89.b.Rcy- ^ A Fine was levied by a Feme Covert, who died before Ce,rtificate and
nolds.Vci-- j^,,,ycffiiiciit^ and the Fine afterward certified ; 'twas allcdgcd tor Error in
D^-'ium'&aY i^i'i't,"that the Woman died before the fcjfe of the Dediiims^ whereas the
]ud^ch\id certi/ied rhe Concord taken after ; and this was not admitted to
be queftioned alter the Certificate. Hard. 127. Arg. Trin, 1658. in the
Excliequer. cites D. 89. b. Vernev's Cafe.
[ See Error (U.) pi. 4, 5, 6, 7. ]
(I. b. 4) Averment agalnft Fines. CoU/<Jio}2 or Ufuiy^ ^c.
CoHuJicn may I. Error to reverfe his own Fine, becaufe he was withinAgeattheTime,
be averr'da- ^q_ and the Court adjudged him within Age by Infpection^ the 7'ertenant
painftaFine. ^^^^^^ ^.^^^ ^^^^ j^^ r^^^j of full Jge, hit flull have Averment, that another
jl'.^l^^^^^' of the fame Name levied tbe Fine, and not he -who appeared. Br. Averment,
C. Ibid. pi. SS- <-'ites 27 Ail; 53.
fays, that the
principal Cafe was agreed to be Law. T. 53 H. S.
S. P. Br. 2.The Lordmay aver Collujion, againft a Finele\ied by hisTcnant, to the
Ga1de.pl.74. Intent to take his Ward from hint. Br. A\'erment, pi. 64. cites \z H. 4. 16.
cites 704- -* 3 r T T
15. But cites
->8 E. •'.contra, that the Lord cannot aver Collufion againft the Fine of his Tenant fur Conufancc
de droit ; come ceo, &c.
5 Rep. So. in 3. Upon the Statute o^i^Eliz. againjl Ufiiry, and 2'jEliz. againjl Fraud,
termor's although Fines be levied j yet where there is C'T/^rr, or Fraud, or Covin,
^'"^' they may be averred ib to be againlt any Act whatfocver. Jenk. 254.
pi. 45.
(I. b. 5) Averment agalnft Fines. OtJxr Matters,
1. In Scire Facias upon a Fine levied oi^ Land in D. the Tenant fhall noc
faj, that there is no fiuh Vill; tor this will avoid the Fine, which will not
be fullered. Br. Fines, pi. 98. cites 21.E. 4. 51.
2. If the Record be, that the Fine ivas proclaimed according to the Statute^
the Fine is good, and has the Force ot this Statute. Denlli. R. 5. upon
4 H. 7- 24.
3. It y.6'. has If arrant of Attorney for J. D. and this is taken by a Judge
in C. B. and the Record is accepted in Court, it fhall not be averred at-
tcr, that there is no fach f.S. becaufe contrary to that which the Court has
recorded ; yet, if the Judge had been intbrmed of it at firlt, he would,
and ought to have itay'd it. Per Popham. Yelv. 34. Pafch. i. Jac. in
Cafe of Arundel V. Arundel.
4. A. levied a Fine to W. his Son, and his Heirs ; upon this Fine thejudge
cannot make Queftion for any Matter in Law ; bur if the Party comes
and avers matter in faft, and fiiys that A. had t'-j;o Sons named IF. Elder and
Younger. This Averment out ofthe Fine is good of this Matter of Fatt,"
\vhichy?(^?;;r/j' ■x't// voith the Words of the Fine, and ftall be tried per
Pais. Mich. 8. Jac. 8 Rep. 155. in Altham's Cafe.
5. Againll jointenancy by Fine tho. Dtmxndixnt cannot take a general Aver-
ment, that the 'Tenant is [ok feifed ; tor that Ihould teem to v\eaken the
Force ofthe Fine; and the Statute of Conjunfiiin Feoff atis. Anno 34. F.. i.
extends not to Joinrenancy by F'ine, but to Jointenancy by Deed only,
to take the general Averment againlt the Deed, that the Tenant is Ible
felled. 2 Inlt, 524.
6. If
6. If the Fine be received and recorded^ the Feme covert^ or lier Heirs, lliall ^-o- R- on
not be recci\-ed to aver, that jhc ■zc-.^.r not examined nor alFenced ; ftr this p'""- ^- "T"
fiiould be.igainltthe Record oi the Court, and tending to the weakening jf £'','^i^r''
of the general Allurances of the Reuhii. 2 Inll. 515. ilcplication.
■63.
7. In fome Cafe xhtParty himfcJf^-xW not be concluded of his Averment
againlt the expreis Fine ; as if 2 Jointcnc.nts be in Fee, and they accept
iiFinefur conufansde droit come ceo, to them and the Heirs otbne, thcEihte is
not changed, and they may plead the tormer Feoffinent to them and their
Heirs, and that by Law they could have no other Fine. 2 ln!l. 517.
8. A Dedinins potejlatem^ to take Conufance of a Fine, is direcied to J. S. So if tlie Co-
Knt. and he takes the Con ulance, and certifies it by the Name of J. S. nufancc was
Knight, whereas in Truth he is fvjt a Knight. This is not erroneous,. *^''^'^"^>' .' ^•
noralhgnablelbr Error that he is not a Knight, for it is againll tiie Re- 'ru'JHees'of
cord. Jenk. 2S0. pi. 3. C B. Ef^.
who is after
w-^yf a A'wf. and Chief Baron of the Excheqiici- ; Though' the Dcdimus, which neccfTarlly mufl: over-
reach the Conufance, be directed to J. S. Knr. who I'eturns it, yet it ihall not bte alfigned for Error.
Yclv. 35. Pafcli. I Jac. Arundel V. Arundel.
(I. b. 6) Averment agalnft Fines. By Stranger.
1. Baron and Feine levied a Fine to C. 'xho granted and rendered back to the
faid Baron and Feme, and to the Heirs of the Feme. Altervvards J. S. hviight
Formedon in Dcfcendcr againlt the Baron and Feme. After many Delays''
the Feme was received, and vouched to Warrant C. which Voucher j.'S.
counterpleaded, and thereupon it was demurred ^ but the Judges of C. B.
negletlmgto proceed to gi\e Judgment, though by the King's Writ com-
manded lb to do, tor which Purpote J. S. had applied to the Houle of
Lords, and at length the Record being brought thither by the Jullices
of C. B, it was there agreed, that J. S. being a Stranger to the Fine,
might aver, that the Baron had nothing in the Fremiffes j and agreed that
J. §. recover, Pryne's Abr. Cott. Rec. 30. 14 E. 3. Sir John Stanton's
Cafe.
2. In Formedon, the 'tenant denied a Gift by f. R. &c. and becaufe ic
was by Fine, and esecutedby theU'ordsof the Fine, therefore Finch awarded
the other to anfwer; lor he faid, that Party, Privy, nor Stranger fhall not
ha\"e A\erment agai'ifi a Fine esecnted. But Brook makes a Quere thereof
as to rho. Stranger. Br. Eftoppell. pi. 31. cites 42 E. 3. 9.
3. Tho' die Statute of 27 E. i. i. extends to Averments taken by Par-
ties and Privies, and extends not to Averments made by Strangers, that are
HO Parties nor Privies to the Fine, yet by the Common Laiv, the puifftnt
Force and Nature of Fines was fuch, that a meer Stranger could not have
a general Averment againlt a Fine ; and therefore it is reported by Shard,
one of the Julticesot the Court ot C. B. that it was relolved by the Sages
of the Law, that the Parties, or their Heirs, Jliould have no Averment
againll Fines le\ ied, contrary to the Fine levied, to avoid it ; and that a
Stranger Ihould have no general Averment direftly to avoid a Fine, if it
were not upon fome fpecial Matter ; for he, that is 'Tenant after theFine Icviedy
is intended Tcna.nt under the Eltatc oi fonie of the Parties to the Fine, to
whom, bv the Common Law, a general A\'erment ism^t given, more than
to the Partv or Privy , and the ipecial Matter, which gives him the Aver-
ment, is, that after he pleads, that the Parties to the Fine had nothing in
the Land at the Time of the Fine levied, he doth formally add, thk
either he him fef, or fome other ivbofe F.ftate he hath, was feifed-at the Timf
oj the Fine levied, £?r. Bur yet the Matter is «cr tr'jvef'able, but a Mean to
travcrk
c^z]./j: Fine.
travcile and -.ivoiil the Fine,arid theiclore theTeiKint th;a pleads i'uch Plea
dothcondude, Ec de hoc ponic k luper Patriain, with a iurthcr Replica-"
tion. 2 Inlt. 522, 523.
(K. b.) Unduly gained. Equity.
I. A Fine was levied /{)' a Fane Covert^ Iiifcvit^ of her Inheritance^ anc?
x\_ the Father of the Baron was one ofthc Commilfioners, that took
the Fine, and the Uieswere declared to her and her Husband, and ther
Heirs ot' their two Bodies, Remai/iderti the Heirs of the Sur-jivor. The
Feme dies without Illuc, and under Age. The Husband,atter her Death^'
mortgages the Land to J. S. of whom the Heir at Law of the \\"ite gets
im Aliignment^ and then levies a Fine and 5 Years Pafs. W. R. whoVas
entitled under the firlt Fine, brought a Bill to redeem^ and lor a D/Jlov-jry
of the Deed of Ufes. The Heir of his Wile pleads the ill Praffkes^ and his
civn Fine and Non-chwn^ and denied that there uas am' fuch Deed of
ufes, and ifthere was, that it was obtained by Praftice. And per Cur, alJ
Titles at Law, that are not directly againlt Conlcience, Ihall be aliilted
hereto a Redemption, and ifthere were only a Blemifj in the 7'itle, i'o
Ihould the Plaintirf'; but could not get over the Fine and Non-claim. Tl:ie.
plea is good, and to diliiiifs the Bill. Palch. 1703. Ch. Prec. 218. Pack-
ington and Barrow.
(K, b. 2) Pleading a Fine in Bar of Ad'ions ; In what Ca-
ies it is a good Efloppclj unlels the Plaintiff lliews how
he came to the Land after.
s. In Affife, a Man feifed in F ee acknowledged a Fine Sur conufance
At droit come ceo^ &CC. tho, Con itfee granted, and rendered to the Conuforfor
Life, Remainder to yl. in I'ail. A. after the Death of 1'enant for Life, '
cntred and was feifed, and granted a Rent-charge of 10 I. and died ; the If-
ftic in Tail entred ; the Grantee is feifed and difjcifed of the Rent, and brings
Afjife ; the. Heir alleges this Afjtterofthe Tail to avoid the Grant; the
Pi'.intifffaid, that the Anccflor of the Tenant ivas feifed in Fee at the Tunc of
the Grant, abfqne hoc, that he ivas feifed in Tail at the time, ^c. and the
cth'Cr pkdded the Fine for F.Jicppel ; and the Opinion of the Court was
ugiiinll thePlaintilf, and that he ihould be eltopped, as well as he who
took by the Fine, and that he Ihouid not ha\e the Asennent ^sithoun
jhesiing hoiu hisF-liate ivas changed, as by Rcco\cryof a more high, &zc. or,
that another was leiled at the time otthe Fine; quaere ; tor he in Remain-
der, who changed, was not party to the Fine. Bv. Elloppel. pi. 135';
cites 30 Alf 9.
2. If a Man levies a Fine, or lofes ly Recovery, and enters after theFiue ex-
ecuted, or after the F.xectttwn oj the Recovery, and dies feifed, this is no Ti-
tle for his Heir'in AHilc, if the Fine or Recovery be pleaded m Bar, ijcitkout
jheisving hoisj he came to the Land after. And it is laid, that there is a great
i)iveriity between a Fine executory and executed pleaded in Bar. Nota.
Br. Aliile, pi. 483 cites Fitzh. Title 5.
Bi- Eftoppcl. 3. In Treipals, the Defendant fud, that the Anceflor of the Plaintiff,
nl. 4. cites 5 '^^Jjofe Heir, &c. Jevied a Fine ihr conufance de droit come ceo, ^c. to ff. JSf.
H 6. 2:,2S. and conveyed from him. Judgment, if he Ihall be recci\cd to lay that it is his
Frank-tenement, wirhouty/.^tav/i'^ hoiv became by tta^'tcr, and ic Vv as held a
good Elloppel. Br. Finos, pi. 6. cites 3 H. 6. -7.
(K.
■J/
Fine.
(K. b. 3) Plea good j By or againft Strangers to the Fine'
1. In Formedon, the Tenant prayed Jid of 2, becaufe JV. was fetfcd in
Fee, and leajed to the Tenant for Life, and granted the Rever/ion to 2 /;/ Fee,
ot whom the Tenant prayed Aid, and had it, and the Prayees came and
vouched W. and the Demandant counter-pleaded, that W. had -nothing in De-
viefne, nor in Ser-vice after. See. and the Opinion ;\'as, that tlie Demandant:
ihould not be eltoppcd to counter-plead the ^'oucher by the SuMerino- of
the Aid Prayer, and though the Gift be by Fine, yet the Tenant JhaTi not
he ejlopped to plead ne dona pas, and this where the Fine was le-aed by a
Stranger, as it fecms. Br. Eituppel.pl. 70. cites 38 E. 3.23.
2. The Tenant vouched to Warranty J. Son and Heir of R. and the De-
mandant counter-pleaded generally by the Statute, and the Tenant fajd, that
to this he iLall not be received, for at another time R. levied a Fine fur
conufance de droit 6W//£ ao, (Sec. to our Ancejlor, ike. and demanded Judg-
ment, &c. & non allocatur i For the Demandant is a Stranger to the Fine,
and alfothe Fine is good if any of the Parties be leiled at the Time, &c.
Br. Eltoppcll. pi. 26. cites 40 E. 3. 30.
3' And in Formedon upon a Gift by Fine, the Tenant may lay, tlwt ne
dona pas, if he is a Stranger to the Fine. Quod nota. Br. ibid.'
34-5
(L. b.) Avoided in Part -
I A ^Vrit of Error is Quafi a CommifTion, and may reverfe for part,
_i\_ and aiiirm for part, and is not abatable ; becaufetho Fine is good
for part. Mo. 366. Mich. 36 and 37 Eliz. Barton v. Lever and Brownloe.
2. A. brought aW'rit of Error againltthe Mayor and Commonukv of B. Cra E. 463?.
to reverfe a Fine levied by his Jncejlcr of zo Jcres of Land, theDefendavts, (biOS.C
in Abatement of the Writ of Error, did plead that the Plaintiff after the i!r'''p^o
Death of his Anceflor, did dijjiife the Dependants of the Land, and made a Mo' m-. s.
Feoffment to a Stranger ; the ?iiint\?[ replied that they didre-enter upon him, C. "* '
without that, that he did cf feoff a Stranger modo&c l(?rma ; the Jury found,
that there was a Fine of 20 Acres, and that the Plaintiff being Dfjeifor
of oil, made aFeoffmcntof6 of the Acres to a Stranger. £t li I'upra totani
materiam, &c. But it was refolved by the Court, that the Feoffinent
does not deliroy the Title of the Writ of Error tor more than fo much
as a Feoftrnent was made of, and thereupon they firft took a Difference
between Sufpenfion and Extinguilhment ot an A6tion ; for, peradventure,
if he fulpend his Action as to any part lor any time, this is a Sufpenlion
unto all, but extinguilliment of part is a Bar to that part only. And the
Opinion of all the Court was, that the Fine ihould be reve'rfed for that
part of the Land only, whereof no Feoifment was made, but lor fome
Defefts in the Writ of Error, Judgment was ftaved. Owen 21. Wright's
Cafe.
3. Gawdy cited the Cafe in 9H. 6, where Judgment was reverfed tor
part only, and it is not unufual to have a Fine reverted for part, as if a
Fine be levied of Lands in ancient Demefne, 47 E. 3. 9. a. there, by Parfley,
if there be Error in L.iw as to one Parcel, and Error in Fatf as to ancthtr
Parcel, the Judgment, as touching the Matter in Law may be reverfed. .
Owen 22. in VV^ right's Cafe.
4. Baron and Feme (the Feme -within Age) levy a Fine, and upon In- Cro. E. 129.
Ipection the Wile vias adjudged to be within Age, and Judgment was fn'^il^ti^e" '^
given, quod finis predift. re\ erfetur, and Wray laid, he had conferred thinj^ Pailli.
withmany oftheotherjuftices who were of the lameOpinion. Gawdy, the ^lEliz.B.R
Fine tliall be reverfed in all, for this is an Error in Law of the Court, F. ^'^'T'zP'^-
" " sband givech nothing divided from the j\j Arg F '"
Tttt Eftate M.B.ji.cb)
34-6
Fine.
Eltate ot the Wile, but all p;dleth from the Wite, therefore all Ihall be
re\ erled, and il'thc Fine li;ould be reverled as to the Wite only, then the
Fine ^levied now bv the Husband alone, is aDifcontinuance, by which the
Wile at the Common Law Ihall be put to her Cui in Vita, and that is not
Rcaibn. And we cannot, by this Reverlal, make the Conufee to have a
particular Eltate duringthe Life ofthe Wife, and therefore the Fine is to
be rcveried for the Vv'hole, and as void lor the whole to the ('onulee.
I Lc. 115, 116. Trin. 30. Eliz. B. R. Charnock v. \V'orfcley.
5. If there be 'Tenant j or Life^ Rcm.iinderto an Infant in Fee, and they join
T^in ^-'-^E- '^^ ^ Fine; upon a Writ ot Error brought, it fhall be reverfed cjnly as tu
li/"'c"B. in the Intant. Lc. 317. Mich. 30 and 31 Ehz. B. K. Pigot, v. Harrington.
Oaf'e of *
Lee V. Lovcday. * i Le. 290. S. R .
6. Baron and Feme, and a third Perfon, levied a Fine, and the Writ
of Covenant was againft the Baron and the third Perfon, and /» the Sum-i
7nons the Ftme was left out. Coke moved, that tor this Error the whole;
Fine Ihould be reverted, and it being ill in part, is ill in all, and fo was
the Opinion of the Court, but they would advife. Cro. E. 290. Hill. 3^^
and IS Eliz. B. R. Baxter and Ux.^ v. Mounting.
7. jind it is not a itrange thing for a Fine to be reverfed in part, and
to be in tbrce tbrtheRelidue. Arg. Cro. £. 469.
And a Mark 8. As a Fine levied of guildable Lands and ot Lands in ancientDemefne^ in
jhall be made which Cafe, though the Lord by a Writ of Diiceit a\ oids the Fine tor
uj-o 1 the ji^g ancient demefne Land, yet it is good tor the other. Arg. Cro. E. 469.
fuSacin- (his) Palch. 38. Eliz. B. R. in Cafe of VVright, v. Mayor, 6ic. of Wick-
celling of ham.
that, which
is ancient Demefne Land, and the Record iTiall rtand for the Remainder. Per Vavifor. Kehv.
45. a. pi. 10.— F.N. B 58. (P.) cites 7 H. 4. 44. 17 E. 3. ;i. 21 E. 5. 20. ■ S. P. but it fhall not
be cancelled, nor taken otf the Files. Br. Fines pi. 56. cites 7 H. 4 44. and 8 H. 4. 2;. Per Hull. • —
lbid.pl. 47. cites 21 E. 3. 20. Jo. 374. in Cafe of Done v. Sraithurft.
9. So where a Fine was levied in Chefter, and D. as Heir Male brought
Error to re\'erfe it, and the Detendant appeared, and pleaded a common Re-
covery, in which the Conn/or came in as P'otichce, and he vouched over, and
the Plaintitf rf/)//i?^ hy Non-tenure in ?^t; Party fuppoled to be Tenant m
the Recovery, upon which they are at Illue, and Jo/rnd that he was Tenant
of Farce/, and not of the other Parcel ; the Queltfon was, whether the
Plaintiff Ihall be barred tor all ; and agreed not, but for Parcel only, and
therefore Rule was given that the Lands Ihould be examined. Jo. 352.
Mich. 10 Car. B. R. Donne v. Sraithurtl.
This Point is 10. So where an Infant Tenant in Tail, Remainder to B. in Fee, join in a
held per Ho- pi^e, this may be reverfed againlt the Intant for Non-age, and Ihall
Hob 2-8 in ^^^"^ againlt Remainder-man. Arg. 2 Jo. 182. cites Hob. 278. Englilh's
Clanrick- Cafe there cited, and 17 H. 7. Kelw. 43.
ard's Cale.
— Le. 115 cites (cllglifl/jff Cale thus (viz.) a Fine was levied iy T'cm^i;;* /oc £;/e, [and Rerer-
fioner] and he in Rei'erjio'n heiiig within Age brought Error, it Ihall be reverfed as to the Rcverfioner,^
and not as to the Tenant for Life.
i Sid. 96. II. Error ot a Fine levied by 4 Cuniifors, and afligned the Death of &
per 2 J. a- If ore the Fine engrofjed or Silver paid ; and if by this the Fine ihall be re-
5?'" , ^ow verfed in toto or quoad thole two, was the Queilion ? and it was argued'
V. Evelyn, by Newdigate Serjeant, that it ihall be reverfed tor all; for by it the-
Writ was abated, and ib it is a Fine without Original. 2 Lev. 127. in
Cafe of Biddulph v Harnfon, cited it to have been ib adjudged Hill,
1662 B. R. Rot. 1179. in Cafe of Roe v. Veatley.
Gro. E. 124. '2- A Finemay be reverled quoad one, and itand in Force againll others^
Piffot. V. 2 Jo. 182. Mich 33 Car. 2. B. R. Cockman v. Farrer.
RufTei. • _
— — Popham, Ch, J, faiiit wasotherwili of a Fine at Common Law- Off. 76. Hunt, v. King.
CL. b. 2)
Fine. q,^j
(L.b. 2) Nient Comprize.
1. A Fine cannot belevied but of that which is fpecified in the Writ „ _ jr
of Covenant, ^n^ not of a jorcign things unlefs it be coufequeiit. ^^-^'^^^s- diot^yioi ilfue
pi. 97. cites 18 £. 4. 22. outofthejame
thing con-
inined in the Writ of Covenant, orother Original. Co. R. on Fines 1 1.
2. Jls \n a Writ of Covenant of Land, he acknowledges the Tene- S. P. Co. R.
hients to be the Right of the Plaintiff', &:c. there the Plaintiff may grant °"f,'""g ';
and render 20 s. Rent to the Conufor3 and it is good ; For this is confcquent Br"it.^ ''
to tbe Land to grant a Rent out of it. Ibid. Grant. 90.
But fee
there for the fame Cafe in 9 E. 4. adjudged, that a Writ of Covenant was brought of 5 s. Rer.t, and the
Fine niias levied i;/ an Annuity. Co. R. on Fines 1 1.
3. And in the fimeCafe where a WritofCovenanttolevya Fine make^
mention ol Land, where the Party has only in Rez'cr/ion^ and acknowledges
all his Right in theLand, See. to be the Right of the other ; there the Re-
verlion palfes. Br. Fines, pi. 97. cites 19 £.4. 9. which Chocke agreed
the fime Year. Fo. 3.
4 And it is adjudged in our Books, that where one R. brought A/^ft
of darrein Prcfentinent againit a Prior, who came into Court, and levied a
Fine and Reieafe of the Ad'-jowfon to the Plaintiff, for which the faid R. by
Alfent of the Ox6!m.2.xY^ granted an Annuity to the laid Prior and hisSuccell
fors impcrpcttium., perciptcnd. per 7nan:is Perfonje Ecck/ij; qnicunque fiicrit ^
and it was adjudged a good Grant, andyet the Annnityims not contained
in the Writ of Covenant, nor ijfuing oat of the thing contained in the ^Vrit.
Co.R. on Fines. 11. cites 31 £.3. Br. tit Fines 90.
5. If a Wx\x.o'i.Co\!enant be brought of a Manor except a Mefuage^ and of
this the Fine is levied •without any Exception., yet the Mefuage ihaJl not pals,
becaufe it was not contained in the Writ. Co.R. on Fines 11. cites 38.
E. 3. 17.
6. InWarraiitiaChartte.^quodWarran.tifiamacramfifthQ'DQi^&nd^nt'wlll So, {iquod,
levy a Fine of the fame Acre^ and of one other Acre ; the Fine is not good Pf^"^''*''' .b<=
for the other Acre, Ibr it is not comprized within the Original. Co. R. /^-va^/tife
on Fines lo. cites 20. H. 6. 3. a. Defendant
levies a Fine
cf the Way, and alfo of .1 Mill, and of Pafiare, which was not comprifed in the "Writ, it is adjudged that
the Suit was void for all the Thinjrs not comprifed in the Writ or Covenant, and yet in ancient Time,
fuch Fines have been received. Co R. on Fines u. cites 2 E. 5. 19. 19 £. 3.
7. A Scire Faciaslieth. Ibmetimes of things not comprifed in the Writ ;
as if in a Fine fur reieafe., tlie Cognifee render Rent in 7'ail. 48 F. 13.8.
Welt's Symb. S. 179.
8. In a Fonnedon a Fine with Warranty was pleaded, and as to part
the Tenant faid, that himfelfwas feifed tempore Jims levati, and to the
ft/? he faid not comprifed ., S:c. Br. Fines pi. 26. cites 46. E. 3. 14.
9. Scire Facias upon a Fine levied oi the Manor of D. and was of 40 Br.Comprife.
Acres of Land, and 10 s. Rent as parcel of the Manor, and the Tenant faid, pi- 5- cites
thatthe 40 Acres and los. are not comprized in the Fine, and it is held ^- ^•
there that he Ihall fay. Not parcel at the time of the Fine levied, &c. tor if he
does not denyj but that the Fine was levied of the Manor, and that this
is Parcel, then this is comprized, &c. Br. Scire fecias, pi. 47. cites 48.
E. 3. II.
10. Forcible Entry j in Scire facias upon a F;'«e brought o/" 3 ./f«rj,
which is alleged to he parcel of the Manor of D. of which Manor the Fine
was levied, where their Intention is of 3 Acres parcel of a Manor, which
Was recovered, there not Parcel is no Plea, hv,x.jhall fay. Not Parcel and fo
not comprized i and in Recovery of Alfife he Ihall fay, that it was not put
in
3+8
Fine.
in View, and lu no: Parcel i Quod non negacur. Br. Comprile, (Sec. pi,
9. cites 36 H. 19, 'J.O.
h\ this Cafe II. A Fine is lev ied of the Manor of D. and 1 have another Manor ofD.
Jjjiiew^yte intte fdi/ic CqhhTj^ and alter a Scire Facias is brought againlt me to exe-
ijxken '■j.'buh ^.y;-^ ^'^^ ^\^■^^^ jj^ niy Manor ; it I plead Nient Coniprizc generally, it will
Co7uilr hiten'^^ lound againft me, but I may well fay, ttiat I have 2 Manors' ofD. in
^iWtopafs. the f ime Countv, that is to lay, one called £^7/? D..'A', ^///i-/ another called
For it isMiit- yycfl Dak^ and that the Fine \sas levied ot W ell Dale, without this, that
terolFact my iVlanor of Ealt Dale was comprized within the l^ine, and tnis was
ffri'^^'t^r"' ad'iudt^ed in the Sci. Fa. in the loth Year ot H. 7. Keilw. 49. pi 6. Ld.
of which tlie crook. V. Ld. Latnner.
_] udge can-
not take Conufiince, hut ftanJs well with tlic Fine, and may be tried by Jury. S Rep. 155. a. TrJn
8. Jac. in Althom's Caie. iir. Comprife, pi. ii. cites 12 H. 7. 6. iJr. Scire Facias, pi 168..
cites S. C.
Roll R. 105. 12. A. feifedofthe A'hnor oflV. and 2 Mefaages in IV.bargaincd and fold
favs the tw"'^ ^'^ Manoro' H . and all his Lands and Tcnunents in W. to B. and covenanted
other Jile.'ua- tolevy d Fine tor further Aliiirance oiall his Lands in W. B. tendered a
ges defcerd- Fine to be le\ iedby A by the Name of 4 Meiuages comprehended in the
cd to A. j;iiti Indenture of Covenant. A. alter entering imo the Covenant, and be-
fore the tender ot'the Notes of the Fine, had purchafcd fjuo other Mfiiages^
and therefore refilled to acknowledge. CokeCh. J. held clearly, that
A. was not bound by his Covenant to acknowledge this Fine, and that a
Nient Comprile cannot be pleaded agamlt an exprefs things and cited 48.
E. 3. II. andDodderidge J agreed, and yetper Dodderidge and Hough-
ton J. if the F'ine comprehend 4 Meiuages, 2 only Diall pals, and per
tot. Cur. the Relulal was no Breach ot Covenant, and Judgment was given
againllthe Plaintiff. 2 Buls. 317. Hill. 12 Jac. Vv lUon v. Wellh.
Roll.R. uS. 13. AMan cannot plead Nient Comprile in aFine upon Intention that he
Soddr^d ^^^ "°'' ^"^^"^^ '^o P^^^ more than is contained in the Indenture, when the
in S. c! certain mimhcr of Acres is comprehended in the ¥we. Per Coke, Ch. J. Roll.
R. 103. Hill. 12 Jac. inCafe of Wilfon v. Wellh.
14. A Fine was levied in the Ifle of Ely, in Court of Record there, by
the Name oi one Mefiiage^ one Garden^ one Orchard^ and Ccnimon cj I'a'f-
ture. In a Formedon in Defcender lor one Mefuage and 15 x^cres of
Land, theQueftion was, whether thole 15 Acres of Land were contained
in the Fine, and fuch Fine was aBarr? And upon Demurrer, Judgment
was given lor the Demandant; for admitting the Fine to be good, which
will be dithcult to maintain, it is but a Dilcontinuance ot' the Ellate
Tail. Lutw 959. 2 jac. 2. White v. Auftin.
S.C. cited 2 15- A. the Conufor load ten Acres in D. and B. the Ccnifee had ten Acres
Buls. 518. ;■/; the fame VUl; and A. levied a Fine toB. of 20 Acres, and B. granted and
?^p/^ J''^" rendered 20 Acres to A. in Fee; yet A. ftallnot have the ten Acres of B. un-
Wilfon^v leis there had been an efpecial Agreement between them to fuch Etleft ; for
Welch. " otherwile the Conufee ihall be laid to render more than he received, 2
Rep. 76. b. cites it as agreed upon a Reference to the Judges out of Chanw
eery in Taverner's Cale.
(L. b. 3) Pleadings at what Time. And ho\\.
1. It was agreed, that the Note of a Fine is pleadable before the Fine
be engrofled, ■xvAjhaUjhe^jj the place ^ "-jshere it was acbwdskdgcd^ and before
Kohcm, &c. but alter the Fine is engrolied, he ihall not plead the Note,
but the Fine itfeltj which Fine fe levavit in C. B. coram, &c. Quod
Nota. Br. Pines, pi. 41. cites 12 H 4. 16.
2. A fecond Fine, before it be otgrcffed, cannot be pleaded to a Writ of
Error brought lor reverlingthe firll, and the engrolfing \vas ftaid on Pur-
pole by the Conufee otthe Second. Noy. ^9. Hart v. Ameredith.
(L.b.4)
me.
949^
(L. b. 4) Pleadings of Fines. What Good, and in what
Caies necellary.
1. A Fine is no Plea in -^Jftfi-, or in any other Aftion, unlefs it be
ihewn fiib fcde JtgilUf which is the Great Seal of England. Br. Fines.
103. cites 24 E. 3, 35.
2. In pleading a Fine, every one of the Jujiices of C. B. ;«///? be ihwied
ly their Ncmies, tho' other Writs which come out of Chancery are di-
refted to J. S. Capitali Jufticiario deCommuni Banco &;Sociis liiis, with-
out exprehing the Names but contrary of a Fine. Br. Fines, pi. 125. cites
I H. 7. 10.
3. He who pleads a Fine ought to fie'-jo in what Tfr;;/, md what Place j
as at IVcfimi fitter ; lor the Party may lay no luch Record or Fine. Br.
Pleadings, pi. 167. cites 10 H. 7. 28.
4. Note, per Fitzh. and the Prothonotaties, that in Pleading of a
Fine, they fliall not fay that the Fine was levied generally, but that fuch
o)ie was feifed^ Sc and fo j'eifcd the Fine was tcvicd. Br. Fines, pi. 3. cites
27 H. 8. 4.
5. And if Cefty que Ule levies a Fine, which is pleaded by fuch
Words ut fupra, viz. that he was feifed and tevied the Fine, &c. and the
other fays., that the Parties to the Fine had not any Thing., it ihall be
found againlt the other j tor Cefty que Ule, had nothing in Fa£l ; but in
this Cale he Ihall plead that J. N. was feifed, &c. to the Ufe of P. and
fo leiled to the Ule Finis fe levavit. Br. Fines, pi. 3. cites 27 H. S. 4.
6. Fines are as effeBiiatto bind the Right ot^ the Intail, when they are ^°''^^^ '°''''
found by Special Verdiif., as when they are pleaded in Bar. per Cur' 2 Le. c°rlifk! "
37. Hill. 31 Eliz. C. B. in Cafe of Johnlbn v. Bellamy.
7. One cannot be faid feiled upon a Fine Sur Render, without an "I ^°'q
Entry alleged. And the Pleading by Force whereof he was feifed, &;c. Hiil.45 Eliz.
doth not fupply the Entry ; But upon a Fine Sur Conulance, &c. come Tliev held
ceo, &c. 'tis otherwile. For that is executed, per Cur' Cro. E. 903. "^'^''^ " ^^'"^
Mich. 44 and 45 Eliz. B. R. Buftard v. Coulter. Foi- when? '
is pleaded,
•virtute a/jus lie was feifed in Fee, it is to be intended, that he er.tered. For otlierwife he could not be
feifed, which is the ufiial Pleading in fuch Cafes upon Fines with Render, and have been always ad-^
mitted to be good, as appears in Plow. 503 (SrtnDOU'^.vialCt And fo are all the Precedents. VVhcre-
fore this Exception was difillowed.
8. Exception was taken to the pleading a Fine ; Becauie it was G)iiii:da7n
Jinatis Concordia fa.Ba fv.it & pojtea Concejfiim £5' Concordatum., where the
ufual Form \s .&iiidam Jinis fe Zcvavit., which includes all. But when
they would plead by Parts, they ought to Ihew the Whole, and that
perhaps no King's Silver was paid. But the Exception was over-ruled ;
for the .ancient Courfe of Ple.iding was as here, 2 Le\-. 31. Mich. 23 Car.
2. B. R. in Cafe of Hudfon v. Benfon and Baron.
9. The Defendant pleaded a Fine with Prcclaniations^ and concluded it
with denmnding Judgment, if againji this Fine wtoich contains Warranty,
the Plaintiff pall be received to bring Error ; and the Court held it ill
pleaded, and that he ought to fiy, if againfl this Fine with Proclamations
1 0 levied ; For a Fine at common Law makes aDilcontinuance, but does
not bar the Right ; and by the Conclulion it fhall be intended to be with-
out Proclamations, and as a Fine only at common Law, nor will the
Word (So) aid it. For the Conclufion ought to take the Subftance of the
Bar, that it was a F'ine with Proclamations, and not a Fine only. Palm.
243. Mich. 19 Jac. B. R. Darcy v. Jackfon.
U u u u (L. b. s)
350 Fine.
(L. b. 5) Pleadings. As of what Term.
I. The IfTue in Tail brought a Formedo?i in Defcender^ and the Defen-
dant pleaded in Bar, and coiifijjid the Kftatc 'Tail^ but fatd^ that bdore
the Death of the Tenant in Tail,^ J. S. was ftifed in Fee ot the Lands irt
Q^ueltion, and levied a Fine to him, and 5 I'ears pajed, and then Tenant
in Tail dtcd^ and whether this Plea be a Bar to the Pkintitf or not, was
tiic Queltion j and it refted upon this whether J. S. upon this general
Plea Ihall be intended to be in by DiJJeiJin cr bj Feoffment F For if in byJJiiici-
lin, then he is barr'd ^ if by Feohiiicnt, not • and the Opinion ol the
Whole Court was clear, without any Debate, that he fhall be intended
in by Dilleilin, and fo the Plaintitt" is barred as the Books are. 3 Rep
87. a. PI. C. @tOUXU'0 Cafe. And Bankes Ch. J. iaid, that it Ihall not be
intended, that Tenant in Tail had made a Feoitment to bar his Iliue, un-
lels it be fliewed, and it lies on the other Part to Ihew it ; and a Feoff-
ment is as wcJl an unlawful Aft as a Dilleilin, tor it is a Difcontinuance'
Mar. 195, 196. Palch. 1 8 Car. Taylor s Cafe.
S. C. 10. 2. A Fine was thus; Hsec eft finalis Concordia &£i:a in Cur' Regis
Mod. .;o. to apud Weftm. a die fandi Michaelis in tres ieptimanas Anno Dccimo
4^- Wiilielmi tertii coram Thorn. Trevor, &c. & Poftea in Craft. San6lse
Trinitat. 1 Anns concefs. & Recordat. coram eifdem Jufticiar' lo that the
CoHccrd of the P'ine -was cf one Term, and the Recordat. of another Term
folloiving i and therefore the C>ueftion was, of \\hich Term this fliould
be faid to be a compleat Fine. Per Cur' 'tis a Fine of that Term when the
Concord was made, and of which the W rit of Covenant was returnable ;
for the Concord:a faiia in Curta is the Compleat Fine, the Conceffit Re-
cordat' is the Leave of the Court to inroll it. i Salk. 341. iMich. 10 Annse/
B. R. Lloyd v, Yifcount Say and Seal. cites 6 Rep. 68. Hob. 330I
2 Vent. 47.
(L. b. 6) Pleading. Partes Finis nihil habuerunt. By
whom.
But the ^- ^ Stra-ngcT vM.y^\Q^di this Plea. Vid. Prynn's Abr. Cott. Rec. 30.
heir of one Stanton V. Stanton. 14 E. 3.
of the Par-
ties cannot aver, that the Parties had nothing at the Time of the Fine levied. Br.Fines. pi. 8 1 . cites 5 1 Art" 24.
S, P. for he 2. Note, that in the Exchequer Chamber 'twas faid by Yelverton and
ought to affirmed by others, that if my K/Z-Zw Tenant in Tail, or in Fee-Simple,
hld^an^° ^>-^«rj Laml by Fine, if / will convey by the Jncejlor, I Jhall not fay that
thinA/the ^H^-) '''"^" "'^''"^ Parties to the Fine, had nothing, but fuch a one whofe hjlate
Land at that I have. Br. Confefs & avoid, pi. 5. cites 33 H. 6. 18.
Time. But
-where a Recovery of my Anceftor is pleaded againft mc, it is fufficient to Gy that the Anccdor had no-
thing in the Land at the Time without Ihewing who was Tenant thereof. Br. Fines, pi. 43. cites
14 H. 4- 55-
3. But 'tis faid that I (hall fay, that after the Fine fuch a one av?5
feifed of it in Fee and enfeojf'd vie in Fee. Qutere, if without fliewing how
he came by it after. Br. Contcfs and avoid, pi. 5. cites 33 H. 6. 1%.
4. Dilleifor hvied a Fine to A. B. and after Difeifee re-entrcd and en-
feoff"" d 'Difjeifor, and J. B. rc-cntred, the Diffeifor brought Ajjifc, and
A^ B. pleaded the Fine; Dilieilbr Ihall avoid' the Fine by the Matter
aforeliiid, ajid fo lliall take Advantage of his ov\n Wrong; per Littleton.
Br. Confefs and avoid, pi. 21. cites 15 E. 4, 5.
5. N. D.
Fine. 3$* .
5. N. D. is feiffd of z Parts of certain Land //•/ Corimion zvith J. S.
•who hath the third Part of it, and N. D. levies a Fine to W'^. P. of the
third Piirt^ and he brought Scire fecins againlt the Fcotiee of J. S. It
is dangerous to fay quod767///)«r t'inis le\ati N. D. had nothing, &c. bj^
which 'twas agreed that he may fiy, quod Tempore Finis Jevati AL D. had
mthpjg but in common with J. S. -vshofu Eftate he hath. Br. l^'ines. pi. 2.
cites 26 H. 8, 9.
6. 4 //. 7. 24. Enafts, that the Exception that none of the Parties^ nor
/tnj totherUfe had any Thinv in the Lands at the 7'iiiie of the Fine levied
is faved to all Paj'oHs, csccpt Parties and Privies.
7. J. H. and C. Coparceners of a Manor ; A. enfeoffed f. S. of his Pare
to the Ufe of hii/ifclj jcr Life^ and alter his deceale to the Ule oi his
F.ldeji Son and Heir apparent lii Ft's^ and after y/. le~jied a Fine de tertia
Parte, 200 Acraruni terrae 400 Acruruni Pafturse, &c. (amounting to
more Acres than the whole Manor contained) Siir Conifance de Droit
crrne ceo. See. 'X'ith JFarranty of him and his Heirs, and re-took by the fame
Fine for his Life only, and then died, and his Son entered. The QuelUon
was, if the third Part of the fiid Acres be fe\ ercd irom the Manor by
this Fine againlt the Heir, or that againll the Fine he lliuU be received to
aver a continual PoUeliion and Continuance of Seilin ante Finem,
Tempore iinis, & Poll fincm, &c. in the Tenant for Term of L.il6. It
was held llrongly by Plowden, Bromley Solicitor and Lovelace, that
this Averment by him in Remainder, who was a Stranger to the Fine,
Ihould be received quia ncqne pars finis ncc Partimn hxres, &c. But D)-er,
Saunders, Manwood, Southcote, Harper and Catlin, held the Law clear
contrary, and that iuch Fine amounted to a Feotlinent of Record,
which makes Difconri nuance of the Remainder or Reverlion. D 333. b.
334. a. pi. 30. Pafch. 16 Eli z. Anon.
8. Parties and Privies are concluded to fiy Partes ad fincm nil hahne- Le S5. iti
runt, &c. by the Statute of 4 H. 7. but a Stranger may plead this Plea. ^'■^^^ .°\
Hob. 334. Mich. 19 Jac. in iNlackwilliahis's Cale. " BamnfieW.
— Mo. iji.
' inS.C
(L. b. 7) Exception ; That the Defendant was always
feiled ; And by whom to be taken.
i; 27 Ed. t. Stat. I. c. i. Enacts, that it pall le no good Exception to
a Fine, that before, or at the I'lme of the Fine levied, the Demandant, or
iois Ancejiors "were feifed of the Land contained in the Fine, or fome Part
thereof.
2. In AlTife, Fine upon Render of the Anceflcr of the Plaintiff' yv^ plead-
ed in Bar, and the Plaintiff' faid, that he zvas continually feifed at the
iiviie of the Fine, before the Fine, and after, till he was difjeif'ed ; and the
Court held, that he ihall have the Plea, notwithilanding the Privity of
Blood. M. 9 E. 3. The Realbn feems to be, becaufe he claims of htmfelf
and not by fuch finceffor. And lor Tenant in Tail, this Averment lies well',
that his tather was feifed, and died feifed after, notwithilanding the Fine
Son Render levied by the Father, and that he entered after as Heir.
. 17 E. 2. and M. 18 E. 2. But Sharde made a great Diverjity between
(uch Fine ot Render, and * Fine Snr Conufance de Droit come ccc^ Sec. For * Br. Fines,
this is executed, and the other is but F.xccutory. And therefore the Heir is P'- if- ^'^"'^^
remitted by the Entry by Defcent before the Execution, as he thought. Vid. \^^ ^a '^'
Statute de finibus inde. Br. Fines, pi. 74. cites 13 A If p. 8.
3. A. was Tenant in Tail, Remainder 10 B. and A. levied a Fine
come ceo, &c. B. the Remainder-man may aver Continuance of Poflef-
fion, notwithilanding the Fine ; for he is nit Party nor Heir to the Conufor.
And the fame Law ot a Feme Covert, where the Baron alone levied the
Fine. Br. Fines pi. 95, cites 12 E. 4. 12. per Fairfax, to which Little-
ten agreed.
(L, b. S)
352 Fine.
(L. b. 8) Pleadings. In what Caies Sc'ifi?? muft be nU
leg-cd m the Co^nilor.
I. In Rcpk'jhi, the Defendants made Cognizance as BailitTs to R. M,
*Srat. iR.;. who was ieiz.ed ot" the Place v.here, .&c. as a Ramahider-man under a
of ^'^'^^ ^f-}t- M.irnage Scttknmt vuidc by S. M. the Father, and a Fins levied thereof^
-^oidEii- ^^- the tbrmcr Tenant in Tail and Remainder-man being dead. The
tries 121. a. Plaintiff' irai'crs'd the Seifm in Fee of S. A/, at the Time of levying the
Kart. Ent. p'ine, &c. and upon this they ^^•cre at Ilfue, and after a Verdict for the
;So. b. loH. pi^,;iifi^'_^ it v.'as moved in Arrelt of Judgment, that this ^^■as an Imma-
^^^'y '^' terial Ijfuc^ whether S. M. was fciied in Fee at the Time, &c. becaufe
Mich. 10 H. the Tenant in Tail who claimed under him, joined with him in the
<5. 21. b. pi. Pine, and conveyed the Lands to R. M. and his Heirs, and therefore
''■ ^^ ^h''' ^^'-^ '"^ci'^ri of S. M. was but Ibrmal and ro induce the Matter, and not
"b z\ pi •'i tra\crfible, and lb thejudgment was fet afide. Serjeant Lutwych fays,
12 E. 4. 15" a' that he could not difcover what were the particular Realbns given l>y the
5 H. 4. - & 8. Court tbr the f lid Reiolutions, and therefore (citing the Cafes, * &;c. in the
4'' E V 14- Margin) obferves, that 'tis faid by Fitzhcrbert in 27 H. 8, 4. a. that in
6 •'^"fic'^S pleading a I-^ine, SeiJin Ihall not be intended if not fhewn, and that the
Frorhonotaries fiy, he who pleads a Fine ought to fhevv Seiiin of one of
the Parties, and that fb are ail the Entries But in Dyer, 291. a. 'tis
fiid, that the antient Courfe was otherwife, and that to fay generally,
quidem finis fe levavit, was well enough ; for it might be of a Rever-
Jion, of which Seiiin cannot be alleged. But admitting that theconftant
Fonn of Pleading hath been to allege Seiiin in one of the Conufors, yet
it does not follow that a Traverfe may be taken to the particular Eftate,
tbr the Fine is good if any of the Parties hath an Ellate in the Lands.
*Mr>Iclfon * Br. Tit. Fines 109. And if a Fine Sur Cognizance de Droit, &c. be
in Ins Lutw. pleaded in Bar, and the Averment be quod Partes finis nihil habuerunt,
tliTis'a miT- ^^^ Demandant need not reply and Ihew a Seiiin ; tbr the Deiendant
take, and ought to ha\ e concluded his Bar to the Country, without any Rejoind-
that there is er, and io it is held in 2 Inlt. 527. and by Lord Coke in his R. on
nothirg re- Fines, Left. 22. Nor is there any Cafe that gives Countenance to the
But'fli^Ncl- '^taverling the Seifm in Fee in this Cafe, but that of "^imS) and 15^01-
fonmi"-ht fiEU)* I And. 185. Sav. 84, and i Le. 75. in reporting which Cafe, the
have found Ch. J. Anderlbn makes no mention at all of a Traverfe of the Seiiin in
jt at. Br. pee^ fb that upon the Whole, it feems that the alleging of Seiiin, &c.
i-ines. pi. 5- jg Qj^jy jviatter of Form to induce a Plea to a Fine, and not of Subllance
to be traverfed. 2 Lutw. 1608 to 1625. Trin. i Anne. Walters v.
Hodges and al;
(L. b. 9) Pleadings. Profert or Monftrans necefiary, in
what Cafes.
I. yljjife bv an InfiUit; the Tenant pleaded a Fine in Bar, and becaufe
he did not ihew it fub pede Sigilli, nor any Part of it, the Alfife was
awarded, and this for that Caufe only as it feems, and not becaufe the
Plaintift' is an Infant to enquire of the Circumlrances. But Note, That
the Jury cannot find Matter of Record in their Circumftances. And 'tis
fiiid elfewherc, that if a Fine be pleaded in the fame Courts it futlices to
be exemplified in the fame Court. But if he pleads it in another Court., he
muff fliew it exemplified u?ider the Great Seal of England in Chancery^ if
he would plead it, but he may give it in Evidence under the Seal oj C. B.
Br. Monltrans, pi. 68. cites 24 E. 3. 46.
2. Formedon
Fine. 353
2. FuiJicdon in Defcender^ and the \N''ric rehearfed, that iV. ^rrt»to/ f^e Br.Nugatiori
Rcva-Jiou cf a Tenant for Life to the Baron and Fane in Tail by Fine, and c r '_!' j";j
lor default of Illue, the Remainder to the Ancefior of the Demandant in „\ j'^ ^ites
Tail; and made the Defcents to him ; and notwithftanding that he might s. C.
ha\e declared upon an immediiite Gift, and now has made mention of
the Fine j yet bv the bell Opinion 'tis only Surplufage, and he need not
(}:tiv the tine, becaufe the Atlion is of a Gift Executed ; for in Formedon
in Defcender, which is always executed, a Man need not Ihew Deed,
quod Notai and fb iee that before the Remainder be executed. Deed or Fine
is necejfary to be fljeivn, and e contra after 'tis executed. Br. Monllrans.
pi. 34. cites II H. 4. 39. and 14 H. 4, 31. accordingly.
3. In .&iia.re Impedtt, the Plaintiff makes his Title to the Advowfon
by Grant by Fine to J. N. in Fee, who aHer granted it to IV. for Life^
and after [//)• another Deed] granted the Revcrfton to the Plaintiff, and that
W. is dcid, and ib makes Title to himlelf; and the Plaintiff was com-
pelled to Ihew the Deed of Grant of Reveriion; for it belonged to him,
but not the Grant for Lite to 'V\\ and per Hank, he Ihall fliew the Fine
iillb, and lb he did. Br. Monllrans. pi. 40. cites 14 H. 4. 10, 11.
(L. b. 10) Pleading in Bar in General.
I. An Exception was taken to the Pleading of a Fine, by laying, that
e final Concord "X-'as made, and becaufe it did not fiy, that a Fine -was
levied, as the ufual Form is^ but it was anlwered, that the Matter and
Subltance of the Fine is fliewn as fully by this Form of Pleading, as by
the other, fo that there is no Variance in Subftance, and in fuch Cafe a
Man is not bound to a Form of Pleading ; but if he Ihews his Matter
effeftually, it is fufficient. PI. C. 431. a. b. Pafch. 15 Eliz. Smith v.
(Stapleton.
. 2. Another Exception was taken, becaule it was not faid, that the Fine
'was levied in C. B. to which it was anfwered, that the ufual Form is to
fay, that the Fine was levied in Curia Domin£ Rcgin^ apttd U'ejlmonajleriiim,
^ before was pleaded, and not to lay in C. B. PI. C. 431. b. Smith v.
Stapleton.
(M. b) Taken by Dedimus Poteftatem.
I 15 £. 2. Stat, of Carlifle. Ena£ls, that If the Party be net able to come Coke's R. on
lefore the Jufices in the Court, then two or one of them (by the Ajfent of F'"^^ 9- 'avs
the rcfl)Jhallgo to the Party, and receive his Cognizance, and if but one go, f^'^ ^^^ ^f"
he pall take with him an Abbot, Prior, or Knight being of good Fame and tfking Cog-
Lredlt. nizance by
The CommiJIioncrs, that take the Cognizance, pall make a Certificate there- one Judge,
of to the Jifjtices, to the End the Fine may be lawfully levied according to the |5'i^]"'' /"^
forme-t Ordinance. _ Ix"d^Pot.l
1 - f xr .- . ^ . direttly con-
trary to thi.s Statute.— If a Knight he Created m EarU yet he may take Cognizance W Ded. Pot! But
if an Abbot was created a Baron, he could not. Co. K. on Fines 10.
2. If a Perfon, able to take a Fine, takes the Conufance cf a Fine to him-
felf., it is utterly void. Becaufe he is Judex in propria Cau^. Co. R.
on Fines 10. cites 8 H. 6. bv Martin.
3. 0:\Q Juftice alone with a Dedt-mns Poteftatem may take it ; and the
Cii. J. of C. B, without Dedimus Poteftatem, may take Conufance of the
; i.ae, as well as other J 11 rt ices by Ded. Pot. But the Ch. J. of B. R.
A X X X cannot
3!) 4- -^^^''^•
civi'/ivt ricithout Dcd. Pet. and thcrciorc there is a Special Writ in the Re-
giltcr ibr him oi Dcdiintis Potijiatrin. Dentli. R. ot Fines 7.
4. Conulance ot' a P'ine Hill. 20 H 8. where the Ded. Potelhit. made
Vid fj. Vi.) '10 mention of tl^e County, and all ts certified the fame Icnn^ and the King's
is- C Silver cnteied, hut the Fine was w^^f i7/^^}-c//tv/, hut remained in the Oltice
ol the Chirographer. And it was reiohed that it may be now engroHed ;
But hecauie it is at the Eleftinn of the Party to have it either with or.
without as before 4 H 7. and he is dcad^ fo that now no Elettion may be
n-.ade, it Ihall be a Fine without Proclamations, as at the Common Law.
D. 254 pi. 104. Trin. 8 Eliz. Compton's Cafe.
5. Ijedimus was to take the Conulance of a Fine of four Pe-fo;is. — The
Coinmillioners return the Cvnufance of three only. — The Name oi the ibiirth
may be raz'd out of the Dedimus, and make the Writ o'l Covenant to
accord therewith, and 'twas faid to have been ib done about 30 Years
Imce. Cro. E. 576. pi. 24 Trin. 39 Eliz. C. B. Anon,
6. A IJedimup was awarded to take the Conulance of a Fine from
Baron and Feme, and the Conufance of Baron only -xas returned^ and the
X'eme would not acknowledge it. Lord-Keeper ordered, that a wtw Df-
divuts Put. Ihould be awarded to take the Conulance ot the Baron only,
• and that it Ihould be of the fame Date as the firft was, and that the Re-
turn of the Commilhoners fliould be annexed thereto ; and Anderlbn laid,
fo it might be done here, or otherwife, if the Fine be levied between the
Plaintiit and the three ithers only, it Ihall be good without Quellion j tbr
there is no Prejudice to ih.e joiirth; for the Writ of Dedimus might be
amended, and the Writ of Covenant made to accord with it, and any oi
the three Ways it would be well enough. Cro. E. 576, 577. Trin. 39 Eliz,
C. B. Anon.
7. If a Dedimus Pot. be to take the Conufince of a Fine of three Per-
fbns, the Commillioners may take the Ccntfance of one at one T'nne^ and of
another at another Time ; lor it may be they cannot come to one Place at
the fame Time i and when the Conulance of one is duly taken, 'tis
againll Reafon, that the Refufal of the other Ihould impeach it Quod
alii Jufticiarii Conceflerunt. Cro. E. 577. Trin. 39 Eliz,. C. B. Anon.
- , 8. A Fine by Dedimus was taken ot an Infant, but becaufe it was not
(acRoU.R. Apparent to the Commillioners, that the Intant was within Age, the
115. Day V. Court acquitted them. 12 Rep. 122, 123. Hungate's Cafe,
Huns^itc.
6. C In the Si;ar--Chaniber.
I'e;- North 9. The Court of C. B. ordered the Reverfioner to profecute an Infor-
ar.dWind- j^^^^^q;; jgamjl Covumiffioners jor taking Conufance cf a iinc of an Injanty
there is a ^"^iich. 33 Car 2. C. B. 3 Lev, 36. Hutchmfon's Cafe.
great Truft
icpofcd in the CommifTioners, and they are to inform thenifelves of the Pai-ty's Age, and a Voluntary
Igncrance will not excufe them. Mod. 246, 247. Pafch. 29 Car. 2. C. B. in Cafe ot Barrow v. Parrot.'
10. A Ded. Pot. was dirc£led to fjvo, and one of them esecntes it,
the other cannot certify it ; for the Execution ot it ought to be upon his
own Knowledge. Godb. 356. Trin. 21 Jac. B. R. in Leonard's Cafe.
-•— — - II A Ded. Pot. is directed to four, to take a Fine of Lands in feveral.
Counties. It two take it in one County and certify, and the other Pivo take it
in the other and they certify it, none of the Certificates are good. Godb,
356. per Haughton, J. in the CaJe above.
A Dedimus 12. A Dtdnmis Pctcflatcm, to take a Conufance of a Fine is rt'.Wif?frt' /o
was yf/rffffW y_ s^ Knight, and he takes the Conufance and certifies it by the Name of
and v^si«-' J' S- Knight ; whereas in Truth he is not a Knight ; this is not erro-'
turned by A. iieous, nor alfignable for Error that he is not a Knight i for it is againll
B.Kr.iglt, the Record. Jenk. 280 pi. 3. '
and held
Pood. Jenk 279. pi. -..cites Arundcll v. Arundcll. Yclv, 3^. S. Q-^ — Cro. E. 6--. Trin. 41 EHz.
B. R.— Cro. J. II. Pafch. i Jsc. B R. ,S. C.
13. Tho'
Fine.
3^5
13. Tho' now moft Fines arc in tact taken by Dedimus, yet they are
H^ecorded as taken m Courts and this to prevent Quellions about Captions^
per Cur' 10 Mod. 45. Mich. 1 o Annce B. R. in Ld Say and Seal's Cafe.
(M. b. 2) The leveral Parts of a Fine.
1. It was refblved by all the Court, that there art five Parts of every
Fin<-^^^i^-. ,„..^ For without
I. Original }ynt. Original
Writ a Fine
can't be levied, as appears by the Statute de Modb levandi Fines, that the Order of the Law fufFerS
nor, that hnal Accord be levied in the King's Court without Original Writ, and lb 'tis held '7
All. pi. 1 7- 5 Rep. ;S. b. Trin. 54 Eliz,. B. R. in Tcy's Cafe.
sdly, Licence, or LeaVe to accord. For which
Licence,
there is a Fine due to the King, which is the ancient Revenue oFthc Crown, and this is called the K:nq's
Silver, and this appears fully by the faid Statute de Modo levandi Fines, and the Entry of the Khio's
Silver in fuch Cafe at Bar was thus, Robertus Drury Armigcr dat Dns. Reginas Septem Libr. pro
licentia Concordandi cum Tho. Tey Armigero & Elianora uxore ejus, de placito Conventionis, de
maneriis de, 8cc. & habet Chirographum per paccm AdmilTuni, cor.im Jacobo Dyer. Et nota bene,
the Cuftom IS, that he in li-l-oni the Fee is repofed pays the King's Siher, and not the other Conufee, who
hjd only for Life ; and all the Prcfidents are according to this. And Note, the Ki?ig's Siher is en-
tered upon the Writ of Covenant, and it ought to expreis, Firft the Sum given for Licence to accord.
2. The Party that paid it, viz. he in whom the Fee is repofed. 5. The Plea, and between whom, &c.
4. The Land, for which the Fine is paid , and all this was Well oblcrved in the Principal Cafe. 5 Rep.
39. Trin. 54 Eliz.. B. R. in Tcy's Cale.
3dly, The Comcrd. The Co^ord
commences
thus. Et eft Concordia talis, Sc. qiiod prsd' Tho. & Elianora Recognoverunt tnaneria, &c. efle ju?,
&c. Et notandum eft, that this is the Foundation and Subftance of the Fine ; for if upon this the
King's Silier be entered, tho' the Conufor dies after, the Fine is good, as was adjudged in CEarrfrfif
Caff. 5 Eliz D. 220. b. and the Note and the Foot of the Fine arc not only Abftratts out of it, but
the Concord is the Ground and Subftance of the Fine. — 5 Rep. 59. Trin. 54 Eliz. B. R. in Tcy'sCafe.
• — Co. R. on Fines. 3. calls the Concord the Foundation, Ground, Life, and Heart of the Fine.
4thly, The Note of the Fine. This is only
an Abftrait
out of the Original and the Concord, and commences in this Manner, Sc. inter Robcrtum Drury and
Thomam Cannock querentem, and Thorn. T. & E. uxorem ejus deforcian. de maneriis, &c. unde
Placitum Conventionis Summonit. fuit inter eos, Sc. quod Prsdict' Tho. Tey & Elianora Recognove-
runt raaneria, &c. But 'twas obferved, that in ancient Books, the Note of the Fine is taken tor the
CcSncord, as in 12H. 4- f 16. a. that the Note of the Fine is pleadable before the Fine engroffcd ;
and 22 H. 6. 51. accordingly. But this is intended of the Concord itfelf; and all the Pleadings in Quid
juris clamat, &c. that the Lcffee had Fee the Day of the Note levied, are to be intended of the
Concord itielf 5 Rep. 39. Trin. 34 Eliz. B. R. in Tey's Cafe. The Note of the Fine may be entered
three or four Tears after the Record made, Co. R. on E^ines 3.
5thly, The Foot of the Fine. ' "" This Com-
mences thus,
viz. Hic eft finalis Concordia fafta in Curia Domini. Regis apu*! Weftm. a die Pafchs in quindecim
dies, Anno, &c. Coram Jacobo Dyer, &c. fo that the Foot of the Fine includes all, and has the Day,
Year and Place, and before what luftices the Concord was made. 5 Rep. 39. a. "t;. b. Trin. 14 Eliz.
BR. in Tey's Cafe. r . 3. j-r
The Foot of the Fine may he entered three or four Tears after the Record made. Co. R. on Fines 3.
(M. b- 3) Effca. At what Time Fines take Effea.
I. Note, that a Fine, before it is ingrojjed, is a perfe^ Record^ and Br. Fines, pi.
may be executed ; and the Conufee mult lue his Quid Juris clamat. Per 51^- cite«22
qu* Servitia, or Quern Reddicum reddit as his Cale is, before the Ingrofl-^
ment of the Fine ; For the Fine being ingroffed, the Conufee has no
means
Fiiie.
means Co compel the Tenant to attorn; and then the Conufee may by thip
^\•i^y loie hisScrvice, and all Actions, that the Law, after Attornment, gives
him. Co. R, on Fines. 3,
(M. b. 4) Sur Releafe. To whom good. In Refped of
Eftate, &c. And how.
1. Il'Land be given to the Baron arid Feme in Tail, for Jointure of the
Feme, by the Jncejior of the B:!rcM ; and alter the Baron d.es, and the
Ftiiie ftiffers a Recovery agamji the Statute of 11 H. 7. by Covin, and after •
the Ijjue 191 Tail reieafes all his Right by Fine, and dies, his IJ/iic may enter ^
For the ikid Statute lays, that the Recovery lliall be void, being luticred '
by fuch Feme, unleis he in Reverlion allents to it by matter ot Record,
vhich ought to be by Voucher m the fame A£t:ion,or luch like; For if thete
be mcfne Injhint lefjuven the Recovery and the Affent as above; then if the .
Recovery be once void by the Statute, an AUent by Fine alter, which is
matter ot P^^ecord, will not make the Recovery good, which was once
void before. Br. judgment, pi. 148 cites Doct. &: Stud. lib. i,
2. Tenant in Tail made a Leafe for his ozvn Ltje, and he in Reverjion re-
leased to the LelJ'ee for Life by Fine, and to his Heirs; it feems to me, that
this Releafe is utterly void. — For tho' Littleton fiys, that in every Cafe,
where he, to whom the Relcale is made, hath a Freehold in Deed, or in
Law, fuch Relealc is good ; this is true, but not in all Cafes. And
therefore I have taken a Diver] ity, viz,. In all Cafes, when a Releafe ihall
enure by way of Mitter rFfiatc, it is not fufficient to him, to whom the
Releafe is made, to have Freehold only, but there ought to be Privity
bcp'iSi'een Releafor and Rekafee ; But when a Releafe fhall enure by vi'ay of
Mitter le Droit to him without Privity (as if the Dilleifor makes a Leafe
for Liie, and after the Dilfeifee reieafes to the Tenant for Life,) this is .
good; But \i Tenant in T'ail make a Leafe for another's Life, the Releafe of
the Donor is good to fuch Leliee. Co. R. on Fines 6.
3. If a Man makes Leafe for Tears, and before the Entry of the Lc[fee tlie
Leffor by Fine reieafes to him and to his Heirs ; now this is a void Releafe
For the Leffor, againft his own Fine might fay, that the Leliee
had not entred into the Land before the Fine levied ; and yet 3 1 AfT 24.
'tis adjudged contra, in fuch a Cafe; but other Books are ail contrary,
and fb IS the Law. Co. R, on Fines 6. cites 16 H. 7. 5. jo E. 3. 37. 3
H. 6. 23. 46 E. 3. 13. 15 H. 7. 14. 47 E. 3. 27. &;c.
(N. b) The feveral Sorts of Fines, and what are execut-
ed, Scc. and how enure.
Weft. Symb. I. ' | 'HERE are 2 Kinds of Fines, viz. one executed, and the other
^,.^0- — ^f* Jl executory. Executed; that is, where the prefent Eftate paliech .
Co^nifance ^"^°j '^^- '^ f^ppofed in the Conufee ; For fiich a Fine is a Feoffment of
dc&roitfome Record, as this Fine come ceo, or Sar Releafe, or Confirmation, or Sur Sar-
cfi, &c. be k- render:, executory, as when no Eftate is veiled in the Conulee, until it be
vied »fti Re- executed by Entry or A^ion ; as Fines Sar Grant and Render hv the Co-
'^"'mTot the ""^'^"^5 which mult be made upon a Fine come ceo, o fur Releafe, &cc. or
T."nd, iiis Other Fine which is executed; or otherwilc the Conufee could not make
not- eN'ccuto- any Grant and Render of that Land, &;c. which he had not, 2 Inll. 513.
ry: "VVeft.
Symb. 'S. 1:9. cites 4^ E. ;. 15 It h not called executed, bcciufc the Conufee is in Poneflion ;
but hecxufe tiie Fine h executed befxeeji the Parties ; fo that the Conufee cannot fue Execution, becaufe
the Fir.c in itfelf is fuppofedto bt executed. A Fine is not called executory, bccaufe the Fine docs not
fuppn'p any Execution, but the Conufee may execme it, either b/ Entry or by Scire Facias Co. R.
on Fii.es 4. ' ' ' ; Of
r
Fine. 357
6. Fines are either ivitbunt PrccLinhitions, or 'xitb Prochriiutious. _ The
flrll at Common Law, the other by Stiit. 4 H. 7. 24. Welt's Symb. §. 19.
7. Jiid they are either Jingle or dotihlc^ and are I'uch as are cither 'z:';7'6
Render or '■JOithoHt Render. Sec \V ell's Symb. §. 2i.
8. A. Lelleey&/- Life, Remainder fur Life to B. A. levies a Fine to B. ^ ... „
Sur Conufance de Lhoit ; this in Truth enures by way of Stareudsr. Co. Jpts a Fm.
R. on Fines 5. cites 3 Ail! /iw?; .^. Su
C^onufance
dc Droit come ceo. Sec. ihU is a Forfeiture of both the F.ftatcs of A^ and B. nnd fliall not enure by way
of Surrender ; but he in Rcverfion ni.iy enter immediutely for the Forfeiture. Co. R. on Fines 5. cites
1H.7.
9. If a Leaf; be made for Life, the Remainder to the Feme in Fee., and Hut if a
tenant for Life levies a Fine Sur Conufance de Droit to the Baron and Feme , Leafebe
and to the Heirs (f the Baron; in this Cafe, if the Feme dies 'xithont Herr, ™'^'-' !'"'„ _
the Lord Ihall have the Land by Elcheat, for this amounts to a Surren- m-iinderin'^'
^der in Law. Co. R. on Fines 5. cites 39 E. 3. 30 All' Osborn's Cafe. Tail to B.
Remainder
in Fee to C. Tet-ant for Life levies a Fine to A. and his Feme in Fee A. dies without IlTue. C. en-
ters for the Forfeiture, this is not a Surrender. Co. R. on Fines 5. cites 41 E. 5. 41 Alt
10. Of Fines there are 4 Kinds, ift, a Fine Sur Cognizance de Droit
coins ceo que il ad de fon done^ (i. e.) upon Acknowledgment oi the Right -phere re
of the Cognifee^ as that which he had of the Gift of the Cognizor. It Sorts oi
is a lingle Fine, and admits the Pollelfion (at leall in Law) of the Lands, Fines, of
by \ irtue of a Feoftment or former Gift: of the Cognizor, and works by *^'^''^h 5 arc
way ot Releale ; a Fee Simple palfing without the 'VVord Heirs, and no- s'ur'con ^'^'
thing being rendered back to the Cognizor. This is the principal and fmce de
fureit Fine, and is a Fine executed ; lo that the Cognilee may prelently Droit come
enter "'> ^'^- ^ur
2d, A F'mcSiir Done,* Grant and Render; which is a double Fine (be- SuTw^^"'^
ing in a Manner two Fines, (viz.) -xYiik Sur Cognizance conie ceo, &:c. and der ; and 2
a Fine Snr Conce[/it, &c.) and where the Cognizee, after a Releafe and executory, wiz.
Warranty made to him by the Cognizor, doth grant and render back to ^urConu-
the Cocrnizor, the Lands, &c. limiting often times thereby Remainders f^'^f^^^j"'^
to Strangers not named in the Wrir, 11 the Party is in Folleilion, this Grant anci
Fine is executed, otherwife he mult enter, or have the Writ of Habere Render. Co.
facias Scijinam, die R-onFines,
3d, A Fine f Sur Cognizance de Droit tantum ; which is commonly ufed ^V;!"w^°"
to pafs a Re\erlion. It may be cxprclled in fuch Fines, tliat the particu- cither 4: cv
lar Ellate is in another, whom the Cognizor is willing Ihould have the prejly fo, or
Re\errion. Sometimes it is uled by Tenant ibr Lile, to make a Grant "'"""nthi^ ta
and Releafe to him in Reverlion. In a Fine Sur Cognizance de Droit tan- ^^ "^render,
turn, the Cognizee hath a Freehold in Law in him betbre he enters. ' Y'xnes 5.
4th, A Fine Sur ConceJJit is, where the Cognizor is ftiled of the Lands t AFine ;/;>,i?;
contained in the Fine, and the Cognizee hath no Freehold therein, but exprefs Sm-
it palleth by the Fine. It is commonly ufed to grant away Eltates for '■''p^''> "
Lite or Years' And if the Cognizees are not in Pollellion, they mull en- i^jj-^^ A' \
ter, or have a \\'rit of //.'.'tor /jr/^j i!)V/////^w, (Sec. Wood's Inlt. 240. Z;/f,o)-foro-
ther's Life or
are
Tenant in Tail after PofTibility, Tenant in Dower, or by the Curtefy, byFine furrender their Eftates
I0 him in Reierjivn ; and the Form of the Fine is fucli in EtfaCt, as the Fine Sur Conufance de Droit ;
favirg that thcfc Words fitrjtim reddidit are in tlic Fine upon Surrender, and the Claufe of the IVarranty
emitted. Co. R. on Fines ^.
♦ This Fine is executory onlv, and therefore tlie Law pre-fuppo(es, that he who rendered is feifed ;
vet if the otlicr, at the Time of the Fine levied be feifed, the Fine is good, and ex'ecuted prefently ; and
therefore tlie Court will receive this Conulance de Droit only ; and that the Conufee by the lame Fine,
renders to the Conufor the fame Land, that he who lurrendered by the Conufancv, Hiall liave nothing;
in tlie Land ; the Conufee in thisCJaie, cannot grant Rent to the Conufor by the fame Fine, &c. Denlh,
R. of Fines 6.
j Tills Fine pre-fuppofes the Conu<"<ir to be in PofTtirion at the Time, &c. and therefore may be eve-
cuted by Entry, or Scire f.ici.is ; and tho' the Conufee be in PolLlTion, the Fine is good. Dcnlh R. of
I'incs 6. cites 10 E. 5. i.
Y V- y y (N, b. 2}
358 Fine.
(N. b. 2) What Fines proper for cvhn Ejlatcsy
1. 'Twas agreed that a Fine SurCemufance de Droit come ceo^ dec. is
iiki\!\s intended of Fee Simple^ and no Ids EllatCj and that after the
Party is leiied by the Fine, Scire laeias lies nor, but a Formedon. Br.
Fines, pi. 13. cites 42 E. 3. 5.
2. Tenant for Lije may levy a Fine Sin- Grant and Rc/eafe of the Lands
which he holdeth lor Lile, to hold to the Cognilee for Life of the Tenants
for Life, and it is no Forleiture 44 Ed. 3. 36. But if the Eltate were lar-
ger, or the Fine 8ur Cognizance de Droit come ceo que, &c, it were a
jt'orfeiture of his Eltate. >Veft. Symb. §. 13. cites 4H. 7. iol.
3. lib of luch Fines bv Tenant tn Tail after Pojjibtltty^ Tenant /;/ Dczver^
or hj theCurtefy, 39 Ed. 3. 16. Bat lijch Fine of a Rent feemeth to be no
Forleiture 2 Fi. 5. 9. Yet a particular Tenant as in Dower, by Curtefv,
or for Lile, cannot by Fine grant and furrender their Elhites to the Ow-
ner of the Revcrlion, or Remainder, but may by Fine grant and rcleale
the lame. Well's Synib. §. 13. cites 17 Ed. 3. 62. 24 Ed. 3.26. 20 Ed.
3. (Sc 14 Ed. 3.
4. A Le(}ee for Tears levies a Fine Stir Conn fans de Droit come ceo : Thii
Fine is void 3 For he had no Freehold > Partes ad Finem nihil habuerunt.
Jenk. 254. pi. 45.
tntlicArj^u- 5. Feme Tenant for Life, Remainder ro J.S. in Tail, Remainder ro the
hicntof this ^aron of the Feme for Ltje, * Remainder over. Baron and FeJite by Fine
lu'ld'^'tliuMhc SurConcc(rit_fri//;/'f(^ Tenemcnta pr.edUia S tottim, ^'qiiicqnid habent in Te-
FincSurcon- n'anentis prxdidis p-o Vita of the Baron and Feme, ivtth Warranty, v^-hicii
ceflit was dc- deicended upon J. S. The Queftion upon this -^^as, \vhecher this ihall be
^''^fi" '"]'';'" <-'onftrued to pals one entire Ellate for the Lives of the Baron and Feme,
who had /■/^ ^^ feveral diitinct and divided Ellates for the Lives of them ? Hale Ch.
tate for Life, ]■ & Wild J. Held clearly, that the Intent here was to prevent a For-
aiid aifi Ac- leiture; But what Operation it Ihould have as one entire Freehold lor
tmiDhkritt i^Qfi^ jj^gij. Lives, or a divided Elbite they would conlider & adjornatur.
enkftlfe'fan, ^hc Parties agreed, fo no Judgment was gi\ en. 2 Lev. 154. Hill. 27 &:
and that it is 28 Car. 2. B. R. Piggot V. Ld Salisbury,
more inno-
cent than Fine SurConufance, and is like to aGrant of Totum Statum fuum. But then this Fine fliould
exprels the Ertatc of the Conufors ; and if it docs not, even this Fine Sur Concclht may be a Fortcilin-e.
z Jo. 6q S. C. cites 1 7 £. ;. 6(5. 44 E. ;. ;6. 2 Mod. loy. S. C. Pollcxf 146. S. C. z Keb.
jSo. S. C. ♦ Remainder to tlie Ferae in Fee. 2 Jo. 68.
(N. b. 3) The Operat'tO/is of the leveral Sorts of Fines.
A Fine Sur 1. As well the Fine Sur Conufance de Droit come ceo. as Sur Conulanc
c
Cmufawe de ^^^ Droit tatitiijii, gives a Fee Simple to the Conufee, '-j::ithDUt the Words his
cJc^'^^c" e.e- Heirs ; For every Fine Sur Conuiance de Droit is intended Fee Simple.
wY/iiij infplys Co. R. on Fines 7.
a Fee Simple ;
but it is only by fmplkatton, and therefore there is m Repu,^na>!<y to Imit an F.jl.tte for Life to the Conu-
fee ; For the precedent Donation or Feoffment, which is fuppofed, niin;ht be for Life only, or in Tail,
and the general Intendment ot the Conufance mav be tjiLiliJied by an expre/s Limit at ion. l Salk. 540. in
Cafe of Hunt v. i5<jurne — cites 41 Ed. 3. 14. Co. Litt. y. b. Lutw. 7S1, S. C
2. Any Ellate by Fine that operates by Way of GV.t^^j the Law, to a-
void Wrong, expounds it fo, that every one grants, \\ hat he lawfully ijiay.
Arg. Rayni, 14", cites xo Rep. 98. -Mich. lojac. Sir Edward Seymour's
Cale.'
Fine. 359
3. .-/. 'Ttinvit for Lifc^ Rciitiiindtr to B. in Ti'il ; R. levies a Fine ii'ith
PrufL'ru.itioiis Siir Concc[Jit to A.S C. j'or their Lives: this Fine bars the
Inrail, during, the laid two Lives onI\-, and is not a Dilcontinuancc 6:11-
nino: For B. was not ft'ilcd by Force o^l the Tail, and the Fine is Sur
Concclfit : It ieems that ,f j Acceptjnce ol" this Elhite to Iiim and C. is n
Surrender ot" the tormer Eltate ■which he had : As in Cafe of a Leafe for
Years made to A and during the Years he accepts a Leale lor Years ot the
fame Land to him and B. Jenk. 321. pi. 28.
4. A Fine Siir Cognizance de Droit come ceo, ^c. is a Feoffinent. upon
Record of the Lands comprifed in the Fine, and doth imply a Livery nnd
Sei/in ol" thole Lands, Hill. 1649. 26 Jan. B.S. to paf's the V.Jiate ouP of
the Coniffirr to the Conufec, httt if another Perfon were in h\ Tort, it \\\\\
!;ot amount fo an Kntry^ as a FeoHinent will, to pur!J:e that 'fort. L. P. R.
615.
(N. b. 4) Ancient Demefne. The Force and E^cci oi
Fines w u-ii/ck/it Di^MeJih\
1. In AlTife thfe Tenant pleads that the Land is Parcel of the Manor of
D. which is Ancient Demefne, Judgment &c. He Ihall not be received to
fav that 'tis Ancient Demefne j For -x Fine of Re/e<rfe was levied bet\veeii
us and yoLi of the liime Land, and becaufe this is a Judgment in Curiii
Regis, therefore thu' there ivai no ^ransmiitdtion of Pojjcffion^ yet 'tis a
Judgment --Ji-hich made it Frcuik'fee bcticeen the Parties ; But the Lord anit
Strangers jhall net be hound by it^ but Ihall ha\e Advantage of Ancient De-
mefne, per W'ilbv. Br. Auncieut Dem. pi. 17. cites 21 E. 3. 2$.
2. And note, that the Lord himfelf "-^as one of the Defendants ui the Af-
y/'/f, and becaulc he pleaded by Bailiff\ and did not take the Tenancy upon
Hinii 'tis laid that it does not e/iop him in a Writ of Deceit to reverje the
Fine, and to make it Ancient Demefne again j and fo fee, that tho' it
AvasSur Releafe, which is notTranlinutation, yet 'tis a Judgment in Cu-
ria Regis, and fo Frank-fee for the 'Time;, and it Ieems there that none caff
p/ead Ancient Demefne but on/y the ^tenant. Br.AuncientDem.pl. 17. cites
21 E. 3. 25.
3. A Fine levied in Ancient Demefne is not goody for 'tis no Court of Re-
cord; but nt this Day Common Recoveries by Sufferance are uled there to
bind the Tail, per Knivet, 'which note, and well ; tor the Land ought to
be impleaded there by Writ of R.ight-Clofe, and not elfewhcrci contra
of a Fine. Br. Auncient Dem. pi. 47. cites 50 All! 9. .
4. By the bell Opinion, if a Fine Je\ied of Land, w hich is Ancient j^j^,,^;;'L°^
F)emefn'e, be rc\erfed bv Deceit, yet it is good betzveen the Parties. ^ Er. y^i\,inB.z»k
Fines, pi. loi. cites 7 U. 4. 44. And alfo 17 E. 3. 31. that nothing is of Lwd,
effected b\- the Reverlal, but to rellore the Land to be Ancient Demelhe, •:i'f"V'' " A>i-
but it rem'ains good between the Partita. Ibid. aer,tDe„ny,:e
^ /ijhi the L:rti
lirhi^s Deicit
ami reierfcj it; tlic Fine or RccovtTV is by this reirrlhl, belivceii lie P.irfres, a>7,^ is toiti ; Betiiufc now
It w;is c'ornm non Jiidice ; and lie who liad'thc Lund btforc mav enter, (ler Littleton & Nccdham. Jir
Auncien Dcni. pi: ;o. cites S E. 4 6. S. P. Br Fines, pi. ;6. cites : H. 4. 44 & S H, 4. 25. ami
fays that the bell Opinion isfo; For th.it it is reverlld as a Jud<;nicnt is reverlcd by Writ of Error
as' it fecnis, and that Hull fiid, tlut the Judgment proved that the Court had no Jurildidion ot it, and
therefore was void ai^ainlt all. Br. P'tnes. pi. 4;. S. P. cites ii E. ;. 2a
5. If in Ancient Demefne, a \\rit o'i Right Chfe be brought againll A. f"i"ej'^«;;C^"--
and it be profecuted tn the Nature of a Formedon in^the Defcender, ^ '{fxn^{fnz
Fine levied there, and "Xithcitt Proclamations by the Culknn there, is a Deniefne.
Rrr. If this |ud<2;ment be reverfed in the ('ominon Pleas, the Common makes a Dif-
IMeas Ihall only Judge that the Plaintiff Ihall be reltored to his Adti.on in 'f^'f^^f^^^
the Court oi' Ancient Demefne, unleis thert^ be fbme other C.iule which "f^ f'^^
takes ' ^
360 I'ine.
p^ , ^ , t.ik'js away the jutillliclion of the Qiurc ol' Ancient Deinclhe, lor which
iiiC.n'/x ch'^ Judgment gi\cn tor the Phiintitf in Ancient JX'meliie is rc\erlable;
ceM th.1t It h the Court otComnion Pleas ought not to judge the faid Plea in Bar bad j
vo Bar, por the Sratiite ol" the 4 H. 7. -That Fines Jhall bar an EJlatc 'tdil, and the
rv'b'"'Voi'cc Statute oi' n\/i. 2.. c.i. ^ml Finis levatus by Tenant in Tail ipfo Jure
of tlic S ar'" J'^ iinlhis^ are to be underltood of Fines at the Common Law ^ and not tQ
4 /-/ -. Re- cxtc/i.'l to the ancient Cullom oi Ancient Demefne. The Formedon in the
iolution the Defcender and Ellates Tail, were at the Common Law : fuch Tenant had
l^^t^'^' .0 Power to alien, only after he had Iirue. 10 Ed. 2. Fitz. Formedon 55. and
Hunt V. gcficra/Iy Statutes are not to be conltrued to deltrc^\- the Cultoms of Anci-
Bounie. — ent Dcmdne, which by Intendment of Law, concern Agriculture and
I Salk. ;4o. the Sublillance of the King and his Subje£ls. Jenk. 87. pi. 68. cites
L^the Dif- ^^^- 47- 2'^rnfly and Coxe's Cale.
continuance is bccaufe the Freehold is recovered in the Aftion. For every Recoveror recovers a Fc«
•Simple, and a Recovery of a Fee Simple, mufl work a Dilcontinuance ; and if this be allowed to b;
a Fine, it oujjht in Confcquencc to have the Efeft of Fines. But Note, that it is no B.ir to the Entail ;
For it is bv'the Statute 4 //. '. that a Fine with Proclamations fliall bar an Eftate Tail, and no Fine,
but with Proclamations is within the Statute, nor can bar an Eftate Tail.— It is only a Difcontinuance.
Lutw. 959 White v. Auftin. Lutw. jSi. S. P. Hunt v Bourn.. D- 5'5- *■ b. pi. i,-
6. J^fid tho' Coke in the 3d Part of his Inftitutes feems of another Opi-
nion: For it feems to him that noCiiJhui Jhall prci'r.il againfi a Statute made
'xithin 'Term of Memory. Under Correction neither the Stat. 4 //. 7 of
Fines, jior the 18 Ed. i. of Fines concerns this Cafe ; for neither of them
fays in exprcfs Words, that Fnies with Proclamations (hall bar the Intail :
Thefe Statutes only fay, that Fines with Proclamations/.;.'?.''/ ^^Z'^^rj to all
Pdrties and Privies, and to Strangers, if the Stranger doth //rf bring his
Aftion^ or make his Claim zcithm j/t-.r^ after iiich Fines lc\ied with Pro-
clamations. And the true Intention of the 4 H. 7. was to take away and
repeal the Statute of Non-claim the 34 Ed. 3. c. 16. and not to bar the
the EllateTail any more than iS Ed. i. had done, as appears by the Sta-
tute of 32 H. 8. c. 36. which ordains Fines levied as above, and Non-
claim as above to bar the Tail. Jenk. 87. pi. 68.
(N. b. 5) Scire facias. /// 'wbat Cafes, And How.
1. Sci. fii. lies to execute a Fine levied of an jicqiiittal. Br. Fines, pi.
.100. cites 3 E. 5. 23.
2. Land is rendered by Fine to an Husband and Wife, and to the Heirs
cf their two Bodies i they have i////f-^. the Husband and Wife die; ^.enters
and enfeojfs B. ivitb Warranty ; A. dies; D. his Ilfue brings a Scire liicias
againli B. to execute this Fine : It does not liej For Executio facta ell, &
non reftat facicnda, as W^elf 2. c. 48. fpeaks ; and if tliis Scire lacias
Ihould lie, the Feoilee fhould lofe his VVarranty. Refohed, that the
Heir in Tail is put to his Formedon in this Cale: In a Scire tacias, a
Voucher doth not lie j the Feoffee Ihail not lole his Warranty, and there-
fore a Formedon only lies for the Heir in Tail in this Cafe. Judgment
affirmed in Error. Jenk. 18. pi. 34 cites co E. 3.
^0 if a Fine ^^ Scire facias upon Fine levied to T. R. and W. and to the Heirs of the
BaiZaJ"" Body ofR. the Remainder to the right Heirs of the faid W.—'T. died, and/?.
Ffme, and to died ivithout IJfue, and W. firvived and died ; his Heirs need no Scire ia-
W.audhis ci;^g to execute this Fine, becaufe it is executed in his Lite, by the Fftf
Heirs, and ^^^^ Franktcnement in W. Well's Symb. §. 179. cites 40 E. 3. 20.
he dietb ; and _ ' n ^ . ' _ , ,
then the Baron and Feme do die, the Fine is executed for one .tloiety in the Life of If. Weft's Symb. S.
1:9. cites Fiti. Sci. fa. 19. 43 Ed. 3. 9. 24 Ed. 3. 5-.
4. Scire fiicias upon a Fine, the Tenant for Life prayed in Ad of him in
the Remainder in Tail, and had it notwithltanding that delays are oulted
in Scire lacias by the St.}tute, quod Nota. Br. Sci la. 16. cites 41 E.
^. 16.
5. Aftef
Fmc. 361
5. After the Partj is fcij'cd iy the Fine a Sci, ia. does not lie, but a For-
mcdoii. Br. Fines, pi. 13. cites 42 E. 3. 5.
6. If the Plaintrrt' \\:lvc fe~:cral Ffiates created hy oueFine^ he iiccdeth
but o/Vf U'nt of Sci, fa. 43 E. 3. 11. //lo' it be of (ever al Things' agamfi fe-
ral 'Tciuiiits. II H. 4. 15. 21 Ed. 3. 14. 24 Ed. 3. 25. Welt's Symb.
T. II Land be given by Fine for Life, the 'Remainder to Baron twd Feme
in 'Tdil, and the B:^ro?i dicth ; and then the 'Tenant for Life dicth, and the
Feme entreth, the Fine is executed, io as their Illuc needeth no Scire iiicias.
Well's Symb. ^. 179. cites 49 £. 3. 12,
8. Per 4JultR-es and Serjeants^ where a Fine is levied to the Baron and
Fetne in Special Tail, Remainder to the Heirs of the Body of the Baron, the
Feme dies without ifftie j tlie Remainder is executed in the Baron, becaule
he is not as Tenant lor Lile, and then the Remainder in the Heirs of his
Body velts the I'ail in him, quod vide ibidem j and yet notuithltanding
this, and a Bar in Affile by Judgment againft the Plaincilf himfelf in this
Scire facias he had Execution ; quod mirum! tor it leems that 'twas exe-
cuted before, and alfo the Judgment in the Alfife, being in Force, binds
him. Br. Fines, pi. 33. ekes 7 H. 4. 23.
9. If a Fine be levied to J. in Tail, the Renialnder" toB. in Tail, the Re- Co. R. on
maindcr to C. in Fee. And the Record is fent into the Chancery, and the ^"f"'^"^- ^''•
firfi Tenant in Tail dieth without Iffue, and "the Record comoth back into ckeri^H'''
the Bench hy Aiittimtis, at the Suit of him in the firfi Remainder, and -.i6.~'v,r.
thereupon he had a Scire liicias to execute the Fine, and died without Iffitc, Scire facias.-
hefre Execution had -^ he in Remainder in Fee, lliall not hereupon ha\e a P'-i^o-_ cites
Scire facias without a new Commandment, becaufe the Record was once ^ij,. Exe-'"
out of theCourt,and came in again at the Suit of him in the tirflRemaind- cmions. pi.
er, unto whom he in the Remainder in Fee is a Stranger ^ yet the * Illiie 60. cites S.C.
ol him which removed the Record, in this Cafe might have a Scire lacias ^"77"^""^
without any new Commandment, becaufe he is Prrey. Welt. Symb. §. Evccut^on
176. cites 14 H. 7. 16. 9 E. 4. 15. II E. 4. I^. ' of a Fine,
uliicli is iii
C. B. without a new Commandment to them to make Evccurion, tm'cfs he only, at whofe Suit it was
bi-ought into C- B. per Cur. For per Choke, tlie Writ is ad Profeeutionem A' B. (..Hiire of his Heir,
(]uod nemo ncgavit. Br. Fines, pi. 6-. cites g E. 4.. i 5.
* D. 29. pi. 196. Hill. 2S H. S. Anon, cites 14 H. 7. and 1 1 E 4. fo. ultimo accordins^Iy. But in
Dyer it is laid, that the Heir mufl: have a He-iu Crtifc.Ue of the Fine, bv a new Writ out of the Chan-
cery ; For the Mittimus was to impower the JulHces to proceed ad Pi-offcntionem of fuch an o>ie (the An-
ceftor) and when he is dead, the Warrant is determined, and the Court cannot proceed at the Profccu-
tion of another.
10. If a Man grant the Reixrjion of an Jcre of Land, -(^'hcre he hath no-
thin? in the Land, by Fine executor)-, and afterward he pfirchafeth the
Revcrjion; now the Grantee lliall enter when the Reserlion doth fill, of
fhall ha\e Execution thereof, by a Scire facias. Perk. §. 66.
11. Upon a F'ine Stir Conufance de Droit come ceo, &c. with a Grant and ; ^fji'}^' ,
Render ; the Fee was limited by the If'ord Remanerc, as a Remainder ^vhen ^_ UvCdT
it was a Reverlion, it was doubted if a Sci. fa. lay; For the Fine was ex- Fme to C.
ecuted before, and Sci. la. lies only on Fine Executory. But now he is ^uh Grant
put to a Formcdcu. See D. 199. pi. 55, 56. Pafch. 3 Eliz. Gale v. Gale. ^"^'^'''^■'■,
And fee Dal. 29. pi. 4. — The Opinion of the Court was againft the' RemTh./er'tl
Plaintifi' D. 199. b. pi. 56. S. C. Jl. and hr
Hehs J. S.
brougIitSci.fi. in Remainder, as Heir of M. after B's De.ith wifhout Iflue, and had Judginent. D.
199. pi. 55. Marg. cites JM. 15 & 14 Elii. Ld Shandois's Caie.
12. ii//f where 3 Deforccants granted and rendered to the Plaintiff' in
Tail, with diverfe Remainder over in Tail, the Reverter to the Grantors,
and the Heirs of one of them in Fee, without any Conufance de Droit come
ceo que Sc at the Beginning, and the Heir of him A\'ho had the Fee Sim-
ple limited to him, brought the Sci. fa. fuppoling all the Tails fpent, lo
that there feems difference between this and the Cale above. D. 199. a.
b. pi. 56. cites a Precedent in T. 18 H. 6. Rot. m.
Z z z z (X. b. 6)
Q^ti Fine.
(N. b. 6) Scire facias, yit ndoat Time it lies to execute a
Fine.
• I. A Scire facias may be fued upon the Note of the Fine, before it
he higrqffed by the Chirogtapher. Weft. Symb. §. 179. cites 22 H.
6. 13.
* Br. Fmcs. ^ j^^^^ ^p ,^ pj^^ /tcv'fi^ i5't/o)v Time of Memory^ a Man fhall not ha\'e Ex-
h.C— fBr. ecution by Scire iacias. Weft. Symb. §. 179. cites * 1 E. 4. 6. but cites
Fines, pi. f 16 H. 7. 9. contra.
1 2(5. cites S.
C acordingly.
(N. b. 7) Scire facias. By ^whom.
■ ■ I. If Land be given by Fine to A. for Term of Life ^ Remainder to B. and
C. and the Heirs oj their tivn Bodies, and each have Iffiie and die ; the Tenant
jor Lfe dies ; the one If lie and a Stranger enter y the Iffiies pall have feve-
ral lints j for the Inheritance is feveral, and the Ilibe held out may have
, Q .^ ( A6lion of Scire facias againft the Stranger * only to execute the Fine for
men.'f ^' ^'^ Mciety, and not join the other IJJuc ; for he is in by Title in his Moiety^
and the Stranger in the other Moiety by Tort ; and when he has recovered,
he and the other are Tenants in Common. Br. Brief pi. 444. cites 24
E. 3. 29.
_ p . 2. Fine was levied to A. and M. his Wife in Tail, Remainder to M. in
oi[s pr^-."" ^^^' They had Iffue a Son named B. l"he Baron died, and M. by an af-
cites S. c' ' tcr Husband had ijfae C. then M. died, and B. entered and died isjithout If-
fue. C. Ihall have Sci. ta. to execute the Fine, and not the collateral
Heir of B. For B. was feiled in Tail only, and the Fee was in Abeyance
and not executed in him; and now C. is Heir of the whole Blood to A.
. tho' but of the half Blood to B. And whoibe\er is Heir to the Ancefior
"■johen the Fee falls, Ihall have Execution thereof Br. Scire ficias. pi. 126.
cites 24 E. 3. 30. 62. and 37 E. 3. lib. All. 4.
3. J.N. acknowledged all the Right which he had in 100 Acres of Land
in D. to be the Right of W. N. and his Heirs, and obliged himfelf and his
Heirs to Warranty, and to acquit W. N. and his Heirs ; and the Lord Para-
mount diftratnedWN. and he brought Scire facias, which is returned warned,
and the laid J. N. did not come to acquit him, by which he prayed Execu-
tion ; and per Belknap, he ihall have Writ of JVlelhe ; but per Kirton, he
Ihall have Writ of Execution by Scire facias; For the Thing is Executory,
and this by the Statute de hiis que Recordata funt, &:c. Br. Scire facias.
pi 50. cites 49 E. 3. 8.
4. A Fine Sur Conufance de Droit, &c. levied to A. and B and to the
Heirs of A. the Jointenant for Life furvived and died ; the Heir of the 0-
thcr who had the Inheritance, inall not have Scire facias to execute the
Fee; For 'twas executed before. Co. R. on Fines 4. cites 11 H. 4. 5.
b. per Hill & Thirning.
i?!(/(asl 5. But if a Fine be levied Sur Conufince de Droit, &c. to A. for Life,
think) if B. Remainder to B. in Tail, Remainder to A. in Fee; there B. alter the Deatli
thents the^' °^ 'tenant tor Life, ihall have Scire facias to execute the Ellate Tail, and
Fm" cxccut- ^^^ ^<^" ^1^0 of Tenant for Life, after the Death of Tenant in Tail. Co.
cdinthcTe- R. On Fines 4.
nuntforLife,
and he feilld in Fee. As if Land be given for Life, Remainder in Tail ; Remainder to the right Heirs
of the Tenant for Life, and Tenant m Tail dies, the Tenant for Life is leifed in Fee. Co. R. on Fines
4. cites 40 E. 3.9. 53 H. 6. 5.
6. If
Fine. 363
6. U two file a Set. fa. to execute a Fine, and the ow dtcth^ the Survi- Butifdiverje
tor fhall have a Scire facias without any new CommandmenE. Wcli ^^'^{""untoA
Synib. § 179. cites I E. 4. 13. B. pray a
Scire facias,
it is notgrantable until they have fued /e^er^t/ Wviti to the Juftices of the Bench, commanding them to
make Execution. Weft. Symb. S. i;y. cites n E. 4. 15. T\ 21 E 4.
13. A Fine was levied between the Prior of B. and J. S. that the Prior
il»uld find fo many Malies in the Manor andf Chapel of C. and, for Non-
Perfonnaiice^ the Heir of C. brought Set. fa. and yet C. was a Stranger to the
Ftne. However becaufe it was an ancient Fine in the 'time of H. i. and alfo
the Heir of C. was to have Advantage of the Fine, the Sci. fa. was a-
warded to lie. Br. Fines, pi. 126. cites 16 H. 7. 9.
ne
to
(N. b. 8) Execution. Of <u)hat Conufee fhall have Ex-
ecution.
1. A Man gives in Jail' by Grant or Render, faving 'to himfelf the Rc-
•verfton, and dies ^ and theTenant inT'ail dies without Ifiie i and R. enters
and endows the Feme of the T'enant in I'ail ; the Heir of the Donor brings
Sci. fa. againll R. of two Parts, and recovers, and another Scire facias a-
gainji the Feme of the third Part, and llie prays to have Aid of R. And fo^
fee a Scire facias of a Re'vcrfton that was referred, and never was out of
the Donor and his Heirs, and which was not gi\'en by the Fine, but xd-
ferved, and yet the Scire facias lies. Br. Sci. fi. pi. 95. cites 21 E. 3. 12.
2. If the Services efcheat after a Fine levied of the Seigniory, the Cogni- ^^^jf jf^gp-,
fee Ihail have Execution of the Land efcheated. Welt. Symb. §. 179. cites ^e kvied t
48 E. 3. II. A. for Life,
Remainder
fo B. The Remarnifrr-Jlfan, after the Death of tenant for Life, fliall have Sci. fa. of the Land efcheated.
For now it is Parcel of the Manor, and is come in Lieu of the Servicer ; and yet it was not properly
comprifed in the Fine. Br. Scire facias, pi. 47. cites S C.
3. A Man fhall have Writ of Execution, of 'Things which are not comprifed j^ ^f ^ Y\nz
in the Writ of Covenant, by fome, Br. Sci. Fa. pi. 50. cites 49 E. 3. 8. upo7i a Re-
teafe. Br.
Sci. fa- pi. 50. cites 49 E. 3. S,
' 4. If the Conufee >-rW^r.y i?f;/f, Scire Facias Iie.5 upon it. Ibid.
5. So, where a Man levies a Fine tn 'tail rendering Rent, Scire facias
will lie for the Rent, per Belknap. And fo fee that a I'hing csecittoiy ihall
be executed by Scire ficias. Ibid.
6. Scire ficias lies of a Common or Corody upon Fines levied of them. 4 e. 2. b. &
Per Alliton Quod not fuit Contradictuni in Entry in Nature of Allife. Idid. :.b. 5.
Br. Scire facias, pi. 171. cites4 E. 4. 2. dVc.tes^iT
H 6.
(N. b. 9) Pleadings in Scire Facias.
I. In a Scire Facias by him in the Remainder upon an EJlatcT'ail againfl Br. Sci. Fa.
A. B. ftippojing the Donee to be dead without Ifite, if A. B. -plead that he pi. 15. cites
is Iffite 10 the Donee, and the Plaintiff replietb, that he is a Bajhrd, it is ^ '-■•
a ^oodi Replication. Weft's Symb. S. 179. cites 40 E. 3. 16.
"^2. Scire Facias upon a Fine, the Tenant [aid, that thofe who were Parties
to the Ftne, had nothing, See but one J. was fa fed, Scc. whofe Eftate he
has, &c. and the Plaint iff'faid, that J. had nothing at the time of the Fine,
See. and no Plea, but he ought to maintain his ^^'rit, that the Parties to
the Fine were feifed, &c. Bn Maintenance de Brief pi. 22. cites 40 £.
X, 30. 3- In
Fine.
3. In Scire Facias upon a Fine, Berk, prayed Judgment of the Writ,
for the Writ i^^/ure (tcfcenda-e uon dcbct^ which proves i'offej/iou^ & non
allocatur, hv which he demanded Judgment ot the Writ, bccaufe the
Fine in itfelj pvovcs Flxeciftiou. For it was iur Conulance de droit come ceo,
&c. I'o have and to hold to him, and the Heirs ot' his Body, &c. And
the Opinion of the Court was, that it is executed ; Co that Formedon lies,
and not .Scire Facias. Nota. Br. Bricl pi. 47. cites 41. E. 3. 13.
4. IriTormcdon in Reverter or Remainder, the Demandant mull men-
Uon tJfe^Utiith of e'very one that hnd EJtdte, and furvived his JnceJioTy but
notio i'n^a Scire Facias fur Fine. Symb. S. 179. cites 42 E. 3. 19
5. IHn'' a Scire Facias the Sheriff >t^///v;j the Party fttmmoncd^ and he
<?/)/)tv7r ;/(i/'. Execution Ihall be awarded. Weft's Symb. S. 179. cites 43
E. 3 13. ■ ■ ■
6. \\ here a Man alleges the Death offeveral m Scire Facias to exectrte a
hine^ which he need not, it is only Surplufage. Br. Nugation pi. 21.
cites 43 E. 3.
7. teoffhicnt ivith iVarraitty from the Plaintiff^ s Ancejlor is a good Plea
in Scire Facias upon a Fine. Welt's Symb. S. 179. cites 22 H. 6. 39.
* Br. Sci. Fa. g. In a Scire f acias, to execute a Fine as Coufm and Heir to hijii in the Re-
pl-i5"-^' mainder or Reverhon ; after the Death of the particular Tenant the
\wt. and°°o' Flamtiri wcfrt'f/i? not tojhiw how Coufm and Heir, io long as the Plea hath
fee that the Continuance by /(Yf;;/ ^//f J, &.c. given to the Tenant, nor at his Appear-
Cofinage is ance, nor until the Plaintiff pray Esecntiou ; and then the Coment Colin
^°}J^^^'' and Fleir is to be entered thus in the Roil only. Fit predilitis J. dicit^
Writ but is ^"^^ ^pfi «/ confan^timeits & heres f. IV. -videlicet Filiiis^'S hures I.W. Fra-
cntercd in tris 6" Harcdis ejufdem J. W. Welt's Symb. 179. cites * 33 H. 6. 54. 41'
the Roll. Ed. 3. 13. & 24. 8H. 4. 31. ■
<>uod Nota^ p_ If the 'Tenant be one who entered by Title prior to the Fine, it ought to
kr Editions" I'e fo pleaded ; for it Ihall be intended, that he is in under the Fine, it it be
it IS pi. i.;6. not pleaded y/)tr/.-T//)'. Per Prilbt. Br. Brief pi. * 242. cites 36. H. 6- 16,
10. In Scire Facias to execute a Fine of Lands in D. the Tenant (Jjall not
fay, that nufiich Vill as D. For that would avoid the Fine j per "Chocke,
quod tuitconcellum. Br. Elloppel. pi. 172. cites 21 E.4. 51. 53. ;uid 5^.
I I. Scire Facias to execute a Fine of 200 j^cres of Land, Sulyard iaid,
that pending this Scire Facias, J. H. had brought a Formedon of 100 cf the
Acres ot Land (inter alia) and had recovered and had Execution, and prayed
that the Writ jhsuld abate of this Parcel ; 'tis no Plea, becaufe he pleaded
inter alia ; For RtcoverN' fhall be pleaded certain to every Intent, and thele
Words (inter alia) is not ce tain to any Intent; for he ought to have faid
that he brought Formedon of 100 Acres, and recovered and had Execution, of
■■jt'hich thife 100 Acres which are now in Demand are parcel. Br. Pleadings
pi. 115. cites 22. E. 4. 8.
(N. b. 10) Scire Facias. Hoiv the fjYttpallhe.
Bi-. Fines pi. I . Where the Writ of Scire Facias againji- a Prior, for not faying of Maf-
45.citeiS. C. fes, upon a Fine levied by his Predccejjor to P. M. and his Heirs was brought
by W. Son of R. M. againlt the Succelibr, and did not make himfclf Heir to
P. ^tzvas held good, becaufe he was Heir to him, and it was quare E.xecutio fieri
non debet, and did not fbew whatFlxecution, and }et good ; for it refers to the
Fine, and therefore good, though he does >iot fay, quare dijlringi non debet,
and the Writ faid notlnng of SucceJJor to the Prior, tor it appears that he is
Succeffor, and that the Plaintiff is Heir to P. .and therefore the Writ is
good, and judgment that the Plaintittdiftrain the Prior to makethcChan-
tery. Br. Sci. la. pi. 91. cites 38 E. 3. 33.
, „ c • L- 2. Scire Facias upon Fine, thcWrit \w^s quare querent! * defcendere non debet^
pl ••'o cites* where it ihould be exec utionem habere non debet. Judgment of the Writ ; 8c
45.E.3.18. non
Fine. 36^
tion allocatur, for thsJFyit is judicial. Next he demanded Judgment of acocrdingly
the Writ, becauie it is brought f as Co/in andHctr^ and not pewn How Ccjiri^ ^"^ ^^^
& non allocatur j For though tbisJJMllbeJke-jsn in Formedon,yet in Scire Fa- jv/ir'um ; rc-
cias the one or the other ts ftijjictent. Then he demanded Judgment oi the cauie 44 E.
Writ, becaufe the Writ is* quare defccnderc non debet, which proves Pof- 5- Fol. 18. it
feir.on, and fo executed, & non allocatur ; and again demanded Judgment ^^^ g^^f^.'
of the Writ, becaufe the Fine tvas fur conufance de droit ccme ceo que il ad, feemsby the
^c. Habendum & tQntr\(i\imJibi^ keredibus de corpore fuo, and therefore by Year Book
the Opinion of the Court, this proves it executed, and this goes to the of 44 E. 3.
Aftion. And per Finch, an original Writ, which wants Form, fhall ^- ^h,. -y^'nT
bate j lor it is made in the Chancery, and pleadable here ; otherwife of a ,^.35 abated
Judicial li rit as Scire Facias, lor if this wants Form, and hath Matter fuffi- for not al-
cient, it is good, and therefore (defcendere debet) for (Executionem habere '^s!"^^*i''''*
non debet) is not material. Br. Si. Fa. pi. iS.cites 41. E. 3. 13. aidforothe*;
Matter ; but as to the Miftake of (Defccnderc debet) inftead of (remancre) it was amended, and
-nothinp here mentioned of Quare Executionem, &c.i f S. P. Br. Sci. Fa. pi. 14S. cites 38. H. 6. 39.
that the Writ was abated.
3. Scire Facias to execute a Fine kvied of one Manor, and of i'u:o Parts of^^- Nuga-
anoiher Manor tc one jor Life, the ReverJicnniT'ail toR. D. c^ctiePart; and ".°"P'^^''
0/ another Part to Ji. for Ltje, the Rcitrjion in Fee to R. And the Heir ofR.
brought Scire Facias to execute the 7'ail, and fet forth that the Tenant lor
Lile, on whom this depended, was dead, and alleged A. dead alio,
■which was pleaded to the Writ, becaufe he alleged the one and the other
dead; where he need fay nothing oithe Death of yl. till he demands
Fee Sialic ; & non allocatur, lor it is only Surplufage. And another
Exception was, that the VV^rit was, that it ought to revert to him ; -where
it pould be, that it ought to ranam, becaufe no Pofleflion was in him be-
fore ; & non allocatur, becaufe it agrees with the Fine. Br. Sci. Fa.pl;
24. cites 43. E. 3. II.
4. Scire Facias upon a Fine, againfi A. and C. of fjuo Manors, (and fet
forth) that Ji. entered into the one Manor, and C. into the other Manor ; and
after it was quodfint apudWeJimonaJteriutn ojienfuri, &c. and yet the Writ
•is good; and they an fwcred federally and not jointly, for the/f?/? -joas alj'o
quod ipft feparatim ea tenentes ; and it was quare to the Baron and Feme Plain-
tiJf's remanere non debet, 'where it was de jure uxoris, and yet good ; For it
cannot remain to the one without the other j contrary in Fcrmedon in def-
cender, reverter, orW ntoi Efc heat. Per Hill, which was not denied. Br.
Sci. Fa. pi. 72. cites 11 H. 4 15.
5. Scire Facias to execute a Fine, fuppfmg the Fine to be levied to the
•Baron fur Conufince de droit come ceo, which the Baron and Feme have of the
■Gift of the Conufor, and to the Heirs of the Baron, and Jupfojitigthat they
are dead, and now the Plaintiff, as Colin and Heir to the Baron, brought
thisWrit, to execute the Fine in Fee. Per Norton, ifthe Feme furvived, the
Writ well lies. But Hill denied it. Per Thorne, if this Matter ihall aid, is
I do not think it will, yet itfliall not come by Surmife, hut p^ all be exprejjed
in the Writ. Per Culpeper, theWrit cannot lie, becauie the Fine was levied
fur Conufance de droit come ceo, &c. which is always executed, by
which it was awarded, that the Tenant go line die ; and fo fee that it is
jict alleged that the Feme furvived, and therelorc it feems that it, is not ve-
.ry clear. Br. Sci. Fa. pi. 77. cites 1 1 H. 4. $$.
{N. b. 11) Scire facias. How the Writ muft be, ifi r^-
fpe^ of the Fhie. fJVtt varjingfrom the Pine.
I. Scire facias to Execute a Fine of Lands in C. according to the Fine, Br. Brief, pi
the Tenant fatd that C. is neither, a Fill nor a Handet, and yet becaufe it 148 cites S.
was according to the Fine, the Defendant was compelled to Anfwer over. S
Br. Variance, pi. 88. cites 21 E. 3. 14.
5 A 2. Scire
0^66
Fine.
2 Scire facias upon a Fine ; the Fine was to J. S. t? Hered' qiios ipfe
proci-cavet de Corpore, &c. and the Wl-it icas, & Hcred' quos procnarct^
and yec well by Judgment 3 for ail is one and the fame meaning, quod
nota bene. Br. Variance, pi. 91. cites 24 E. 3. 28.
3. In Scire facias' the Cale was, xhatlV. acbjowledgcd the Manor except
cue Acre to be the Right of F. who render d the fame Manor as is aforefiidy
to IV. in I'atl; and R. as Heir of IV. fued Kxeciition by Scire facias of the
Manor, (qusre, it fecm.s that it ihall be intended the fame Manor which
was given to F. bv the Fine ; ibr) per Thorp the Writ is good without E,s-
ception. Br. Brief, pi. 139. cites 38 E. 3. 17.
S P. and be- ^_ Tho' the Scire i'acias iliues out ot" the Record, and therefore, as the
tauCc he did- gQ^]^^ f:^y_ ou^ht to accord with the Fine in all Points, yet if the V/// be
not rut m ,',?•■ ^ o r 1 /- 1 > 1 u ■ 1
the Vill- ia- omitted in the tine., the icrre facias ought to exprejs it., tho by this means the
which the : Sci. Fa. varies from the Fine. Co. K. on Fines 12 & 13 cites 38 E. 3. 19,
, Laad lay, ' ■ ■
. tberetgie the Writ was ab.ited, quod nota. Br. Variance, pi. S(5. cites S. C. Br. Fines, pi. 44. cites
S. C. ace.
ThovpTaid, j._ So it is faid in fome Books, that if a Fine be levied //; a Hamlet, the
he h.id icon, ^^^ r^^ oiizht to be broueht in a Vill. Co. R. on Fines 13. cites 21 E. 3.
hndbeen H" 38 t- 3- ^9-
levy' A in a
Namlct, and the .9i7'rf/}ifM/ had been fued, y/</>f^n^ the 'fenemenli to he in the Fill in which the Hamlet
is, and thi.s Ch.ulcni';ed for Variance from the Fine, and tiic V\'rit was maintainable. Br. Variance, pi.
ii6 cites 5^. £• 5- ly.
6. Scire facias of Tenements in FJlgrave., and the Fine was of Tene-
ments in Depegrave", and therefore the Writ was abated for the Variance.
Er. Variance, pi. i6. cites 42 E. 3. 3.
Weft'sSymb. 7- -^ F^"^ Executory was levied of a Seigniory ; and then Land cfchcated
^. i:y. cites to the Seigniory., or the Tenant was forejudged, (Sec. the Conufee fhall have
SC. ■ Sci. til. of the Land inftead of the Services. Br. Fines, pi. 99. cites 48 E. 3. 11.
S.P.Br.Fi.ies g Scire facias upon a Fine to have Execution of a Manor and Hundred^
^l' H '^"^^ the Tenant demanded Judgment of the Writ, hecauietht Hundred is Parcel
but it flio*uld '^f ^'^^ Manor, and fo he demands one Thing twice, & non allocatur j for
be i; H. 6.2. he cannot vary from the Fine, and therefore the Writ Is good by award j
—Br. Brief, contrary upon a Recovery j For if the Writ be not good, he may have
^'c° 'p'^^ ^ "'^^^ ^^''^5 ^^^ ^°^ ^ "^^^ ^^"^ ^^ here, and fo note the Difference. But
Variaiice^ pl. ^UcCre if a Hundred may be Parcel of a Manor. Br. Sci. fa. pi. 7. cites
84. citesS.C. 27 H. 6. 2. ...
So of
Manor and Jd'VDV;fov, where the Advowfon i.s Jppendant, or of Manor atid three Acres, where the three
Acres are Parcel Br. Scire facias, pi. 147. cites 56 H. 6. 16. Br. Variance, pi. 58. cites S. C- — •
Ard he, who is Party or Privy to the Fine, or comes in under it, fliall be concluded. Br. Brief, pi.-
242. cites 36 H. 6. 16, 17.
9. In Scire flicias upon a Fine, if the Defendant be made a Knight
mefiie between the Fine and the Scire Facias, he fhall be named Knight,
per Cur. Bt. Variance, j)l. 98. cites 5 E. 4. 5.
10. Scire facias out of a Recovery of a Manor to have Execution in A.
and B. the Tenant demanded Judgment of the W^rit ^ For the Manor ex-
tends into A. £. and C. Per Brian, this is no Plea ; For it ought to agree
with the Recovery or Fine, whence it Ilfues. Br. Brief^ pi. 31J. cites
The Cafe 4^". 7- 7;
was, B. ren- II. Scire facias was brought upon a Fine, by which A. gave Land to R.
der'dtoJin for Life, Remainder lo himieit' in Tail, where it Ihould be Reverter, and
^tl, and for ^j^^ Writ was Renianere debet according to the Fine; and it was held by
Iffue Renia- ^-'^ ^^^ Juftices, that the Writ ought to be Revsrtere debet, as the Fine ought
}iere to D. tiie to havc been, and not Remanere according to the Fine ; Becaufe, tho' in
Conufee &», Fa'ft the Fine 'was Remanere, yet in Law it is a Rever/Joti, and fo the
I^aredibus 1^1^ jf ought tO' Accord to the Form of the Law and not to the Form of the Fint.
i'!'umli^!k''de fo'" i" iTi^"y Cafes the Writ ought to vary from tlie words or the Fine.
ahh Hfire- Dal. 29. pi. 4. Pai"v.h. 3 Eliz.
dibut
Fine. 367
Mus diili B. Sac. Sec D. 199. a. pi. 55. Pafch. 5 Eliz. Gate y. Gate. S. C ^Bccaufe the Scire facias
iil'ues cut of the Record of the Fine, it is therefore iaid in the Cooks, that it cught to agree with the
Fine in all Ptints. Co. R. on Fines, 12. cites 4 H. 7. 7.
12. iSb, where a Rsfminder is limited to a Feme fok^ "who takes Baron, the Br. Scire
Scire Eicias fhall be Remanere Sc to the Baron and his JFife. Dal. 29. in e'^Si^^P'- '^^
, c-i -J -^ S. p. cites n
P^-4- 3EI1Z. H. 4. 15. For
that it cannot
remain to the one without the other. Br. Scire facias pL 88 cites 58 E. 5. 16. that in Cafe of a
Reverter to Feme Covert it is good to fay, Revertere debet to tne Baron and Feme ; For that it cannot
revert to tlie one without the other. Bat that it is faid Contra there of a Remainder ; but Brooke
makes a Qusre of the Remainder.
13. So where a Fine is levied to the Bafon and his Wife, and /« the
Fine the Name of the Feme is put before the Name of the Baron ; yet in the
Scire iacias the Name of the Baron Ihall be put firlt. Dal. 29. in pi. 4.
14. So where a Fine was levied to ji.for Life, Remainder to a Alonk^
Remaifider to B. in Fee, or in Tail. B. fhall have Scire facias ivithmit men^
tioning the Monk ; becaufe he is no Perfon in Law. cited to have been ad-
judged. Dal. 29. in pi. 4.
(N. b. I a) Scire facias a^joarded in B. R. in what Cafes.
1. Note, that the Chancellor delivered a Fine levied of Land in C. B. to
the Jufiices of B. R.hy which the Party brought Scire facias in B. R. to
Execute the Fine levied in C. B. and the Defendant pleaded to the JuriC-
di6Uon the Statute of Magna Chartse, quod communia placita non fe-
quantur Curiam noltram, &c. and yet Hank fliid that becaufe the Record
was there, they would hold Plea thereof, tho' it does not come there hy Cer-
tiorari nor Mittimus; quod mirum inde mihi. Br. Jurifdi£lion, pi. 84.
cites 5H. 5. I.
2. If a Fine be removed into B. R.for Error, and after it is affirmed, the
Jtijlices may award Scire facias of Execution ; For it fhall not be remanded,
and fo that, which at firfl was not within their Jurifdiftion, fhall be now
within their Power, and yet if the Fine had been levied there it had been
Error. Br. Jurifdi6tion, pi. 77. cites 18 E. 4. 6.
(N. b. 13) Scire facias. Bar. What is a Bar to the Ex-
ecution of a Fine by Scii-e facias.
I. Scire ^cias to Execute a Fine levied to J- for Life, the Remainder to
B. in I'ail, and J. is dead ; and the Plainnrf" as Heir to B. brought th*
jiff ion, the 1 cnant pleaded the Confirmation of B. Father to the Plaintiff
with Warranty for I'erm of the Tenant's Life, and Aflets deflended.
Judgment if Execution ; and admitted a good Bar, and fb fee that Con-
Jirmation rjoith Warranty and Jffets of the Tenafit in 'tail is a Bar ; contrary
without Warranty. Br. Scire facias, pi. 23. cites 43 E. 3. 9. *
2 In Scire facias upon a Fine, the 'Tenant pleaded J cinte?jancy to part, and
Nontenure to the reft, Andifie-dued who was thereof Tenant as he ought ; the"
PlaintifFprayed Execution of this Parcel at his Peril, and could'not have
it ; by which he maintained the Writ, that fole Tenant as the Writ fuppofes,
abfqiie hoc that the other any thing has, prift, &c. Br. Nontenure, pi. 12.
cites II H. 4. 16.
3. Scire facias upon a Fine, the Tenant pleaded that R. brought Former
don in Reverter agamft W. 2.2. E. 3. and recovered and had Execution, and
let forth all in certain, iuid after enjeoff^d F. ivto enfeoffed the Tenant, and the
' • Fim
o
368 Fine.
* Ori'g. Fine * inif»e heiween the Gift and the Recovery of the Esecm/ofj of it ;
^mdrtic ) Judgment if you ought to have Execution ; and the PLiintitFlaid nothing
to it, thereloie it feems a good Bar. Br. Fines, pi. 53. cites 8 H. 6. 28.
J}.. In Scire F*acias the Deiendant demanded Judgment ol' the Fine, ibr
*Tivtts kvied (^ federal Martqrs, ami in dtvers Coitmies^ and the Per-clofe was
(inde plac'tttiiu conventioms ftmi.ftiit inttr eos^ where it Ihould htPlacttaCoii-
•OifniiiH. Per Brian, the Fine is good ; For there is no other Fortu, and alio
it is good for the Manor in the County, where the Writ is brought, tbo'
it Wits not good for the ether Lands, by which he was awarded to An-
Iwen Br. Pines, pi. 58. cites 15 E. 4. 33.
(N. b. 14) Scire Facias. AW //r/V. In what Cafes !
there muft be a new Writ.
t. Fine is lent into Bank by Mittimus^ at the Suit of R. S. command- •
ing them, th.-rt they proceed to Execution of the Ft>ie at the Profectttwfi oj the
fnid R. S. and he brought Scire tacias, and died ; and the Heir frayed ano-
ther Scin facias ; and lome held that they could not proceed mthoirt ano-
ther Writ, commanding them to proceed at the Profecutionof the Heir,
and fo'the Heir ought to fue a new Writ, PerChoke,the Heir may have
Scire tacias by the firlt Removal, lor he is privy to R. S. his Father who
brought it j contrary of him in Remainder, for he is a Stranger. And
Trin. 21 E. 4. it was done according to the Opinion of Choke, and tlie
like H. 15 E. 3. where the Heir had a Writ commanding the Juftices to
proceed, and x6 E. 3. it is faid, he ftiall fue a W^rit to bring in another
^ranfcript of the Fine. Br. Sci. fa.pl. 184. cites 11 E. 4. 13.
2. j^ud if a Fine comes into Bank at the Suit of two, ivho fited Scire
facias, and after thtone dies, the other Ihall have Scire facias by Force of
the firll Mittimus, without fuing a new Writ. Br. Sci. fa. pi. 184. cites
II E. 4. 13.
3. Jindby Littleton, if divers Peifons come as Heirs to R. S. and pray a
Scire facias, the Court will not grant it without fuing feveral Writs to the
Bank, commanding them to make Execution. Br. Sci. fa. pi. 184. cites
II E. 4. 13.
4. If a Fine is levied with Remainder over, and, after Death of the 'Te-
nant, a Stranger abates, and he in Remainder recovers by Sci. fa. juid after
the Recovery is reverfedfor Error. Now he fhall have a new Sci. fa. or his
Heir, tho' it was once Executed ; For the Caufe now ceafes. D. 60. b.
pi. 23. Pafch. 36 & 37 H. 8. B. R. in Trewinniard's Cafe.
(N. K 15) Scire facias. Abatement by what, and How.
1. Scire fecias upon a Fine levied to Baron and Feme, and to the Heirs
njahich the Baronjhould heget of the Bedy of the Fane j the Heir brought the
Writ, and made himfelf Heir to the Baron of the Body of the Feme begotten j
and becaule he did not make himfelf Heir to both, therefore the Writ was
abated; quod nota. Br. Sci. fa. pi. 103. cites 21 E. 3.43.
2. Scire facias upon a Fine againji three, by fcveral Detnands of a Manor
&c. that J. M. into the aforefaid A^anor, cu7n pertinentiis, except fxo Carves
of Land, and J. L. into one Carve of Land, ivithoUt the words (cum per-
tinentiis") and M. P. into one Carve of Land, cum pertinentiis, -jShich are
Parcels of the Manor aforefaid entered ; and exception >va;s taken, becaulei
\\\9X.th& one Carve had not (cum pertinentiis) znA yet Wiiby awarded tlae
Writ^ood ; becaufe that after the Manor 'jias put (cumpertmentiis) which
^ots to alL Thorp faid, that never was ftich a Writ before now awarded,
nor
Fine. q6^
nor never will bj again ; and the Fine av.'j levied by A. C. to W. of B. Jc'r * Butitrccms
b/s Life, the Rcin:i':r!:hr to R. tn fciL and if he die -ivitkriut Iffuc. Ii-vinz P. t|-^t"t%it,
cf B. thai the Rcnuunder to I', uj B. in fee j and the Writ was ac jam ^asicxin-
tx * in/iiitiatioue 'T. So/t cud Heir of the ajhrefaid P. of B. acccptimis that the Wm-Munc)
nforefiud W. and P. dicd^ and that the aforcfaid R. died -ait hoitt Heir of his mlfeaiiof Iii-
B'hl)\ &c. and the ajorefaid Peter furvivittg, and that I. &c. enter'd as ,''"." ■'"°"'-"'
above. Defendant pra) ed Judgment ol" the Writ ; For Vvhere it is that the \-^y^, it^a'bat-
afbrefaidjr. and P. d/et/., &e. it ought to be that theatbrdaid W. and R. ed. Scci4£,
died without Heirs of their Bodies, &c. P. fur\'i\ing, and P. died, &c. v 22 a.ul.io.
~ Per Grcne, all is of one Efieft, by which he awarded the Writ good. J,"*^''! /,°''^''
And held there that Scire facias againrt three feverally in itfelf and the „''it"(.d ^\^^~
Per-clo(eof the Summons joint is good ; quod nota. Br. Brief, pi. 194. Gilebeino-
cites 24 E. 3. 23. t 37. 38. only iitfol.
3. Scire facias to Execute a Fine Ij i-n'o, the one laas fitmvtoned and^j:^^ '^^
fevered., and the Tenant pleaded the Death of him "ivho tvas fevered, and did ' ^ ■ ^->'
net fay., if he died before the Severance or after, and the Writ was awarded
good, by Realbn of the Severance. Er. Briet^ pi. 55. cites 42. E. 3. 8.
4 Scire ficias to Execute a Fine levied to A. for Life, Remainder to B.
Father of the Plaintiff in 'Tail, and that A. is dead, and the Defendant
had Entred, &c. the Defendant faid that B. Father of the Plaintiff con/inn^
cd his Fjlatc for Term of his fife ivith Warranty, and that the Plaintiff
has Ajjets by Defcent, and 'twas held a good Bar. Br. Barre, pi. 12.
cites 43 E. 3. 9.
5. Scire taci-is upon a Fine levied r.f the ALanor of D. to have Execution
if 12 Acres Parcell of the Manor in D. and the Tenant pleaded to the
Wfit ; becaufe it ivas not brought if! a Vtll ; & non allocatur, inafmuch as
it is Parcell of the Manor of D. and Manor is fufficient wirhtiat Vill. Br.
Brielj pi. 470. cites 43 E. 3. 9.
6. Scire iacias upon Fine againft B. becaufe H. ackno'-jjledged 100/. of
Land in D. to be the Right of B. come ceo, ^c. for which B. granted and
tcndred again to H. and the Heirs of his Body, and that the Tenant enter'd
into Parcel of the Tenements, and the Plaintiff fued Execution as Heir
of H. in Tail; Belknap pray'd Judgment of the Writ, hccauili no 7?icntio»
is made of the Value of the Land in demand ; tor it"it was of a Carve of the
Land, the \\ rit lliall be, that the Tenant enter'd into the yf Part, ^h.
Part, &c. 8c non allocatur; quod miruni inde. Br. Sci. iii. pi. 204. cites
VfjE. 3. 27. _ .;;-•. .,0 ...iU.i<.
• 7. It a Fine be levied of the Land isjbich A.' holds for his Life, and of Br. Sd. f.i,
%and which W. holds for his Life, and which after their Deaths ought to re- P'- ;4-citej
■r^erf to the Cbnufor, the Remainder to the Cofinfce and his Heirs, and the " '
Cmmfee brings Scire facias againll the ie\"eral Ten-ants of thole Lands, fnp-
fc/tng that A. and W. Tenants fir Life are dead; there it is a good Plea,
for the one to fay, that A. who is fttppofed to be dead is' alive, judgment ot"
the Writ for this Parcell ; but by this all the Writ ihall not abate, quod
rota. And fo fee that Writ may abate in Parcell. Br. Brief", pi. 70. cites
94*^- 3. 39:.
- S. Scire facias to Execute a Firie, \\\tWri^'-wns; in the Premifles, cum
•^tiidojn finis ievafjet {hni cum Pertrnentiis wasrvanting) and in the render it
was Mancrium ciiin Pertrnentiis, and this was pleaded to the W rit, & non * Cr. Omif-
tiflocatur ; therefore the Tenant /^?/<Y, that K. who is fttppofed to be dead '^o" p'- ;
■without (ifiie, had Iffue * W' who furvived htm, and prayed Jttdgment of'^^^'' ' "
The Writ, & non allocatur; contrary offuch Omillion in WrifofFurrne-
yiou; note the Difference. Br. Sci. fa. pi. 35. cites 44 E. 3. 4a.
9. Scire facias upon a Fine,- per Philippum D. & Jot-huifKttn his Wife
^c. quareprefitCE Johanna? uxori di6ti Philippi reverterc non debet; be-
caufe Philipp! was razed in the (Jriginal, the \V"rit was abated. Br. Sci.
ta. pi. 39. cites 45 E 3. i8-
/ _. 10. In Scire facias upon a Fine, o;;e is received by the Default of the Ten ant, g,, g,^,.^ j
and pleaded a Gift m Tail by the Anccfior (f the Plaintiff by Deed with 15 cites S.c!
^\\u■^ant\•, Jiidgr,ieiit if a^amjl Deed with Warranty, ^\ and the other
5 P> demurred.,
9,70
Fine.
(icmiim-d, becaiife the Lejfc to the 'Tamut for Life is a Difcoritinnaiice of the
T'iul ; Fur he is received by Reveyjioii ta Fee, cuitl plemlcd in Bar iy h'.Jhxte 'Tail^
and yet well, per Cur. becnulb 'twas by way oi Rebutter ; coutr.irj, ir" it
wiuij'ccv?;' of k'jmher j For there the Vouchee Warrants only the Elbte
Tail. Br. Sci. ta. pi. 206. cites 45 E. 3. 18.
1 1. Scire facias upon a Fine bj the Heir cf him in the Remainder ; the
Tenant laid that the fine was levfd to H. for Life, the Remainder to the
Father and Mother of the Plai/itijf in T'ail, and that the Another of the
PlaintilF, ifter the Death of the Tenant jor Life, enter d into the Land and
■sas fe'.fed bv Force t)f the h ine, Jndgment oj the IVrit., and admitted a good
Plea to the Writ; quxre, if it be not to the Aclion of the Writ, and the
othor laid, that H. infeolied his Mother, and prayed E.xccution. And per
Pefley, Kirton and Clopton, this is a Sitrrrnder, and lo fcifed bv Force
of the Fine, and if the laid H. the Tenant tor Lite had charged, and in-
leolied him in Remainder, yet he fhall ht)ld charged for Life of the
Tenant tor Life and not alter, and yet Belknap awarded the Writ good j
quod mirum! Br. Sci. ta. pi. 53. cites 50 E. 3. 6.
12. In Scire tacias upon a Fine as Cojin and Heir the Vv"rit was general,
and did notjhe'ju the Cojtnage, but in the Count, and good ; for it is a Writ
judicial ; contra in Writ Original, asFormedon, &:c. Br. Brietj pi. 51S.
cites 8 H. 4. 22.
Br. Sci. f.i. 1 3. Scire facias upon a Fine againfi three, -xho, as to one Parcel, faid that
pi. 10-. cites they had nothingbut jorl'ermof learsoftheLeafeof J. A^'.Judgment of Writ j
"l^^-^-^^" and another Jnfxer for the refi. Palton faid as to the Parcel of which
citcss H 6° '•'^'^y ^^^^ pleaded Special non-tenure, viz.. the Leale for Years only,
-2.S. p. that the Det'endants are Tenants in Common, Prilt, &c. and fo it feems
that Special non-tenure is a good Plea in Scire tacias ; but 'tis faid elle-
where that general non-tennre is no Plea, but there the Plaintiff may have
Execution at his Peril. Br. Sci. ta. pi. 108. cites 7 H. 6. 25.
14. In Scire fiicias the De&ndAnz pleaded to the Writ, becaufe it was of
Land and Rent, ^ quod ttrram tenet 0 redditum deforceat, and faid, that
the Defendant ts Perncur of the Rent, and therefore it ought to le redditum
tenet ; but rjohere he is Ter-tenant, it Jball be redditum deforceat. Babb. Ch. J .
faid, where there is Lord Melhe and Tenant, the Mefne is called Per-
nour of the Rent, and in Atfife of Rent the Pleading is, that the De-
fendant anfwer as Pernour of the Rent, and where there is Det'orceant ic
is that fuch a one Deforc. dift. &c. and theref )re ruled him to anfwer,
quod nota, and io the W^rit good. Br. Brietj pi. 171. cites 8 H. 6. 27.
15. Scire tacias upon Fine of Rent levied to one in 'Tail, the Remainder in
Fee to the Plaintiff, a.nd that the Tail IS extinff, &c. Markhamfaid, that
thole who were Parties to the Fine had nothing in the Rent at theTime,Prill,
Si noQ allocatur, wherefore he fliid that one A. was feifed of the Landy
whereof i^c. difcharged and injeoffed him, without that, that thofe tvho were
Parties to the Fine had nothing. Br. Sci. fa. pi. 113. cites 19 H. 6. 59.
16. A Man brought Scire facias to Execute a Fine as Coftn and Heir^
and did notfbrjo that the Jmejior is dead-, and yet good ; tor it lliall be in-
tended ; for he is not Heir in the Life ot the Ancellor, theretbre this word
Heir intends that the Anceltor is dead. Br. Brietj pi 497. cites 33 H.
17. Scire facias upon a Fine of the A'Linor of C. and two Houfes and zo
Acres of Land, and becaule it is nutjbewn in what Fill the Houfes and Land
fie, therefore the Writ was abated ; contra if it had been of one Alanor on-
ly, For a Manor may be out of any Vill^ and known by the Name of a
Manor i quod nota. Br. Brief, pi. 383. cites 19 E. 4. 9.
(X. b. 16.)
Fine. 5571
(N. b. 16) Fines. Of the higroJJJngy hrollhig and Tabling
of Fines and Recoveries; and the further Ordering them.
1. Imir.ediatelv afcer the Fine is ingrolicd, it fluU he fait into the Trea-
fiiry. Co. R. on Fines 12. cites 17 E. 3.
2. Jiid then when the bine is ingyojjed and fent intothe T'reafury^ he, chat Sce;K.b.i^)
will hiu'c Kseaittoii fiied^ muji remove it out oi the Treufury ly a Cecttorc.n
diretced to the Treafurer and Chancellor of the Exchequer in the Chan-
cer\', and troni the Chancery fend it into C. B. by a Mntimiis j and then
out of this the Conclee, or his Heirs, or he in Remainder (as the Cale is)
ihall 'i'^i Execution by Scire facias. Co. R. on Fines 12.
3. 5 H. 4. 14. Enacts, that All Writs of Covenant, and a!/ other Urits Note that J<-
whcrcupon h'mes jiall he kvud'-jcith the Wrixs of Dcdimus Poteftateni with frethisSia-
ali Knowledges and Notes of the fame before they he drawn out of the Common inicthcCuJ}ot
Bench by the Cyrographcr pall be tnrolled of Record, to remain in Cuflody o^" ■fc'»'"'«»' had
the Chief Clerk of the Common Bench for the old fee of 22 d. for entring of the "ord o'f thV
Concord. Fine, but the
and notliing remained v. ith the Ch. J. of the Common Bench, but the Licence to accord. Trin. 34 Elii.
B. R. 5 Rep. 99. b. in Tey't Calc.
I'hc C';(/?i?« « to diieA wf // W/ of Error to tie Q . J. of the Bai.k, another to the Cujlos Breiium to
certify u Tnvf-ril-t feeds Pinh, and another to the Cliro^rapher to certify Tr.uifcriftum .\ct£ Finis. And
note, thelc Words are added in the Writ to the Cutlos Brevium, cum omnibus eundem finem tangcn.
bv Force of which words he certihes the Original Writ. 5 Rep. 59. b. Trin. 54 Elii. B. R. in Tey's
Cafe.
Before this Statute 5 H. 4. 14. the CkJIcj Brciium h.ici not} in^ to do with Fines ; but 'tis given by the
faid Statute, ihflt the Chief Clerk of C. B. who is the Culios Brevium, Jlu// keep a Record, vii. the Mote of
the Fine, or Fine ; and if the Notes in the Cuftody of the Chirographcr, or the Notes of the Fines arc
imbei7.clled, &c. tlut a Man fhall have Recourfe to the faid Roll to hint Execution, &c. Upon which it ap-
pears clearly that the Record remains with the Chirographcr, [and] if it be not imbciz.ellcd,'tis fugicitnt
whereof Execution may be I'ued. Co. R. on Fines li.
4. 23 i-^Z/s. 3. §. I. Enafts, that Fines and Recoveries, and all Matt a- s
concerning them, now Extant and in Being, may be hiroUed, which Inroll^
iiient fhall be of as great Validity as the fame fo Extant and remaining in Being.
§. 6. That there jball be an Office of the Inrollment of Writs for Fines and
Recoveries, and one of the Jitfliccs of the Common Pleas (other than the Chief
Jiif}ice)fball have the Care thereof.
And Afcertains The Fees for Inrollment of Fines and Recoveries.
And DireSts the Jtijlices to j1£efs Fines for Mi fprijion, Contempt, Negligence.
§. 7. That a Table, containing the Content of every Fine, pall be fet up in
the Common Pleas, and at every Jfftfes.
And afcertains, the Chirographcr s Fee for Writing the Content of the Fine.
§. 9. 7'he Record lljall not be carried forth of the Office.
5. A Fine isfiiato be mgroP'ed, when the Chirographcr makes the Indcn-
tares of the Fine, and delivers them to the Party, to whom the Conudince p°n5s,°"
was made. 5 Rep. 39. b. in Tey's Cale.
6. A Fine was double, viz. Stir Cognizance de droit come ceo, ^c. and Siir
Concejfit, in one and the fiime Concord, and theretbre the Chirographcr
refuled to make out the Indentures. It was urged lor the palFing the Fine
that a Fine is a real Agreement and ought to be confidered as a Convey-
ance, and that the Party at his Peril may have it in what Manner he
pleales ; But per Cur. fuch double Fine is unprecedented ; and after on A-
greement of the Counfel to llrike out the Concelfit Part of the Fine, it
was Ruled, that it pafs as a Fine Sur Conulance de Droit come ceo, &c.
Baraes's Notes of Cafes in C. B. 144. PafcU. 8. Geo. 2. Lazenby v. Knight.
(N. b. 17) Of
cq± Fine.
(N. b, 17) Of the Qrtiorarl and M/tl/m/s to remove
Fines.
I. Scire fiicias upon a Fine, which came out of Chancery into Bank by
Mittimus, which Alitthmis makes no mention^ that the Fine came there at the.
*Ori ■ ^ *''^ of the Plaifitijf), and this notwithltanding, becaufe the Fine h*bronght
^ /«, the Opinion was, that it is good ; and lb fee that the B.mk. a~
warded the Scire jacias and Execution., and mt the Chancery. Br. Sci. fa.
pi. 33. cites 44 £. 3. 18.
.PK/Bi-.Sci.f;i. 2. In a Scire lacias in B. R. to execute a Fine levied in C. B. the Te-
Q E^4^'iT'^* "^"'- '-""'^ Kxccption^ that Certiorari icas f/fed, but no Mittimus to fend, it
Contra That into this Court, and the Execution oi this Kecoid belongs to C. B. But
if the Chan- Hawk iaid, that the Chancellor himfelf delivered it to him, ^\'hich countcr-
ccUorot En- yail'd Mittimus, and fo ruled Defendant to anfwer, quod Nota. Br;
Kc T^a- ^^^"'"^ de Remover, pi. 15. cites 5 H. 5. i.
fury for a ,
Fine by Certiorari, aud it comes into Chancery, and t!ie Chancellor Lr/!:_^s it in his Hand ir.fo C. B. vet the'
Julliccs there fhall not execute it ; for it niiijl coriie by .Uittin/us.
3. ^^"here Scire facias ilFues upon 'tranfcript of a Fine It^nt into C. B. by-
Mittimus, if no Roll be made of it, it is ill by the bell Opinion. Br. Briet*
. , • pi. 412 cites 1 1 H. 6. 43.
S. P. they ^^ Neither th<: Mittimus nor the Certiorari to the Chamberlainc do
thnMnctidon •'"^'^^ ^"7 ^u<^»tion if the Fine be ingrofjcd or not. Br. Scire lacias. pi. 115.
butCumqui- cites i2 H. 6. 13.
dam Finis
k-valVct; tho' the Fine bj levied in one Term, and engrolTcd in another. Br. Fines, pi. 56. cites S. C
per Browr.i
ne.
r>© >i
5. A Certiorari with a Mittimus to remove a Fine bearing Date before
the Fine comes into Chancery^ is good enough. Well's Symb. §.193. cites
iR. 3. 4.
(N. b. 18) ExoripVifcatmi of Fines.
I. \Mien any of the Parts of a Fine are inrolled according to the Sta-
tute 23 Fliz. 3. then may the lame be excmpliricd either under the Seal of
the Office., or under the Great Seal of England. But to exempli ly fuch a
Fine under the Great Seal, hath this Dilcommodiry, that if any Errors
appear in the Record of the fame Fine, they are not amendable after theEx-
empli^cation thcreoi'. Well's Symb. §. 175.
• 2. But it feems that this extends only to Fines levied befm^e the fame Sta*
tute. Well. Symb. §. 175.
■ 3. And he fi_\s, that thcfe Inrolments and Exemplifications leem very
neceflary, becaule of the Pri\it\- ttnd N\"arrant of the laid Court, manV
Errors happening in the former Records thereofj may be amended, and
thefc Inrolments will fufficc, '\f the former Recvrd, or -any P-art there-*
ot be embezzelledj or other^iJife defaced. Ibid.
(N. b. 19) Pleadings. J'ai'}a?icc betu'ccn the Fine and
the Writ on ax hich the Count, or Pleadings are.
I. Fine w.as levied, by which J.andJlicc acknowledged their Right to
Kj as'thht li-hich IV. und K. his Fane had of bb Giti:, and JF. ."nd K. ren-
dered
373
dered to J. and A. for Life, rendernig one Mark, a Year to K. and the Bars
vf her Body begotten by W. her Baron, the Remainder to K. and her Heirs a~
forcfaidj the Demandant fued Execution as Heir to W. and K. where he
ought to have been made Heir to K. only ; For W^ is not named, but to
ihew what Heirs of K. fliall inherit, and therefore the Writ was abated.
Er. Sci. la. pi. 20. cites 41 E. 3. 24.
2. Error was afligned, where a Fine was levied of the Manor, except 10/.
Rent to one "xho rendered again to Conulbr for Life, Remainder over in
tail, and he in Remainder brought Scire facias to Execute the Fine, and
rehearfed how the Fine was levied of the Manor, except 10/. Rent &c. and
now, ex Injtnuatione, &c. accipiinus, quod A. & B. duas Partes Manerii
pradUU ingrejji fimt , -without making 7nention of the Exception, and Execution
was awarded of the two Parts of the Manor, without mentioning of the Ex-
ception^ and therefore Error, Br. Error, pi. 27. cites 47 E. 3. 7.
3. Alfo 'twas ^tiare Exccutionem of two Parts of the Manor habere non
debet without mention of the Exception, and therefore Error ut fupra, Ibid.
4. yind alfigned Error in the Return, which was quod fare feci See. ef-
fendu7n apud Vf'ejtm. fecundum tenor em hujus brevis, -and fays not ad facien-
dian quod iff lid breve requirit, &c. Ibid.
5. And to Parcel, the Defendant faid that he had nothing now, nor the Day
of the Writ purchased, dec. and it was permitted. And lb fee Nontenure in
Error, and this by hi?n who was named as Tenant. But Brook fays it leems
that it is no Plea for the Heir; For it lies againll the Heir, be he Tenant
or not j and per Perley where there is one Error in Law in a Record, and
another Error in Fail'; there they may reverfe the Judgment as to the
Error in Law, and take Averment of the relt, quod non negatur; and
therefore it feems that Record may be reverled in Part, and good for the
relt ; and this feems to be where the Record is feveral in itfclj, as where a
Man pleads feveral Pleas to feveral Parcels, and otherwife not. Ibid.
6. In VValle, fuppoling that he had the Reverllon of the Alfignment of
J. S. who had it of the Alignment of W. and Ihewed a Fine of the ift
AJlignment, which would that W. and R. granted the Reverjion ; and Deed
of the 2d Affignment ; the Defendant pleaded to the Writ Jor the Variance,
and the Plaintiff averred, that R. never had any thing ; and 'twas not re-
ceived contrary to the Fine ; For as the faid J. S. is bound by the Fine,
fo Ihall the Plaintiff who claims by him j and lee that the Delendant, who
is a Stranger to the Fine, pleaded this to the Writ upon the Ihewing of
the Plaintiff; but note that it was but as a Variance, and by Demurrer,
and not by pleading, as by way of Elloppel. Br. Fines, pi. 37, cites 11
H. 4. r.
(N. b. 20) Execut'toH. At what Time it may be.
1. A. brought a Sci. fa. and had Execution of the Fine, and made a Feoff-
ment upon Condition to B. and after re-entered for the Condition broken ; alter
which the 'Tenant in the Sci. fa. rev er fed the Judgment by Writ of Difceit,
it being found upon Examination, that he was not warned. And upon ar-
guing whether luch Seilin and Execution and Feoffment Conditional, re-
verfed by Entry, be a Difoharge of Execution, Ilfue was taken, if the
Feoffment was in Fee Simpliciter, or upon Condition ; quod Nota. And
hence it follows, that tho'he had made Feoffment, and thQ Judgment had
been reverfcd bejore the Re-entry, it Jhould be a Bar and Difcharge of the
Execution for ever. But by his Re-entry for the Condition broken before the
Reverfal of the Judgment, fo that the Feoffment is avoided, the Reverfal
of the Judgment revives the Execution, fo as it may be fued again. Quod
Kota. Br. Scire facias, pi. 88. cites 38 E. 3. 16.
2. A Fine Executory, may be executed before that the Fine be engrojjed j It is a Re-
belbre the Indentures of the Fine made and delivered to the Parties. Co. cord, tho' not
R. on Fines 12. andwhcn'thc
Court is feifed of the Fine, it has fufficient Warrant to award Scire facias. Br. Fines, pi. 56. cites zz
i^. (S, I :;. And diveric Fines have been executed, which never were cngrofled. Br. Scire facias, pi.
115. cites 22 H 6. 15. 5C CO-'')
-^7^). Fine.
(O. b) Equity and Defe6i:s iupplied.
'. ^tJCH JJJiirances as are ufed ^or the common Repofe of Men's Efiates^
\j the Chancery will not draw in QuelHon ; P'or a Fine with Procla-
mation ought, after the 5 Years, to be a Bar in Confcience, as it is in
Law ; fo lluill it be of a Common Recovery for docking the Intail. Cary's
Rep. 6. cites Do6tor &. Stud. 33. 155.
2. A Fine and Recovery got by Circwnvention^ the Party who got it,
may be compelled in Equity, to recomyence the Party circumvented ; as the
Mailer of t'^t Rolls was of Opinion, at the hearing of the Caufe. i May
1595. Toth. 164. Welby V. Welby.
3. The PlaintiJf (beingyfff//)/^) was drawn in to levy a Fine of his Lands,
yet ordered that the Lands lliould be re-ajfured^ if the Defendant did not pay
a valuable Conlideration ; or if he failed of Payment thereotj then the laid
Lands iLould be re-alFured. 3jac.li. B.lb. 508. Toth. 166. Wright v. Booth.
4. Becaufe a Fine was not levied acccrrding to Covenant^ a Power became
void to make Leales \, but decreed in May 13 Car. Toth. 166. Scanibler
V.
5. I'enant in 'Tail, upon Marriage, covenants to levy a Fine for further
Aliurance of Land which he had lettled, and of which he had covenant-
ed that he was feifed in Fee. He acknoii)ledged a Fine, but died before
'twas perfeficd. Equity will not fupply this Defeft againll the Illiie in
Tail. The Defendant's Title being per Formam Doni. Tr. 1686. 2
Vcrn. 3. NVharton v. Wharton.
^/c^p"f-h^ 6. Fines purfuant to a Decree, fhall operate no fiirther than the Decree
1688 Vc. intended they Ihould. Pafch. 16 Car. 2. Chan. Caies 49. Good rick v.
cited in the BrOwn.
Cafe of Ba-
den V. E. Pemtroke. Mich. 1682. i Vcrn. R.93 S. P,
Mich, a? •?. Fine or Recovery of a Cejty que Triifi lliall bar and transfer the
Car. 2. Ch. Trufl; as it ihould an Ellate at Law, if it were on a Confideration. Ch,
Cales 268. n r
Clifford V. ^'^^^^ 49-
Asbley.
Hill. 1682. Vem. 14S, Bovey v. Smith. 6 Car. i. fo. ^44. Chan. R. 51. E. of Newcaftle v. E.
of Suffolk.
* S. C. cited 8. A Fine fraudulently obtained, and much razed to make it correfpond.
Roll. R.I 1 5. jg jjQj. relievable in Chancery ; and were it examinable here, it would be
Tac in the ^ great weakning of Fines, and can only be examined here to punilh the
Star-Cham- Party Criminaliter that did it, and in * (^0llPbrtlUtl'0 Cafe, where one
ber, in Cafe -yvas perfonated, yet the Fine was not let aiide, but a Re-conveyance ordered
cff Day v^ pgj. ^^ Wright, who difmifled the Bill. 'Twas argued that the Examina-
4:"sc?(G. b) ^io"? as of a Judgment irregularly entred, or obtained at Law, is proper
S. C. cited in only for the Examination of that Court, Avhere the Fine was levied, or
the Cafe of Judgment entred. Hill. 1700. Ch. Prec. 150. 4: Clark v. Ward.
Lord Say 6c ^ Q^ ^ gj]] brought to have a Fine fet aiide, or to have a Reconvey-
ance, it was held by the Court, that tho' Chancery has a Power to relieve
as much againlt a Fine obtained by Fraud or Pra£lice, as any other kind
of Conveyance ; yet that fuch Relief was not by decreeing a Vacate of thi
Fine, but by ordering a Reconveyance ; But that, for any Error in the Fine,
or Irregularity, or ill Praftice in the Commillioners ; it was a Mattef
properly cognizable in that Court where the F"ine was levied, and for
which that Court may vacate the Fine; and there being no Proof of F"raud
or Praftice in this Cafe, the Bill was dilinillcd. Hill. 1700. Abr. Equ.
Cafes. 259. St. John v. Turner,
10. The Intention of Marriage Articles, for a Settlement to be made af-
terwards, will be fo confidered in Equity, that if a Fine be levied to dif-
terenc
Fine. c^yi;
ferenc Ufes, the Court of Chancery will fet a Fine alide. lo Mod. 436.
Trin. 5 Geo. In Chancery. Trevor v. Trevor.
1 1. Whether a Fine and Non-claim can fkreen a fraudulent Pnrchafe ?
And whether the Comifor lliall not be deemed a T'rujlee ? Quaere. Vox this
was compounded. MS. Rep. faid to be Ld Harcourt's. tit. Fines, 6
March 1724. Martin v. Martin.
Firft-Fruits and Tenths.
(A) Original thereof j and Statutes relating thereto.
I. '^kTOTE, Annates, Priniits, and Firft-Fruits, are all one; it was
_1_^ the Value of every Spiritual Living by the Year, which the
Pope, claiming the Difpolition of all Eccleliaftical Livings within Chri-
ilendom, referved out of every Living. Mich. 5 Jac. 12 Rep 44.
2 Decim;E, id eft, the Tenths of Spiritualties, were perpetual, which
in ancient Times were paid to the Pope, until Pope Urban gave them to
R. 2. to aid him againft Charles, King of France, and others who fup-
ported Clement the 7th againft him. 12 Rep. 45.
3. By 26 H. 8. cap. 3. §. (2.) 1'he Firjl- Fruits and Pro/its for one Tear ^
cf all Spiritual Livings are granted to the K. to be paid or fecured before ac- ^ ^ pirftl
tual PoJJeJion of the Benefice. Fruits are
due upon hi~
fiitulioriy and Lefore IndiiShn : and the Profits of the Vacation are given by the iS H. S. 1 1. for the Pay-
ment of them. And even in the Cafe of the King's Prefentee, or un Ufurper to a Benefice of his Gift,
tho' the Church is not fo filled by Inftitution, but that the King may prelent another anv time befre
Induttion ; yet, as the Church in iuch Cafes is full to other Purpoles, fuch Clerk is intitletl to the Pro-
fits of the Vacation, and chargeable with the Payment of Firll-Fruits, even tho" the King fhould pre-
fent another before his Induction. Wats. Comp. Inc. Svo. 7 54.
§. 3 . CommiJJtoners are to enquire into the Value of the Benefices., and com-
pound for the Firjl-Fruits and the Money taken for the fame to be delivered
to the Trcafurer of the Chamber.
§. 4. Whofe Acquittance pall be a fifficient t)ifcharge for the fame.
And Bonds given for Payment thereof.^ jball be of the fame Force -with
. Statutes Staple.
§. 5. And Perfons entring upon Benefices before Compojition inadc.^ pall
forfeit double the Value of the Firfi-Fruits.
§. 6. And Firfi-Frutts payable to other Perfons^ pall ceafe and be paid
to the King.
6. 7. Provided that Bifjops may inflitute and induCf as before this Aff.
§. 9. A Rent or * Pen/ton to the Value of the 'tenth Part of every Be- * j^ ^^^ ^^■{^
nejice pall be paid to the King annually at Chripmas. per Cur. that
all Pcnfions
referved by the Ki"g, or granted to him out of Lands, are in Nature of Rents, and triable in the Ex-
chequer, and liable to be extinguifhed by Unity ot Pofleflion ; But fuch as are referved to the King,
br veiled in him by this Statute, are of another Nature, and collateral to the Land, and not loft by
Unity, no more than Proxies. Hard. 388. Mich. 16 Car. :. in the £.<chequer. Bifliop of Ely v. College
of Clarehall in Cambridge.
§. 10 The Value of each Benefice to be inquired of, and certified by the
Commifjioners.
6. II. Who are to be upon Oath.
§. 12. Spiritual Perfons fljall be charged jor their Tenths in their Diocefes^
where they arc, tho' their Po£eJfions he in other Diocefes.
5- 13^
376
Fine.
6. 13. And Bijhops to be charged -n'lth the Collet ion of them in their pro-
ber Dwcefcs.
6. 14. -And Procefs to he awarded againji them [or Payment thereof.
6, 15. Which they are impowered to levy in their Diocefes by Ecclcjiajlical
Cenfiires, Dijtrefs, or otherwife at their Difcntwn.
6. 16. And in the Vacation of a Bifjopruk^ the Dean and Chapter there"
of are chargeable in the fame Manner.
6.17. Every Incumbtnt, "who^ being reafonab/y demanded, and required at
nwt^i^md ^^"^ Dignities, i^c. or * Houfes, by the Bijhop or Pcrfon % charged with the
Specially"" ColMion of the Tenths, or by their Servants or Officers, to pay the fame, _ fljall
t lat an Ap- ncgle^i to pay it Within 40 Days after jnch Reqiiefi, tball, upon fCertihcate
paritor came Qjfich Defatdt give ft into the Epscheqiur under the Seal of the BiJhop, &c.
tL^Parfon" /;£ adjudged IpJb 5 fafto deprived of his Benejice, which pall be adjudged
and there"' void, to all Intents and Purpofes, as tf he were dead.
tliat he muft pay hii Tenths to Tuch aone ; that the Parfon refufed and liis Default was certified ; upon
which another Pcrfon was prefcnted, and the (;)ueftion was, whether the Dcmand_ was made according
to the Statute. And all the Juftices held it was not ; For that a Stimmons to fay is not a fufficicnt De-
mand, but it mull be an expefs Demand to pay. Mo. 541 . Mich. 59 & 40 Etiz. Reyner v. Parker.
* It wa-s held that the Demand mult be at the Houfe of the Incumbent, and there the Refufal mull b^-.
Mich. 29 & ;o Elii. Mo. 91 5. (T. v. Blanchel. Sav. i. pi. 2. Pafch. 22 Eliz,. Anon. S. P.
± It was held by all the Jullices, that a Demand of Tenths, by Virtue of the Statute, ought to he
by one who has Authority to receive them ; and that AnJppuritor has not fuch an Authority. Mo. 541.
Mich "9 & 40 Eli/.. Reyner v. Parker. It was held that the Bijljop muft authorize one to demand
and receive them. Mo. 915. Q; v. Blanchel. Cro. E. So. Mich 29 6c 30 tlii. In the Exchequer. S.
C. The Queen v. Blancher. ^ ^ . ^ , , , ,
+ Upon a Special Verdidl, whereby it appeared a fufficient Demand had not been made accordme to
the Statute, all the Jullices held, that tho" the Bifliop had certified a Refufal after a Demand duly
made, vet the Judges are to rely upon the Verdict, and not the Certificate. Mo. 541. Mich. 59 & 40 Eliz.
Reyner v. Parl<er And Popham cites it to have been adjudged fo in Brooks Cafe ■ -It was held that
the Certificate of the Biftiop of a Refufal to pay Tenth's is not peremptory, but traverfable. Mo. 915.
The Queen v. Blanchel.' Cro. E. So. Mich. 29 & 30 Eliz. in the Exchequer, S. G.
, Bro Certificate of Bifhop. pi. 51. fays it was held in Time of E. 6. & H- S. that in fuch Cafe
there can be m Jwrnm.t agaivft the Certificate.
A Certificate of a Refufal to pay Firft-Fruits and Tenths was in thefe Words, Adhibuimus om-
tiimod' Diligentiam per SubcoUedtores noftros per totam Diocefim Eborum, & comprrimus J. C. Vica-
rium de G. Recufantem folvere fubfidia Vicariae fua;, qui nullo modo Metu P3enarum_ hujufmodi product
yotuiilet ad Solutionem Subfidii Prxdidl", fed perfeverans in Obllinatiori fua Malicia.—Quire, whe-
ther by this Certificate the Vicarage be void or not. Dy. 116. pi. 69. Pafch. a 6c 3 P. & M. The Vi-
car of Gargrave's Cafe.
*j In Cale of an Avoidance, by Refufal to pay the Tenth*, the Benefice is void to all Intents Ipfo
Fatto, as it would by the Death of the Incumbent. Dy. 257. pi. 29. Pafcii. 7 Eliz. Anon.
In a Qu Imp. the Quellion was, if a Benefice becomes void for Non-payment of Tenths according
to the Statute, and the Default is certified into the Exchequer, whether the Ordinary muftjjive l>!eiice
thereof to the Patron ? And it was held by all the Jullices, that he need not ; For the Certificate is in
the Exchequer of Record, and notorious to every one; and the Statute, which makes the Avoidance,
is a General Law, of which all arc to take Notice ; and the Certificate is a Temporal Aft, and made
to tlie Temporal Judges ; as where an Incumbent is made a Bifhop, and not like the Cafe of a Refig-
nation or Deprivation, which is a Spiritual Aft privately done, of which the Bifhop himfelf is the Judge,
and muft therefore give Notice to the Patron, Dal. 59. pi. 9. 6 Eliz. Anon.
§, 18. Bifhops certifying fuch Default pall he difcharged thereof, and.
Procefs pall iffuc agaiifi the Defatiltor.
\. 19. Acquittances by the I'reafurer or Commijfmms pall be a full
Dijcharge.
§. 20. Nothing /hall he taken of th$ Bipop or his Colleffor for his Ac-
count or 3uietus eft.
§. zi^Parfons, which pay Petifions to others out of their Benefces, may
retain the Tenth thereof.
§. 22. No Pen/ton pall be referved upon the Rcjignation of a Benejice a-
love the Value of a ^d thereof.
§. 25. Perfons, which in one Corporation have feveral PofftJJions belong-
ing to thcm,Jhall only pay for their own PoJeJJions, and not for others.
§.27 No Firft-Fruits fhall be paid for a Benefice not above the yearly
FfilueofS Marks, unlefs the Incumbent lives 3 7 ears after Indi/ffion theretOy
and in Bonds given by fuch Incumbent for Payment of Firft-Fruits, there /hall
he inCerted a Provifo to that Eff'e(f.
Firft Fruits and Tenths.
377
S. 30. yf// Fees payahk by Bipops, ^c. for Timporal Jujhte, pall be de^
datied cut of tha VaJiiation of their federal Dignities.
4. By 26 H. 8. cap. 17. Farvicrs oj' Spiritual Perfifis pall not be charged
'With Firfi-Fniits and Tenths.
5. By 27 H. 8. cap. 8. S. i. Tenths to be allowed on Coiiipojition for Firji'
Fruits.
5. 4. Succeffor may dijfrain the Goods of his Predeceffor, if he leaves the
Tenths unpaid, cr fue iu Chancery or atComnmn Laiv for them.
6. 28 H. 8. cap. II. S-i. Diretis at ivhat Time the Ftrji-Fruits pall
be" in to be paid after an Avoidance.
7. 37 H. 8. cap. 2.1. S. s- 17 Car. 2. cap. j. S. 3. Tetiths and Ftrjl^
Fruits, how payable for Churches united.
8. By 32//. 8. cap. 22. S.S- Bijbops are dtfcharged as to what they caft't
levy.
S. 7. Exchequer is impowered to enter any Prcimtion omitted.
How to be anfwercd, where a Bcnep'ce is not certified.
9. By 2 & 3 Ed. 6. cap. 20. S. 3. Incumbent may be deprived only of the
Benefice for which the Tenths are m Arrear.
10. By 7 E.d. 6. cap. 4. S. 2 CoUeUcrs are to indemnify Bifijops.
S. 4. The Crewn may levy the Tenths of a vacant Benefice on the Gkbe^
11. By 2 y 3 P. Ci" jW; cap. 4. The abovefatd Statutes are repealed.
12. By I El. cap. 4. S. 26. Revived again.
S. 23. jidvLwfons of Vicarages rcfiored to the Crown,
S. 29. Small Livings dtfcharged of Firjl-Fruits.
S. 30, 31, 32, 33. U'Tjat Proportions of Firft-Fruits an Incumbent dying
iir removing pall pay.
S. 34. Grants of FirJl-Fruits to Colleges ratified.
13. If a Man be iiilticuted to a Benefice, he ought to pay the Firfl-
Fruits before ludu^ion by the Statute ^ but by the Common Law it was other-
wife i For he is not now to have the Temporalities till Induftion, and
therefore he could not pay the Firft-Fruits Lane 20. Pafch. 4 jac. in
the Exchequer. Anon.
14. A. recovers for the King in Quare Imp. becaufe the Incumbent was
prefented by the King, as in Right of Lapfe, where the King had the
very Patronage, which was a void Prelentation ; upon which A. lor the
King recovers, who was prefented, admitted and induced ^ But lor the
Affurance of his I'itle, was mfiituted and induced again, but never
reiigned ; Per Walters Ch. B, Firlt-Fruits in this Cafe Ihall not be paid
double, there being no Refignation. Litt. R. 139. Mich. 4 Car. in the
Exchequer. Curtis's Cafe.
15. 2 jinn£. cap. 11. S. 1. Enabled the .^iieen to incorporate a Body
Politick, and to grant to fuch Corporation the FirJl-Fruits and Tenths vf all
Benefices, for the Maintenance of the poor Clergy.
S. 2. Provided that all Statutes for levying the fajnc, fjoald continue m
Force.
S. 3. And not to affe£f any Grant of the fame.
S. 4. Enabled Per fens to convey Lands or Goods to the fiid Corporation.
Jnd the faid Corporation to pitrchafe Lands, ^c.
S. 5. But not to extend to enable Infants, ^c.
S. 6. And direCts one Bond only to be givsn for the Firji-Frttits and Tenths^
end the fame to be paid according to former Rates.
16. BysAnn^. cap. 2.^. S.i. Benefices under sol. per Ann. are difcharged
of Firfl-Fraits.
S. 2. Bipjops to certify the fever al Livings under Sol. per Annum.
S. 3. Saving for Tenths already aliened.
S. 4. All Curates and Mimjfers entitled to this Bounty.
S. 5. To be taken as a Publick A£t.
S. 6. Not to be conftriud tc dminijb any Stipend or Penfion granted and
charged en the Ftrfl'Fruits.
jD By
378
Firft Fruits and Tenths.
17. By 6 Jini£ cap. 27. S. 5. Bipops are allorjj'd jmr Tears tn pjy thsir
Fir/t Fruits.
S. 6. Dignitaries to be itfed as henejiccd Clergymen.
18. T G'to. 1. cap. 10. S. I. Btjlops arc to certify the improved Value of all
Livings in their Dioce(Jes.
a. 3. (Jrders by the Governors of the .G)!iceiis Bounty approved under the
Sign Manual to be good.
S. 4. Churches augmented to he perpetual Cures, and the Mimjlers Bodies
Corporate.
Imprcpriators, Patrons and Refers and Vicars of the Mother Churches to
have no Pro/it by the Auginentation.
S. 5. Parfon of the Mother Church not to be divejled of his Rights.
S. 6. Such augmented Cures to lapfe to the BijUp^ if not Jilkd infix
Months,
S. 8. .Agreetiients made withBenefaSors to poor Livings about the Right
of Patronage jball be good.
S. 9. Jlgreements of' Guardians for Infants., ^c. good.
10. Patron and Ordinary s Conj'ent required.
S. II. Ij any ftich Agreement be made by a Perfon feifcd in Right of hi
Wife, /hejhall le Party to the Agreement, andfeal and ixecutc the fame.
S. 13. Exchanges of Lands allowed.
S. 14. Donatives augmented are to be fulje^i to the Eifhop.
S. 16. Agreements made with a Patron, Impropriator and Parfon of a Mo-
ther-Church for yearly Allowances to the Minijier, jball be good.
S. \(). Governors, ^c. impowerd to adminijlcr Oaths.
S. 2.0. Augmentations to be recorded.
S. 2.1. Settlement of any Augmentation to be valid after Inrolmcnt.
. By 3 Geo. I. cap. 10. S. i. Bipops are difchargedfrcm colktitng the Tenths.
S. 2. A General Collector appointed. Who is to give Security to account
truly. And fhall keephisOJficein London. AndPerfons not paying him
their -Tenths pall forfeit double the Value. ,
S. 3. Prccefs to i(f/e out of the Exchequer againjt Perfons in Arrear.
S. 4. Statutes concerning Ftrjl Fruits and Tenths, not hereby alter d, to
remain in Force.
(B) How Firft Fruits and Tenths were to be received
and accounted for before 2 Annse. 1 1 .
I. T3 Y the Stat, of 26 H. 8. 3. The Revenue of the Firft Fruits and
IJ Tenths of the Clergy was granted to the Crown, and the fe-
'ueral Bijhops were thereby appointed Colleftcrs thereof, in their rerpefti\c
Diocels. The Auditor was to make up their refpeifive Accounts, which u'ere
by him tranfmitted into the Office of the Pipe, according to the Courfe
of the Exchequer, where the Bifhop had his Quietus elt, and where all Ac-
countants accountable in the Exchequer have their Quietus eft at this Dav.
But the Auditor was not thereby enjoyned to give the Bifhop a Duplicate ot
his Account i and it was needlefs then, becaufe he had his ^iiettis ejl from
the Pipe, without Fee or other Reward for the fame.
The Statute of 32 H. 8. 45. altered this Courfe, and a Court ofjirfl Fruits
and Tenths was eretied, coniifling of a Chancellor, Treafurer, Attorney
and two Auditors, who were to make up the Accounts of th.it Revenue,
and being fairly ingroffed, were to remain in the fame Court as the King's
Records, and not tranfmitted into the Pipe : But tio Quietus ejl cr Dupli-
cate ot his Account was thereby enjoined to be made and gi\cn to the
Bilhops.
By-
Forcible Entry and Detainer. 37^
• By the Stat, of 7 E. 6. c. i. The Auditors were cujoiued to make Ibrch
•and give Duplicates of their Accounts, at the realbnable Requelt and Co//
of the Accountant^ wherein the Billiops were included, and accordingly
the Practice has gone ever lince the beginning of Queen Eli/.abeth : And
1 never lieaid it was dilputed by any, until the Arch Bilhop oi York,
when the Bilhop of Carlille was plealed to call his Duplicate ot his Ac-
count a Quietus elt, and io would pay nothing lor it.
By an A(i>; made, the i Mar. &{]'. 2. c. 10. bhe by her Letters Patents
■diffohes the faid Court of firll Fruits, and then creates a new Office and Oj-
Jicer^ viz. The Remembrancer of the hrll Fruits and I'enths, who was
to take all Compolitions and enter allAccounts, and to make out all Pro-
ccls againll Non-folvcnts and all Proceedings therein, to be under the Sur-
\ey of the Court of Exchequer.
In the 2 and 3 Phil. S Ma. the Clergy were fxoHerated fwm Payment of
firlt Fruits and Tenths.
In the I Eliz. c 4. The Paytnent of Firil Fruits and Tenths was re/fored
to the Crown, and all Things concerning the fame., that remained tintaken
awny the ^th of Angtift in the 2 and 3 Phil (3 Mar. was then reftured and
fettled under the Survey and Gov ernment of tie Kxckeqiier ; but the Court
of Firft Fruits was not revised ; lor that was diliolved before the fiid 8th
of Augult, and the Remembrancer being then eitablilhed, continues to
this Dav in e\ery Degree, Sort or Condition, as it was, at or before the
8ch of Augurt, m the fiid 2 and 3 Phil. S Mar. at Avhich Time the
Clergy v\ere exonerated from Payment of Firlt Fruits and Tenths.
The Arch Bifjopfent up an Account for the Years 1675, 1676 and 167'?.
which he required the Auditor to examine State and Pals, but the f^.me
w;is not purluant to the Auditor's Trull, and would be prejudicial to the
King, by the loling to him all Arrears owing by the Incumbents; for in
his State thereof tfo Arrears of the Clergy are continued in Chage, not under-
llanding the true Nature ot thole Accounts, in that they relate not Imrely
and /Imply to the Bi/hop's Receipts and Payments., but to the whole Revenue
of the rejpeffi-i'c Diocejfes each Incumbent is thereby charged and dii-
chargcd. And if no Arrears are continued in Charge upon the Incum-
bents, they all, or any ol them, may plead the Account made out 171 the Bi-
pop's Name (when entered on Record) in their Difcharge. Raym.
312, 313, 314. Trin. 31 Car. 2. in the Exchequer, in Cafe of Bambridgc
y. Bares & al.
Forcible Entry and Detainer.
(A) At Common Law, and. now. What: is, and
where the Writ lies, and for whom.
it. TT fecmeth that (before the troublelome Reign of K. Richard the Hauk. pi C.
J^ 2d ) the Common Law permitted any Perl on (which had good Right 143. cap. 6^,
or Title to enter into any Land) to win the Polleljion thereof by Force S. i.
it otherwile he could not have obtained it. For a Man may lee (in
Britton fo. 115.^ that a. certain Re fpite of -Time was given to the DijfcifeCy ■ » :
(according to his Diltance and Ablcnce) in which, it was lavvtlil for him -
to gather Force, Arms, and his Friends to throw the Dilleilbr out of his
vvronglul Ifoliellion. And at this Day, if (in a Common Action, or Indict-
ment of Trcispafs tor entering into Land) the Defendant will make Title
thereunto i theMatter of thai^'orce alledgcd againlthim will relt altogether
Hpon •
380 Forcible Entry and Detainer.
~''- -' -_-- ■ _ _LI_I II
uptia the Validity othi^ Title, as appeareth 7 H. 6. 13. and 40. Bat after
the rebellious I'unuiks, and Iniiiriciition of the Villains, and other, the
bale ^Jommons, \vhieh happened the fourth Year of the Reign of R. 2,
the Parliament thinking itnecellary to provide againltall fuch OccaJions of
lurther Sedition, Uproar, and Breach of the Peace, did ordain among other
Things Lamb. Eiren. 127.. as follows, vii.
* So it is in 2. 5 R. 2. Sfa:. 1. cap. * 8. Enacts tliar. None JhaH mc.keEntry tmoLandt
Cliridgmcnt ^^'^ ''^here Entry is green iy La-w^ iiiui m fuch Caje net '■Ji::th firing Hand^ tier
but in Ra- ' "^i^^ iVIultitude of i'cople^ tut only m lawful and ea/y Muamr. And if any
ibll ard Ke- </o to the contrary^ and thereof be coni'iCt ; he Jha I he puntjhed by Imprifcn'
b?e, It isi cap. fuent^ and ranjomcd at the Kings Will.
'■ 3. 8 H. 6. 9. S. 7. Ena£fc}, that 'Ihofe who keep thdr Poffejfton by Force in
any Lands, ivhtrccj they, or thofe, 'vchofe Ejiates they claim, have teen itt
Pcjjef/wn three 7'ears, or tnore, fhall not he endamaged iy this Statute.
S P. Lamb. 4- ^^ federal enter with Force to the Ufe of one, "^ho does not enter, and
tiren. 156. f^e after agrees to it ; this makes him a Dilleifor or Trefpallbr, but not to
be punilLed tor the Fojce^ For he cannot make forcible Entry, liithout
an aBual Entry. By the belt Opinion. Br. Forcible Entry pi. 25. cites
2 H. 7. 16.
*OnePerfon ^ Forcible Entry is, \i * one, or more Perfons, come iveapoud to a
commiTT Houfe or Land, and '•jwlently enter j or if they there offer Violence to any
Forcible En- polielfedj or if they forcibly or furioufly f.vp(?/ another out of his Poi-
try. Lamb, iellion. Lamb. Eireii iu,j^.
Eircn. 155. 6. If one enters peaceably, and when he is come in, ufetb Violence ; this is
a Forcible Entry. Lamb. Eiren. 134.
»It vasfaid, 7. If one enter into an Houle, where no Man is in the Hc:i'l:, and the
for Law in Entry is with Aden armed, or * Company miifiialj this is Forcible Entry:
i^Man*Tc;^I Alfothe t putting back the Bolt or Bar of the Door, is Force j tho' ho
'iitth nio^"^ ^^^b ^■*" "^ ^^^ Hcufc. Mo. 656. Mich. 44 and 45 Eliz. in the Starr Cham-
than U had ber. PoUard v. Moreton.
aciupomed to
attei.it upoK km, that this is a Force, ivhich was not den ved. Er. Forcible Entiy, pi. 50 cites 10 H. -. 12.
— S. P. Lar.ib. Eircn 15 5 — .; ^ S. P. and fo of draiving the Latth. iNov. I 50. Bead: v. Ormc.
But See pi. 9. and i Hawk. Pi. C cap. 64. S. 26. Where the Serjeant i-; of Opimoii, that fuch
inconfiderable Circumllance.s, which commonly pa (i between Neighbours uitiiovitany Otie lo: at all,
can never bring a Man within the Meaning of the Statutes, which Ipeaks of Entering with ilrong Hand
or Multitude of People.
8. A. being -Tenant for Tears, B. purchafed the Reverfion, and A. payed
Rent unto B.for 15. 7 ears. Before the End of the Term, oneC. came to A.
and perfuaded him, that D. had Title to the Land, and ad\ iied him to
take a Leale from him; whereupon he took a Leafe of him for 10 Years,
rendering 70/. per Ann. and the Land was worth 140/. per Ann. and
willed him to hold PolielTion againlt all Perfons; and he, at the End of
thejirji Term, kept the Pofjejfwn iLith Drum, Guns and Holberts, ^c. (The
Drum was only to give Notice, il any came to enter, but no Body ot-
tered to enter) he was cenfured lor this, being a Riot and forcible De-
tainer; altho' none other offered to enter; For it was held, that the Pof-
felfion of the Termor, was the Polle/Iion of the Lellbr ; And when, at
the End of the Term, he kept it againll him, to whom he had p.iid the
Rent fo long, it was a forcible Detainment. And whereas the Statute
is, that where one hath had Pollelfion tor 3 Years quietly, he might hold
the Polleffion with Force; that is to be intended, where the Eil.ite i.s con*
„ tiuued. Cro. J. 199. Mich. 5 Jac. in the Starr Chamber. Snigg v. Shirton.
ir-^S^P if 9- ^^ ^'^^ break the Houfe, and fo enter into the Houte, none being in the
it beanordi- Houfe, 'twas refolved that trtis is Forcible Entry. But it feemed by them,
nary Dwcl- that if he had entered by the IVindffjj, or if he had opened the Dear UJith a
ing Houfe. ^ej ; this will not be ibrcible Hill. 15 Jac. B. R. 2 Roll. R. 2. Anon.
If 3 or^come lo- If t'juo come to make a Forcible Entry, and one breaks open the Door
tomakefucha of [he Houfe, and 2 or 3 Hours after, the other enters peaceably, without
fercilUEntTj, YV^gjpon the Door being ooen; vet 'tis a Forcible Entry by him. Noy.
and one only , A ^ /^ s i. ' . .J J
M/e Farce, »)! ii(>. Bcade V. Ormc.
the reft arc .,
GiiJty wid> hira.' Lamb. Eiren. 154. 11. U
Forcible Entry and Detainer. 381
11. If ^. claim Common, in the Land ot'B. and E. with Force ami Antis
'keeps A. out from his Common, whereupon a Juitice of Peace committed B.
and another, who afFifted B. upon Vie\v ol the Force. It was held, per
tot. Cur, Ablente Bramplton, that this Commitment was not warranted bv
the Statute of 15 Ric. 2. For altho' one may be diilcifed oi a Rent or
Common, by Force, which is inquirable in Allifes, and punilhable, if it
be found: \et one may not be indi6lcd or committed lor entering his
own Land with Force, or holding his oii:ii Land iv it h Force againfi a Com-
moner-^ For it ought to be Ubi ingrejfiis non datnr per Legem ; and one in
his own Land may enter lawfully, and inay detain with Force againft
any who pretend to have Comm.on there, he being allowed to be Uivner
of the Soil; and this Statute is not to be extended againll any, but him
who enters iinlciivfiilly, and oujis another of his la--juf<l Fojfejfton , ■wherefore
the Cauie of Committing and Detaining them in Prilon was held un-
lawful, and the Prifoners were dilcharged. Cro. C. 486. Mich. 13 Car.
B. R. Sydnam and Parr's Cale.
12. This Writ lies, where one is feifed of any Fftate ff Freehold in It lies whcir
Lands or Tenements, and is thereof dilleiled with Force; Or, tho' he be ""[j-j^of^j'i,
diileiled thereof /)tv7t-f^Z'/)', yet if it be detained with Force, he may have Rent, Vi^^cs'i
this Writ. F. N. B. 248. (C). — and 8 //. 6. 9. And tho' the Words Notts on F-
of the Statute are in the Dijjiinifive ; yet, if the F.ntry and Diffetfin are N- B 248.
loth with Force, the Writ lies. For the Intent of the Makers was to punilh h ^'^"ra'nd
fuch Force, whether upon the Entry and Dilieifin, or upon the Detaining, see ibid 4-
&c. F. N. B. 248. (D). _ C0.Liu.z5:.
13. A Man Ihall not have Aftion upon the Statute, [5 R. 2.] Ubi in- »• b-
greliiis non datur per Legem, where a Man enters with Force, and his
Fjitry is lawful ; For the Force is only to be conviiled for the King, as Vi
& Armis, & contra Pacem, but otherwife it leems upon the Statute of 8
H. ft. Per tot. Cur. Br. Action fur le Statute, pi. 7, cites 9 H. 6. 19.
14. One Jointenant, or 'tenant in Common, may m.iintain this Action
againll his Companion, if he be put out with Force, &c. F. N. B. 249. (D)
I
(B) What is Forcible Detainer.
I. TF one Perfon obfiinately keep the Door float a^ainfi the Juffice, or if ^»^ if one
\_ he find Perfons harneffed, of in other warlike Sort appointed, or ff^^-^f-biy <"'■-
Furniture lying by them ready to be ufed^ it is a Forcible Detaining. Kou^°arid
Lamb. Eiren. 136. tl^cKfindA.-
moir,; or o-
t thev Weapon for the War, the fufferin^ of it to rewair. lhr,-e {'■Jjithoiit the life theveof) will not cliargc
liim as a Forcible Holder. Lamb. Eiren. i-;6.
2. If a Man, being entered into a Houfe, hefow A<fen with Force and Arms
fame other Place, not far difiant, to the Intent they ihall aflault them that
would attempt Entry upon him ; this is a Detaining with Force. Lamb.
Eiren. 137.
3. Or, if a Diffeifor forejfall the Way of the Diffeifec, zvith Force, &c. °'>,,-'.*"^ ^^^
fo that he dare not enter for Fear of Death ; 'tis a Detaining with Force. ,7"'';' °'' ,.„
*- , ^. ' ^ threaten fohll
Lamb. Eiren, 137, him that h^th
,._,., . Ri-sht, if U
ccme to enter; this is a Forcible Holding. Lamb. Eiren. 157.
(C) Of what Things it may be^
I. the Statute of 5 R. 2, cap. * 7. Againjl Forcible Entry mentions ^"^^/'s.^!"'-
Lands and Tenements. called wp s
^82
Forcible Entry and Detainer.
2. Ihc Statute 1$ R. 2. 'z. mentions Lands, Eenelkes and Offices of the
Church.
3. The Statute o H. 6. cap. 9. S. 2. me/itlons Lands, Tenements or other
Pollcffions.
Pr. Forcible 4. Forcible Entry was brought of * Reitt, and awarded good, as well
Entry, pi. 7. ^g ^f j.]^g Land j lor a Man may dtfirahifor Rent ivith Fcrce.^ and thcrctore
h'^"'^— '^'^'^ ^^^^^' Countervail the Entry with Force, by which the Detcndant
* F. K B was awarded to anfwer. Er. Forcible EEtry. pi. i. cites 20 H. 6. 11.
249.(8} C.'ro,
O'.-. 2CI. Mich. 6C,u-. Anon.
5. An Indiftment on the Statute of 8 H. 6. was, That the late Queen,
by her Letters Patents under the Great Seal, had granted to J. 8. the
Office of Ctijhdy of the Cajlle of D. with all Profits, &c. and an annual
Fee for exerciling thercot ; and that the Defendant with Force expelPd her
and dijfeifd her of that Office. Exception was taken, that an Indiclmenc
lies not on that Statute tor fuch an Office; But that there ought to have
been a Dilielin alleg'd of the Tenant of the Freehold of the Houfe. But
the Court delivered not any Opinion herein. Cro. J. 17, 18. Mich, i Jac.
B. R. Lady Ru&ll's Cafe.
This Cafe ^- Indi<^tment of Forcible Entry lies of a.Copjho/d. Poph. 205. M. 2
was upon the Car. The King v. Ployden, & al.
Statute, 21.
fac 15. per Holt Ch. J. Farr 125. Yelv. 81. Hill. ; Jac. B. R. Sir And. Nowell's Cafe. ;-
Raym 67. Hill. 14 and i 5 Car. 2 B. R. The King v. Hardy.
7. Forcible Entry lies of 'Tithes, tho' It was objefted, and agreed, that
Aflife lies of Tithes by the Statute 32 H. 8. and that they are recoverable
as Lay Inheritance Cro. C. 201. Mich 6. Car. Anon.
And that 8. Indiftment was of a Forcible Entry on a Leffeefor Tears upon Statute
there ought 21 Jac. ij. Exception was taken, lit. That it did not appear by the In-
^jmrrltSr^ (^i^ment that the LelTec had any Title to the Land at the Time of the
the £//■'" per Force committed. For the Force is fuppofed to be done before the Lcafe com-
RoU Ch. J. vieficed. 2d. The Leafe is fuppofed to be a Leafe for fo many TearSj if J.
IbiAcitesthe j-yj, Jq^^^ jjn^.g^ and it is not averred, that J. S. was ali-ve at the Time of the
Lady Mor- pQj.j,jbJe Entry made. And the lndi£lment was qualhed. Sty. 147, Mich.
^^ * ^'^' 24 Car. the King v. Bray.
The Entry 9- An Indiftment was of Forcible Entry into a Church ; and Exception
was into the was taken, that Indi&ments for Forcible Entry, is by Statute Law only,
Chirch and and that they fpeak of Melluages or Tenements, &c. and fo extend not
«^ ^/"'^""^^^ to a Church, for which the Common Law has provided proper Re-
washeld" hat medy, viz. Breve de Vi Laica removenda. But per Cur. The Statutes for
fuch Forci- .Quieting PoJfeJions,fhall have liberal Conffrti^ions, and extend to Churches,
bleEntry was and in the Statute R. 2. Churches are particularly named ; & Vi Laica
within the removenda, is but a feeble Remedy; becaufe it does not rellore the Party
2'anTalfoof to his Poffeffion. Sid. 101. Hill. 14 and 15 Car. 2. B. R. the King v.
s H. 6. and March, HoUingworch, &c.
reftiled to
quafli the Indiftment. I Lev. 90. the King v. Larking & al. S. C.
10. An Indiftment was of a Meffuage Pajfage or Way ; and it was ob-
je£led, that a Paffiige ©r Way is no Land or Tenement, but an Ealemenf.
And as to that, the Court thought it not good ; tho' otherwife, as to the
Mefuage. Mod. 73. M. 22 Car. z. B. R. the King v;. Holmes.
(D)0f
Forcible Entry and Detainer. g8c^
(D) Of what Pofleflions it may bci
I. T" EJfee for years cannot maintain the A£tion, becaufi of the Words, ■w'"^'^''^]'^
I J Expulit & DilFeilivit and Tenant ibr Years, cannot be dilieifed. Sta°ute alL'^
F. N. B. 248. (E). Put cii, or
B/JJeife.'fiorcS
on F. N. B. 24S. (E) and cites Br. Aftion Siir Statute 17. And adds a Quasre, it a Leffor can have it ;
For he is not cxpuHed. cites D. 142. '- — Jenk. nS.pl. 37.
2. An Inqui/ition of Forcible Entry was qitafhtd, for that it did not
appear, what Eftate the Party, on whom the Entry was made, had i For
if he were 'tenant at Sufferance, it would not lie. 12 Mod. 417. Mich. 12-
W. 3. B. R. the King v. Dorney.
(E) Juftifiable by whom, and in what Cafes.
I. TF a Man continueth three 71: an in peaceable PoffeJ/ion, without Inter- rfa Afanen-
\ ruption, then he may hold the Lands with Force, and Ihall not be p'^'^^^^ " '^''
puniihed tor that Force, and that by the Statute of 8 H. 6. 9. F. N. B. 1°^^^^ j,"'^
249. (C). Tenements.
to wliich he
liath Title and Right of Entry, and put the Tenant of the Freehold oat of thofc Lands or Tenements;
now he, ■who is fo put out with Force, may indiCl him tor this entering by Force, and by tliis Indict-
ment, he fliall be reftored to his Poflefnon again ; But he, who is To reliored, cannot maintain tiic Pof-
leflion with Force, ahho" he has had a peaceable Pofleflton for 5 Years before the Ex-pulfion. For the
PoneflTion is interrupted. F. N. B. 248. (H) and the Notes thereupon. And if a juit and lawfiil
Pofl'efTor for 20 years be once removed clearly and neatly from his PolTellion, he cannot retake Poiief
fion by Force, and detain with Force. D. 141. b. pi. 48. Palch. ^ and 4 P. & M. Dalabar v. Lylter
S. P. Farr 158. Hill. 1 Anni. B. R. Hardelty v. Goodenough^ SeeCE) the King v. Burgels.
Br. Forcible Entry, pi. 6. 17. cites 22 H. 6.
2. A Tenant at Will can't juftify a Forcible Detainer, till he has ken 3
7'ears in Pojftjffion ; but he ought to quit PofleJfion, and apply to the Ju-
llices for a Reltitution upon the Forcible Entry. 11 Mod. 32. Fafch. 4
Annae. B. R.
3. tenant at Sufferance is not within the Statute of Forcible Entries.
Arg. fays it has been often adjudged 11 Mod. 273. in pi. 18. Hill. 8
Anns B. R. Queen v. Depuke.
4. None can be guilty in Refpeft of Land, whereof he himfdf hath ^ ^"i' ^.^ •
the * fole lawful Pofftffion, and another the bare Ctijiody X (Ch. 64. S. 32.) Jl'^'i^t^o^he"
h\i.f3.\ "Jointenant may be guilty (Ch. 64. S. 33.) fo may every Perlbn, Land^/;//
who has a [| defeafthle Poffejfion (Ch. 64. S. 34.) So, alfo may an § Infant owntcv,Tr.t at
or Peine Covert, afting in their own Perlbns, and not barelv commanding ^^ '''■ ^'^'^
others. (Ch. 64. S 35.) i Hawk. PI. C. Ind. tit. Forcible Entry and De- ^'^^''pi'c
tainer (G). The Book at large, cites as follows, * Mo. 786. Cro. J. 18. ,^;. cap. 64.
2 Keb. 49J'. t 8 E. 4. 9. a. 19. a. 10 H. 7 27. a. Larch. 224. Palm. 419. S, 92.
II Co. Litt. 256, 7. Crom. 69 b. Lamb. 160, i. Dal. Ch. 77. § Dal. Ch. 77.
.Grom. 69. Co. Litt. 357. Br. Imprifon. 43,45, 75, lai.
(F) Inquirable by whom. What Power the Juftices of
Peace, and other Officers have.
I. %H. 6. cap. 9. .y. 4. EnstGtSythntwben Complaint is made of any fuchEnirj or
Detainer, to any Jitflice of the Peace, he or they, by Warrant or Precept,
Jhall command the Sheriff to fmnmcti a liiffcient Jury, to enquire of the Force
ce7HMitted
^Sij. Forcible Entiy and Detainer.
iciniiiiitcif^ciiid tipOH Force fom/d, the Ji/Jlice or Jajficespallcaitfe the Lands^
He to be rc-fetzed^ and jbaJl put the Party dil]hfcd in PoJlc(pc!i^ in the yih~
Ihicc^ as liell as Prefeitce, of the Party offending ; and eve>y yllicmition of the
Pranifcs^ to have Maintenance^ fsall be void.
E'-xry Juror fhall have Lands or ^tenements to the Value of 40 s. per Ann.
andevery 'Sheriff'., not duly executing the [aid Precepts^ tojorfcit 20 /. to be
divided bcVxecn the King and the Profecntor.
■z. If any hold a Houle or Land with Force, it was agreed, that one
Jujfice of Peace may remove it ; and fo may more, and io are the Words
ot the Statute. Br. Forcible Entry, pi. 19. cites 21 H. 6. 5.
3. The Juilicesof Peace may recct-d without Prefentinent, ifany Aggrega-
tion with Force be before them at their Sejfions. 7 E. 4. 1 8. a. per \'cl\ erton.
4. iVoi/'the Jufticesare rt'/////rZ^^<^ to come to their ScJJlons 'xith Force. Br.
Peace, pi. 14. cites 7 £. 4. 18. a. per Yelverton.
5. AndxxvQy may enquire of coming together "joith Force, and oi Diffei/in
•with Force., and this before the Statute of Forcible Entry ; and contra of En-
try with Force before the Statute ; for they could not inquire it before the
Statute. Ibid.
There may 6. In no Cale one Juflice only may make Inquijition., ifit be not given by
bean IM~ Statute. Br. Peace, pi. 14. cites 7 E. 4. 18. per Yelverton.
merit ot For- ■> r ~t it r
cible Entry upon the Statute S H. 6. c. 9. hefot-e one fiiftice of Peace ; and Refiittition may be made by
cue Jujlicc, by Force of the laid Statute. Jcnk. 211. pi. 74.
Dal. 2 5. pi. S. 7. Commiffioncrs (f Oyer andl'crminer have no Power to enquire upon the
4 & 5- i'- & Statute of Forcible Entry ; for the Statuteof 8 H. 6. 9. which provides an
I'^^^llbal -^'""'^^"''y '1"'-^ Rellitution in this Ca.\h.,appropriatcs it to the Jujfices of Peace.
at the Endof ^^^ the * Judges of B. R. are witliin this Statute ; lor the King fits there,
Kelvv. 204. and where the King lits eli: Plenitudo Poteltatis. Jenk. 197. pi. 6.
pl. 2. — 1 1
^ep. 59. a. (h) ♦ II Rep. 65. a.
8. An 0;Y/frmadeby Juflices of Peace, upon Conviftion of Force upon
the View, may htqa.ijhed upon Motion. Sid. 156. Mich. 15 Car. 2. B. R.
the King v. Chailoner.
9. Upon a Convitfion of Forcible Entry, the Juftices ought to commit
the Offender. If they find Force., they are, upon the View, to remove
it, and commit theOrfender ; but not to award Reltirution w^ithout In-
quilition J and this they may do, though the Entry be peaceable, if the
I)etainerhe with Force., in which Cafe they may convitl the Ofiender upon
the View. Per Holt, Ch. J. 12 Mod. 495. Fafch. 13. W. 3. Anon.
f>_Pby 10. Tuftices of Peace, upon their View of a Force, cannot meddle with
^°P Is- ^^^ Po/yt^o« ; but all they can do, is to remove the Force, and commit them
the Kino- V. ^^^^ ufe it, and to make a Record thereof; and here the Record of the
Sagar.-^i^ — Commitment was arreftavi in the Preterperfeft Tenle, and not in the
Sid, 1515. S. prcfent Tenfe, as it ought to be; and all Records of Commitment are ; as
P 15 Car. 2. Committitur Marefcallo in this Court oi B. R. and the Record was
Chailoner!— qualhed, Niii. per Holt, Ch. J. 12 Mod, 5x6. Pafch. 13. W. 3. the King,
Vent. 50S. V. Brown.
Palch. 29.
Car. 2. Anon. They may not alter the PoffefTion w/V^o;/? an I/itjuiJIthn, nor does it become than
to go armed on that Occafion, Per Holt, Ch. J. and he laid, tiiat if a J. of P. conviBs all the Perfont
in Pcjfejji on for Offenders, and Jets the Doors o-pen, this is an altering of the PoflelTion by necellary Confe--
cjuence, and therefore it was ruled, that there fhould be a Reflnution, Nifi.Comb. 260. Pafch. (f. W.
5. B. R. Lady Lovelace's Cafe.
II. Holt Ch. J. faid, that the Juflices of Peace, in the Cafe of Forci-
ble Entries and r5etainers, ought to adjourn their Courts, and give the
Party an Opportunity totraverfe the Force, ox elfe the Party has no Remedy
but by Certiorari j and every Inquilition is traverlable by the Stat, of
Weilminfter i butgenerally the Jultices enquire into the Potreirion only,
and
Forcible Entry and Detainer.
*
and award Rflticution without trying tlie Forcible Detainer or Entry
upon aTnuerrc. 1 1 Mod. 42. FaLn.' 4Annte B. R. Anon.
12. A Juftiee ot' Peace nwyy7;f a Fi/u\ but he ought to «/;//wf /w« /;;/- ^r\d fi hn^ t!s
mediately, where, by his own Vteii), he iinds a forcible Detaining j ancl lt!/cC"/'xj" •
then, as he is a judge ot Record, he May adjourn his Co.rrt, and then fee ",l'tZi,'th""{.
a Fine upon him, and commit him in the mean time. Per Holt Ch. J. of P. may ad-
II Mod. 47. Paich. 4. Ann*. B. K. in Col. Laytoa'sCale. '°"-"- ^"
Holt, Ch. J.
II. Mod. 52. pi. 25. Pafch 4 Anns. Anon.
13. Upon the Return of a Habeas Corpus it appeared, that A. was
convifted by Sir B. Lord A^ayor of Lcndon upon Fiew, by Vertue of the
15 Ric. 2. 2. for a forcible Detainer of the Prif^n of the Fleet, and that
he was committed until delivered by due Courfe of Law, et quoufque
he paid the Fine ot 100 1. let upon him: Exceptions were taken, ilL
That it did not appear that the Mayor was a Juftice, fed non allocatur ^
for the 8 M. 6. gives the fame Power to Mayors, &c. 2d. That the
Complaint was of a forcible Entry and Detainer, and here is no forcible
Entry at all j and a Man's Houfe is his Caftle, which it is lawful for him
to defend with Force. Curia advifire vult. x Salk. 353. Pafch. 4 Annse.
B. R. the Queen v. Lay ton.
14. Jnd at another Day it was fxrther objefted, that the Fine was fet
at another Time, but the Court held that it might be fet after the ConvUlton^
as in Lambard's Eirenarcha. i Salk. 353. Queen v. Layton.
(F. 2) Inquiry, as to the Force, prevented or difcharged
by what finding.
1. If the fpecial Matter alleged \n the Bar be found fvr the Defe;'dant,h^ Bv.?crcrr,r>.
fhall beexculed ; and the Forcepall net he enquired of ; and if ix. be found tory. pi. Sv
for the Plaintiff, and againji the Defendant, the Defendant floall he attaint- '^"^'' '^- ^•.
ed of the Force, and Ihallpay treble Damages and Co/is. * -Jiithout Enauirv ~-* '^""^'^
J- 1 r J 1 /- ' 1 ri r i • t^ t. -w t t^ --^ ^ -^ It IS Oil an In-
oj thetorce; and the iame is the Ulageat this Day. F. N. B. 249. (D). diftment of
Forcible En-
try t 7 H. 6. I ;. Vide contra, where he pleads Non eft Ingreflus contra formam Statuti. i H. 7 . 1 9. i 5 H.
7.17. Hales Notes on F. N.B. 249(D) f ^^''Forcib'le Entry, pi. 2. cites 7 H. (5. i - . Ace. -
So, if all the Points of the Writ are travtrfetl., and the T'ltle is foi^nH for the Plaintiff, he need not en-
quire of the Force, as it is faid. Br. Forcible Entry- pi. 24. cites i H. 7. 19.
2. In Forcible Entry for entering with Force and Arms into a Houfe,
and 24 Acres of Land ; the Defendant faid, that J. S. was feifed in Fee
and enteofFd him, and gave Colour to the Plaintiff, by which he entered
peaceably, abfque hoc that he entered with Force ^ the Plaintiff made
Title anci traverfed the Bar, and the Ilfue is found for the Plaintiff; there-
fore by all the Juftices, the Force pall mit be enquired -where the Title is
found againji the Defendant, nor "vu here it is Joundfcr the Defendant; but yet
the Dejendant, -who intitkd himfelf ought to traverfe the Force ; but the
Title, found with the one or the other, makes an End of all as to the
Parties i but he ivho made the Force may be indited, and fhall make Fine
to the King, notwtthjl andtng that he has a gcod Title ; and he that enters
'peaceably, ivhcre his Entry is not laiiful, may plead in this A£lion, that he
did not enter contra formam fliituti, and there the Force and DiJfeiJ/n fiall be
inquired ; but contra upon Title made, quod Nota ; and thereibre this If-
fue here fhall ferve him where the Title cannot ftrvc. Br. Forcible
Entry, pi. II. cites 15 H. 7. 17. i
• 5 F (G) What ;.
0^86 Forcible Entry and Detainer.
(G) What fhall bs fald three Years quiet Policilion.
I. np]
And Pleading's.
THOUGH the Di/Ieifbr had held with Force for three Years before
the Indictment, yet the P^rty fha/I be harrd^ hut contrary of the
King; and though he has kept by Force tor 20 Years upon an Indictments
the Party P:all h:rve Rejtttution, and }-et he ihall not ha\e an Aftion per
Fineux, to which Read and Tremail agreed. Br. Forcible Entry, pi.
10. cites 14 H. 7. 28.
2. One, who has been feifed peaceably ibr three Years, may detain with
Force ; but if the DilJeiforhas continnedhii PofJ'cJponfor three 2 ears peaceably ^
/tW after the Dtffafe re-enters, (as he may lawfully) and then the Diffetjbr
re-enters, he cannot detain with Force j becaule the firlt Dilleilin is deter-
mined by the Entry ot'the Dillcifee, and the Diffeifee is thereby rcniittedy
and this Entry is a new Dilleilin. Br. Forcible Entry, pi. 22. cites 23
H. 8.
3. But ifa Man has hQtxv feifed by good and j lift 7'ttlc for three 2ears, and
after is difleiled by Tort, and then he le-cnters, he may retain with
Force, by fome ; For he is remitted and in by his firft Title, by which he
firft continued peaceably for three Years; neverthelefs, by others it is not
Law in this lalt Cafe, therefore quscre ; for it leems to them, by thePro-
vifo in the End of the Statute, that this is good Law, and Hands well
with the Statute, quaere. Br. Forcible Entry, pi. 22. cites 23 H. 8.
Note • he 4- ^^e three Years Polfeffion, which fhall barr a Rellitution, mull
■who is re- have an uninterrupted Continuance, (ch. 64. S. 53) and regularly ought to
itored cannot be la'3)ful{ch.. 64. S. 53.) but perhaps does not neceiiarily require that the
'^''^^^^^^^^''''JirJiEntryw^speaccablefch. 64. S. 54.) i Hawk. PI. C.'ind. tit. Forcible
whh Force, Entry and Detainer (L.) The Book at large cites Dal. ch. 79. 22 H. 6.
•although he 1 8 b. Crom. 71.
has had a
peaceable Poflcfliion for three Years before the Expulfion ; For the Pofic.Tion is interrupted. Hale's
Motes on F. N. B. 248. (H) cites Dy. 141.
ButafterRe- j-. PoffeJJion for three Years, 'jtiithout pe'-juing Ho^^, is a good Plea in
folved, that Forcible Entry. Trin. 15. Car. 2. B. R. Sid. 140. the King v. Burgefs.
the Plea was - -^ T7 o s
not good, becaufc it is not faid that the Defendants were in PoJJeJJion three Tears before the Inquifition
found according to Dyer. Raym. S5.S. C. Keb. 614. S. C.
.^»i/it has 6. It was obje6led that it fhould appear by the ConviBiofi, that the Dc-
^l^^^f'p?^' fefidant had been three Tears in Pofjejfton, upon the 8 H. 6. 9. But per Cur.
of fuch aPof- ^'^'^ comes in by a Provifo, and he that would have the Benefit of it, mufi
fcffion is plead his Pojfefjton. Vid. Cro. J. 199. and Statute 31 Eliz. Alfo, the
good, nviih- 3 Years Pollelfion is intended where the Ellate is continuing, not elfe.
cut peii-mg , Salk. ?<?. Pafch. 4 Annae. B. R. the Queen v. La\ton. —cites Mo. 848.
under what "'■^ "' ^ . , ' „ _ ^
I'itle, or ofivhat EJlate fuch PolTelTion was ; becaufe it is not the Title, but the PoflelTion only, which
ismaterial inthisCafe. i Hawk, pi. C. 153. cap. 64. S. 55.
(H) In vvhofe Name the Suit or Recovery fhall be.
But ibid.
cites Trin. I. XF Lejfee for liars be expulftd, he fliall not have Aftion in his own
^1 ^'airun- X Name, by himfelt^ upon 8 H. 6. nor Ihail the Reverfioner in hisj-
St Ts Cafe, by himfelf ^ bnt he and Reverjioner mujt join in the-A^ion, and then Re-
That Leflcc ftitution Ihall be awarded, and the Statute pall be recited as it is in the
for Years dtsjundi-ve, but the Cojiclufion of the Court fhall be, that the Defendant ex-
l^'^-it^ '"^ fp»lfed and diffeifed in the Copulative. D. 142.3. Marg. pi, 48. cites Pafch.-
the Re^e'r-" 3^ Eliz. B. R. per Cur.
fioncr. 2. If
Forcible Entry and Detainer. c^Sy
2. If LeJJee for Tears of a CopyboUcr by Licence is ejefted by Force, he
liiiiji file in the Name of the Lord to have Refticucion ^ for the Rertitution
/ iliall be to the Lord who has the Frank-tenement. D. 142. a. Marg. pi.
48. cites Trin. 38 Eliz. Sir Mat. Arundell's Cafe,
(I) Rejlftutiofi. In what Cafes, and at ^hat Time.
I. /^~\U'are Impelit by the King againft the Difturber and Incumbent ; * I" all the
\J the title of the King -was found for him, by which * his Clerk ^^^^''^^^
•was injittiited by Urit, and alter ihejirji Incumbent entered with Force^ and Wcrd'csij
great Rout, and took continually the Profits^ and the Incumbent of the King Anglicc (if)
frayd a Writ to the Sheriff^ to remove the Force^ and the Court faid, that if i"- inieitt-d,
the Defendant had dilturbed the Bilhop from putting the Incumbent of ).^'^'"\'^ ™""
the King in PolielRon, that he Uiould have fuch Writ, but when Judg- j,enfe^ and is
ment is gi\'en here, and the Judgment executed, then they have no more not in tSc
Power. Br. Forcible Entry, pl. 20. cites 12 H.4. 26. Ytai-Bco'c.
2. It is not ufuul to make Reltitution to the Party, unlefs thefc
Words Extra te?iet are contained in the "Verdict. Br. Forcible Entry, pl.
13. cites 14 H. 6. 16.
3. In Indictment of Forcible Entry it was net mentioned, that it was Rr. Pence pl.
found at the Complaint of the Party according to the Statute ; j-et the Party ' ^- '^^^^^ ' ^•
had Reftitution. Br. Forcible Entry, pl. 16. cites 7 E. 4. 18. ^'^ '
4. By the \\''ords of the Stat, (of H. 6.) no Reltitution can be made,
unlefs the Forcible Entry be found by Inquijition. Quod Nota. Bro. Forcible
Entry, pl. 27. cites 4 H. 7. 18.
J. If a Writ of Entry be brought upon the Statute 8 H. 6. and it be
found with the Plaintiff, yet he Ihall not have Writ of Reltitution of
the fame Land. Bcndl. 37. pl. 68. M. i and 2. Ph. and M. in C. B.
Palchallv. Tendring. And fays, that the like Judgment was there;
M. 6 E. 6.
6. If a Man be indited for a Forcible Entry upon 8 H. 6. and before -when tlie
RefHttttion, the Force is pardoned by Statute m general Pardon. Now tijere K. has par-
fhall not t)e any Reltitution upon that Indicbnent j For the firll Force and d^Ticd the
Offence is pardoned. But if the Party had brought his Atiiou for Forci- ^"o^'-"^^ the
hie Entry, &c. fuch a Pardon fliall not reach the Rellitutioo, per Cur' the^indict"
that so it has been adjudged. Noy. 119. Fawcet's Caie. ment is j^one.
For the Par-
ty is not to have Reftitution by means of the King, who has given away his Title, (viz. his Fine) hy
the Pardon. Yelv. 99. S. C. Fawcet had tcndred a T/^rcf jv to the Indictment. And after a Vt-n.
fee. awarded and retarned, and q Diftringas with a Nifi Prius, the Pardon came, vhich dilchargcd the
Fine for the King. Whereupon 'twas moved, that the Trial ought to be tby'd, for there ought not
to be any funiicr Proceedings thereupon ; For it, being the King'.s Suit, is difchargcd by his general
Pardon. But it was ^jewn to the Court, ^hat the Party indieied, <ivas oatcd [rem his Pcjj'epa; by Qknr cf
fhis Itidicttiieyit, It king falfe ; The Writ of Reftitution being awarded upon it. Wherefore he p-ayed,
that he might proceed, and he tuculd reHntjtiiJl! any Beneft of the Pardon. For he had not any other Means
it) ie reficied to his PoirelTion ; and it wa.s not Reafon, that the general P.jrdon Ihould pre]udice And
of that Opinion were Fenner and Tanfield. It appearing here U',)on Record, that his PollciTion was
taken away bv a Writ of Reftitution upon this IndLctme"!, 'lis Rcafon he fliould proceed uron the
Jffue joined' before tiie Pardon to be rcliored to hi.s PoiTeHion, for which, otherwife, he had not any
Remedy. But Williams and Yelverton, (abfente Pophani) held, that there ought not to be any Pro-
ceedings upon this Indidtment, the Offence being Paidoned bv the General Pgidon, whereof they are
to take Motice, and tlie Party cannot proceed to have Reftitution , when, if it fliould pa's ag.xinft him,
thcKirg fliould not have the Benciit of any Fine. Afterward.?, being moved again, Yelverton laid. They
had conffcr-red with all the Judges in-SerjeantVinn inFleet-t!treet ; who held, that ♦ tbe Cftencc bei'^g.
pardoned, there ought not to be any Proceeding to have Reftitution. W'hcrefore by the Rule of the
Court, it was ordered to be ftaycd. — — And Williams faid, it was fo rcfolved in this Court upon Con-
ference with all the Judges of England, by exprefs tomm.and from the Queen, in a Cafe betwixt the
Lord ^tafforD, and'Sir STljOinafi STllPntl ; And it was commanded to make Search for that Prefi-
dent; but there could not any fuch be found. Cro. J. 148, 149. Hill. 4 Jac. B. R. Fawcet's Cafe.
'■ — - * S. P I H.iwk Pl. C. Abr. iSi. cap. 24. S 40. the' the Def;ndant would wave the Benefit of
the Pardon.
*j. Reftitution
^88 Forcible Entry and Detainer.
ViJ. Sid. 17. Reftitution upon forcible Entry and Detainer was awarded Nili
^^■<" Caufii, ivhcre the Jury foHfid peacedble Entry. i\3ich. 14 Car. 2. and Hill.
14 and 15 Car. 2, Sid. 97, 99. the K. v. Sadler and Honelty.
8. If a J uitice coiroi&s all the Perlbns in PofjcJJion for O'tfcnders, and
f(ts the Doors opoj, this is an altering of the Policllion, and therefore ic
was Ruled, that there Ihould be a \v'rit of Reltitution, Nili, per Hole.
Palch. 6 \V". and M. Cunib. 260. Lady Lovelace's Cale.
9. A Motion was made for a Reltitution upon qualhing an Inquifition
of forcible Entry ; the Cafe was, That the Lc/for arrcjied the Lcffce jcr
Refit, and^ --xhik he ivas niCiiJfcdy, entered the Houfe, under prettiue of
Forfeiture by a Provifo in the Leafe ; but the Motion was denied, becauie
here appears a Title Handing out, which he ihall not avoid by linilier
Aieans, but ought to purine his Remedy by EjcCiment according to Law j
otherwife, had no Title appeared. 2 Salk. 587. Hill. 10. V\ . 3. B. R.
the K. V. Tollin.
Conmas to jQ j^- j;iqi,ijitifjfi he remcved into B. R. no Reftitution can be^ if De-
verfe and lendant traverj'es ov pleads three I'ears PoJJeffion. Palch. 11 W. 3. i Salk.
that there is 260. the K. V. Harris.
no Way to
rrc/cct Reftitution, but by Certiorari or pleading three Tears Pojfejjion. 6 Mod. 115. Hill. 2 Annse,
B R. Morg.\n v. Tomkin-. And the Juftices ought to accept (licTi Plea, and try it as well in For-
cible Entry a.<; in the (Jafc of Reftitution ; and ought to ftop Reftitution 'till Tuch liTuc is tried. Per
Holt. Ch. J. II Mod 47. in CJoloncl Laiton'i Ca'.e.
S C bv the ^^" Inquiiition of a forcible Entry was taken, and Refiittitian pre-
yiime of r.\\t fi"fly gritntedj which was foon after fet ajide by a Vi laica Reniovenda, and
ii.'.n'i'!%&X' futne I'ears ajter, (viz. two or three Years or more,) a new Rejlitntion was
nilif '^^vo'^'^i granted, v\hereupon the Inquifuion was removed by Certiorari into B. R.
"vi^Laica" ^"'^ there the Reftitution was let alide, by Reafon of the long Delay,
Removenda, w'hich might be a great Inconvenience and Prejudice to Purchalors ; and
a Parfon h.-id they grounded this Rtlblution on 8 Rep. 19. Dr. QEiOn&illTl'Si Cafe and
forcibly fci- Hq'1(;^ Ch. J. ordered a Special F.ntry to be made, that becaufe it ap-
(Jhurch and P^^^ed on Examination, that Reftitution was not awarded 'till three
upon Inqui" V'ears after the Inquifition, that therefore Reftitution was granted to
finon, the Harris. 12 Mod. 268. Hill. 11 W. 3. K. v. Harris.
Force was
found, but the J of P. did not reftore the PoffeflTion (as he ought to have done) but had a Record cf it
made up awrf dej erred the Delivery of the Poffejpo! for two or three Te.\rs; and the Court held this Pro-
ceeding very irregular, and that Reftitution ought to be awarded. 5 Mod. 443.
12. After a Man \s found guilty of forcible Entry, Reftitution muft be
a-joarded prefently ; and where fuch Perlbn was put out after 3 Years after
Conviftion, Reftitution was awarded to him. Trin. 11 VV'. 3. B. R.
Carth. 496. the K. v. Harris.
13. Tho' InqiiiJ/tion of t'oTcihlQ Entry be mapcdj yet Reftitution is
not of Courfe, contrary to Raym. 85. per Holt. Ch. J. Mich. 12 W. 3.
12 Mod. 423. Anon.
14. After Certiorari to remove Inquifition oi Forcible Detainer, JuiHces
cannot Award Reftitution. But if after the Certiorari there beaiVea;
Forcible Detainer, they may record the Force. Pafch. 5. Anna?, i Salk.
151. Sir. Godfrey Kneller's Cale.
aSalkzdo, 2. 15. No Indittment can Warrant a Reftitution, unlefs \t pew a Con-
Br.F0rce.13. tinttance of the Otifier, (ch. 64 S. 41.) i Hawk. PI. C. Ind. tit. Forcible
dT^ h ^i En^ry and Detainer. (H) The Book at large cites as in the Marg.
(^)
Forcible Entry and Detainer. qSp
(Iv) Reftitution. Of what Kind of Polledions. And to
whom.
I. ^^^Opyholder fvr Life leafed for 7hiis to B. by Licence of the Lord ; B.
\^ IS tjcifed 'jjith Force f znQ Refi it at :on pall be to the Lord ^ in whom
the Franktcneincnt is, und B. ought to fiic in the Name of the Lord to have
Reltitucion. D. 142. a. Akrg. pi. 48. cites Trin. 38 Lliz. Sir Mat. Arun-
del's Cale.
2. Indi£lment was laid of an Eittry ifito a Copyhold 'feiietmnt of B. of
which J. was Lord, and had the Yratiktenanent by difjafmg A. and expelling
£. thereot, &<:. Tho' A. oppoled a Reltitution to ii. (the Entry being in
Truth made by A's Order upon B. who had torfeited his Copyhold) and
tho' it was obje-Sled, thatRcftitution is to be made in refpe£t of the Frank-
tenement, which A. does not delire, but the Contrary^ yet the Courc
granted Reltitution in relpe£t of B. the Copyholder; For fmce the In-
diftment is a Record^ by which the Expullion by A. and the Dilleilin of
B. appears, the Court in Difcretion, and the Jury alfo, ought to reform the
Wrongs in their feveral Degrees, and that is by firlt relloring B. who
was expelled, and thereupon enfues confequentially the Rellttution of
the Franktenant. Yeiv. 81. Hill. 3 Jac. B. R. Sir And. Nowell's Cafe.
3. But if the Indt Anient had been only of a Hi(jhjin -jjirhoiit any Ex-
puljion^ in fuch Cafe no Reftitution may be, but upon the Prayer of him
who has the Franktenement. Yelv. 81.
4. J. S. was Indicted of a Forcible Entry upon the Pojpfp'm of B. Lcffee
for Tears of A. and difjeijing A. and expelling B. and tho A. oppofed the
the RejUtiition, yet. Nolens Volens, it was granted to redrels the Tort
done to B. the Termor, who by the Indiftment was found to be expulfed j
cited per Williams J. Yelv. 81. Hill. 3. Jac. B. R. as adjudged in Ld
Norris's Cafe.
5. By 21 y^ac. I. cap. 15. Upon Forcible Entry or Detainer, a Juftice of
Peace is impozijered, ajter the Indictment found, to give Rcjlituticn of Pof-
fefjion to Tenafits for Tears, Tenants by Elegit, Statute, Merchant, or Staple
and Tenants by Copy of Court-Roll, as -jccll as thofe viho claim a Freehold or
Inheritance.
6 One was indifted upon the Stat. 21 Jac. i. for entring into a Houfe
in C. in the County of O. adtiinc exijlens libennn Tcnevuntum of iiich a
Feme ad wluntatem Domini faundum Confuctudinetn Afanerii, &c. I'he
Party came into Court, and, being put out of Poilellion upon this IndiS:-
ment by a Juftice of Peace, prayed that the Court would grant her
Reftitution, and it was granted to her by Dodderidge and \Vhitlock,
Jones ablent. The Realon was, becaufe the Words ot the Statute gives
Power to a Juftice of Peace, or to a Judge, to make Reftitution to the
Leflbrfor Years, Guardian in Chivalry, or Tenant by Copy of Court
Roll, at Will, &c. But for any thing here alleged, the Feme may be
Tenant at Will, by Verge, and not by Copy, but the Statute Ihall not be
taken by Equity ; and therefore he that will have Reftitution upon this
Statute, w///? be -within the Words of the Statute. And at another Day
Dodderidge, and Whitlock, continued their Opinion. But Dodderidge
agreed, that if one has a Widow's Efiate by Cufiom after the Death of her
Baron Copyholder, Ihe is within the Statute; Becaufe her Eftate is medi-
ately by Copy. Lat. 182. Widow Stacy's Cafe.
7. Reftitution can be awarded only oi Tenements vijible and corporeal, * Dal. Sr.
* (ch. 64. S. 45.) and to one, who was feifed of an aiiual Freehold, f (ch. L.inib. 15^.
64. S. 46.) which alone feems neceflary whether it were by Right o/-^"^i"-5^v
Wrong, t (ch. 64. S. 47.) i Hawk. Pi. C. Ind. tit. Forcible Entry and L^;;Jt,^J'- T''
Detainer. (J.) The Book at large cites as in the Margin. 1 j^ Cro f.
199.:^ Crom. i6i. b. 163.3. b.
5 G ' ' (L) Reftitution.
390 Forcible Entry and Detainer.
(L.) Reftitutlon. By whom. And How.
i6KCrom ^- TD^' 2.E. ■}. commonly called the Stat. of'Northampton, if there be
162 a. Dalt. XJ '^"y ^' ^^ made ot ^^Irj/is tojirike a 'terror into the Perlbns upon whom
ca;\ So. a ioiciblc is made, zny Jiiftice oj Peace^ or other Officer, who is within
the Purview oi that Statute, mayfttze the Arms iox the King's Ufe, and
(iljh iviprtfov the Ojfefiders^ btit not rcjlore the Party injuied to his Poliel^
iion. I Hawk. Pi. C. 141. cap. 64. S. 5. cites the Books in the xMarg. *'.
2. None may grant Reltitution but thole Jiijlkes before lijhom the torce
IS fotnid; and the Writ Ihall be under the Terte of one of them, and then
m other J liji ices but thoj'c oj B. R. can grant a Siiperfedeas. Hale's Notes
on F. N. B. 249. (A.) cites D. 187.
. 3. Upon an Inquiljtion, return'd in the King's Bench, of a Forcible En-
try, the <'Jourt, upon Argument, awarded a Writ of Kefticution. Br.
Forcible Ent. pi. 27.
4. Wray Ch. J. laid, that he never ufed to grant Reftitution without
kearnigthe Party inditied. Sav. 68. pi. 141. 19 lite. 27Eliz. at Ncugatei
And the Reporter there fays, that it Hands with good Rcaion. For in
the principal Cafe, the Party that preferred the Indictment had no Fltate
but as Tenant, by Realbn of an Execution, who cannot preler luch a
Bill upon this Statute of 8 H. 6. For he has no Freehold. Ibid.
H 2 & 5 5. An Indictment oi^ Forcible Entry was found betbre the JulHces of
^^u' ^ if' ^^'^ Peace at their Quarter Selfions, or fpecial Seliions ; they grant a Re-
flitutioncan- ^^itution ; This Writ ot Reilitution ought to be made under the 'Tejlc of one
not be a- oj the J ujtices of Peace before •'jahom it was granted. Jenk. 221. pi. 74.
warded bv
any Yitjihes but thofc Lefcre iiJcm the hiSHinent avas foiivd, or tJ e Kn.g's Bci:ch. (ch. 64. S. 4.9.) i
J-iawk, PI. C. Ind. tit. Forcible Eutry and Detainer. (iC) The Book at larj^e cites Dal. ch. S;. D. '
iS-.
Tanib. 157. 6, The Sheriff mav>"^//^?/''ff P^ to execute it, (ch. 64. S. 52.) I Hawk.
Dal. ch. S2. PI Q |,^j jj^ Forcible Ent. and Detainer. (K.) The Book at large cites
as in the Margin.
(M) Reftitutlon ftayed. For what Caufes .
♦ N. B. the ^- XT was held in B.R. per Cur. that notmithjiandinga 7>-(?':'fr/e tendered
Plea in Dyer X .to an fndiftment of Forcible Entry upon the 8 H. 6. they may'
is z6. bnt it grant or Hay the Writ of Reltitution at their Discretion, according as the
on?"'^ ^\ ^''"^^ °f ^^^ ^'^^^ appears to them. Nota. D. 122. b. pi. * 26. 2 & 3 Ph. .
thenext after ^ ^'^- Anon. But the Book adds a Nora, that there are Precedents
i.s ;5, andfo both Ways,
g.e^n .'Affjy^
Kcttitution is of Duty, hut Fe-Reftitution is of Grace. Per Twifden and Keyling, J. Raym. Sj. in
the Cafe of the King v. Burgefs. Vent. 265. cites the Cafe of D. 122. Bat lays Arg. that now,
Jii:ie the Statute ef Eliz-, where fuch Plea is tendered, the Court cannot grant Reftitutlon ; though tliey .
u ould have done it in the principal Cafe, if by Law they might ; P'or the P^rt^ ih.il m.ide the Entr^ h.ui .'
Icfi the Ln7:ii jiift before by f'eriiiH in EjeBment, and by this Means the Effeft of it fliould be dildppointed_ -
ISl. 26. Car. 2. B. R. Anon. D. 125.3. Marg. pi. 26. fays, that it is a good Plea for the Stay of .
Reftitutlon to fav, that the Party had been in Pcjjejjicn Jor three Tears, before the Day of the Indiiit-
r.ient, by tlie Stat. ;i Eliz- 11. and that the Clerk of the Peace, upon fuch j'raier/e tendered, may grant
Sujcrfcdeas for the Stay of Reftitutlon. If the Party, ag.un(lwhom the Incuifition is found, will "
travcrie the Force, that was always n Reafon to flay Reftitutlon ; and it has been held a Sifpcrfrt'.eas
to lie i.ivaydwg Rejlittituj!, and that it was fo in Sir 3Rici)a^0 15?aj>'S Cafe ; where an Inquilition found
u Forcible Entry ; and the Defendant pftcrcd immediately, before the Juftice, to traverfc the Force ;
lute Superlcdeas. 2 Salk. 58S. Pafch. 4 Anna:. B. R. in the Caie of ' the Queen v. Winter.
If an Itituirition of Forcible Entry be removed into B. R. there cm be no Reftitutlon, if Defendant.
..' . . . cither
Forcible Entry and Detainer. ^91
cither travcrlcs the Foive, or pleads three I'ears cjuiet PcJJeJJicn befoie the Force, i Salk. 263. 1',
II. W. 5 The King V. Harris.
2, It' Juftices of Peace award Reftitution, and,l;efore RcJUttition made^ a
Certificate envies jrom the Jtijitces of E. R. to remove the lndi£tment, which
is delivered to a J. of Peace, who was not at the Seffions ^ he may award
$uperfcdeas. D. 187. b. Marg. pi. 5. cites it as adjudged. Hill. 45 Eliz.
in Fitz,wilJiains's Caie.
5. By 3 1 hJiz. cap. U.S. 3. NoRcf-ittition tipofi anyhidiSivioit of ForcibkEn- jt fecms
iijyor hcldwg votthlcrcc^Jhall he made., ifthePcrfcns tiidiffcd had the Occtipatiou, clear, from
vr been in quiet Pojfejfion three lca;s next before the Day of fiich Imiitlmtnt fh'= cxpref?
found, and their EJiate therein not ended., ivbich the Party mdiffed may al-'^y^'^F^
kgeforJiayofReJtitutton; and if the other traverfe the fame^ and the Alle- that where-'
gat ion be 'found againji the Party indi£ied, hefhallpayCoJis. ever the De-
fendant
■fkadeth (jtiiet Pe£cJJicn for three Years, in Bar of Reftitution upon fuch an Indiftmcnt, either before
the Juftices of Peace, or in the King's Bench, wo Rejlituthti ought to he atvarded till the Truth of
the. Plea ie tried. I Hawk. PI. C. 155. cap. 64. S. 55. cites Keb. 538. the King v. Burges. -and
Salk. 261. pi. I.
4. Reftitution muft be flayed till the Defendant ha-i'e Notice of the * Savil. 6S. -
C^.'j)-_^e againft him, *(ch. 64. S. 59.) and if he appears and tenders -xTra- P'- H'- AH.
".lerfc, it niuft rtay till fuch Traverfe be tried, f (ch. 64. S. 57) and ^o Keb.^.i J/ '
mv\c\i found as v.ill warrant a Reftitution. ^ (ch. 64. S. 58.) i Hawk. PI. C. 2 Keb. 49.
Ind. tit. Forcible Entry and Detainer. (L) The Book, cites as in the 571 f>id-
Margin. ^^4- Salk.
5,587, 5!'s-
4^ 5id. 97, (). Keb 427.
(N) Reftitution. Superfeded before or after Execution.
How, and by whom.
I. A FTER an IndiSlment of Forcible Entry upon the Statute ^ _ ^
JfX^ 8 H. 6. before the Jujiices of Peace in Ellex, they awarded Rejii-. oi^'hIH.
tiition, and before Rejiitiition made, there was a Certiorari delivered to Sir /^^ eUz. B.
T. M. Cuftos Rotulorum, which was not received by him ; nor would R- S.C. con-
he read it till after the Reftitution made. * And yet the Judges thought "^' ^^^' ^*
clearly that the Reftitution was well awarded and made ; and a DiverJi- p^eftitutfon^
ty was taken between anx\6l Judicial and Minifteriul, the Aft of the Juf- made after
tices of Peace is Judicial, and their-Segligence in not awarding the Super- the Writ of
ledeas, Ihall not prejudice ; but where a Minifter receives a Countermand S''^,'-',*""! '
as iftheShcritfbe fuperfeded, this is a Difcharge of the Authority which cawdy^and
he had before. And if the Juftices of Peace receive a Certiorari, all that Yelvcrton
theydo after is without Warrant j but all that the Sherift' does alter, conceived it
upon their Warrant before, is not erroneous ; and yet their Negligence '°''^.^'°'^
is punilhable by Attachment, as Contempt. Alo. 677. cites Hill, 45 Eliz. ^^^-^ ^ythe
B. R. Fitz.williams's Cafe. 4: Certiorari
delivered,
the Handsof the Juftices of Peace were clofcd ; For the Writ is an e\'prcrs Prohibition unto them, viz.
Ulterius terminari coram vobis nohimus. So every Adt done by their Authority, after its Deli verv, is
void. And although the Writ of Reftitution was awarded by all the Juftices of the SelTions,' yet
the Writ of Certiorari being delivered to any of them, they ought to have allowed thereof, and award-
ed a Superfedeas ; quod Popham conceilit. 4 S. P and it avoids any Reftitution which is execu-
ted after itsTefte ; but does not bring the Juftices into a Contempt without Notice, &c. i Hawk. Pi.
C. Abr. 181 cap. 64. S. 39.
2. Where a Writ of Reftitution is made, fio other Jujiices can award a S P. Hawk.
Superfedeas to fuch Writ of Reftitution, except thcfe 'X'ho granted it, and ^^ ^ ''^^'^<,
the Judges of the King's Bench -^ for the Law prefumes the King himleli's^ -9. tL ''"
lits there. Jenk. 221. pi. 74. Book at
Jarge cites
D. i3- pL (5. H.P. C. 140.
(O) Re-Reftitution.
39-i Forcible Entry and Detainer.
»Vidz pii. (O) * Re-Reft itution. In what Cafes.
jcf-
2 Sa'.k. 5SS. I- ' I ''*V^O were indifted of a Forcible Entry into a Meadow, and off'a
in pi. 5. has JL ed to traverfe the Force^ hut the Jufiices oj Peace refufed h\ and a-
a Notu, th-di -jy^jy^-j^ii K.e/ht!(tio». And the Indiftment being removed into B. R.. was
the fame qu^iptd ttpoti affidavit that they were not permitted to traverie the Force,
\K?r v?r. but ReftitMtion awarded prefently. And it was moved Jur a Ke-Reltitu-
vhethcrRe- tion j and the Coutt faid, that the Jullices ought to have accepted of the
F.eiriturion Tra'.erfe; For the firfi Jindini is'tn the Nature of Prefentment^ zahich^ upon
^°"''^'"-', mzwr/t' of the Party, ought to be tried tminediatcly, and ific be round no
taull'^tiic ^ Force, no Kellitution Ihill b^^ and therefore they awarded Rc-R.eli:itu«
Juiticc had tion. I Sid. 287. Tr. 18 Car. B. R. the King v. Parker, Stacy, & al.
refuled a
Traverfc to an Inquifition of Forcible Entry, butthat it was not refolvcd ; and cites it as Tr. 11 W. 5.
the King v. Scarlett.
*Sav. 68. pi. 2. The Court oi* Kings Bench has fuch a difcretionary Poller over
141. H, P. thele Matters, I'rom an equitable Conftruclion of the Statutes, that if a
Cro. £. ■^\. l^ellitutionlhull appear to have been illegally awarded or executed, the
■fCro.E 41. liiid Court may let it alide, ^nd gratit a-\ Re-Rejtitution to the Defen-
dant. As where the Indtti7nent, on which the Jultices Proceeded, is
quajhed for Infufficiency ; or where it appears that the Jultices were irre-
gular in their Proceedings, as by refuting to try a Traverie of the Force,
<5cc. or where the Defendant traverfcs the Force^ and gets a Verditf in the
King's Bench, i Hawk. PI. C. Abr. 181. cap. 24. S. 40. The Book at
large cites S. 62. 65. as in the Margin.
(P) hid'tdment. Lies. In what Cafes.
* He ftail 1. XF a Man enters with Force into Lands or Tenements,in which he
rot maintain JL ^'^^^ ^^'''^ '^■f'd Right ofRntry^ and puts the Tenant ol the Freehold
it on the out of thole Lands orTenements ; Now he, who is lb put out with Force,
Stat. R 2. '^■iXX not maintain an*A6tioa of ForcibleEntry againllhini who had Title
iTbut the °^ Right of Entry ; becaulethat Entry is not any Dilielin of him ; but he
Party fliall may tndi^ him tor this entering by Force. F. N. B. 248 (HJ.
make Fine
to the Kin?: for hisForcible Entry. See 51 H. 6. 59. (17 H. -. 17.) That if the Title be found for
the PiaintiS or Defendant, they fliall make Fine, &e. Hales's Notes on F. N. B. 24S. (H)
2. After Judgment in Qua. Imp. againft the Incumbent^ he was, by Afent
of Parties, to continue in the Vicarage for a certain Time. Alter the Time
ended, he kept Po([elfion, and committed great Wad. Attachment is not
grantable, becaufe his Stay was not by Rule of Court, but by Afient of
Parties. Vi Laica will not lie, becaufe he is a Parfonj But you mull
bring an Indit\:ment of Forcible Entry, or an Ejeftment. per Coke Ch. J.
3. Buls. 91. Mich. 13 Jac. the King v. Sakar.
(QJ Indi6i:ment. Good or not In Reiipe6t of not fien.mng
<vohat Ejlate or Title.
1 . TTN Prefentment of Forcible Entr)^, the Defendant pleaded to the Vi
X & Armis, and to all that which is contra pacem, &c. Not guilty, and
yet he was compelled to anfjcer to the F.ntry ; tor otherwite this is not fut-
ficient ; by which he entitkd himfelf by Kmainder^ as Heir of his Father.
And
Forcible Entry and Detainer. c^p^
And where the Defendant juilifies between him and the King, there the
Ktn^ htm felf pall mah'Tnk. Br. Forcible Entry, pi. 2. cites 7 H. 6. 13.
2. Exception was taken, that there ■-j^uj no Wv;-d of Freehold mt\\Q, In- 4 Ze. 19- 5
diftnient, cr ?o /irtt^e z^.'?^ ,-'/i^ Varty grieved bad any Frecbdd^ whereol'hc K- — In an
might be dilleiled, Icdnon allocatur ; becaule * Expiiht & Di££!jiv!t were Iididmenc
f^^re, which could not be true, it" the Party expelled and dilleifed had °"^.'"^ ^,^*^'
, HOC Freehold. 3 Le. 102. pi. 149. F. 26 Eliz. B. K. \\Voth \. Capel. f;^Jr,7J
luhpvi the
Frccholiiu-as,ir.d pcrCokc, Ch. J. clcii'ly, tliis oiij^ht to be fTicw'd, and to fay, Dijfcipvit £>= i?:tra-
verur.t; and therefore Tevavt by Elegit cr Statute Merchant, canvct iy:diH one on tlie Statute of 8 H. 6
tut he Jl:oultlpe-zv, that he did expiilfe a):d dijj'cife the Reterjioier ; But per Cur. tl.is may he on tlic Statute
of 5 R. 1-. rieoughtto purfue the Words of the Statute, nhi ir.grejfus r.oyi datm- per legem il.i r:cv. Sec.
and the Indidtment was quaflied. 3Buls. 71. Tr. i; Jac. Anon. * Exfulfionnnift be fcjh'nety
charged, and tlie Words (i«/n^ expelled and dtjfetfed, they held him out) arc a Conchiiion without i-'remi-
fes. per Holt, Ch. J. and the Inqufition was c)uafli'd per C'ur. i Salk. 261, 262. M. 12 W. " th?
Kingv. Dorney. Indiftment was quaflied for not fliewin;^ what Eitatc the Party had, and tho*
the Word Dijfeifivit had heen in, the Court held it would not be fufficient, tho' it miHit be taken to
imply a Freehold, i Vent. 306. Hil. 20, and 29, Car. 2. Anon.
3. So becaufe the Words were, //; imiwi 'teHemetitnm intrcii-it, it i^'as ob-
jected, that the Word Tenementum is too general and uncertain j And as
to that the Party was difcharged. 3 Le. 102.
4. But the Indiftmenc was iijrther. In unmn T'enemcntum ^ decern acras
terrte eidem pertinent, and therefore as to the ten Acres, the Party was in-
fcrced to anAver. 3 Le. 102.^ +j g^,j^ ^^^
5. In every Indiftment of Forcible Entry, the EJrate of the Per/on Mkh.nW.'
grieved ought to be Ihewn, and 'tis not enough to fa}-, ^wd Po([eJftonatus ^ B- R- the
/?«■/, &c. which Ihall be intended to be but as * Tenant at \\'iil, which ^f •^°'"
is not within the Statutes, i Sid. 102. Hill 14 & 15 Car. 2. A Note of"'^^'
the Reporter's. \ S P. Hi!).
6.Nor is it enough to fay,.^/W////YZ;^fraw;Tenementumj But ought to b£ ?,*" u ur*^' •
*jidtiinc exijtit,&ijc.2.ndi\adhtic exijlens. Sid. 102. ANote of theReporter's. Cafe. '-
, Lat. loQ. S.
P. Anon. S. P. Palm. 426. P. 2. Car, Turners Cafe Exception was taken, becaufe the Word
(Adtunc) was omitted, fo that non conftat, whofe Freehold it was at the time of the Entrv fed non al-
locatur ; For when it is found, that fuch a Day they entered into a JMeCuage Exiftens ibium & lib--
i-iim Tenementum, &c. this Word (Exillens) muft neceffarily refer to the Day and Time of the Entry.
Yelv. 27. 2S. M. 44 & 45 Eliz. the (.^iieen v. Fenton, Pecke, & al. SuchException was difallowed.'
All. 49. Hill 23. Car. the King v. Simmons, & al. li the I>:dic}»ie}it had began ii'ith the Day,
'time, and Tear, then all which follows after fliallbe taken, and intended to he at the fame time per Wil-
liams J. and for this cited 5 E. 6. Dy. pi. 6S. & 23 H. -. Kelw. 9S. and (aid, that an Indictment v.as re-
verfed the lait Term, for want of the Word (vt'ii'/«?'<:) becaufe it might be exijiens liuerum tenementum
20 Years before. But per Fleming, Ch. J. and William.s J. the Day, the 7ime, and the Place bein'r all
coupled together in the principal Cale, then the Words make all good ; For thereby it appears, that it
was his Freehold, and the Time beinehere laid when he entered, this Indiiftment may be ijood enoueh
without faying (Adtunc) and f« they Dothfcemcd clc.irly to hold the Indictment goodj butdid not over-
rule it, but gave time to fcarch for Precedents, i Buls. 17-.Tr. 9. Jac. Moor and Lankfoord's Call-.
• — Cra J. 214. M. 6 Jac. B. K. S. P. Sir Nicholas Poynt's Ca?e. 659. Tr. 20 Jac. Brid-^es'.s
Cafe. But upon a ConviBion of Forcible Detainer, by ^'iew of the Jufticej of Peace u"on the Stat.
1 5 i?. 2. 2. tiie Word Adtunc is not material ; Becaufe 710 Rejlituthn is to Le awarded, but the iMa'cfiC-
tors, being convitfed by the View of the Juftices, are to be fined and impriibned. i ■\'ent. z\ Paf 21.
Car. 2. theKingv. Serjeant. -f 2 Roll R . 65. Hill. 16. Jac. E. R. Ailing's Cafe.
7. Indi6lment ^)'^ P<ji-/c/w, /or a Forcible Entry into the Churchy /aid,
that the Parfon was feifed pro termino VHj^, and it w.as held good; For a
Parfon may make a Leale for Life of the Rc<i:tor\', and by this the Ckmrh
pa/fes, though the Parifliioncrs have the UIc, as in the Cafe of an Impro-
priation. Nota. I Sid. 102. Hill. 14 &; 15 Car. 2. at the End of the Cale!
of the King v. iMarch, &c.
8. An /«^////?';/o« of Forcible Entry was quaf/t/, for that it did net ap-
pear, what F.fiate the Party, on whom the Encrj' was made, had ; for if
he were 'tenant at Sufferance, it would not lie. 12 Mod. 417. Alich 12
W. 3. The King v. Dorney.
9. It was moved to quafli an Indiftmcnt of' Forcible Entry, which
fet forth, that the Defendant entered forcibly into theCIofe of J. S. and
turned him out ; whereas, before the Time, ].S. pojlej/ionatus fmffet dc
Termino idt' elaps' ; his Exception Y\-as, that the FJiate of J. S, Jl.w.fd hasce
S H been
9jpzj. Forcible Entry and Detainer.
been particularly fct forth ; for he might have been Tenant at SuTcrancej
j>nd it has been often adjudged, that Tenant at Sutferance is not within the
Scatute ofFoR-ible Entries ; likewife he faid, that by the W^ord (fuidet)
it does not appear, but that the Ellate olJ.S. was determined beforethe
Entry, Ergo qualhed per Cur. Holt abfente. ii Mod. 273. Hill. 8. Annce
B. R. Queen V. Dcpuke.
2Kc!b. 495. 9. An Indictment 0;/ 15 Ric. 2. needs only fheiv, that foma Pcrfon zvas
3 Buls 71. in PoJI'c/JiOH j But an Inditlraent on 8 H. 6. mull ihew, that the Party had
' ^Mk^^' ^' ^'''^^^''^'■U 2"*^ on z\ Jac. I. that he had a Icrm for Tears ^ &c. (ch. 64. S.
VciolzCz. '^^) ^ H.i\vk. PLC. Ind. tit. Forcible Entry and Detainer (H). The Boole
Het' 73. at large cites as in the Margin.
Latch. 109.
2Keb. 477, 499. I Keb. 191. Cro. E. 754. Nov 131. 2 Roll. R. 65. Palm. 4ZfJ. Sid. 102. Yclv. 2S,
Bills. 177. Vent. yA. 3 Le. ic2. All. 49 I'alm. 2--. 2 Roll. Abr. 8o.pl. 9. Cro. J. 633, 634. 2. Keb/
4^7. 2 Roll. Abr.' 80 pi. 3. Yelv. 165 Mod -3. 2 Keb. -09
(R) Indictment. Good or not, inRcfpe^tof the Dtyt/T;^-
tion oj the Place ■zvherc'y &c. And Uncertainty.
.Vd Exception I. XXdictment on 8 H. 6. was oi' entering into a Clofe called Serjeant
was, beciufe J^ Hcrns Ckfe. Exception was taken, that it was uncertain, lb us
the ^'^^JY there can be no Rellitution, but that it ihould have ll;id a Clofe contain-
be'ij'fr^ ^^ '"§ 20 Acres of Land, more or lels, {&i. non allocatur. Cro. E. 458.
Rco'/of Lar-J, Falch. 38 Eliz. B. R. Humphrey's Cafe.
or into half '^ . . .
RocA oi Land, which i.s uncertain, and this was held by the whole Court, except Williams J. to be a
good Exception, and the Indidtment Wdsquafhed. i Buls. 201. Pafch. 10. Jac. Anon.
2. Indictment was ad Seflionempacis tent, apud B. and fhews not in
-what County, but the County was in the Aiargtn ^ Nor was it Ihewn be-
fore -what Jiifues it was taken. Ruled ill. Cro. E. 738. Hill. 42 Eliz.
B. R. Ludlow's Cafe.
3 . {ultices of P. certified to the Court, that Complaint was made to them^
that R. and S. riotoujly made a Forcible Entry in London, whereupon '
they repaired to the Place and found it true, according to the Complaint,.
and they removed the Forceandfind the Defendants 20 /. This Certificate
was challenged, becaufe they did not fjcw the Time li^heii the Complaint ^
was made to them. Haughton J. asked, to what Purpofe ought it to be
fo alleged, fince this Certificate is not traverfable as an Indiftment of
Force is ? And thereupon it Wiis adjourned ; but it was afterwards rever-
fed, becaufe it is in the Nature of an Indi6"tment of Force, which ought to
have Certainty. 2 Roll. R. 39. Trin. 16. Jac. B. R. Anon.
AConviftion 4. The Poffcf/ion, wherein the Force was committed, mifi le certainly
viMofaFor- defcribed, and is not fufficiently afcertained by the Word Tenement, or a
cible Detain- disjunStve Eiipreffion of Things of different Natures, (ch. 64. S. 37) i Hawk.
^^/•[,f^;^^"|^ PI. C. Ind. tit. Forcible Entry and Detainer. (H). The Book at large
in King Street cites Dal ch. 81. Dal. 15. 2 Roll. R. 46. 2 Roll. Abr. 8o.pl. 6. 3 Le.
intkefarif io2. Co. Lit. 6. 2 Roll. Abr. 8o. pi. 4, 5. I Roll. R. 334. Cro. J. 633.
'■^' w'rt'"'^''' Palm. 277. 2 Roll. Abr. 81. pi. 4. i Buls. 201. 2 Le. 186. 3 Le. loi. Br.
llrJJFor'e, ^OTcih. Ent. 23. 2 Roll. Abr. 8. pi. 7. Cro. E. 458. 2 Roll. Abr. 8o.pl. 8.
out did not
allege whoft
HouCe it was, or where fituate, nor whether forwards or backwards, or up how many Pair of Stairs, (b
that the Shcrfff might not know of what to deliver PoffelTion ; But it was anfwered, that the Court will
not intend fo, but that it ought to appear. S Mod 65 Hill, 8. Geo. the King v. Watfon.
(S) Indiftment,
Forcible Entry and Detainer. 395
(S) Indictment:. Good or not, hy Realon of Repugn
?mncy:
I. TrNdiftmcnt was, that espulit: Vt i3 Armis, &c. out of a Hoiife, (and *-S'i' where
X lliovved all Things re<iuilite to a Certainty) adtimc y ndbiic * in 'J ''''^}i"f;^"[''
quittd Pojjfjjione of J. S. and it was qualhed tor Repugnancy. 2 Roll. R. i,erwn7e>:'e'-
.511. Palch. 21 Jac. Anon. mer.tnm ipfms
J. S. it was
held ill on Exception to it, as repugnant ; For it could not be his Freehold after a Difleiiin ; Becaufe
then the Diffeifor was feii'd, and no Pricipe could be brought againft the Difleifee. Sliow. 2-2. Tr.
5W. &M. The King V. Hayes. S. P. 2 Buls. 121. Trin. 11 Cur. The King v. Skeit Seal.
And after the adhuc E.'<iftens, there was the Wo):(i ExtmUnet, which alfo was repugnant. Ibid.
2. Indi£lment was, that factfice intravertint., S eiim ndtnnc, y thidem S. C'. cited
Vi & Armis di If ei fiver unt., and upon Exception it was qualhed lor the Re- r'^°^'' J-]-- ^
. ,V -^ ' .,, ^ ^ .^ ,r- c- intheCa'cof
pfgnancy. All. 49, 50. Hill. 23. Car. the King v. bimmons. the King v.
Hayes.
(T) Indi6}:menti Good or not \ In Refpsft of wrong or
improper JVords^ &c.
1. A was Leffeefor Tears, Reverjion to B. An Indiftment againll J. S. Upon an Ex-
_/\» was, that expu/it S dijfeijhit B. & qiiendam A. 'Tcncntenl expiilit. t"^""j""''f"
Exception was taken, that a Perfon might be dijjafed, tho' not in poj/ef- f,tion yi^^
Jhm , as a Reverlioner on a Leafe for Years, hut not expulfed j For Privatio that by rhe
prselupponit habicum, and that two cannot be expulled where onJy one Statute S//. 6
was in Poileliion ; and therefore it flaould have faid, that the Tenant oi ^^/"'''"" '■*
the Freehold was dilleifed, and the Termor expuls'd j whereas, here the ^;,(.,.; //.^ <7-j_
Word expulit is apply'd to both. But Clench. J. anfwered, as to the ex- nar.tofthe
pelling the Tenant ot the Freehold, out of the Poflellion of the Freehold, Freehold h ^
that the Pofjefjion of the 'Termor, is the Poffeffion of him in the Reverjion. p'/|r,^"„ "{^^
Godb. 45, 46. Mich. 28 and 29 Eliz. B. R. pi. 56. Anon. that tlic'stat.
of 21 Jac.
inakes no Alteration, hnt only grants Refiitutkn, where a 'termor for Te.irs, SPc is put ok* of PoflTclTiori,
and that in the prelent Cafe it is net fatd, that the tenant of the Freehold was ctijled, hut that the Lejfce fr
Years iViis outted, and compared it to the Cafe above, [tho' it cites not the Book] and re-cites the very
Words, viz. that it fhould have faid, that the Ten.mt of the Freehold was diiTcifed, .and the Le1fcc<;
for Years expelled ; and for this Reafon the Indictment was held to be naught, per Dolben and Eyre,
J. only in Court. 4 Mod. 24S. Mich. 5 W. & M. B. R. the King v. Waite.
2. An IndiSlment was ^ttare intravii in Medietatera Vi y Armis, and
Exception was taken to it, for that it cannot be, and that a Man cannot
enter, without entring into the ^Vhole, fed non allocatur ; For Jones
laid, that if a Man be 'Tenant in common with the King, a Stranger may en-
ter into a Moiety Vi& Armis, and gain a Moiety. Palm. 419. Pafch.
I Car. B. R. Anon.
3. Indiftment of Forcible Entry, into a Copyhold muft not have the ^°'' '^'"^ '''
'Woid(Di£}i/ivit) in it, becaufe a Copyholder h.is no Freehold. Poph. ^l^^ ^^ ^^
205. Mich. 2 Car. the King v. Ployden, & al. 7,,,-. 1 5. and
becaufe the
indictment had (Diflcifivit) in it, itwas quaflied. Ray»;. 6:. Hill. 14. & M Car. 2. the King v. Hardy.
— And cited 4 Inft . 176. .\nd per Holt. Ch. J. upon this Statute, it fuffices to fay, that the Entry wa;
ttiade on aCopyholder cr Lejfee for Tears, and that he tuas expelled. Farr. 1 25 Hill. I. Annae. in the C^afe
of the Queen v. Taylor. The Indidtmen' mentioned Cffiomary tenants, and Exception was taken
becaufe it did OT«J);e«.- the fame to \>e. Seciindi.m ccnjuetudinem manerii ; and for that and other E:;cep-
tions, the Indittment was quaflied. 2 Buls. 121. Tr. 11 Jac. the King v. Skeit and al.
4. The Indiftment was expulfatits where it fhould have been Expulfus i$
fortiori Modo, where it iTiouid have been /cr// Msdo [ManuJ and therefore
the Party was difcharged. Nov. 155 Anon.
(U) Indictment, :
39<^ Forcible Entry and Detainer
(U) Indictment. Good or not, in Rerpe6i: of /Fords
S.'44.'_t— - ^- '"T^^I^ IndiSlment was earn Dijfeifivit, but fiid not, (hdc) but the
Noy. i;c. X i^xception was not allow'di For it lliidl be tutaidcd. Cio. E.
contra. Anon. i86. Tiin. 32. Eliz. Farr V. Eall,
^ 't.r!""'" ^- ■D///t{/^w^ alone, omitting the Word (Expulit) is \\ell enough ; For
iiawk. PLC. I^iiitMfin implies Expulfion. Cro. J. 31, 32. Trin. 2 Jac. Andrews v. Ld
ch. 64. S. 44. Croinwell.
f — ^'^^ **
it wanted ///;a.'e in an Indiftntent on S H. 6, Nov. 125. Watts's Cafe. Cites a Precedent in Lam-
bert's Jultice of Peace. 155.
3. Exception was taken to an Indiftment of Forcible Entry, becaufe it
not fiiid that he was difleifed. But, per Cur. Espidit implies it. Comb.
70 Mich. 3 Jac. 2. B. R. Anon.
A^
(W) IndiQ:ment. Good or not, in Refpect of Om'tjfwn
of Vi ^ ^rmh, &c. and Want of Certainty.
N Indi£Vment on 8 H. 6. wanted Vi & Armis; For it was Paci-
^ce iritravit.yi§ Jinc Judicio dijfcifivii^ ^ a PoJle//io»e expidit ^ a~
viovit ; and Exception being taken to it, it was laid, ilt. That the Entry
being Pacljke^ it was not the Courle to lay it, Vi & Armis. 2dly. That
37 iiT. 8. 8. fupplied the Deleft of Vi & Armis in an Inditlment. But as
to the later, the Court were oi' Opinion, that the Statute fiipplyd only
the Want ot' the \\^ords Gladiis^ Bactilis 13 CultcHis, as are mention 'd in
the Statute. Vent. 265. M. 26. Car. 2. B. R. Anon.
2. Indiftment not alleged to be Mann forti is ill, altho' it was laid
.„, , to be Vi & Armis. Cro. E. 461. 38 Eliz. JB. R. Warner v. Collins,
to^^'uaft a 3- Indiamcnt lliid, th-Athe Entered and dijfetfed Injulte, i^c. but does
Conviction fiot fa}', whether he entered Pactfice or A<fanu Forti, and Exception was
of Forcible taken, tor Want ot" the Word Pacifice, which is uiiaally inferred, where
Entry, be- the Indiftment is Forcible Detainer ; For that otherwile it might be,
"aindl/"^ that the Entry was alfo with Force, which ought to be mention'd ccrr
i^or/;intravif tainly, and every Indi£lment ought to be certain in every Pointy And for
upon reading that Reafon, Gawdy and Yelverton J. held the Indiftment infufficient,
theConvic- but Popham and Fenner conceiv'd it well enough. Cro. E. 915. HilJ.
S"£x m-' 4-J ^^'^- f'tiwilliams Cafe. And the Reafon, v.hy Popham and
travit, which Ecnncr J. held it good enough, was, that the IndiBment maybe upon 8 H.
the Court 6. upon both Branches thereof, viz. ibr the Enterifig "with Force, and De~
faid wasbad; taining "joith Force, or, upon any of them by itfelf: And that, when the In-
be"V^ & A '^'^"''^"'^ mentions that he enter 'd generally, it Ihall never be inttnded to be
mis, and not ^^''^^ -f^o^'^^j tinkfs it be pewn. And an Indiftment, charging any with a
IManu Forti, Tort, ought to be precife in the Point of Charging the Offence or Tort j
>vhich^ are JJut where the Indiftment is not to charge him lor his Entry, but/«- For-
f irf' "^ <^'^le Detainer only, it is good enough; For no Force Ihall be intended,
Idco quafti^- "nlels fpeciallv alleged. And tho' Indiftments ufe to mention that he
cd. II Mod. enter 'd peaceably, it iliall not be intended, but that, without thole
235. Trin. Words, it may be good enough, when it is not to charge him with
f,^"";^^ any Forcible Entry. Cro. J. 20. M. 1 Jac. S. C. Sir Wm. Fitzwilliams's
R.theQucen -, ■^ J J J
v.Baker,&al. ^^I^.
r -s < 4. An Indiftment upon 8 H. 6. was quafli'd, becaufe it was in quoddam
THn zo.Yac ^'^JJ ixifiens Lib. "teiietnent. in, ^c. and did not liy, adhttc exijicns, an(f
S R.Bridgci's . ^ot
Forcible Entiy and Detainer. 397
for that F;iuk, the F;irty u'a^ difchargcd. Nov 131. * Sir Nicholas Po- Cafe.-^Cro-
i^ar's Cule. citee it as ruled iiaordi/is'ly. P. 42 Eliz.. B. R. Roc. 27. •I'-'''' ^'^'v'^
bcansby v. Croxcon. Povnt's Cafe.
& laying;
Exiftens Libcrum Tenemcntum J. B. without faying ttrftitnc Exiftens, wa? ill ; For it rriay be, that at
the Time of the Indictment it was tiie Freehold of J. Q. but not at tlic Time of the Entry. Cro. [
21.;. }>Iich. 6 Jac. B. R. Sir Nidi Poynt'i Cafe.
icr ii
5. The Conclullon of the Indiclmcnt lliould be 'Co/Jtra FvrMani Stc.tiit.. whether
See 3 Buls. 71. Tr. 13. Jac. Anon. the Word
( Statute )wa?
wrote at length, it fhou'd be StatKti or Statuloram- See All. 49, 50 Hill. 25 Car. where this Point was
«Sifterently held by Roll. Ch. J. and Bacon J.
6. In the Conclulion of the Indiftment (Maiiu Forti) and (Contra Co- Exception
ronam S Pdcau Re^isJ were omitted, the fndiftment being (Fortitadnje y'" t-iken,
fc? Potcntia ma^na) but no Manu Fvrti alio ; and becaulc the lame was taken f^jj ■e),f^J^^_
before o;ic J. of Peace ofily^ and yet it did not appear^ upou which Statute hue Iktimt
the Indictment was taken, there being fdvo Statutes, it was quallied, the (which is a
whole Court being clear of Opinion that it was not good. Tr. 12 Jac. '^"''f-' ■^"'^
z Buls. 258, the King v. Cox. S.S'yw
Domini Re-
gis ; but held well enough ; For the Detainer may be vi-ithout Force, and not agaiiift tlie Peace. Cro I.
31, 32. Trin. 2. Jac. Andrews v. Ld Cromwell
7. Soy becaule it did not conclude Contra Pace?n. 2 Buls. 25S. ut fup. But where
tiie Words
(Contra Pacem) were in, and the Words (^CoiTtra Ccrotuim) Omitted, it Was held good. .\ll. 49 Hill. 2-
<.!ar. the King v. Simmons, & a! Tho' Contra Pacem be omitted, yet if the Words // i^ Armh
&c. and co):ti-a Fcrmarii StaUitt^vc there, they imply as minh. per Wtav. t'ro. £. 1 86, Trin. 3 2 Ehi, Farr V-
Eall. But li Contra Forniam Stattui be omitted, the Plaintiti cannot have RtRitutios, per Haui^h-
ron J. i Roll. R. 65. Hill. 16 Jac B. R. Ailings Cafe. ="
8. Exceptions were taken, i'. That the Inquiiition was taken before A. „
and B. JiiJUces of the Peace, and doth not fiy. Nee mn ad diver fas Fclo- (j's'^h"'"
nias, I'ranfgreJ/jones, Sc fo that they have no Power to inquire. Sed non the third Ex-
Allocatur. For, upon this Statute, Jullices of Peace only, the' not Jultices ception, fays
ad Audiend. & Terminand. &c. have Authority to inquire. 2. Becaufe '^'■^'^ ^^i'l^?'*.
the Ejitry is fuppofed, /// unuin Mefuagium Jive Do?mim, which was alleged i^ ij'"^
to be uncertain, as a Meffuage or 'tenanent hath been ruled to be ill. Sed Franktene-
non Allocatur. For it was faid, true it is, that an Entry into a Mefuage men, and
or Tenement, is not good; becaufe Tenementum is uncertain what it is ; ^#//'"™'-"^
but Mefuagium live Donlus, are all one and the lame. 3. For that the !'pSp^^'^'^^ ,
Indiftment is, that he was * Seijitus/tve Pqffejfonatus, which is not certain, tiiofg ^^1.,^°
fsd non Allocatur. For it is of a Mefuage jive Domuni adhnc extfieut. Lite- enter; For
rwn tenement Htn, which proves, that he was feifed of fuch an Eftate, 't intimates
whereof he might be dilleiled; wherelbre the Indictment was good, and \ j*]".^
Ellis fubmitted himfelf to a Fine, &c. Cro. J. 633. Hill. 19 jac. B. R. ""SuaipTJ.
Ellis's Caie. hold vefied
with a Pof-
fejftcn, whereas he might be difleifed, the' he had not the PofTeiTian. As if he makes Leafe for Years,
and the Leifee is oulled. Emmot, Ellis & al Cafe. 1 Hawk PI. C. 14-. cap. 64. S. ;i$. >S. C.
* Indiftment was quafhed, bccaule it alleg'd the Party to be feiled, or Poifeffed, and fo uncertain
which. Vent. icS Hill. 22 and 23 C^ar. 2. Anon,
9. Nota, That it was faid, that an Indictment was avoided, becaufe j^ ^,,.^, pi^j^i
the Perlbns indi6ted were zcithout Additions. Lat. 109. Anon. that a Sck-of-
irrajhr was a
good Addition in fuch Indiftment 2 Le. \a6. P'arnam's Cale.
10. An IndlSinent of Forcible Entry into a Mefuage, See. was by * S P But
Way of Recital, with a ^uod cum^ he' was poJ}i[s\l, Sec. Et fie Pof- hdd^tha[ if
fcffmiatas, i^c. and upon an Exception taken to it, Twitden J. held it j^ ^ad been
well enough. But another Exception being taken, that inlaid, he was Pro teripino
Annoi'Hm,
'5
398 Forcible Entry and Detainer.
without f.y- pcflefs'J, lie qmdam I'erwnio * wicliout faying Jniicrtmi; TwiiHen faid ic
'vunTn'^r. ^'"^^ ";tuglit, and the Indiftmenc was qualhed. Mod. 73. Tr. 22 Car. 2.
it'had been ^- ^- ^^^ ^'"g ^'- Holmes.
■weW enough, i Xcm. 506. Hill. z8 and 29 Car. z. Anon.
II. Exception was t.iken to an Inqiiifition, for faying, PerSacranmitmn
Duoika.m^ k^c Jurat. i3 ImfanclLn. i^c\ without laying yf^/z/wc y Ihdau
jurat., &c. For that if the Time and Place are not fufficiently afcertained,
the Inquilition cannot he good; becaufe the Faft might be committed
abxDve a \'ear pall. But notwithllanding this, and an Authority cited
out of Dy. 68. b. in a Cafe of Murder, it was held not material here to
fhew the Place, &c. For the Party could not be amov'd, lb as to make
the Delendant guilty oi a Forcible Entry from another Place, but from
the Land, per Dolben «& Eyre J. C^eteris abfentibus. 4, Mod. 248. Mich
5 \V. dc M. B. R. the King v. Waite.
Cro J 41. 12. The O lift er pall be intended to have been at the fame Time and Place
■■jcith the Entry., without adding adtunc & thidem. (Ch. 64. S. 42 ) i
D.6S.pl.z8. Hawk. PI. C. Ind. tit. Forcible Entry and Detainer (H) The Book at
large cites as in the Marg.
13. Before the Day of the Indiifment., and before the Jndiii went, in 31
EI. II. have the fmie Meaning. (Ch. 64. S. 56.) i Hawk. PI. C. hid. tit.
Forcible Entry and Detainer. (L)
(X) Indi6i:ment. Good or not. Vmy'ing from the Statutes.
So, where I- TNdiftment upon 8 H. 6. was quod Finemfaciat Domifite Regin^e, ^c.
the luditt- ^ where the Statute is Vniem faciat Domino Regi. And it was held
men. :.'!cg'd, ^y vV^ray, Anderfon, Shutc, Windham and Fleetwood, to be Vitious.
mention'd'^-'ii ^^^ ^^^^ Party put out was reftored. Sav. 68. pi. 141. 19 December, 27
the Statutej Eliz. at Newgate Seffions. Anon.
was by the
Statute "iven DiHo Domiro Repj ; whereas the Words in the Statute are Domino Regi, without the
V\'ord ( DiHo;) this v/as held per tot. Cur. to be a pood Exception, and faid to have beeri fo adjudged
feveral Times before, i Buls. 21 S Trin 10 Jac. The King v. Cole.
2. An Indiftment was upon the Statute 8 H. 6. 9. and the Statute was
recited to be made at Weft'tninjier, hut peived not in if hat County, and the
Indittment was dilcharged, Cro. E. 106. Trin. 30 Eliz. Ealt v. Wilfon.
3 . Inditlment was tor entering in Doraum ReClori.£ de P. ac in certas
Terras etdem Dcmm Pertin jacm'' in P. And Exception was taken, becaufe
it recited two Parts of the Statute (of 8 H. 6.) i. Expuljion and Dilleilin
with Force, 2. Holding out-, and there is no Offence contained in it, as to
one of them, viz. the Holding out ; and tho' it was not necellary to recite
the Statute, yet if the Party meddles with it, and does -not apply it to the
fpecial Matter, it is naught, and for this cites PI. C. Strange \. Partridge.
2. The Entry is fuppoled. In Domum S certas Terras, eidem Domui Per-
tinen. jacen. in P. which is uncertain, as to Lands and naught lor the
Houle alfo. For it is not ihcwn in what Town the Houle is. For this
Claufe, y Certas Terras eidem Domui Pertin. jacen. in P. is a dijltn^ Clr.nfi
of itlelf, and refers only to the Lands, and does not extend to the Houle
The firll Exception was difallovv'd; For it is not like Partridge's Cafe.
-For there, the Statute is recited, which needed not ^ and therefore,
»
being mifrecited, made the Inditlment inlufficient: But here the Statute
is well recited, and therefore, as to the Matter, the Indiilment is fuilicient.
As to the 2d Exception, the Jultices thought the Inditlment, in that Re-
fpeft, too general and uncertain. The 3d. Exception was not allow'd;
For the later Words (jn Putney,) refer to the whole, and e.^tend as yell
to the Houfe as the Lands. But, as to the Words, Lands to the faid Hotife
belonging. See PI. C. 85. b. where it is good enough, becaule the ISFumber of
Acres h fet m certain, i Le. 186. Mich, 32 Eliz. B. R. Farnam's Cafe.
4. In
Forcible Entry and Detainer. ^pp
4- '
tiuuatwncm ,
and upon E.___^ , _ _ ._ „„,.„,
miirecital. Cro. E. 307. Mich. 35 and 36 £liz. B. R. Hall v. Gaven & al. (Feoffment
and Difcon-
tiniuncc), was cniitied, it was, upon Exception taken, held ill. For there is not anv fuch Statute, and
the Mificcital of a Statute is Caufe to avoid it. Cro. E. 697. Mich. 4.1 Elii B R. Eden's Cafe.
5. Indiftment re^itt'd the Statute in the Conjun&ive^ where it is in the Cro. E.69;.
Dil'jun6ti\e, Si ahqais exptdfus fit vcl Dijjcijhus ; yet Gaudy and Fenner p, , p'
J. held it not much material ^ For they are ahv^ays expounded as copula- aen'sCafe.'
tive. And if he be not Expulfus & Dilleilitus, A£lion lies not upon the
Statute. Cro. E. 307. Mich. 35 and 36 Eliz. K R. Hall v. Gaven, &al.
6. Exception was taken, that thelndiftment did not fn, that the Party jianu Forti
entered lliicite S Mauti Firtiy as the Words o£ the Statute direft ; And and Illicite
Roll Ch. J, faid that there ought to be Manu Forti in the Indiclment arenotjEijui-
according to the Statute, to difiinguiflj this Kind of Entry (rem e.n vrdi- ^^J^"Jij '^'."^
nary 7i-efpafs by entering into another's Land, which is not {o violent, as o/the°Sta-
a Forcible Entry is fuppofed to be. Sty. 135. M. 24 Car. B. R. Anon. tuteou^^htto
be precifely
purfued, Otherwileitis ill. Sis 5 Buls. -i.Trin. 13. Jac. Anon.
7. An Indi£linent o?t 15 Ric. 2. mull fliew, that hth the Entry and De- 2 Roll. Abr.
tainer were Fcrcibk ; hut an IndiSment on 8 H. 6. needs only Ihew that 1°; ?'• '°-
one of them was {o. (Ch. 64. S. 40.) i Hawk. PI. C. Ind. tit. Forcible &c"cro^V
Entry and Detainer (H) The Book at large cites as in the Marg. 19, 20, 52!
Cro. E. 915.
2 Roll. Abr. 80. pi. II. Yelv. 99. Cro J. 151. Sid. 97, 99, 414.. 2 Keb. 505. B. 2. ch. 25. S. 2.
(Y) Indidment. Certiorari. And htmi it niuft be obeyed.
I. A was indicted of a Forcible Entry, upon the 8 H. 6. and after- § q ^'^"
j[\« wards the fame Indiclment being in Force, h^yvas indiifed a fe-
cond T'lnie upon the fame Statute, upon the fame Daj, and upon the fame En-
try. Tha Jirjt hidiUment was removed by Certiorari into B. R.. And
tipon the fecond Indiftment, the Jujftces of Peace awarded Refutation., but
before it was esec'uted, a Certiorari was delivered to one of the J. of Peace,
who refufed to open it, and granted no Superfedeas, by which Rejiitutioit
was made. Alterwards the Indi6"tment was removed into B. R. and Re-
refiitution granted per tot. Cur. upon great Deliberation. For the Certi-
orari, commg to the Hands of one ot the J. of Peace, is in itielf a Pro-
hibition to all, and the not obeying the Writ was a Mtfkmeanor, and he
was much check'd by the Court. Yelv. 32. Hill. 45 Eliz. B. R. Fitz-
wiiliams's Cafe.
2. Juftices of Peace may lend the Indiftment into B. R. by Certiorari,
or deliver it per Proprias Mauus ; but not by the Hands of another. Palm.
277. Hill. 19 Jac. B. R. in Ellis's Cafe.
3. No Writ of Error lies on a Convi(Eii£lon of a Forcible Entry, on
the View of the Jultice of Peace; but it may be examined Oy Certiorari.
per Cur. Vent. 171. Mich. 23 Car. 2. B. R. Ancn.
(Z) Co?]viciio}i of Forcible Entry qiiajhed in what Cafes,
and How.
I. AN Inquilition of a Forcible Entry was denied to be qiiafhed,
Jf\^ tho' it had not the W^ords Ad Inquirendum pro Corpore Comitatus,
llnce it is a particular Offence, and at the Suit of the Party by the Statute j
and theReafon, why in Prefentments at the General Quarter Seffions it is
necellarv
4-00 Forcible Entry and Detainer.
noceffiirv to lay Ad Inquirendum pro, &c. is, becaufe their Commilfion is
luch, and the jury mult inquire according to their Commilfion, but liere
their Commijjion is by a Statute; per Holt Ch. J. and the Inquilicion was
confirm'd, per Cur. 6 Mod. 95 Hill. 2. Annse B. R. the Queen v. W'atton.
2. Upon a Coiivitiion of Forcible Entrv, il a Fine be fer, the Con\ iction
cannot be qiinjhcd iipo/i Motion^ but the JMendant muft bring a Wnt of
Error. Oxhtxw'ik \i' no Fine be fet ; tor then it may be quafhed upon Mo-
tion. 2 Salk 450. ]-*afch. 4 Anns. B. R. The Queen v. Layton.
3. A Conviction of a Forcible Detainer was quafhed, becaule the Jd-
judicatiOH was in the Preterperfeff H'euce, initead of the Prefent. 8 Mod.
65, 66. Hill. 8 Geo. i. the Kmg v. W'atfon And lays that in Trin.
T. f)llov.ing, the like Judgment was given for the fame Fault in the
Cale of the King v. Morgan.
r
(A. a) A£l:ion, &:c In what Cales. By ivhom in refpe^i
of EJlate.
'F a Man be oujlcd by Force by him that has La-jofal eiitry^ in fuch
Cafes Cefly que life Ihall not have Aftion ; For the Force is only to
the King as "Vi & Armis & contra Pacem, and of this he IViall mxV&Flne to
the Kuigj but the Party pall not have yklion where the Entry of him who
enter'd is Lawful, per Bab. which was agreed. Br. Forcible Entry pi.
18. cites 9 H. 6. 19.
* Littleton 2. 7'crinor lliall have this Aftion, per Prifot. Br. Aftion Sur le Statute
accordingly, p|_ j^ (,[^(,3 3^ H. 6. 31 But per Needham * Termor cannot have
rev '^ the" this Atlion, but Brian contra, that at this Day Termor may have the
Staftiteiithat At~tion. Br. Attion fur le Statute, pi. 23 cites 5 E. 4. 34.
zior/e Jh,; II
make entry into Lar.ds or Tenements., tinlefi in Cafe where entry is given Ly Laiv, &c. and Lands or Tene-
ments in the Hands of a Teimor [for Years, are Lands or Tenements] as well as in the Hatids of the
Te;;ant ot the Franktenement. Br. Attion fur le Statute, pi. 25. cites L. 5. E. 4. 25.
3. Trefpafs upon the Statute 5 R. 2. ubi ingrelFus non datur per le-
gem lies /or termor ; but fee elfewhere that contra it is of Action upon the
Statute of 8 H. 6. quod expnlit & dijjeij/vit ; becaule /'/ is only for 'Tenant
of the Franktenement, quod Mirum ! lor the Statute in the ancient Book
is expiilit vel dijfetfivit. Br. Aftion fur le Statute, pi. 17. cites 38 H. 6. 4.
4. jind the Baron may have the Aftion alone on 5. R 2. quj;re of 8 H.
6. it feems he may j for he recovers only Damages in the one, or in the
other, and no Land., and therefore all is one, as it feems. Br. Aftion fur
le Statute, pi. 17. cites 38 H. 6. 4.
5. Tenant by Statute Merchant., by Elegit, &c. may have fuch Aftions,
per Brian. Br. Aftion fur le Statute, pi. 23. cites 5 E. 4. 34.
6. If a Man has no Eftate but as Tenant by Reafvn of an F.xectttion, he
cannot prefer an Indi£fment upon the 8 H. 6. becaufe he has no Freehold.
Sav. 68 pi. 141. 19 Dec. 27 Eliz.. at the Selfions at Newgate, Anon.
(B. a) Adions. IP^r'it or Bechriitiou good or not. And
in What Cafes the Writ lliall abate.
I. Forcible Entry the Writ was, that illicite intravit, and not laid I't
i^ armis and therefore the Writ was abated quod nota. Br. Forcible En-
try, pi. 18 cites 9 H. 6. 19.
'2. It is confelfed, that 7-7 expulit y Dijfeijhit, and io of Vi tenet, after
peaceable Entrv is within the Cafe of the Statute 8 H. 6. but thefe words
Forcible Entiy and Detainer. 401
»*■ — ' — — ■ — ■ ' — ■ ^ ' ' — ' — • — ^
adbnc extra taict nre not in the Statute but are at Common Law^ ncvcrthe-
lels note, that it is not uiiuil to make Rcjlitiitioii to the Party, unlefi thcfe
v.ords arc contained in the Verdift, wnerelbre Ellerker pleaded to the
Writ, becaule e>strn tenet is in the Writ and not in the Statute. But
Juyn laid, it is only a Simuife^ as, Alia enormia, and fuch like^ therefore
the Writ was av\arded good. Br. Forcible Entr)-, pi. 13 cites 14 H. 6. 16.
3. It \vas agreed, that if it be, quod /;/ trcs Aras ingrellus ell, and uot
f.'.hi ipjiiis qtierc/ii.'s, the \\ rit is not good. Br. Aftion Tur le Statute, pi.
15. cites 57 H'. 6. 31.
4. P'orcible Entry, the Defcndnut in another 'Term demanded J.'idgviciit of g,. Count.
the County bcccvfe the certainty of the Land^ as 12 Acres ot Land, 4 Acres pi. 54. cites
of Meadow, &c. is not alleged y and therefore the W rit was abated and S- C- — -
cannot be amended ; For it was counted of another Term ; and fo fee that g ■ f ''^,'^,'f
tor Defiult in the Count, Judgment jb all not be that the Count Ihall abate, cites L'c.— "
but that the Writ pall abate. Br. Briel^ pi. 247. cites 38. H. 6. i. Ticipfs up-
on 5 R. 2.
that the Defendant er.tcreci ir,to divers Litnds aiid ^evemeyiis of the PUi/ififf hi D. &c. and per Dauby Ch. J.
and CatCbbv, this Writ is not good, into diverfe Lands, &c. tor the Ivcertainty, tho' he declares the Cer~
t.mity in the Count; Pigot, and Comberford, Prothonatory laid, tiiat there are levcral fuch Writs in
Chancery, and feveral fucli Precedents in C. B. And after the Defendant pilTed over and pleaded in Bar.
Br. Brief, pi. 34S. cites 4 E. 4. iS.
5. In Forcible Entry, becaufe the Defendant oiijted the Plaintift' of the
Land "jcith Force, t? dijjctjivit ^ adhnc extra tenet ; and Exception was taken
to the Writ, that the Statute is in the Disjtmcfivr^ viz,, where a Man
difleiies another with Force, or enters peaceably and holds with Force ;
and yet the \\ rit was awarded good ^ and it is laid there, that 20 H. 6.
and 14 H. 6. agrees herewith. Br. Forcible Entry, pi. 15. cites i E. 4. 19.
6. Trefpafs upon 5 R. 2. by Baron and FerM ; Catesby prayed Judg-
ment of the Writ ; for the Baron has nothing but in Jure Uxoris, and the
^V^it is, that the Baron and Fevie entred into the Manor , where it Ihould
be the Feme enter'd into the Manor ^ &; non Allocatur, but the Writ
good. Br. Brief, pi. 345 cites 4 E. 4. 13. F -i i c
7. Trefpafs ubi Ingrelius non datur per legem iu the Manor of P. in A. ^ '"■"•>'£ im-
B and C. Littleton laid that one Acre Parcel of the Manor is in P. not Mamr of'o.
named \n the Writ, Judgment of theW^rit ; and no Plea, by clear Opinion and did mf
of the Court; for the Plaintiif does not make his Plaint but of entry in- f^y in-xhat
to the 3 Vills, and lliall not recover Damages but in thole 3, and not in "'''j^ p .•
the 4th. and if he gives the A'fanor in the 3 that which is in the 4th. does ^wy be a
notpafs, and foci' a Fine of it in 3 Vills. Br. Brief, pi. 330. cites 5 E.4. 103. Vill, andfo
tliis is well
known. Br. Brief, pi. 455. cites 19H. 6. 49^
8 'Tis agreed, that if the Plaintifl* declares that, the Deiendant '■jjith S. P. Br. .
10 Perfons entered ; it is not good without laying with 10 Perlbns tgnotis, Plcatl'ngs.p''
quod nota. Br. Forcible Entry, pi. 24. cites i H. 7. 19. C. imlefsht
9. Trelpafs was brought tor Fjitry into, &c. fuch a Day, and detain- fiews their
ing the Pollelfion, to the Time of exhibiting the Bill imthout alleging any Day Names,
when the Bill ivas exhibited. Atler Verdift for the Plaintiff^ it was moved
in Arrell of Judgment, that the Time of the Detainer ihould have ap-
peared to the Jury ; For they ought to give Damages, according to fuch
Time, and his Lois thereby, and the Appearing thereof of Record, is
not fulficient, and of that Opinion was Doderidge J. and Broome inform-
ed the Court, that the Courie was to limit a Day certain in the Declarati-
on, 2 Roll. R. 135. Mich. 17 Jac. Slilord \. Goodrick.
5 K , (C. a) Pleadings,
A02 J"ortib!e Entr\ and i3ctjiner.
(C.
a) Pkad'r,?gs. Good or not.
on, thurc it -'
oui'lit to be
r.iit if tU: i.r^l^Refpafi upon sR. 2. the Dejhiclcrfit fd'ui^ Thit his Prcdccejfo)-^ Maf-
7bi''KH,,'Lu-- ^'l-J''-"'' '"i"-^ o^^<^ Colour^ and "held no Plea, becuulc he did not Jhfju the
Yoniiddtiov^ and that he ivas E/effed and ProjcJJ'cd Mdjce-r^ quod nota, by
which he amended his Pica, and faid, that he had the Hofpital of St.
cxpivflc-d, John, imorporatud cf Aliifter^ Brothers and .'■)ijhrs T'lmc cut 'f AJujdy and
ari'tvd ^ Br ^'^''"^ ^^^y ^f^^ '•fi^"'' ^^^^ ■^'^"^^ "i '■'"'"y ■'^^^i/fc'; that the Brothers and Sijfers
Action Sui- fhoiild ihcofe another Majicr^ and that A. late Majhr^ a'^j fnfed and died i
Ic Statute, pi. and that this fame Defendant.^ before the Entry ^ t?r. ivas elefied Atafer ly
♦*. cites 54H. the Brothers and Sijlers, and enter d, &:c. as above, and well;, ivithoin es-
■"'■ P''-'ff''i^ the Number of Brothers and Siitcrsj For the Corporation v.as
made before Time of Memory, and peradventure no exprels Number.
.. .. Br. Action Sur le Statute, pi. 9. cites 34 H. 6. 27.
C>//)-/r, iflic 2. Trefpafs upon 5 R. 2. Feoffment of the Moiety of the Land ivha-e, &c.
Miety per my ^"'•' g'^''ng Colotir \s no Plea J For it may be ot a Moiety fevered. Br.
gp/^o- tout; Action Sur le Statute, pi. 43. cites 38 H. 6. 8.
For otlier-
ivifc it U no Anfiver, v/hen the Plaintiff makes his Plaint of entry into the Whole, if the one Moiety
be fevered. Br. Action Sur le Statute, pi. 45. cites 5!) H. 6. S.
And thefamc 3. Trefpafs upon the Statute 5 R. 2. the Defendant faid, that the Place
L^w"^"^ [""■ is 20 Jcres^ wJiich is Parcel of the A^fanor of B. ichirh is his Vranktene-
Timeof^H ^^"-'''t-, ^"d per Choke Jultice, it is no Plea in this Aftion. Br. Atlion
x.FortheDc- Sur le Statute, pi. 27. cites 2 E 4. 6.
fendaiit
ought to intitle hinifclf to a lawful Entry; for Dijfeifcr kis Fi-ankteuavet-.t, and yet lie entered vhcrc
intry is not given by Law. Ibid ■ ♦ Br. Action Surlc Statute, pi. 4.0. cite.s P. 23 H. S. accordingly,
per Sherwood and others.- S. P. and the Reafon feems to be, becauie this Plea n:.iy he true Ly Dijfeijiit ;
and the Action is to try the Title of Entry. Br. Acl:ion Sur le Statute, pi. 5. cites z- H. S. 26.
'* S. P. in 4. In Trefpa^ uhi ingreflus non datur per legem, or in Trefpafs of
Trcfpaf.^up- Forcible Entry ;« J. B. and C. it is no Plea to fay, that C. is a Hamlet tf
for Entry in- ^- Judgment i^f the ^V"rit; for nothing is to be recovered but Damages in
totlie Manor thole Aitions ; but it was laid, per Jenny, that to fay, that * Nhfiich ViJl^
of£. atE. Hamlet J nor Place known, &c. is a good Plea in thofe Aftions, but th&
fcut It does £f|^ y\qx is a good Plea in an Aifion tnir.hich a Aian fldall recover the Land;
ivIicihe^'Tic ^""^ ^'^ ^xW not demand a Thing 'twice j but in this Aftion nothing is to
concluded to be Recovered but Damages ; and after the Defendant was awarded to An-
the Writer fwer j quod nota. Br. Brief, pi. 329. cites 5 E. 4. 88.
in Bar. It
iccms that he nte}:t to conclude to the Writ ; For after he pleaded to the Writ, lecnuff t--^-o Ares P.ircel of
the Manor exttthied into C. another fill ; and therefore it ieeins that the one Plea and tlic other were to the
Writ. Br. Barrc, pi. 40. cites f)£ 4. 5.
Biitivh ■ th ^' i" ^" A.clion upon the Statute 5 R. 2. 7. the Tkfendant faid, that
Defendant ^^ it'asfeifed, till by B. diffeifed, who enfeoffed the Plaintiff, upon ichom he
TieaJs Bar, entered peaceably, ihc Plaintiff faid, that B. did not difjeifc him. Prill, &c.
^nd 7jies Co- Per Fairfix and Catesby, the Plaintiff' ha'i not made 'Title to himfelf, there-
thcPldmiif ^'^'^^ ''^' ^^^ P^*^ Pigot and Jenny, the Defendant has given Title to the
cHpJit to make Plaintiff in his Bar, and therefore 'tis fufficientfor the Plaitttiff to maintain
T^tie. Br. /'/. Br. Trefpafs, pi. 188. cites 9 E. 4. 49.
Trefpafs,
pi. 188. cites 9E. 4. 49
Br. Barre.pl. 6. Trefpafs upon 5 R. 2. of entring iiito 20 Acres in D. the Defendant
SMbib}citesy^^-^^ thdtA. Was feifed of 20 Acres tn S. and injcoffed him,by which he enter d,
and gave Colour, &c. Abfquc hoc, that he entered into the 20 Acres of Land
in D. and a e;ood Plea to make the Vill parcel of the Illue, for invei-
gling ofchc )ur\-, and agood Replicatien, which was ackihwk.i^td by the one,
and
Forcible Entry and Dctamci'. z|.o^
arid by the othcr^ which was agreed by the Julliccs. Br. Action Sur Ic
Statute, pi. 32. cites ii E. 4. 9.
7. TrcfjKrfs iipou the 5 R. 2. the Defendant fjid, that the PL^'mtiff hud ,- i(ep.6i b,
a}iothcr U'nt pc//di//g (/ the fa,iic Entry upon the Sr^'tift-- S H. 6. and averred, ing^yarnt's
that all was of one and the lame Entry ; and no Pica per C.uv. beeaule, (J;i'i-,i-'vstlie
nothing is to be 'Recovered but Daumgcs and no Land, as in Precipe quod red- ti,^^''^'",'"
dat^ and diNerfe Entries may be made in one and the lame Day. Br. -wiiidias in
Erief, pi. 317. cites 5 H. 7. 15. iLiinsthcR;-
[■ortci- inif-
tookl iv3« urtorly rlcnieci by tlie Court, wlicrc it i^ f.ii>t, tliat bccaufe divei-rc Trelp.iflcs ninv be done ia
one and tl;c liime Dav, therct'orc it is no Pica (as it is tliftc iiiid) in TicljMfs, that otlier Action is p^nd-
ihf;, &c. for tiie fame Trelpafs ; For bv the liime Rea'on, after the Flaintift h.is recovered in Trefpaf-:,
and brinj^;; Action for the fame Trtipafs again, tlic Defendant cannot aver, that all is for one and th«:
lirnie Trcfpais.
8. In an Aftion upon the Statute 5 ]?. 2. the Defendant jhall not plead by So Aclion
a Name ; lor there the certainty oj litres is coiuprifed lu the Writ ; contrary 'i.r"^^ ^''^
in Trefpals, per Bryan and Choke Jullices, quod Catesby conceliit ; bat H"6"of°/;-
by him, ivhere the Plaintiff [:_!i<es A'ame inhi>s Count, ihc defendant vtaycary „.y ^^,,^ ^ '
from it, and lb note a Dnerlity. Br. Treipals, pi. 360. cites 21 E. 4. 80. limfc and 20
.-teres of
Land with the Services, the Defhidatit flejded in Bar, a>id gave tie Aires a Name, and was rut fnfferedto
f»ive Name no more than in Aflitl- or Precipe quod rcddat, becanj'e the Plaintiff has grveii certantty in his
DecLvation, and fo the Defendmt fliall plead to it at liis pcriK; as in Writ of Entry in Mature of Aflile
he fnall not [;ive Name. Br. Pleadings pi. 1 54 cites 5 H. 7. 2S. — Br. Action fur le Stat. pi. 11 cites S. C.
■ Br. Trelj afs pi 2-7 .cites S. C.
9. In Forcible Entry, the Defendant pleaded a t)eed of * Feoffinent 'u;ith * InTrefpafs
Warranty of the Jncejior of the Plaintrff ifhofe Heir he is, 3zc. and tlie "/^""/^cld'
Plea good, per Town lend, but Brian e contra. Br. Forcible Entry, pi. no Ple.-i, not-
31. cites It H. 7. 15. ^uchlfanding
that it be
pleaded h Deed, quod nota Br. Aftion Sur Ic Statute, pi. 20. cites i H. 7. i2.
10. In A6l?on upon the Statute of 8 H. 6. of Forcible Entry, or in
Treipals upon 5 R. 2. ubi ingrelfus non datur per legem, Aon in'^rejf/is ejt
contra forinain Stat/iti, is a good Plea. Br. Action Sur le Statute, pi. 40.
cites P. 23 H. per SheruoMd and others, c p a ^ -
11. In an Action upon the Statute 5 R. 2. in Trefpals, it is a good Plea, i^.^„^^^^
atioJJ, thai
2&
that the Defendant was /iv/fi^ ti/l by the Ptaint/Jf dijjetfedj upon whom /^^ ^/;,-Jr,„,, f,„-
entered ; f )r the Defendant lliall nt)t be compelled to make Title to him- the Piat/.tiff
lelf unlefs he will, per Fitzh. Arg. Br. Treipals, pi. i. cites 26 H. 8. 4. — was feijed till
but cites 27 H. 6. V contra. But 21 E. 4. fol. 74. is accordingly, if he "'' ^f '«''""
fays, that it is thefnne Trefpafs, Sc of zvb/rh the Plaintiff brought his Jc- formam Sta-
tion, and herewith agrees 5 H. 7. fol. 11. and 9 H. 6. Ibl. 32. and 27 H. "/;///, Jifyne
6. lol. I. and in 15 H. 7. Ibl. 11. it is a a;ood Plea tor the Defendant, that '■""". '''•" ^'f
J.tnfeofftd him, by -jchich he was feifed^ till by the Plaintiff diffeifed upon '^l'}"''^^"'
whom he entered, but there he made Title; contra fupra. Br. Trefpals, Action Suf
pi. I. cites 26 H. 8. 4. le Statute, pi
12. It lufTices upon the Statute 21 Jac. i. 15. that entry was made on a 'cites z<-
Copyholder or Lejjeefor 7'ears, and that ha was cspelled; but upon the Statute ' ^'■'
8 H. 6. 9. you muit alvs-ays allege a Freehold and Seifm in l()me Bod\' ;
and if it be an Entry upon a Lelfee for Years, you mull lay, that the E,n-
try was made c« the Freehold of j1. in the Pofefjion of £. and that ib he dif-'
feifed ^-1. and of NecefHty there muft be a Dilleifin of the Freehold laid,
■ and upon Reltitution tlie PoUclfion is reitored to the Lelfee, and the Free-
!hold to the other, and on this Statute, Dilleilin is a Term of Art not to
ibe fupply'd by any other \yord, per H()lt ; and Rule abfolute, per tot. Cur,
Farr. 123. Hill, i Annae B. R.f.^ieen y. Ta\lor. Poph, 205. Anon.
.was a Caie upon the Star. 21 Jac. i. 15. per Holt ibid.
(D. a) Pleadings.
zj-O^i- Forcible Entry and Dctaiiiei
*,Sce(0 )
pi. I.
(D. a) Pleadings. * Kot Guilty^ &c. In what Cafes it
s. p. F. ■n:. b.
* The Words
in largerEdi-
tion of
Brooke is
(itetcnt) and
111 both the
<.ither Editi-
ons is(defens)
:but the Year
Book is (dil-
cent,) .
13 a good Plea.
OTE, on an Indiftnient of Forcible Entry found before Juftice^
_ of Peace and rcmo\ed hither on the Statutes 5 Eliz. and 15 R. 2.
the Party pleads, as to the Entry with Force, Not Guilty, and he was
forced to anfvver to the Entry, wherefore he juilified the Entry. Hale's
Notes on F. N. B. 248 (H) cites 7 H. 6. 13.
2. In Aclion for a Forcible Entry, Not Guilty is a good Plea. Br.
Forcible Entry, pi. 13,. cites 14 H. 6. 16.
3. Trcfpafs upon Forcible Entry againft E. D who fiiid that J.N. was
feifed in ice, and leafed to the Dejendaiit for Life., and by this he was leifed ;
iind the Plaint iff'., hy Colour of a Deed., ^c. made hy J. N. zvhere nothing
faffed, ^c. entered upon him, and he re-ouffed peaceably, c.bfque hoc, that the
£)elcndant ou-fted him with Force, or detained with Force, and Ihewed that
he in Re\erJion was in Ward of the King, and prafd jiid of the Kingy
and by the belt Opinion, becaufe he is Tenant for Life, and has Frank-
tenement, htjhall not have Jitd in Trefpafs of the King, nor of a Common
Perfon ; by which the Defendant pleaded Not Guilty, and 'twas admitted a
good Ilfue j for 'twas argued, whether he Ihall have it or not, and at lall
"twas admitted for Plea and well j For 'tis faid clfevvhere, that in J'fjife
and Trefpafs the Defendant may ^vaive the Pleading and plead the general
IJfite. Er. Forcible Entry, pi. 6. cites 22 H. 6. 17.
4. Trelpafe of P'orcible Entry by G. againft K. Prioreft of B. and count-
ed, that he diffeifed her withForces, and yet detains zcithForce ; the Defendant
pleaded, that the Plaintiff was feifed of the fane Land the Day of the Writ
furchafcd. Judgment of the Writ, & non allocatur; for per Moyle, /»
Replevin, and counted quod ad hue detinct, it is no Plea, that the Plaintiff is
feifed of the Eeafts, and was the Day of the JJrit purchafd. Per Newton,
the Plea docs atnotint only to quod non detinet with Force, which is no Plea,
by itfelf, nor to fay, that he did not Difjeife htm with Force, Br. Forcible
Entry, pi. 8. cites 22. H. 6. 37.
6. And in Trefpals of Grafs fpoyled, it is no Plea, that Non depafoic
herbas, &c. but Ihall fay. Not Guilty, by which he was ruled toanfwer,
wheretore be faid that D. his Predeceffor was feifed in Fee in Right of
the Church, till by J. S. diffeifed, who enfeoffed AL whcfe Efiate the Plaintiff^
has, and the Predeceffor died, and his 6'ucceffcr entered peaceably, alfque hoc,
that he entred with Force, or detained with Force; the Plaintiff, Pro-
teflando, that he did not confefs any Thing by the Defendant alleged, proplacito
[laid] that M. his Mother was feifed and died feijed, and the Land defended
to the Plaintiff' who was feifed, fill by the Defendant, with Itrong Hand,
ouftcd the Defendant Proteltando [that] he did not conlefs fuch *Defoent,
proplacito [faid] that the Defendant made continual Claim, in which time
M. died, by which the Proteftation was ouftcd as being repugnant ; for
he confeffes and avoids the Defocnt by the continual Claim. Br. Forci-
ble Entry, pi. S. cites 22 H. 6. 37.
6. In Trefpals upon 5 R. 2. 'twas adm.itted, that Colour fliall be given in
this Aftion, as in Trefpafs, and the Defendant may plead. Not Guilty, and
fo to Iffue, and admitted there. But 'tis laid at this Day, that it is no Plea,
hnt pall fay, tha.t Non ingrcjfis ejl contra formam Statuti. Br. AilionSur
le Statute, pi. 29. cites 3. E. 4. i.
7. Trefpafs upon the Statute of" 5 R. 2. againjt A. B. and C. ^\ hich B.
came and pleaded Not. Guilty ; and lb fee that Not Guilty is a good Ilfue ;
and yf. ^nd C. came and /aid, that one B. was feifed, and, a long Time before
that the Plaintiff' any Thing had,infeoff'ed the faid J. andC. and -gave Cohzir
to the Plaintirt; and the Plaintiff' faid, that this B. is the fame B. which is
wne of the Defendants, and they make Title of their own Poffejjion, and yet
good 3 for two may make Title bv the third as well as by a Strrjiger, and
" :. 2 ' ' it
Forcible Entry and Detainer. z|.o5
It is well i For there is no Reafon, that the Name ot"the FeoHor, put in the
Writ by the Pkintili' lliall oult the Detendants of thei;- bar. Br. Aftion
fur le Statute, pi. 36. cites i E. 5. 4.
(E. a) Pleadings. * Juflifjcatmh In what Cales it is a *see(F.a)
good Plea. p' 5
I. TN A£lion upon the Statute 8 H. 6. the Defendant pleaded that the
\_ rranktenefnenT^ at the I'imc of the Entry fttppofed^was in J. N. and that S.P. inTreA
ht^ as Servant to J. N. and by his Comnandmcnt^ entered peaceably^ Abfqtw ^^'^^ upon the
hoc^ that he entered with Force ; but this was held no Plea per Cur. and he ^^^atyfc j« a.
Ihall inake 'title ^ becaufe the word Dtjfeifiiut fuppofes Franktenement at the ^^^^ faid""
Time &c. in the Plaintiff Br. Forcible Entry, pi. 13. cites 14 H. 6. 16. that the '
Place where,
&C. is the Franktenement of J. N. and he, by his Command, enter'd, and Littleton and Danby Juftices held
it no Plea ; for the Aftion is given by the Statute, and therefore ought to have a fpecial ^nfiver, and not as
in general (frit of 'frefpaft. Br. Attion Sur le Statute, ph i 5. cites 57 H. 6. 51.
2. T^'hereiipon the Defendant pleaded, that J. N. was feifed in Fee, till 'p,.gc ^^^ ^
by the Plaintiff dijfeifed, by which the Defendant, as Servant of J. N. and on 5 R'z.by
by his Command, entered peaceably, jibfqtie hoc, that he entered with Force, A. The De-
er Diffeifed him with Force ; and per Juyn, if he had faid Jbfque hoc, that J^"'<^"ff^'d,
he diffeifed him with Force, it had been a good Plea. Br. Forcible Entry, z/^'^..^,./"'^
pi. 13. cites 14 H. 6. 16. feife7, till by
the Plaintiff
diffeifed, upon whom, the Defendant, as Servant to them, and by theirCommand, enter'd ; the Plaintiff faid, that
1'. -Jjas feifed, till by the f aid R. and IV. diffeifed, -which R. andpf'. mere feifed, till by the Plaintiff dijjeifed, tip-
on ivhom V . re-enter'd and infeoffed the Plaintiff, by ivhich he was feifed till the Defendant did the Trefpafs ;
and by this the bar is confeffed and avoided. Br. Confefs and Avoid, pi. 4,8. cites 1 1 E. 4. 5.
3. In Trefpafs upon $R- 2. the Defendant faid, that the Plaintiff, in the Aftion upon
Court of J. was * attached for taking Beajts, and Diflrefs awarded, and the ^^^ Statute 5
Bailiff prayed the Defendant to aid him to ajijl the Bailif to dijlrain the gre«ns non"'
Plaintiff in the Place where the Entry is fuppofed, who did fo, which is the datur per le-
fame Entry, dec. "and per Afhton and Needham Juflices, this is no Plea; gem, theZ)e-
For by fuch entry he claims no Interefl in the Soil, and therefore he does fi>'dant jhew-
not confefs and avoid, nor traverfe ; by which he faid Jbfquc hoc, that he pieJI^^^^
entered in any other manner, and then a good Plea, per Chocke, for the f„ea, and re-
Inftruftion of the Lay Jury if general lllue fliall be joined, but Afhton turned that
and Needham contra ; for per Needham, it Ihall be Abfque hoc, that he ''-^ ^^''^^ ,
entered as the Writ ftippofes ; contra Afhton, therefore qusere. Br. A6tion ''"„„! iv'tT'f-
fur le Statute, pi. 30. cites 4 E. 4. 13. r.am vias'a-
warded, and
he, as Servant and Officer of the Cciirt, evter'd andftiedthe Jf^ithernam, .^bfi,;(e l.oc, that le ftied as the Writ
fhppofes, and by the Opinion of the Juftices, this is a good Plea. lir. Action Sur le Statute, pi z;.
cites 5 E. 4. 34.
4. Trefpafs upon 5 R. 2. the Defendant jiiff iff d for a Way ;and per Brian
and Needham, this is no Jultification ; becaufe he claims nothing in the Soil
of Interejl, as Leafe fur Years, &c. nor any Manurance, but Catesbv con-
tra, quaere. Br. A6tion Sur le Statute, pi 31. cires 8 E. 4. 8.
5. In Trefpafs upon $ R- 2. Ubi ingrefTus non datur per legem ^T 3.
Defendant pleaded a Recovery of the 3d. part of the Moiety againft one of the
Plaintiffs, and Execution had; and 'tis a good Bar. Br. Barre, pi. 83.
cites 18 E. 4. 28.
6. The Defendant jiijlified his Entry by Common Appendant, Abfque hoc,
that he diffeifed the Plaintiff'. Per Fifher, this is no Plea ; fbr Claim of Com-
jnon is no Property in the Land, but per Keble contra j For Common is In-
terefi in the Land ; contra, if he enters to fee Waji, or to dtjirain, or if he
enters as Sheriff tofervc a Writ, but to enter to ha\'e Common of' Efto\ ers
S L or
406
Forcible Kntrv and Detainer
or of Turbary is a good Plea, and Co was the Opinion ot" the Court. Br.
Barfc, pi. icp. cites 10 H. 7. 9.
♦Of/" .(bote.) 7- Conjirmutioii idth Warranty is no Pica in an A6"lion upon the Statute
of 5 R. 2. For the Atlionis tn the Perfofiahj^ bur he is * put to Writ of
t All the Covenant; and where 'tis pleaded by way of Covenant, f he cannot
Editions of y(3m;h by it; for the Warranty is Perfonal. Br. Bane, pi. 5 c. cites 21
Brooke have ,t "^ t-- o -u j m 3 r JJ
the Word H. 7. 32. per Pineux &c Brudnell.
[Car] or 8. The King grants Ctijiodiam Cafiri to A. and after grants Cajlrnm to
[Forj £ and his Heirs ; B. lends his Servants to prepare his Lodgings, &c. A.
Ihuts the Door. The Servants of B,. break it open and enter. ThePoHeffion
ot"A. was held the PolTelfion of B. and this can only beTrelpafs toB. their
2Viaiter j and the Commandment of B. is a good Plea to an Indictment by
A. Mo. 7 87. Mich. 4 Jac. in the Starr Chamber. Ludy Ruilcl v. Earl of
Nottingham.
(F. a) Pleadings. Traverjc in what Cafes.
i.TF the Defendant doth ^lead Matter in Bar, yet he mighty in the end
\_ ot his Plea in Bar, to traverfe the Entry with Force which is alleg-
ed, as to iiiy Abfque hoc, that he did enter with Fmxe, &c. but )et the De-
mandant or Plaintiff ought to anpwer to the fpecial Matter alleged in the Bar^
without anfvvering to the Traverfe with Force, &c. F. N. B. 249. (D).
SeefE a) 2. Forcible Entry, fuppo/tng him to be did'eifed with Force ■., tlie Defen-
pl. 3. datit co}i-veyed himfelf m by Difcent, by which he entered peaceably, Abfqtie
hoc, that he entered with Force, or detained with Force, and no Plea j tor the
Plaintiff alleged diffeilin with Force and not Entry with Force, and alfo
the Plaintift" did not allege Detainer with Force, and the Defendant cannot
traverfe that which is not alleged by the Plaintiff; by which he faid, that
• he did not dilieile with Force, nor detain with Force. Per Newton, this
is not good ; for it is two Matters ; by w'lich he fiid. Not dilleiled with
P'orce, Prill; and the others e contra. Br. Forcible Entry, pi. 12. cites
14 H. 6. I.
9. The Defendant faid, that y. and S. were feifed, and thereof infecffed
'T. and P. in Fee, and he as Servant, Sec. entered peaceably, and gave
Colour to the Plaintiff, Abfqiie hoc quod tntravit manuforti ^ iffum espulit
i3 extra ten nit modo ^ forma front, Sc and did not traverfe the Dtffeijin, and
yet well, becaule dilleilin cannot be but by expullion, and therefore this
word expulit anfwers to-it. Br Forcible Entry, pi. 24 cites i H. 7. 19.
4. In Forcible Entry, if an Abatement be alleged, and Gift in 7'ail by the
Abator, and that the Donee died feifed; the dying felled is traverfable and
not the Abatement ; for the dying feifed takes away the Entry. Br. For-
cible Entry, pi. 26. cites 3 H. 7. 8.
5. The Court held, that tho' the Conviftion was only of Forcible
Detainer upon view, yet it was trnverfabk upon the 8 H. 6. 9. hy him that
had been 3 Tears in quiet Poffeffton, as well as upon a finding by Inqaijition ;
and that, becaufe the Party is to be imprifoned. i Salk. 353. Pafch. 4 Anna;
B. R. Queen v. Layton.
(G. a) Pleadings. Mo?iftra?2s or Profert of Deeds. In
what Cales.
i. ^"Y^Refpafs upon the Statute of 8 H. 6. the Defendant pleaded a Gift
\^ tn Tail by an Abbot and Covent to A. B. the Remainder in -Tail to
J. S. and after A. B. died without Iffue, and J. S. entred and died, and
one N. entered as Heir in Tail to the faid J. S, whofe Eltate he hathj
which
Forcible Entry and ^Detainer. 4.07
which N. is yet alive, and givaCo/cni- to the Plaintiff^ and per Littleton,
Choke and Brian J. the Defendant who pleaded ought to Ihcvv the Deed
ol'Giit j tor an Abbot and Covcnt cannot give but by Deed ; and the De-
fendant ought to ihew the Deed. Br. Monltrans. pi. 60. cites 15 E. 4. 16.
(H. a) riliie. Of what the Iffae iliall h-.
i. rnpHF JJ/m in Forcible Entry of entring with Force, and detaining
^ with Force, pal/ be akvays upon the 'Title, and not upon the Force ;
and vet both Ipeak of the Force ; but if the Title be found againft the
Defendant, he is eo Fafto convifted of the Force ^ and if the Title be
found for the Defendant, he is excufed of the Force, quod Xota j ibr io it
is put in Ure. Br. Forcible Entry pi. 5. cites 21 H. 6. 32.
(I. a) Verdi(ft. How the Jury may find. Supported or
intended by it, what j or what is a fuffieient finding.
I. TTN Forcible Entry againji t"Ji'o, who pleaded not guilty, it was
JL found that the one entered with Force, and the other held "joith Force ;
and the Plaintiff recovered againll both in luch 2 Writ in B. R. per Green-
field, which was not denied. Br. Forcible Entry pi. iS- cites i E. 4. 19.
2. Trelpals upon 5 i?. 2. ihQ Defendant faid, that Non ingre[fus e/t contra .
For^nam St at lit i ; and 'twas found, that in 2 Pcirts divided from the third Suti'^hth.iii.
Part Non ingrejfus efi protit, Scc. the Defendant alleged in. jrrej- of Judg- f^fj'f, .^''J^j'
ment, that it pall be intended, that the Plaintiff and Defendant, by this Ver- he niifht
di£l, are Tenants inCoimnon ; and then this Adlion does not lie by one Te- enterintothe
nant in Common againlt another; and upon good Argument it was agreed, ^^'^'"'- ; ^'^^
that it p} all net be fo intended; by which the Plainulf recovered j quod ^11^"^ *^
Nota. Br. Aftion fur le Statute pi. 34. cites 21 E. 4. 10. ttrAtd brfcye
Parliiij/i. Br.
Aftion fur le Statute, pi. 54. cites 2i £. 4, 10.
3. Forcible Entry upon S H. 6. the Defendant pleaded Not guilty, and
'tis Jound, that the Defendant difeifed the Plaintiff peaceably, and detained
with Force; and the Plaintiff recovered, per Cur. For the Statute is in the
Disjunctive; and if the one Point or other be found, the Plaintiff Ihall
recover. Br. Forcible Entry, pi. 14. cites 6 H. 7. 12.
4. Indiftment'on 8 H. 6. that he entered with Force, and dtffeifed H. '^y{.\'^'^J-'?^
with Force, and held him out with Force. The Bill was found ^uoad the mf-t^uti/
Detainment with Force, and thereupon Rellitution was awarded. Upon Pe.n-e.ibiet.7i-
removing the Indi£lment, Exception was taken, that the Indi£iment was tryamiFor-
ill ; For it is not found that he entered peaceably, as it ought, according to "bt^D^taimr;
the Words of the Statute. And of that Opinion was the whole Court, f^yg it^^vas
Cro. J. 151. Hill. 4 Jac. B. R. Ford's Cafe. Yelv. 99. S. C. mo\^d,that
no Rellituti-
on fhall be, part of the Indictment being found to be falfe. Buttlic Court held clearly, that inalrnuch
as the Jury had given their Verdicl as to loth, tho" the Detainer be found peaceable, yet the Indictment
is t^ood. Olbcrivife if' they had j^iven to t'erdict as to the Detainer, but had omitted it ; For there it fhouM
be ill, and no RelHtution fliould be, according to Ford'j Cafe. I Sid. 99. Hill. 14 & 15 Car. 2. B. R.
The King v. Sadler. 1 Keb. 427. S. C.
5. Indictment laid, that they, Ma»u forti, entered upbn thePoffeJJion cf f. TheConcIu-
S. the Farmer of J. B. and diffeifed J. E. and him fo diffetfed extra tentiit ^f^2-°\^^
till the Day of the Inqaifition. Upon Exception taken, it was agreed per ^here'a Lcf-
totam Cur. that the Indiftment was infuAicient, becaufe they have not fee for Years
found that J. S. the Farmer was amoved and expulfed, which is the Force ofis oullcd
all the Maaer; For the PolIelBon cf the Farmer or Termor, is the Pof- )!'",'? .^ °'''^^!
feirion^^"^'^^-"-''
4.o8 Forcible Entry and Detainer.
feiFion of the Reverlloner, nnd inithout oiijiiiig the Lcffle, there c.ui be no
'^nRe-erM i-^'jJ'^'J>" ^^ ^^'^^ ^^^'^^ ^^^ ^^^ Ffanktenemeiit ; and the Indiftment was dif-
o'tiiei-wi'^b " charged. Yelv. 165. Mich. 7 jac. B. R. * Frcilton v. Shcllito.
the Inciift-
niciit is not good, and the Rejlitiiticn pill be made to him in Reverfton ; and if he <ieiU 7:iit have ReJ}iliitio»,
t'-e Lejfe- :i v.-ilhcut Remedy, and lb it was ruled. D. 142. a. per Sanders Ch. J andinN'.arg. pi. 48. cites
Trin. ;S Eli/.. B. R. Matthew v. Comber. *Sce D. 142. in Marg.' pi. 4S. cites Palch. 58 Eli/..
Contra. The Kinr; v Locefter.
6. But if the IndiRmcnt had mt exprejfed J. S. to he Farmer^ liit gejie-
rally that tne Cotage i$c. "ivere m his (Jccupation i then, per \\'ilh;ims J. the
Indiftmenc, which found the Diiieilin only, had bee.i good ^ Becaule no
Title is tbund in any other but in him only, who is Ibund to be dilleifcdi
But finding J. S. to be Farmer is an Eftate known and certain, and fuch
Farmer mull be ejected, otherwile he, who has Franktenement, cannot be
dillciled. Qiiod Nota. Per tot. Cur. Yelv. 165. P'reilton v. Shellito.
7. In an Indiftment againft two for a Forcible Detainer upon the 8 H.
6. it was found, ^lod nit raver 11 itt ^ Maiiti fortt extratenttertint ; it was ob-
jeQed, that the rinding Quod intra\ erunt was not fufficient vjithont Jhewing
How, whether peaceable or ivith Force. But per Lea Ch. J. and Houghton
and Chamberlaine J. Reititution mull be awarded, lor there is no Mean
between a Peaceable and Forcible Entry, and both go before the Forcible
Detainer found here ; and Lea Ch. J. laid, that the Word (Peaceable) in
the Statute, is to fupply what was not remedied by 5 R. 2. and he
thought the Entry Ihould be intended Vi & Armis. But Doderidge
doubted if by the Tenor of the Statute it be good ; for there cannot be a
' .Detainer without a tortious Entry, and this Entry might be either with
Force or without, and by the Indiftment it does not appear what the En-
try was. But upon the Opinion of the 3 other Judges, Reltitution was
awarded. Palm. 194. Trin. 19 Jac. B. R. Ld Salisbury v. Sir Anthony
Afnley.
The India- 8. An Indiftment of Forcible Entry and Detainer was preferred againft
ment was s ^nd the Jury found, as to the Detainer with Force, Etlla Vera, but as to
K ^'tr*^'" ^^^ Fntry, Ignoramus. This upon Exception was held not good ; For they
awarded. I ought to ha\ c tound all or none, i Vent. 25. Pafcli. 21 Car 2. The
■Si'!.4i4. S.C. King v. Seijeant.
Yelv.
99. Hill 4 Jac. B R. The King v, Fo.-d, &c. S. P. Sec pi. 4. fup.
(K. a) Punifliment thereof, and what fhall be recovered.
T T faf- ^' S R'^^- ^- ^^P-1- ^na.€is that none Jball enter into Lands or Tenements,
upon this ^"^ where Entry is given by Law, and in a peaceable Manner, upon Pain of
Statute, the Imprifonment, and ranlbmed at the King's iVill.
Pluintiftfliall
tiot recover Damages for the Ijjiies and Profits, but only for the Entry, quod Nota. Br. Aftion fur le Sta-
tute, pi. 28. cites 2 E. 4. 25. Br. Damages pi. 120. cites S. C. For the Aftion is, that he entred
■where his Entry is not given by Law.
But bccaufe that Statute provided no fpeedy Remedy in this Point, nor extended to loldintr^ nith Force, nor
left any Special Power therein to the Jufticcs of Peace in the Country. Whereas the Experience of
that unquiet Time, required a more ready Hand to the SupprefTion of fuch Difbrder, and JulHces of
Peace were (by 13 Rich. 2. Stat. i. 7. then newly conftituted. Lamb. Eiren. 128. fays that' therefore
2. 15 Ric. 2. cap. 2. Enaftetl, that when a Forcible Entry is made into
Lands, Benefices, or Offices of the Church, one or more Jujiices of the Peact
taking fufficient Power, and going to the Place fo kept by Force, and finding
any that hold fuch Place Forcibly, may commit the Offender to the nest Gaol,
there to remain Convifi by the Record of the Jujiice till he hath made Fine
and Ranfom to the King ; ylnd all People in the County jhall be aj/ifiing to
the JuJlice to- arrejt fuch Offender upon Pain of Fine and Imprifonriient.
But
Forcible Entry and Detainer. 409
B::t yet ag-in forafmuch as this laft Statute did mt extemi to tl.cj'e that entred pea<eabl), and tlen leld
-::>j Farce, >:or yet reveled to tlic OfFendeis, if they were reti^oved before the Coming of the Jurtii;ei,
;.. >i:..dc liejiittition of the I'otTctrion )u Forcibly gotten ; nor g.ive a!iy Pain againlV the Sheriff thiL did
riot obey the frccepts of the Julhccs in thi^ lichalf Lamb. Elren. 1251. fays that therefore.
3. 8 //. 6. cap. 9. §. 2. Enafted that upon Coiiiplnint made to the Jiijiiccs If, uponDif-
of Featt^ or one uf them^ of a t'orcible Entry or Detainer by the Party grte'ved, treisofRent
they or one of them Jball canfe the Statute of 15 Ric. 2. 2. to be duly executed nLt Sulw-
iit the Cijh of the Party grieved. vor, for Kent
due in the
Tenements of his Companion dcccaled, Refcous be made, and mi Vi & Armis, the Plaintiff fhal I reco-
ver but /("n?/f Damages, and if 'twas Vi & .^rmis, then ireUt Damages by this Statute. Br. AlFife. pi.
- cites 55 H. 6. 20.
'j\ J..;.,
§. 6. Jnd if any Perfon be put out or diffeifed of any Lands or T'e/temeftts in Trefpafs
in forcible AIa>j/jer, or put out peaceably, and ajterwards holden out with on this Sta-
Force.y or after fucb Entry any Feoffment or Difcontinuance thereof be made to tu« of c»y?/H^
deJYaud th'e Right of the PoJJeffor-, the Party grieved Jhall have AlFife of No- Z'.flSdi^'
vel Dilieilin, or a Writ of Trclpafs agawji fuch Di[Jcifor ; and if the Party ^"t wit'l"^
grieved recover, and if it be found by Verditi * or m other Manner, that the force.
Defendant entered with Force, or after his Entry did hold -with Force; //:?? P'='' ^"'l-
■P hunt iff pall recover treble Damages, and make Fine and Ranfom to the\\'^^ .
K'f'g- fhall not
... , . _, have any
Damages, For the Statute is m the DhJunHive, where he is otifted by Force, or if he be ourted peaceablv
and held out with Force; to~which Danby and Choke agreed. iSr. Forcible Entry pi. 17. cites 10 E.
4. II.
* lu'T'refpafs or J0e upon this Statute, the Defendant is condemned by non fum hiformatui : He fliall
Bjiy treble Damages and treble CcJIs ; fo adjudged and affirmed, in Error. The VN'ords of the Statute
f^ives them, where the Recovery is by t'erdrH, or otber-xife, 1,1 due Manner; and this Judgment 15 in due
JSIanner, tho" not by Verdict. Jenk. 197. pi. S.
4. Where fhe Writ is, that Vi diffeftvit £5' Vi tcnnit, atid this is found,
the Plaintiff Ihall recover treble Damages for the Dtjfijiu with Force, and
alfo treble Damages for the Detainer with Force, per Pallon j but Cot. e
contra. Br Forcible Entry, pi. 13. cites 14 H. 6 16.
5. For Entry to the Damage of &;c. found for the Plaintiff ?5 the Da- .^r. Damar;r,
mage of 20/. and the Court awarded that the Plaintifi' recover the 20 /. P' ""^ cites
taxed by the Jury, and 40 /. over by the Statute, viz. 60 /. in the whole ^' ^'
for treble Damages; and that the Defendant capiatur, quod Nota, and
therefore he Ihall be fined. Er. Forcible Entry, pi. 3. cites 19 H. 6. 6.
6 In Forcible Entry, the Defendcnt pleaded Not guilty, and was found
Guilty to the Damage of 100 1, viz. Sol. for the Tort, and lo I. for the Cofis,
and with great Deliberation, the Plaintiff reco-j^rfi^ 300 /. notwithltand-
ing that treble Damages are given by the Statute ; and lb he recovered
treble Damages and treble Cojis, quod Nota. Br. Forcible Entry, pi. 9.
cites 22 H. 6. 57.
7. Forcible Entry againft feveral, and the Plaintiff counted according g^ Damages
to the Statute, and upon this they were at general Iffue, and found that pi. ^i. cites
fome entered "with Force and held peaceably, and Come entered peaceably and S. C & P.
held '^s)tth Force, and taxed the Damages y^wra//)' ; by which he had/ratTir/ ?^*°.^^^^,
Judgments of treble Damages againll the one, and the like alfo againft the '*'"''2^*'
other ; and that he recover the Oof's oi his Suit, and yet contrary in
VV^afte, tor there are no Colts j and in this Cafe ths Plaintiff was amerced,
Br. Forcible Entry, pi. 4. cites 19 H. 6. 32.
8. If a Man enters with Force into Lands or Tenements, into which
he hath Title and Right of Entry, and puts the Tenant of the Freehold
out of thofe Lands or Tenements j in this A£tion o{ Forcible Entry, the
Plaintiff Ihall recover treble Damages, as well for the occupying the Lands,
Dsfor the firft Entry therein. F. N. B. 24.8. (H).
9. If a Man enters and dilfeifeth another by Force, and afterwards the
Dijjeifce re-entreth again ; vet the Dijfeifee 7nay bring bis Aificn of Forcible
5M Entry,
4- 1 o Foreign.
I'lftry, and recover his tnhle Damages^ altho' he be ftufed of the Land at
the Time of the Aftion brought. F. N. B. 249 (C).
10. It a Wan enters with l^orce, and detains with Force any Lands or
1 cncments, the Party may have his Action upon the Statute of Northamp-
ton., made An. 2 E. 3. c. 3. F..N. B. 24.9 (E).
11. Per Cur. not only the QJis aj/ejfed hy the Jtir)\ but alfb thofe which
A\'erc adjudged dc Increracuto, ihall be trebled^ and the Party ^o convifted
ot the Force at the Suit ot the Party fliould he fined, thd" fined before on.
Indictment for the fame Force. Palch. 28 Eliz,. C. B. Le. 282. RolU^on
V. Chambers.
12. Termor paid his Rent unto B. for 15 Years, and at the End of
the Term, he kept it againlt him to whom he had fb long payed his
Rent j this was adjudged a Forcible Detainment ; and for thisOltcnce he
was fined in the Star Chamber 500 /. Cio. J. 199. Mich. 5 Jac. in the
Star Chamber. Snigg v. Shirton.
i 7 H. : . I -. 13. In an J^ion of Forcible Entry grounded on thofe Laws, if the De-
"■ ^ *L^p fendant wake hi77ifef a Title which is found for him, he ihall be difmifled
N 8^249(0) without any Inquiry concerning the Force 3 for howfoever he may be pu-
Bro. Force. Hipahle at the Kings Suit for doing what is prohibited by Statute, as a
5, II, 29. Contemner of the Laws and Difturber of the Peace ; yet he ihall tiot be
liahk to pay any Damages lor it to the Plaintiff', w^hofe Injultice gave hinx
the Provocation in that Manner to right himlelf i Hawk. Pi. C. 141.
cap. 64. §. 3. cites the Books in the Margin.
Foreign.
(A) Foreign Courts. Decrees, Judgments ^c. there, How
far binding or Regarded here.
Vid. zCh. I. r~plHE Ship being unladen at Barcelona, where the Freight was
Cafes.' 25S.] J^ payable by the Charter Party, the Fa£lor refullng to pay the
Mich. 29 Freight, the Mailer of the Ship litigated there in the Admiralty for it j
^*''' "• and "the Caufe was heard, and Judgment there given, that the Mailer
Ihould have his Freight, but that the Damages the Goods had fullained
in the Voyage, by Reafon of the Deviation, ihould be deduced, and the
jiccount transferred to the Beliquuiators, (v\ ho are in the Nature of our
Mailers in Chancery) to take the Account, and the Money ordered to
be brought into Court ; But the Faftor had appealed to a higher Court
there. Ld Chancellor declared, that he would not flight their Pro-
ceedings beyond Sea ; and if in this Cafe the Damages had been there
afcertained, or a peremptory Sentence given, the fame ihould ha\e been
conclulive to all Parties : But it appearing, the Fa^or was a Native of
that Place, and therefore, in all probability, might againft Juilice pre\'ail,
and Defendant being willing to deliil his Suit there, his Lordihip di reeled
a Trial here by Jury, to afcertain the Damages iuftained by the Devia-
tion, Mich. 1681. Yein. 21. Newland v. Horieman.
(B)
Foreigil' 4.F1
(B) Foreign Lands. Judgments, &c. of Things done there.
I. \ was fued in the Admiralty upon an Obligation fuppoled to be
j\» made and delivered tn France^ and v\o\\ he prayed a Prohibition;
Per Cur', I'ach a Bond may be fued here in B. R. but being begun in the
Admiralty, we cannot prohibit them, becaufe perhaps the \VitnelIes ol
the PJaintilTare beyond Sea, which may be examined there but not here.
3 Le. 232. Mich. 31 Eliz. B. R. Delabrock v. Barney.
(C) Foreign Laws and Cuftoms. How far regarded here.
i./'^N Marriage of two French People in France xht Contra^ '*^'^s, s.c. cued in
\^ i'hat the Husband, furvtving the Wife, Jhadd have two thirds of.iCil'.;oF
her fortune lor Life, (whereas by the Ctijio^n of Paris, where they married, M.ti;iiagc
the Husbi--'id ftirvivifig, is to have but a Moiety) and 300 Livres in the j"- „
firlt Place by way of Prefent, and that the refijhould go accordmg to the i^^^.j^ an^l ""
Qijlom r,f Paris. Afterwards they fled hither from the Perfecution, and that 'by the
feveral Vears after the Wile died. Her Relations brought a Bill lor an Liwof Hol-
Account of the Eftate, and to have the Benelit of the Contract. It was '^"'^' ■^'"!''
objected, that they could not bring over the f'rench Law hither, but ^t!!kePu'eof
iti ill now be governed by the Laws of England; the Husband furvwmg is ,ir.y cthtr
inutkd to all the Wife's Perfonalty, or that at leaft there was no Colour Debts, and it
to carry it further than the Sum iHpulated in the Contract, and not to V^ i"fifted,
that which was left to go according to the Cuftom of Paris, which is foj,. ^^j-y "
only a local Law, and {o could have no Benelit of it here. It was fh^ uld be
anfwered, that Marriage Contrails are to be fupported in all Countries^ conilrued
without Regard to the Place where made, and that this Contract ex- ^"^. ^J"
tended to the whole Fortune of the Wile, and not only to the Particu- fi,^ l.^"^. ^f
lars mentioned, and the laying that the Reft iliould go according to the Holland,
Cuftom of Paris, is as much as if the Cuftom had been recited at large, where they
and that the Fortune ihould go ib. Ld Keeper decreed Relief only as LPt"^'! "^/^
to the Sum ftipulated ; But on Appeal to the Lords they had Relief for ^^^^^ g'm.
the Whole. Chan. Prec. 207. Mich. 1702. Feaubert v. Turft. it was an-
fwered, and
fo Ruled, that it ought to ha-je heen froied in ihh Ci''c, ti-,\zt is the Lavj of Holland, as in the Ca'c of
;JfOUbirt and %1\XS, it was proved, what was the Law of France, aithout 'uhkb Prcofs, our Courts
cannot take Notice of Foreign Laws. Wms's. Rep 4j£. Paich. 1718. Freemoult v. Dedire.
(D) Foreign Money.
J. T7f r HEN one Demands Foreign Coin in Specie, the Writ ought j^ o^„hi ^^
y Y to be in the Detinet only ; but when the Value of it in Englift be in the De-
Silver is demanded, it may be in the Deb^t & Detifiet. per Counlel, to ""et only,
A\hich Holt and Eyre, J. feemed to agree, and by Fvre, J. Guineas are and they miy
as Foreign Coin. Ilutw. 488. Mich. 5 W. & M. in Cafe of Pope v. St. SlVr
Leger. Jo. 6^. Pafch. i Car. B.R. Ward v. Kedgrove aJ. Kedgerow. Holt, Ch. J.
Skin. 5-5. in
.Cafe of St Leiger v. Pope. Per Holt CIi. J. They muft Aen:a)id Englijh Mcney, and not Foreign
Money, and they are to value it according to the Value it bears here in England ; but If a Man will
bring an Jcii^n for for Foreign Money, it muft be Detmut. 12 Mod f4r.'Tfiii. 13 W. 3 B R.'
Brown Y. GulWck.
(E)
412 Foreign.
(E) Foreign Plantations. Barbadoes, &c..
?X' cit d ^' A. ^^'"'^ ^^ -K;'?"!??" lie:^ here upon any of their ultimate Judgments ift
PariCaCes:;-. xV Batbadoes, viz in any IX^minions belonging to England. Yaughi
urd cites alio 402. m Ca<e oi' Procet's into VVales.
21H. 7.5 that
it doth \o to all fuboi'dinate Dominions, tho' the Diftance of the Place prevents the comnion Ufc of fuch
Writ, yet by V'au'jh.in'i Opiri-jn it clearly lies. Pari. Cafes. 35. in Cale of Dutton v. VN'itham.
2. In Barbadoes they havs Laws different from ours, as that a Deed.
fhail bind a Feme Covert, &.c. 2 Mod. 46. Irin. 37 Car. 2. C. B. Arg. in
Cale ot Dawes v. Pindar.
3. An Jppi^il lies from thof; Latlds to the King in Colihcil here, but
that is by Conftitutions of their own. Arg. 2 Mod. 46. in Cafe of Daws
V. Pindar.
Eutin Writ ^. The King Conjfituted a Governor and Council of State of Barbadoes.
h n'^^r "f ■^^ -'^'^'"n of t'Afc Imprilbnment brought againft the Govenor for Impri-
Lords" it " Ibning the Plaintiff by Order ot^ the Council Judgment was given for
V. as argued, the Plaintiff in B. R. Hill. 3 Jac. 2. 3 Mod. 159. \V'itham v. Dutton.
that tho" it
did not appear, that the King gave any Authorty to the Governor and Coiincil to commit, yet 'tis
Imideni to their Authority, as Leing a Cctincil cf Stnte ; the Council here in England commit no other-
vife. And where the Commitment is not authorized by Law, the King's Patent gives no Power
for it. But the Government mull be very weak, where the Council ot State cannot commit a De-
linquent, fo as to be forth coming to another Court that can punifli his Delinquency. And there-
fore prayed th.at the Judgment Should be reverled, and the faifte was accordingly revcried. Pari. Caic»
54. Dutton V. Witham, Howell & al. :j
5. Thefe Plantations are Parcel of thd Heahi, as County Pklatincs are ;■
their Rights and Intereft are every Day determined in Chancery here, only
that, for Neceffity and Incouragemenc of Trade, they make Plantation
Lands as ^Jets in certain Cafes to pay Debts ; in all other Things they
make Rules for them, according to the common Courfe of Engliih E-
quity. Arg. Pari. Cafes 33. in Cafe of Dutton v. Howell, Witham & al.
To make a ^" 'Twas infilled by Council, that by the Cuftom of the Illand oi' Bar-
Plantation in badoes, a Plantation there, tho' it be a Fee Simple Eltate, is in the firll
Barbadoes, Place Habk to thePayt?ie}it of Debts, fo that the Owner cannot, by his
liable to a Will, fo devife his Plantation, but that will be liable to the Payment of
i^&. d°h " ^^^ Debts J but thele Debts mult be either Debts contraiied on the Place^
'tis faid, the' °'* elfewhere, for Matters relating to the Plantation^ &c. Pafch. 1687. Vern.
Method is R. 453. Noel V. Robinfon.
by Procura-
tion from hence under the ^c<i/ of theMiiyor cf Lovden, and getting thatRecorded there ;or an acknowledg-
ment of the Debt by the Owner of the Plantation upon the Place will do it. Trin. 1687. Vern. 460.
Kocl V. P.obinibn.
7. A. recovered a Debt contrafied here againft an Executor of -an
Owner of a Plantation in Barbadoes, and brought an Aflion of 7'rover,
and had Judgment for the fourth Part of a A'ti^ro. Arg. Pafch. 1687. Vern.
453. cited asSerj. Maynard's Cale.
8. A Plantation in Barbadoes is not a T'eflamentary EJlate by the Laws
now in Force, per Cur' Trin. 1687- Vern. 469. Noel v. Robinfon.
9. In Barbadoes, all Freeholds are fubje£t to Debts^ and are eftecmed
as Chattels ^till the Creditors are fatisjied, and then the Lands defcend to
the Heir. 4 Mod 226. s W- & M. B, R. in Cafe of Blankard v. Guldy.
(F) Foreiga
Foreign. 4.13
(F) Foreign Plantations. Jamaica and others.
1. \ Plaintiff may Sue in the Admiral Court, if he will fuppofc the
J^y^ Cuntracl in Virginia. But if hcfuppofts the Cuntra3 m England,
he ma) liae hcie. But if part of the Contract be here, and part over the
Sea in Virginia, or upon the Sea, the common Law only ihaJl have Ju-
riidiftion, and thofe are the true DiHerences. Per Jones, J. 2. Roll. K.
492. Hill. 22 Jac. B R. Capp's Cafe.
2. The Realbn why an Ejecfinent 'Xill not by of Lands in Jamaica, or
any of the King's Foreign Territories is, becaufe the Courts here cannot
command them to do Execution there ; For they have no Sheriffs. Per
Twilden J. Vent. 59. Hill. 21 and 22 Car. 2. B. R. Crifp v. the Mayor,
&c. of Barwick.
3. The Court cannot Judge of the U/iiahufs of Cuveiiants of Lands
lying in Jamaica, but they mull be tried by Jury. 2 Mod. 240. Trin. 29
Car. 2. C. B. Goffe v. Elkin.
4. Lands lying in Jamaica pals by Grant, and no Livery and Seifin is
neceffary. 2 Mod. 240. Trin. 29 Car. 2. C. B. in Cafe of Goffe v. Elkin.
5. Treafon done in Carolina, in railing a Rebellion there, may be tried
in Middkfex, by 25 H. 8. 2. 3 Salk. 35S. Mich, i W;&M. The King
V. Speke.
6. If a Mart lives in Newlljrk, and would pafs Land in England^Ws ufual
to join a notninal Perfon with him in the Deed, who acknowledges ic
here, and it binds, i Salk. 389. Mich. 8 Vv^. 3. B. R. Tailor v. Jones.
7. Laws of England do not extend to Virginia, being a conquered
Country 5 their Z^vu is what the King pleafes. per Holt. Ch. J. 2 Salk.
666. Smith v. Brown and Cooper.
(G) Foreign Plantations. A(9:ioris for Matters there. Iri
what Cafes may be brought here.
I. y Eflbr brought Debt againll: Leilee for Rent^ upon a Demife of 6 Mod. 194.
I J Lands in Jamaica, and laid his uiition in London ; Defendant VVev v.
pleaded, that the Lands were in Jamaica, and that there are Courts Yally.
there, &c. that if Entry and Ouller were pleaded, it could not be
tried here, and that the Right of Plaintiff and Defendant depending on
Foreign Laws, cannot be given in Evidence here. And per Cur. Where
an Action is local, it muft be laid accordingly. Therefore if the
Lellbt declares on the I'rivity of FJlate, and that lies in Ireland, &c.
the Aftion muft be brought there ^ For the Eftate is local, thereibre
fuch Lellbr cannot maintain Debt here, againll an Affignee of a Term in
Ireland ; For the Action is founded on a Privity of Eftate, otherwife
where 'tis founded on a Privity of Contraif, which is Tranlitory, as
Debt for Rent by Leflbr againft Leflee, for that may be maintained
where the Land lies not ; and if a Foreign IJfue, which is local, fhould
happen, it may be tried where the A£lion is laid ; For that Purpofe there
may be a Suggeftion entered on the Roll, that fuch a Place m fuch a
County is next adjacent, and it may be tried here by a Jury from that
Place,' accordmg to the Laws of that Country, and on Nil Debet pleaded,
you may give the La^vs of that Country in Evidence. 2 Salk. 651. Trin.
3 Anns. B. R. Way v. Yally.
/ N (H) Foreign
4-14- rorcig
Foreigners.
I.
(H) Foreign Plantations. Governed by what Laws.
IF there be a new miinhahitcd Country found out by EngUp Subjeiis,
•as the Law is the Birch-Right of every Subjeft, ib where-ever they
go, they carry their Laws with them, and thcretore fuch newfound
Cf>uncry/j to be governed by the Laws of England. 2 W'ms's. Rep. 75. fays
it was laid by the Marter oi' the Roils. 9 Auguit, 1722. to ha\e been fo
determined by the Lords of the Privy Council upon Appeal.
2. Hut alter fuch Country is Inhabited by the Englilh, JtJs of Parlia-
ment, made in b'.ngland^ "xill not bind than ivithout naviing the Foreign
Plantations. Ibid.
3. Thtrcjore it has been determined, that the Statute of Frauds and
Perjuries, which requires three Witnejfes to a Will., and that theie Ihould
fubtcribe in the 1 cltator § Prefence, in Cale of a Devife of Land., does
not bind Barbadoes. Ibid.
*See(AXB) (I) * Foreign States.
See Ad-
miralty. I- A ^y -Authority of the King of Denmark, feifed and condemned'
X\* Ciccds in fome ol" the Dominions of the King of Denmark, ac-
cording to the Law of that Country, and coming into England was pro-
fecuted here for the fame. The Court thought this was a Matter of State,
and concerned the Juilice of another King in Amity with the King of Eng-
land, and that what was done ivas according to their Law, and that 'twas
not properly triable here, whether the King of Denmark had Power to
make fuch a Grant, and decreed a perpetual Injunction. Mich. 26 Car. 2.
Fin. R. 186. Badtolph v. Bamfield &al.
2. If a Man obtains a Judgment or Sentence in France, yet here the
Debt mult be conlidered as a Debt by Simple Contraft. He can main-
tain no Aftion here, but an Indeb. Alf or an Inlimul Gomputaflet, &c.
tho' both Parties were Foreigners, that will not help the Plaintiff! per
Lord Keeper. Hill. 1705. 2 Vern. R. 541. Duplein v. De-Roven.
3 . W'here a Foreign Court has JurifdiCiton of a Caule, and the Pcrfons
are within it, the Santence mufl bind without regard to what Law is
hercj and the Sentence appearing, is not to be controlled by E\idence,-
that the Law is not lb there. Sel. Ch. Ca. in Ld King's Time. 69 Mich.
1 726. Burrows v. Jemineau.
Foreigners.
(A) Suits by them.
i.r~J~iHE Plaintiffs, being Creditors of Colley, preferred their Bill
Jl againlt the Delendant, being all Foreigners, but the Goods
were pafled over into England, into Merchants Hands by Colley, and
this Court taking Notice, in refpeft of the different Computation ' of the
Realm, firft, to be paid at ths Feajl of the three Kings Heads, lecondly, be-
caule the Bill was tiot fealed, thirdly, becaufe the Debts grew in France,
and he came o\ er hither to keep his Body from Arrells, the Court de-
creed the Debts, and caufed a Decree to be drann up pro Confejffo, becaufe
the Defendant would not anfwer, and lequellred Monies in other Mens
Hands, to pay the Debts, altho' they were palled o\er to others, to-
the Ule of an Intant, Toth. 131, 132. cites 8 jac. Sere Ss. Eland v.
Colley. ■ 2. The
Foreian Plea.
gn riea. ^15
2. The Plaintiff being a Dutch Woman brought 4000 /. Portion to
her Husband^ -svho cigrt:i:d with her bcjore Marriage^ to leave a coinpkat
Maintenance for herfelj and her Children^ but not exf^reffing "uohat j the xMar-
riage took Etiect, but he declining in Eltate, her Friends called on him j
and he thereupon alfigned certain Bonds, wherein M. was bound to him,
and a Letter of Attorney was made after to S. to receive the Money upon
the Bonds, who received the Money of him. The Bill was to have the
Money fromM. and S. M. by Plea fets forth the Payment to S. and
that he had no Notice of the Alfignment of the Bonds. And this was
allowed a good Plea for M. But S. pleaded a Letter of Attorney, and
Payment to him on good Conlideration, but did not deny Notice, and
therefore his Plea dilfallowed, and the Agreement and Alignment of the
Debt in Holland^ where fuch Agreement between Husband and >V'ife,
and fuch Affignment of Bonds are good, they are to be allozved here ; by
the Lord Keeper. Chan. Cafes. 232. Trin. 26. Car. 2. Alhcomb's Cafe.
Foreign Plea.
(A) In Civil Cafes. What ; and how granted, and re-
ceived,
But at tlie
i. 6R.2.2.. T F in Writ of Debt Account, and the like, it JJjall be de-
j^ clared^ that the Contraft thereof was made in another CommJir
County than is contained in the Original Writ^ fuch Writ Jball be abated. Law, one
that had a
particular jHrif<iilf ion to hold Plea of Debt, Contraft, Detinue, Covenant or Trcfpafi w ithin his Manor, &c.
could not hold Plea of a Debt, Contrattj &c. alleged to he made out of the NIanor, &c. Becaule albeit
it w«s trsnfitory, yet (being (b alleged) it was not within his Power or Jurifdidion, which he h.id by
Prefcription or Grant. For all Pleas holden there, muft be fnfra furiJdiHicnem Curix. z Lift. 25 1.
j^s if a Lord had Probate of Tejiametit, made within the Precinct of his Manor, he Cannot prove a
Teftamcnt, made out of the Precind: of it. 2 Inft. 251.
So of the Court of Piepcxders of Cc?itra&s, &c. made out of the Fair or Market, &c. 2 Inft. 251.
But before this Statute, Writ of Debt, and Jccount agaittjl a Receiver, and fuch like Actions might
be brought in any County, where the Party might be belt brought in to anfwcr, and the Plaiutitf
might have counted of a Contract or Receipt, &c. in any other County ; becaule Debitum & Cov-
trailus, &c. futit mtllius loci. 7 Rep. 3. Mich. 26 and 27 Eliz. in ©Ulbstr '.3 Gale. cites 2 E. 5. 44. tf E. -.
t66. and 275. S E. 3. 3S0. 10 E. 3. 7. 19 E. 3. Jurifd. 29. 29 E. 3. z6. 53 E. 3. Jurild. 5;. 4.3 E. 3. 7.
5 H. 6. 30. 5 E. 4. 19. 21 E. 4. SS
In Debt ttpn Bond, the Defendant pleaded, that it was made in arother CurAy than is alleged in
the Declaration, and prayed, that the Attorney might be examined thereupon, by Force of this
Statute. The Piaintift demurred, as if it had been a Pica in Bar to the Aftion, and Defendant
joined and concluded, quod ai Jilione prechidatur. But it was reliolved, that the Plea was 111, and not
warranted by the Statute, which provides only, that the Original Jball rot be laid in one County and the
Declaratitn upon a BonM made in another, and it lb, that the W^rit fhall abate ; and this Courfe of pleading
had been diiallowed. cite-s 3 H. 6. 55. And fccondly, becaule the Demurrer vias joined as to the jUtion^
Judgment was given, Quod Recuparet, &c. Allen. 17 Hill. 22 Car. 2 Shalmer v. Slingsby.
2. Debt upon a Bond in Banco, and counted that it was made in Lon-
don ; Paiton pray'd Judgment of the Writ, for that he has a Plaint upon
the fame Bond }'et fending in N. by which he fuppofes the Bond to be made
at N. Judgment of the VV^rit, & non allocatur ; for it is out of the
Cafe of the Statute of 6 R. 2. c. 2. that if a Man brings Aftion in one
County, and declares in another, his Writ Ihall abate, but here he de^
dares in the fame County. Br. Brief pi. 8. cites 3 H. 6. 15.
^.Debt in the County of N. and declared at H. where it extended into the
County ojN. and cf L. and thcDefendanr faid^that the Bond upon which he
declares was made in the County of L. Judgment of the Writ, by reafon of
the Statute of 6 R. z. c 2. and per Martin, this is a good Plea, by
which
4-i6
Foreign Plea.
which Rolf palied over, quod Mirum ; For the Statute is no other, but
where a Mun brings Attion in one County, and declares in another,
that the Writ Ihull abate, but hare he dechires in t hi fame Cuitnty. Er. Briet!
pi. 10- cites 3 H. 6. 35.
4. If Deleudant in a Corporation Court pleads a Foreign Plea, which
is collateral^ as in Debt ilpoH Bonti, if he pleads Rtkafe made in a Place
out of the JiirifdUtioH of the Court, it need not be received without Oath.
Litt. R. 236. Mich. 4 Car. C B. Corporation Court.
5. But if tn Ccvenaut or Debt for Moneys to be paid at another Place ; he
he f leads Payinefit accordingly^ or the Covenants performed in the Place
limited, which was out of their Jurifdiction, it ought to be received
without O St h. Agreed by all the Juftices. Quod Nota. Ibid.
If the Ac- 6. If Detendunt plead a Foreign Plea, which is tranfttory, the Plain-
tvon be trun- ^j^- ^^^^ demur to it. But if it be not tranjitory, it mull be upon Oath,
Defendant otherwife it will not be received. Sid. 234. Mich. 16 Car. B. R. Collins
carries it V. Sutton.
into another _ . '. . '
County, the Plea is naught, except in Sj>ecial Cafes ; But if the JBion he local, the removing it iato
another County, than where the Plaintiti has laid it, it is properly a Foreign Plea, which is not done
in the Princiyal Cafe ; For there the Action is laid in Chelhire, and the Defendant does not in his
Plea remove it thence. Quod Curia Conceflit, and fo Judgment fet afidc. 12 Mod. 123. Pafch. 9 W. 5.
Cholmley v. Bloom. . « -
* S P. and >7. If it appears by the Declaratioa, that the Money was to be paid mt of
fays, that ^^^ Jurifdtttion of the Court, the Judgment is not good ^ and 'tis not
ces'may^be"" necelfary to Jlvear the Plea, if it appears on the * Obligation, that the Mo;-
given of Fo- ncy was to be paid out of the jfurifdiction of the Court, and he pleads
reign Ple.is, Payment according to the Condition, Biit if one "will not fwear a Foreign
which, it Plea, where he ought to do it, the Plaintiff may enter Judgment on a
\^otle ^yfii'hn -^'^'^ Dictt, for fuch a Foreign Plea, not Sworn, is no. Plea upon the
mull be re-' the Matter. Sti. 225. Tiin. 1650. Dudeny v. Collier.
ceivcd with-
out. Uath. 5 Mod. 555. Cholmondley v. Broom.
8. A Prohibition was pray'd to the Court of the Compter, to an Action
of Debt there commenced ; for that the Defendant had pleaded befors
1 -•; Imparlance, That the Catife of AHion did arife at a Place out of their
JurifdiBion, and offered to have fworn his Plea, and they refuled. to ac-
cept this Plea j and a Prohibition was granted j For Inferior Couf ts have
not Cognizance of tranfitory 'things, which arife out of their Jurifdic-
tion, as F. N. B. 45. is : But then 'tis not fufficient to furmile fuch
Matter for a Prohibition, but a Plea to that Effect mufi be tender d in the
Inferior Court, and that before any Imparlance taken, (whereby the Jurif^
diction would be admitted) and it mult be upon Oath j and then if re-
fufed, a Prohibition ihall be granted ; or upon fuch refufal, a Bill of
Exceptions may be made, and Error afTigned. Vent. 180. Hill. 23 and
24 Car. 2. B. R. St. Aubin v. Cox.
izMod. 125. 5, A Foreign Plea is, where the Action is carried out of the County
^^^.^g^^^'' where 'tis laid, and is to \)t Sisoorn, which a Plea to the Jurifdiction is
not. Carth. 402. Pafch. 9 W. 3. B. R. Cholmly v. Broom.
10. Debt was brought in B. R. on a Bond made at Chejler ; The De-
fendant did not imparle, hnz pleaded by Attorney, that he is, and at the
Time of the A^ion brought, was an Inhabitant, and notorioujly Converfant
at Nant'jiiich, within the County Palatine of Chefier, and fo pray'd Judg-
ment if the Court of B. R. ought to hold Plea of this Matter. But the
Plaintiff taking this to be a Foreign Plea figned Judgment, becaufe it
was not fwom to. And to fet alide this Judgment, it was infilled, that
tho' this is a Plea to the Jurifdiction, yet it is not a Foreign Plea, and
therefore need not be fworn to. And accordingly the Judgment was
fet alide, Vid. Carth. 402. Pafch. 9 W. 3. B. R. Chumley v. Broom.-
and
Foreign Plea.
4 '7...
and 5 Mod. 335. Cholniondley v. Broom. S. C. and 12 Mod. 123.
Cholmeley v. Bloom. S. C.
11. Ancient Da/ie/l/e, and all Pkirs of Privilege, are Pleas to the Ju- i^ Mod. 121
riidiction, and not Foreign Pleas, and therefore not to be Iworn to, but S. C. and P.
may be received without an Oath. Arg. and Judgment accordingly. 5 Mod,
335. Cholniondley v. Broom.
12. Delt v\-as brought ni Loiidofi. A Prohihttion Avas moved for, and
granted Ntji, upon Suggeltion that the Defendant had tendered tor Plea
below, that the Oaule did arife out of their Jurilditlion, and offered to
malvc Oath of the Truth of it. Now it was fkcwcd.y that he tendered
the Pica after the Court was tip, whereas itjhouid be, tn Propria Perfona,
and i» Court. And tho' an Affidavit was offered in B. R. of the Truth
of the Plea, and one * '2LltniCt'0 Gale, 4 Jac. 2. was cited out of*Lutw.
Lutwitch, where a Prohibition had been granted upon Affidavit in '°*5- '^^Z.
B. R. without Oath below, yet by three Juftices abfente Holt, the Rule "^'' ^- ^"='
was dilcharged. For in all Pleas that oull a Court of Jurildiftion, whe-
ther Interior or Superior, there inufi he Oath, in that very Court, of the
'Truth of Plea. 6 Mod. 146. Palch. 3 Annce. B. R. Sparks v. Wood.
ton.
(B) When and how Granted.
I. "T N Debt, it the Defendant pleads Foreign Plea in another County
.j^ in Perfon, he ihall not be examined, but if it be by Attorney,
the Attorney Ihall be examined. But in this Cafe they ufe to examine
the Party at this Day without Oath. Br. Examination, pi. 23. cites
20 E. 4. 10.
2. If one be fued in an Inferior Court, for a Matter out of the Jurif-
diftion, the Defendant may either have a Prohibition from one of the ccm-
Tiion Law Courts, or may, if it happen in the Vacation, and it happens then,
when the Chancery only is open, move the Court of Chancery for a Prohibi-
tion, but then it mull: appear upon Oath made, that the Matter arofe out of
the Jurifditiwn, and that the Defendant tendered a Foreign Plea, which
was refiifed. Wms's. Rep. 476. Trin. 1718. Anon.
3. But if a Prohibition has hctxx granted Improvide, and without thefe
CircumltanGCs, the Court will grant a Superfedeas thereto. Ibid.
4. But if it Ihall appear on the Face of the Declaration, that the Matter
is out of the JurifdiHion of the Court, then a Prohibition will be granted
without Oath ot" having tender'd a Foreign Plea. And in thele Cafes
Equity imitates the Common Law. Ibid. 477.
5. uind in a late Cale, which was moved the laft Seal after Trintiy
Term, where the Court had granted a Prohibition to an Aftion in the
Courts of London, upon 'an Affidavit, that the Matter arofe out of the
Jurifdiction, it appearing at another Day, that the Defendant had ini'
parFd generally, (which admitted the Jurildiction) and fo could not after-
wards be allowed to plead a Foreign Plea, the Court granted a Superfe-
deas to the Writ of Prohibition. Ibid. 477.
(C) Foreign Plea. In Criminal Cafes.
1 . 4 //. S. 2. Where a Murderer or Felon, (to delay his Arraignmetit')
f leads that he was taken out of a privileged Place, in a Fortign County, and
(A) Forefl
4i8
Foreft.
(A) Foreft, Park, Chafe, &c.
»• npi^C Piirker may receive Beafls UttO tl)e Parfe, to Palture fof
X Money. 46 (Q* 3- 12. ft*
^. But tl)e Parfeer cannot give Power tO aitOtljCT to cut the Brandies
of the Trees, tOtt{)OUt t!)C SHftnt Of Ijlgl S^aftcr, 46 €■ 3. 12 fa.
(B) Parke, Chafe. By whom it may be made.
Nor a War- j
t-enor Cliale ;
and if he
ONE can mafee a ParU without Licence of the King, htCmit
it is to appropriate mn\m Wt\) are Jrcre i!3aturc $ milli^
do^3 it of his U0 in '23om0 to t)imfclC n Kcp. 87. in Monopolies, 18 p, 6. 21.
own Hend in
a .'3'«o Jf'nrrat.to, thcy fliall be feifed into the King's Hands. 1 1 Rep. S6. in the Cafe of Monopolies.
Sj/tj. ihld.-- 2 Inll. 1^9.
*Trin.44. 2. So none can tna^e a €Wt tuitljoitt licence of t&c Binn:. n
Ei'^ 5 Kep. 87. {J. * $|5onopolie0>
(G) Law of the Foreft.
^■^U dices of Toreft JhaU have Determination of Hart Proclaim\i killed,
J and not the King's Bench ; and therefore the Defendant may plead to
the Jurifdi£lion. Per Fineux Ch. J. Br. Jurifdiftion, pi. 55. cites 21 H.
7- 30-
2. The Foreft Law is not the Common Law of the Land, and we are not
bound to take Notice of it, but it ought to be pleaded. Trin. 29 Eliz.
C. B. 2 Le. 209. Rulfel v. Broker.
3. The Earl of Lancafter, who was Lord of a Forefi, granted to one H.
to make a Park within the Forejt ; it was adjudged, that if the Grantee in-
clofed it fo flightly that the Deer of the Foreft might get in, it was a
Forfeiture of the Grant, and that the Lord might enter and take the
Deer. Bridgm. 27. Arg. cited in the Cafe of the King v. Sir John Byron.
(D) What is a Foreft, and the Antiquity, and Extents
thereof.
I 1 £. 3. Stat. 2. cap. I. j^fcertains the Bounds of Forcjts.
2. Befides other Prerogatives of the Saxon Kings., they had alfo a Fran-
chife for Wild Beafts of Chafe, which we commonly call Forells, being a
Precin£f of Ground, neither Parcel of the County, ncr the Diocefs, nor of'ihe
Kingdom, but rather jippendant thereunto. Bac. of Government 82.
3. Forefts lijill appear by Matter of Record as by Eires oi' Juftices of
Forefts, Swanimotes, Officers of Forefts, as Regardors, Agiftors, Ver-
derors^
Foreil:. ^ i p
derors, &c. biit the JppeHntif/n of it by the Name oi a Foreft, in Grafits,
Offices and Conveyances^ is not any Proof that it is a Forelt in Law. 12
Rep. i:2. Palch. 5 Jac. in Leicelter Foreil: 's Cale.
4. A Foreil may well be in the Hands of a Siibje[i^ and ihall be Ufed as
a Foreil if the King gives Authority by exprels words lor the Admini-
Itration of Jullice there, and tor his Jultices to come there ; and if fuch
Grantee might have Commiffion in iiach Cales to Ule and have Officers
of a Foreil, then it Ihall continue a Foreil in the Hands ol a Subjeft.
Otherwife, without fuch Liberties, it is but a Chace, being in the Hands
ot a Common Perfon; Per all the Jullices and Barons. Cro. J. 155. in
the Cale of Leiceller Foreil. And Popham laid, that he had feen
fuch Liberties of a Forefl granted in that manner. Cro. J. 155. Palch.
5jac. B. R. ut fup.
J". 16 Car. I. cap. 16. §. 4. Ena£ls that, the Meets and Rounds of Forejfs
Ihall extend no further than the fame "Were commonly known or taken tn the
twentieth 7'ear of King J antes ^ and all Prefentments,Jince the [aid twentieth
Tear^ and all other Prefentments, Perambulations and other Atis^ ly which
the Meets or Bounds of the Forejls are further extended, Ihall be void.
6. There are 3 Manner of Forells ; ill. Ancient Fcrejls de temps d'ont^
^c. before Charta de Forella, called Charta Par-ja, in relpeft to Magna
Charta which palled in the fame Year. 2dly, There are Nezv Forejls made
in the Reigns of King Henry 2. Richard i. King John, &c. A third Sore
of Forelts, are fuch as were partly Ancient and partly New ; in regard the
Ancient Bounds of the Forelts were enlarged, and Ground taken m to the
Foreil that did not anciently belong to it. And that is the Reafon o\ the
Saving in 9 H. 3. in Charta de Forejla j fiving all Cc7nnwns Accujlomed, the'
the Lands of the Owners were dilatforelled by the Atl ; becaule they had
been AfForelted in the Reign of King Hen. 2. or King John, &c. to the
Prejudice of the Owners of the Land who had Common there j and were
not rightlully within the Foreil, and therefore it was but Realbn that, up-
on the Difaflorellation of thole Lands, the Owners fhould enjoy their Cul-
lloms ; and this is the true Ground ot that liiving in the Aft. But alter-
wards in the 12 H. 3. and 10 Ed. i. there were other Perambulations, where-
by ma?iy Forejis were enlarged to the Prejudice of the Subje£ls. And
thereupon, afterwards, in 21 Kd. i. there was another Perambulation made,
by which the King conceived himfelf much prejudiced in Abridging the
Bounds of the Foreil, and exempting the Lands out of the Forelt, which
in Truth were part of it. Upon thefe Grievances on both Sides, both
to the King and Subjeft, occalioned by thele Perambulations made after
9//. 3. the King and his Subjeifs concerned therein came to an Accord -A-ud
Agreement; and thereupon Anno 33 £5' 34 Ed. i.Ordinatio Forejla was
made 3 whereby it is declared, by Allent of both Parties, that the De-at-
forellations made upon thofe Perambulations (be they Right or >\"rong)
Ihould ht quite dilcharged of the Foreil ; But then the Owners of the
Ground were not to have Common there. But fuch, who were Content to
continue their Lands within the Foreil, were to have Common as they
ufed formerly to have it. Per Hale Ch. B. Hard. 438. Hill. 18 & 19
Car. 2. in the Exchequer, in Gale of the King v. Inhabitans oi Rodley
in Gloucellerfhire.
(E) What may be claimed by a Subject in Forefts.
1. 9 H 3. Stat. 2. cap. 4. Enafts, that Freeholders, who have their Woods
in Forejis, pall have them as at the Coronation of King H. 2. and thofe that
make Purprcjiure, k3c. m them without Licence Jhall anfcer for it.
2. 9 H. ^. Stat. 2. cap. 9. Allows Agijlment and Pawnage to the Owners
of Woods.
33 £. I.
420
Foreft.
\vheic 3. 33 £. I. Stdt. 5. Enafts, thiic tbofc, to ivhom the King hath granted
L;md^ were Pny/ifK;^ (ivhcrd'y their B 'oods are difciffui-cjhd) jhall be quit of the Charge of
"'f\i\A r the t'onii, but then they are to have no Coiiiviun there: Howleit fiich as are
^iorenKat liyillnig to retitm their Woods into the Forcft, fhall enjoy Common and other
frjt, a>idihai Eafements there as they did before.
tiey hadCom- . _ _
mon l>y Prefcripthv in the ForeJ}, it was not tlic Intent of the Ordinatio Forcdx to toll fuch a Common';
but it tliev wer- well aftorelled at firll, and afterwards difaftorelled un.duly by fome Perambulation,
t!-.cn the Common is loft, if the Owner will have the Land remain difaftorelled ; and this is the true
Meaning and Interpretation, and Intent of this Act of Ordinatio Forelhs. Hard. 4-8. Hill. 18 & 19
Car. 2. in the Exchecjuer, in Cafe of the King v. Inhabitants of Rodley in Gloucefterfhire.
This Act of Ordinatio Foreilac makes but a 'Temporary Snfpe>:fton of the Common Laiv, viz. lb long as the
(Owners of the Lands would be out of the Forefts, et non Ultra. Hard. 439. in Cafe of the King v. Inha-
bitants of Kodley in GlouceftcrlTiire,
4. 34 £. I. Stat. $. cap. 6. Ena£ls, x.h.2.t they, who had Common of Pajlure,
and "JO ere rejlriiined of it by the Perambulation.^ pall have their Common as
before.
5. A Man may cut Wood in his oivn Soil in a Free Chafe, without View
of the Forelter. Br. Forell, pi. 6. cites the Time oi' E. i. and Fitzh.
Trelpafs 239.
6. One Claimed before the Jullices in Eyre, to be quit of Pannage in
the Kings Forell ; and alio claimed in the iamc Forelt, Pannage for the
Hogs of his Tenants agilted ; but they >\-ould not meddle with it, becaufe
^ beircr this belonged to the Jullices of the Forell. Keilw. 150. b. in kin. E. 3.
leiicdofHat- 7. 2.2..K. 4. 7; Ena6ts, that//' any, having Woods in his own Ground,
field Chace without any Forefl, Chafe, or Purliew, fhall cut, or caufe the fame {or any
fr.-.niedanA Part thcnof) to be cut by the King's Licence (where fuch Forefl, Chafe, or
fc'd to B. an p^^^j^^.-^ ^jy^ /r/jA ^y without Licence (where they belong to others) he may keep
lis Heirs alt j , ' j j 1- ^ r^ ^1 17 11 ^ '
the JVcod tbcin fever, d, and inclojed during 7 J ears next ajter their telling.
gyc'U:ii:g, /tnd
to s;n.'u: upon a Part thereof, and excepted the Soil ; 'and further, tl'ittle might inck/c ezery Te.ir 16 Jcres
t'lercof, and to hold it in feveralty, for the Prefervation of the J^pring, .according to the Statutes of the
Re.ihi ; and this Grant was confirmed by a p-iz-ate Jii of Parli.zwent, and that the Grantee might hold it
in leveral, w ithout Suit of the King'.s Officers, with a Saving of the Right of all Strangers ; and a Commoner
put in Us Ben Its, to take his Common in one Parcel of that which was inclofed, againft whom the
Grantee brought an Ad'tion of Trefpafs; ai:d in this the only Qaeftion was, if the Grantee of the Trees,
which had not any Intereft in the Soil might inclofe againft a Commoner by this Statute. It was agreed
bv (Joke Ch. J. n-^d Fofter, that this Statute ivas repealed by the Statute of ; 5 H. 8. for this is m the Ke-
ghiie, and therefore is a Repeal of a Former Statute, but if the laft had been in the Affirmative, other-
wile It fhould be , and it was alfo agreed, that this was not within the Statute of 5 5 //. 8. for that appoints
cf uhat Jge the if^ood Jhall he inclofed, and by tlis Recompence is given to the Commoner ; but here 'tis not
averred by pleading, of what Age this Wood was which was inclofed ;and therefore it was adjudged that
the Action is not maintainable againft the Co^imoner. 2 Brownl. 289, 290. Chalk v. Peter. S Rep.
1-6. b. Sir Francis Barrington's Cafe S. C. Godb. id-. S. C 2 Brownl. 328. per Coke Ch. J. ace.
This Statute doth not extend to any H'cods in Foreft, in nvhich anctl.er hath Common, for it doth but ex-
tend (nh to fuch IVoods ivhich a Common Perfcn hath in the King's Foref, or Common Perfon's, and that it
mi"-ht Be inclofed for the Space of 5 Years after the cutting of the Wood therein before the making of
this Statute, and this was no Wood in which a Stranger had Common, as it appears by the Preamble of
the faid Statute ; and then after in the (aid Statute it is faid, fuch Woods may be inclofed, per Coke
Ch. J. 2 Brownl. 527. Pafch. 8 Jac. Chalk v. Peter.
8. Prefcription may be for Warrens in Forefts, tho' they were in the
King's Hands, but without a Special Prelcription it cannot be ^ and in
fuch Cafe of Prefcription for Warren, if it -was by Grant, or he can prove it
by Prefcription, a Non Ufer is no Caufe of Forfeiture thereof Cro. J.
155. Pafch. 5 ]ac. B. R. Leiceiler ForelVs Cafe. Jenk. 316. pi. 6.
2 Roll. R. 9. If the King grant a Forcji, the Grantee Ihail have but a Chace, un-
1 90: Trin. lei's Power be granted to hold a Swannimote Court, Ju/lice Seat, Court of
"'V^'^' n ?" -Attachment, &c. But if this be granted a Subjeft may ha\e a Forelt and
295TC- i^his has been twice adjudged i Per Colce. Roll. R. 195. Pafch. 13 Jac. B.
Subjcft can't R. the King v. Briggs.
haveaForcft; . _ _ _ ■
but what is Foreft in the Hands of the King when granted to a Subjeft is a Chace. Palm. 9;. Bridges's
Q^je.. -P.oll. R. 1 12, S. C— By fpecial If'ords of Grant, as to have Foreft, to conftitute Juftices
and Vcrderors, a Subjcft may have Foreft, but not by general Words, and ib Popham fay.s, it was ad-'
judged. Palm. 94 ^7 Elii. B. R. Jenuings v. Rock. Roll. R. 194. ^12 Rep. 22. per Popham
Ch'.'j. that the'Subjeft may have a Foreft. But this is intended, if he hath Power to tiave Swarmimotes
and Juftices in Eyre, mAForeJlen appendant to his Forefts. Palch. 5 Jac B. R. Anon.
10. A
Foreits.
421
10. A Subject iuay have a Forelt, but cannot have a Jultice Seat, but Kelw. 15.
he may have a Swanniark Court and the other Courts, and a Commillion &=■— Cro. T«
to execute them. Mich. 3 Car. C. B. Het. 60. Comins'd Cafe. w/poi^cill
11. An JJIoioance in Ejre buulctb the Kivg, the Subje£l being in Pollef- Cafe.— Jcnk.
iion, 'till removed by another J Hcigmeitt ■, but B. R. hath no Junldiftion in 5i6.pl.*6.
Forell Caules ^ and therefore an Allowance there of Liberties within the
Forell, will not put the King out of PoUelfion. 8 Car. Jo. 267. Ca(e of
the Hundred of VV'argrave.
12. A Purchafor of a Manor in a Forell, liable to repair a Bridge there,
may be compelled to repair the fame, and he mull leek his Remedy at
Law lor ContribiitioH from the others^ who have any Part of the Lands; and
the Court (of Eyre) is not to let the Bridge lie in Decay, 'till it be deter-
jnined between the Parties, whether they ought to contribute or no. 8
Car. Jo. 273. Cafe of Lodden Bridge.
13. A. feifed of the Manor of W. claimed to Hunt Toxes^ Hares and
Wild Cats therein, tinder a Charter granted by R. i. to the Abbot of
Waltham Holy Crofs, and Ihewed the Dillblution ot" the Abbey, and a
new Grant of the faid Manor to one N. with the W^ords of tot, tanta,
talia, &c. Libertates (See. quot^ (Sec. and fo deduced the Title down to
himfelf, by feveral melhe Conveyances. It was held by Noy, and fo ad-
judged, that the Words of tot, tanta, talia, 8zc. are no Warrant lor him ;
for the Abbot had 20 Manors, and yet there was but one Hunter ^ but it
thefe Grants be allowed. Hunters will be multiplied, and ib the Forell
Ipoiledi and fo this Point was adjudged in the Forell of Waltham againll
Sir '2ri)Cintil0 Jf ailAjtllD, who claimed the like Privilege within his Manor
of B. which was the Abbefs of Barking's, who had the like Charter, and
Sir Thomas the like Words as here. 8 Car. Jo. 286. in Sir Edmund
Sawyer's Cafe.
14. A. claimed in like manner as aforefaid, to be free from the Repair of
Bridges, but 'twas not allowed ; For thofe Bridges, which by Law he
ought to Repair, no Grant can difcharge^ for the Stibje^ hath an Intereji
therein ; and for thofe Bridges, which are not known by whom they
ought to be amended, the Statute of 22 H. 8. 5. hath made all Men
chargable. Ibid.
15. He made alfo a like Claim to be quit from Carriages, Si a Naviglo
& Domorum Regalium Edificatione, &c. but they are all of the Nature of
Purveyance, and were refumed by 27 H. 8. 25. and fo not revived by Grant
of tot, tanta &c talia, (Sec. Ibid.
16. So he likewile Claimed to inclofe his Woods of W. with as great iBrownl,'
'Ditches end Hedges as he pleafe ; but 'twas not allowed, becaule this was but * 2<5. per
Matter of Ele£lion, which the Abbot might chufe, or not ; and Matters P°'^^^''- J'
of Eleiiion are not revived, as aforefaid ^ and if the Abbot himfelf were ciiafkc v
living, he could not inclofe it by Virtue of that Licence, which is 400 Peter. '•
Years fince ; becaule it can't be known whether that Power was not once
Executed, and if it was, and after thrown out again, it cannot be incloled
again ; for then one Power Ihould be executed divers times. Ibid.
17. A Prelcription to be out of the Foreji is not good, without lliewing
ah Allowance in Eyre ; by Noy, and fo adjudged. Ibid. 290. Cafe of the
Tenants of the Manor of Bray.
1 8. So, no Liberty 'within a Forell, in DeflruBion of the Vert or Gatne, is
good by Prelcription, w ithout an Allowance in Eyre, except only in Cafe
of Common ^ by Noy. Ibid. 291.
19. Common of Pajlurc for Sheep, is good only in two Cafes within a
Forell; the firll is, when an Officer of the Forell hathLand belonging to his
Office, and claims Common tor Sheep belonging to that Land ; and this
was allowed in one ISIilllCtjatli'Si Cafe, in the Time of R. 2. and adjudg-
ed tor him in Eyre, and in Chancery, and after in Parliament ; and fuch
another was tor Claringdon Forell in N\'iltlhire, The other Cafe is tor
Pallure of Sheep, which a Man may prefcribe for in his own open
Walle Grounds, but not in his Coverts; by Noy. Ibid, 292.
5 P 20. One
422
Foreft.
20. One claimed all Windfalls and Profits whatfoever within his Baily-
•wick i but held by Noy, that it was not good ; For he cannot h.ive the
Profits of every Man's Land within that Bailywick. 8 Car. Jo. 294. Sir
Charles Howard's Cale.
Jo. 281. in 21. So the Claim of Office of Keeper, or Bailift" of fever al Walks, una
Refton's ^jfjfi vadiis & Feodis, 6cc. is not good, by Mr Noy ; becaufe no Fee certain'
^''' is claimed i and thele VV'ords una cum vadiis & Feodis, &c. debit. &con-
luet. & tot, tanta, &c. quot, quanta, &c. aliquis, &c. will not help it-
without an Averment what they were. Ibid.
22. So a Claim of as much Firewood as hepoiild think Jit to be burn'd in
New Lodge is void, by Noy ; becaufe otherwife he might take as much
\Vood as he thought fit, and fell it when done. But if the Claim had
bcenof as much as he Ihould burn in New Lodge, it had been good. Ibid.
23. The Inhabitants of Haley claimed Common of Pajture in the Foreft ;
'tis not good, by Nov ; for Inhabitants cannot claim any Profit apprendre,
as (©atClDiirll'Si Cafej Co. 6. but an Eafement they may, as a Way to
Church, ibid. 297.
24. A Claim for Common for Cattle, without faying Levant and Comhani
nyon Land in certain, is not allowable. Ibid. 298.
25. In Ejeifment, a fpecial Verdi6t was found, upon which the Ques-
tion was, whether or no a Prefcription for Common or Pajturcfor all Cattle
and Swine, in a Foreft at all times of the Tear, were a good Prelcription,-
or not. It was argued pro Quer. that the Prefcription was naught,
which was agreed by the Court, and the Counfel of the other Side ; but
iox not finding expref sly that tt was a Foreji, J udment was given pro De-
lendente. Hard. 87. Mich. 1656. in the Exchequer. Woolridge v. Dovey.
26. In Replevin oia Heifer, the Defendant avowed Damage Feafant; the
Plaintiff, in Bar, prefcribed for Common omni anno omni tempore an ni ; Ifluc
upon the Prefcription, and V^erdift found the Iflue tor the Plaintiff j but
further found, that the Land, and Place where, is infra Regardtim Foreji^de
Whittlewood in Com' Northamton ; upon which Judgment was given for the'
Plaintiff that the Prefcription is good, notwithftanding that the Place
where is a Foreft, and that in the VxtfcTl^txonFence-mofJth is not excepted,
according to -^TriQ; and CUrueC's Cafe. 3 Lev. 127. Trin. 35 Car. 2. C. B.
Brabrooke v. Carter.
Within a 27. A Man may Pre fcribe for Common for Sheep in a Foreft, but not for
FreeChi-je,in Qoats. See Lutw. 81 Grammer v. Watfbn. and fuch Prefl-ription
the Hands of fnay be for Common for Sheep in the Fence-month. Lutw. 81. Pafch. i
OwSfrhe jac. 2. C. B. Adjudged 3 Lev. 98. Pafch. 35 Car. 2. C. B. Trigg v.
Soil, by Pre- Turner. 2 Show. 9. S. C.
j'criftion,mzy,
have Common for his Sheep and Warren for Conies by Grant or Prefcription. But he cannot Surcharge with
more than has been ufed Time out of IVlind, unleis, &C. nor make Burroughs in other Places than hath
been ufed 7'ime out of Alind, unlefs he has Warren by Grant, and then he may Ufe it according to his
Grant. But he cannot ereH a Keiv Warren without Charter. 12 Re — p. ii.And he that has fuch a War-
ren may lawfullv Build U'^on his Inheritance, within his Warren, a convenient Ledge for Prefervation of
his Game. 1 2 Rep. 22. Pafch. 5 Jac. B. R. per all the Juftices and Barons in Leiceiler Forcft's Cafe.
4 Inrt. 298. Cro. J. 155.
Common for Sheep cannot be in a Foreft', per Doderidgc J, to which Coke Ch. J. agreed, unlefs it be
by Prefcription. 3 Buls. 215. Trin. 14 Jac. in Webb's Cafe. And Coke faid that Charta de Forefta
is but in Atfirmance of the Common Law. ibid. Roll. R. 41 1. S. C.
28. If there be Park or Foreft where the Lord has the Game, another
Man may Prefcribe to have the Herbage ^ For the Lord has conliderable
Profits of the Ground by his Deer, which is fb conliderable, that if the
Franchife comes to be determined, it has been held, that fuch a Prefcription
for Herbage being but Surplufage after the Feeding of the Deer, and fub-
ordinate to it, fhall rather be lofi, than carry the whole Profit of the
Feeding and exclude the Owner. And it has been the Cafe of many
Parkes,that have been difparked by the King, after the Herbage granted away,
per Sir Francis North, Arg. Vent. 391. in Cafe of Potter v. North.
(F) What
Foreft.
(F) What may be done by a fiibjeci therein.
423
I. "OY 9 //. 3. Stat. 2. cap. 11. A Nobleman pajpng hy the Voreft^ is al- ^^^f^lH^^,
JI3 loivdto kill a Deer or two, by View ot, or a Horn being blown tertheblow-
for the Forefter, ingtheHom,
it inould be
Propriisfuis Cavibus aut Arcu fuo Propria.
2. 9 H. 3. Stat. 2. cap. 12. Enafts, that Every Freeman pall make itt
his own Wood.^ Laiid^ or Water., ivithtn the Forejt., Mills., Springs, Pools,
Marfjesj Dikes or Arable Ground, without the Cover, fo as not to annoy his
Neighbour.
3. 9 H. ■}. Stat. 2. cap. 13. Allows Ayries for Hawks, ^c.
4. I £. 3 Stat. 2. cap. 2. Ena6ts, that Every Man, that hath Wood within
the Forefi, may take Hoitfebote and Heybote in his Wood.
5. Building a new Houfe in the feveral Soil or Wallie of any Man in a The Owner
Foreft is a Purprefture, and an Annoyance to the Foreft and Game, and of L*"'! '^
finable or arrentable for the tolerating or permitting it to ftand, at the Dif- "^''^ l^ u
'' . rLT/i--t- . ^j \-n • r.1 r -r^ cannot build
cretion 01 the Juftice m Eyre, or he may demolilh it at Pleaiure. D. 240, a Houfe there
b. Trin. 7 Eliz. pi. 45. ivuhoat Li-
cence of the
King or the Juftice in Eyre. Jenk. 230. PI ioa<
6. Ere^ien of a Beacon upon a Man's own Land in a Forft, is a Pur-
prefture. D. 240. b. Marg. 45. cites Atkins's Reading upon the Statute
of Forefts, Auguft 1632. in Lincoln's Inn.
7. So, where a Man devifed a fum of Money ibr erecting of a Caufey in
Walthani Foreft, and the fame was done accordingly ; he was Fined lor
Purprefture. D. 240. b. Marg. ut fup.
8. A Man cannot cut down Wood in his own Land in a Foreft, without
View of the Forefter. Co. Litt. 115. a. (o) cites Statute 34. E. r. But
he fays, that, inafmuch as this Act is ;// Affirmance of the Common Law, a
Man may prejcribe to cut down his woods there without fuch View, and
fays that it was lb adjudged, 16. Eliz. in the Exchequer, as Popham Ch.
J. reported to him.
9. In fuch Forefts or Chafes being in the Hands of a common Perfon, sp 12 Rep
thofe, that are Owners of Wends, may cut them down at their Pleafure with- 22. And if
out Licence or View of the Forefters ; but yet {o, as to leave fufficient they are not
Vert for the Deer there. Cro. J. 155. Pafch. 5. Jac, B. R. Leicefter Fo- l°^''^V'"
reft'sCafe So tho' it be in the Hands of the King. ibid. th7cha^l
Jenk. 316. pi. 6. c»!y, the
Freeholders
there, tho' the Chafes arc In the Hands ef the A'wir, may cut the Wood and Timber growing on their
Land.s, without View or Licence. But if the Owner leaves not fuflicient Covert to maintain the King's
Game, he fhall be punifhcd at the Suit of the King. P. j Jac.
10. Parks laid open to Forejis for 40 Years, may yet be inclofed again, Jenk 31 5.
and they may kiJl Deer that come therein. Cro. J. 156. Pafch. 5 Jac. P^- ^•
B. R. Leicefter Foreft 's Cafe.
11. Inclofures cannot be in Forefts or Cha(es,unlels -with, low Hedges, Jenk 3115.
•which may not difturb the Game; and tho' Inclolijres have been continued pl- ^■
for 40 Tears together, if they were no ancienter, they may well be de-
ftroyed and laid open. Cro. J. 156. Pafch. 5. Jac. B. R. Leicefter Foreft's
Cafe.
12. If the King grants 2.yv^y part of his Dcmefne Lands, cum Omnibus
Bofcis there growing, for a valuable Confideration ; the King's Intent was
not to difaforeft this, but only to pals the Intereft in xhe Timber, as well
as the Soil ; but the Timber cannot be fell'd by Virtue of this Grant.
And if the Patentee will fell any of it, he muft take the fame Way as
others do in like Cafes. Jo. 268. 8 Car, in Itin, Wiadfor. Whitlock's
Cafe.
(G) Grant
^24- For efts.
(G) Grant of a Foreft to a Sub)e6i:. Good. And how
confidered.
D. ifiQ.b. pi. J ripHE King grants the Fofeft of W. and S. in the County of S. to
2 Eli?'^ I d Jl ^-fi'' 6° Tears i A. covenants with the King to maintain lotf
North v^ jDaJ- therc^ during the fuid Term^ and at the End thereof, to leave the Fo-
Cromwell. rejt fo Jiocked to the King ^ the King grants the Fee of the Forell to B. B.
during the 'Term cannot ki 11^ nor gme a Warrant for any Deer there-. By all
the judges o'i England. For the Forell was granted for 6o Years, and
the Game palled by the Grant of the Forell, and the fliid Covenant does
not controul the Grant. And if B. might have fuch Liberty, he might
dilable A. from performing his fiid Covenant. Jenk 218. pi. 63.
2. The Honour of Pickering has a Foreft appendant to it. A Patent
granted by the King, of the Honour cum Pertmentiis, palles the Foreft j
and the Grant of the Foreft palles the Game. Jenk. 218. pi. 63.
3. A common Perfon may have Foreft by fpectal Words of Grant. As to
have Foreft, and to tonftitute Juftices and Verderors; but not by General
Grant of Forefts, per Popham J. and he laid it had been fo adjudged.
Palm. 94. 37 Eliz,. B. R. in Cafe of Jennings v. Rock.
(H) Of the Officers of the Foreft.
1. 9 H 3. Stat. 2. cap. 5. Ena£ls, that Rangers of the Forejls Jball cx-
ercife their Offices, as 11 fed at the Coronation of H. 2. and not otherivife.
2. 9 H. 3. Stat. 2. Cap. 7. Prohibits Extortion by Officers of the Forefi.
3. 34 £. I. Stat. $. cap. 2. Ena6ls, that On the Death or Abfence of any
Forefier, ^c. another pall be put in his Place.
4. 34 £. I Stat. $. cap. 3. Enacls, that No Foreft er; Nepali be put upon
any -Afjife., Ji'^^ C''' i^^l^'ift') taken out of the Forejl.
5. 34 £. I. Stat. 5. cap. 4. Enafts, that If Officers of the For efi fur charge
the Foreft .y they fhall be tmprifoned.
6. 25 £. 3. Stat. 5. cap. 7. Ena£ls, that No Forejier, ^c. pall gather
Visuals or other 'thing by Colour of his Office, but that which is due of old
Right.
7. 32 //. 2. 35. Lnpowers Jujiices of the Ki?jg's Forejls, by writing under
the Seal of their Office, to make Deputies.
8. If one of the Officers of the Foreft put one Seal to the Rolls by Jffent
of all the Verderors Regardors, &c. it is good. 8 Car. Jo. 268. Ld Love-
lace's Cafe.
9. If Officers of the Foreft break their 'fruji, it is a Forfeiture of their
Places, per Noy. 8 Car. Jo. 272. in Ld Lovelace's Cafe.
10. Office of Agifiors, is only to prefent 'TrcfpaJJes done by Cattle; and
any other Prefentment by them, not belonging to their Office, is void ^
and 70 it is of other Officers, &c. per Noy. Ibid. 280.
11. If a Man claim the Office of Keeper, &c. and no Fee for the Exe-
cution thereof; this is but a Burthen, and therefore he is removeable at
Pleafure: By Noy. Ibid. 292.
12. By Acceptance of the Offiicc of Verderor, all other Offices, as Keeper
and Bailiff of feveral W^alks, and of the Game, and Riding Forefter,
ere determined, becaufe ftibordtnate thereto^ and the Objection, that a Ver-
deror was by Election, which might be againft a Man's Will, and there-
fore Ihould not determine other Offices by Letters Patents, was difillow'd,
•becaufe of the Acceptance of what he might have waved, 8 Car. i. Jo.
295. in Sir Cha. Howard's Cafe.
13. Tho*
For ells. 4.25
13. Tho' Men may cut thth Woot^s for necelHiry Boots, by View of
Forelters or Verderors, yet at the next Court of Attachment, the Officers
ought to prefL-nc what was Ji-//c(/, and that it was l^j View, fo as it may ap-
pear on Record. Per Noy. ibid 295.
(H. 2) How far the Eeafts are privileged when * out of t ^^w^^j^^s^'^
the Foreft, Park, or Chale. HuntingCB>
I. TF a Man has La»rl adjoining to a Chafe ^ and Savages enter intd his
■ Jl Land, he may chale then out with fmall Dogs^ but not laith * (^"e;. (Le-
* Greyhounds. Br. Foreft. pi. i. cites 43. E. 3. 8. verets>
2. And by fome, if the Dogsfoilovj them hito the Chafe^ and the O-juita- S. P. by Do-
recall them, and vet they kill the Savage?, Treipafs does not lie. Quaere, detidge J.
Br. Foreft. pi. i'. cites 43 E, 3. 8. ''°P''- '^^■
■ 3. Forefter alleg'd Cuftom, that when the Savages went out of the Fo- S. P. by BrU
reft, that he might efiter hito the [L:V!d~\ of a not her ^ and rcchafe them:, but |^nK.elw. 30,
per Newton, it is not a lawful Cuftom \ For they are Ferae Naturae, and
when they are out of the Foreft, none has Property in them. Br. Cuftoms.
pi 64. cites 7 H. 6. 36.
(I) Diiafforefted, and the Effei9:s thereof.
1. 9H. 3. Stat. 2. cap. I. Ena£ls, tlmt all Fcrejfs, taken out of thcSuhjCif's
Lands^f jhall he difaff'orcjhd^ faving Coinmon of Herbage.^ and ether Things
within the Forcfl., to fuch as "isjere accujiomed to enjoy them.
2. 33 Ed. I. Stat. S- They., whofeWovds are difa£brejled^ Jhall not have Exception
Conwion within the Forejl. was taken,
that this wa'?
nor a Statute, but an OrAinaTice o»/v ; But all the Juftices ever-ruled it. For t'opham faid that he was i
Counfelin a likeCafe 9 Eliz.betw'een Sir(]Il)riC. lir'attonand Sir3.S>t.!Lf2fr in the Exchequer, which
continued till 19 Elii. and by good Advice adjudged a Statute. Palin. 93. Jennings v. Roclcc.
They.y which will return their Woods into the Forejl., (hall have Common as
they had hejore.
3. If one has Common in a Forefi., and by Letters Patents of the King,
this Land is difaffbrefted, yet he fhall have Common, per Popham Ch. J.
Quod fiiit concelfum by all the Juftices. Palm. 94. 37 Eliz. B. R. Jen-
nings V. Rock.
4. 16 Car. I. cap. 16. §. 8 'E.n^Qts., that all Grounds de-afforcjledjince the
twentieth Tear of King James /hall be left out of the Meets and Bounds of the
Fore/Is., which are to be enquired of., and pall be de-aforejled.
\ 9. Provided that the Owners and Occupiers of Tenetnents left out of the
Bounds of the Forejls to be returned and certified by Virtue of CommtJJions grant-
ed to enquire of the Meets and Bounds and Fore/Is , way enjoy fuch Common and
other P} ojits within the Forejls as anciently.
5. Upon a Bill in Equity concerning Common., claimed by the Inhabi-
tants in the Forcjl of Sherwood in certain Lands there lately enclofed by the
King and his Patentees, it being a Common by Prefcnption, and the
Lands of the Inhabitants there, being now difafForefted, whether this
Common be deftroyed by the De-atforcftation upon the Statutes of Charta
de Forefta, Ordinatio Foreftas & 34 Ed. i. was the Queftion ? And by
the Opinion of Baron Raynesford, and Turner, the Common is gone by
the exprefs Words of the Statute of Ordinatio Foreftae, and of 34 Ed. r.
• And in an Iter, 8 Ed 3. a Judgment was cited in Point in a like Cafe, in
this very Foreft, of a Common by Prelcription. But the Ch. Baron
doubted : For if the Lands were not duly afforefted at firft, and that they
5 0. had
^26 For eft.
h.^d Qwmioij iy Pnfcriftion in the Forejl it was not the Intent of the Ordi-
natio ForelliE to toll luch a Common. But if they were well afiorrefted at
firll, and atcerwards difafiorelled unduly by fonie Perambulation, then
the Common is lolt, if the Owner will have the Land remain diflifto-
relk'd ; and this is the true Meaning, and Interpretation, and Intent of this
Afct ol Ordinatio Fcrelte, and this being matter of Fa6l ; and it not ap-
pearing oi what Nature theie Lands are, that are now dififforelled, nor
whether there be a Common by Prefcription in the Cafe ; this Cafe is not
ye: ripe iox a Decree, which mull be made one Way or other, as the mat-
ter ot Fa6t lliall guide them ^ and this was the firft Ground of his Doubt.
2d This Aft ot Ordinatio ¥oxt\^XJ)iakes but a tcmpcrarySuffenJion oj theConi-
iiion LaWy viz. fo long as the Owners of the Lands v/ould be out of the
Forell, & non ultra : So that there cannot be, in fuch a Cale, an abfolute
Decree, or a perpetual Injunftion. His 3d Reafon was, becaufe now by
the Statute 17 Car. i. 16. xhQ L.zndsc'xnnoz be a^fforejted aiatn; and there-
fore it would be hard to take away Common, where it is due of Right.
For thefe Realbns he would not deliver any politive Opinion in the Cafe,
which he faid was a Cafe ot great Importance ^ and deferved another
Kind of Argument than upon an ordinary Demurrer in Law ^ which, yet,
the Court never refufeth to^ hear upon the leall Difficulty, (tho' the Confe-
quence be many Times of fmall Concernment,) that this Caufe deferved
more Conhderation than to be determined upon a fudden Opinion upon
the Hearing. But becaule the Chancellor of the Exchequer, and the 0-.
ther Barons were againlt him, the Decree pafled pro Rege. Hard. 437,
438, 439. Hill. 18 & 19 Car. 2. in Scacc. the King v. Inhabitants of
Rodly in Gloucellerlhire.
6. x\ Manor may be ivtthin the Metes and Bounds of a Forejl^ and yet
mt -Ji'ithni the Regard. As if the Manor were difaffhrejied by Charta Fo-
reltae, becaufe it was a Subjeft's Manor, and not the King's; yet it re-
mains within the Metes and Bounds of the faid Foreft, but not within
the Regards ; For now by the dififforefting, 'tis made Purlieu^ and not
ibbjeft to the Regards and Laws of the Foreft, as to the Owner of the
Manor. See Charta Forefta i. and yet, notvvithftanding this Statute, if
the King had granted this Manor to be jree of the Regards, 'tis Itill
within the Metes and Bounds of the faid Forelt. Arg. Bridgm. 25. in
Cafe of the King v. Biron.
See(K. 2). (K.) Offences in Forefts, other than killing and hunting-
Deer. How punillied.
I. A was amerced at a J uft ice-Seat in the Foreft for putting in his
Jf\* Sheep todepaflarethtTQ, and being quellioned for it, he jultified;
for which Contempt he wasfined 20 Marks, and for refiifmg to pay it, he
■was committed to Prifon, and being brought up by Hab. Corp. the Court
refuled to bail him, and thought he ought to be punifhed for the Jullify-
ing. 3 Buls. 213. Trin. 14 Jac. Webb's Cafe.
2. If a Man be prefented for any Offence in a Forell, as JFaffe, &c,
and puts in Claim to be quit of Wafte, &c. he fliall be fined for the pre-
fent ; and when the Clai^n is allowed, that dtfchargeth the Fine. 8 Car. Jo.
267. Cafe ot the Hundred of Wargrave.
3. A Man may fell by the View of the Forefters or Verderors for Fire-
Wood and other neceflary Boots, but not any Thing to fell but by Writ of
Ad quod damnum, per Noy 8 Car. Jo. 268. Whitlock's Cafe.
4. If a Man make an Alfart, either by his flubbing up Wood and plo'^J-
ing it, or plowing up Meadow or Pafttire, the Party ihall be fined, and the
Value oi the Corn Ibwn Ihail be anfwercd to the King. 8 Car. Jo. 269.-
Whitlock's Cafe.
*••*•> . n ?• In
J^'oreft.
427
5. It was very Itrongly held (contrary to Ld Coke's Opinion in Litt. Itwa^argu-
115. a. b.) that ho Prclcrnption can be to fell and fell M'ood ■xitbout View ot" ^^ ^^ ^^T^
tile Forelters, except with the Help ot ail Allowance ^ per Ld Richard- fcription to
don and Noy. 8 Car. Jo. 270 & 271. Ld LoVelace's Gale, kW Wood,.'
per Vil'um
is not good, but itniuft he ter Fij'itm £p /^Uocathmm; For if it be per Vifum only, then If the Forefter,
being required, retufe to come, it may be cut without View ; For which he cited a Cafe in tjie Datcliy,
of one JLUTiIIi'r. But in Sir 2ri)0:na5 i^almiT'SCafe 5 Rep. 25. a. it is held, there is no Diverfity bi-
tween per Vifum, and per V'lfuni & Allocationem ; for in both Cafes, u^or. Kecjuejl made, and Rehif.t!,
the Party w/<jy take if oodiunkoHt I'teix; or Delivrry SCar. Jo. :75, z-6. Cafe of the inhabitants of Egham. —
A Cale was alfo cited by Noy as rciblvcd 6 ]\xc. that in a Ch/'fe one may prefcribe to fell, &c. becaufe
tiot witlhi tie StiUi-it: of Charts de Forelta; ; from whence he ftrongly inferred, that it could not be prc-
•fcribed for in a Forcft. Ibid.
It was agreed bv Noy, that a Prefcription to cut down \^'ood in a CI:afe without View"i is good.
Jo. 3S9. in Cafe of the Tenants of the Manor of Bray.
6. One B. was fined 4 /. lor vt.iking a Ferry where there -was none be-
fore; For by this means the Forclt may be abuled by Itealing Deer, and
carrying them over the Water. 8 Car. Jo. 274. Blagrave's Cafe.
7. One was indifted for thre.itning Words to hinder a Complaint toheihii. SirCh.
made againft him for cutting Wood, and fined 100/. and committed till he Howard's
found Sureties for his good Behaviour. 8 Car. Jo. 274 Street's Cafe. ^^^'^ ^- ^•
8. Diners were fined for concealing the Killing Deer. Ibid. 275.
9. One was fined 50 j. for carrying a Gun with Intent to kill Deer. Ibid.
10. It was faid by Mr. Noy, that in H. the 2d's Time, the Inhabitants
in the Foreft were fined 100 Marks for burning Heath. 8 Car. Jo. 276.
In Cafe of the Inhabitants of Egham.
11. It was prelented that one had ere^ed a Brick Wall., and thereby
Jlraitned the Highway. Mr. Noy fiid it could not be arrented without an
Inquiry, per Miniftros Forellie, i\ fit competens PalHigium. 8 Car. Jo.
277. Brown's Cafe.
12. The Forelters may not take any Thing for their View, per Noy.
8 Car. I. Jo. 277. in Brown's Cafe.
13. If the four Men and Reeve of any Town make Default upon thejirff
fitting of the Jajtice Seat, the whole Vill fhall be amerced ; but after Ap-
pearance, they only who make Default. Per Noy. Ibid. 279.
14. One, for drawing the Prefentwents of the Agillors, whereby he made
them prefent what did not belong to their Charge, was fined 10/. Ibid. 280.
15. If there be: a Warrant to cut Wood, yet they ?//«/? cut fair, and fo,
that the Remainder may not thereby come to Deltruflion, per Nov.
Ibid. 280.
16. Thofe who claim Common of Failure in the Forelt, if they ufe
Stafi-herding, i. e. to have one follow their Cattle, &c. their Common
may be feifed till they pay a Fine for the Abufe, per Noy. Ibid. 282.
17. Upon a Difillowance oi' & Claim of Fee-Trees, the Spoils are to be
anfwered to the King ; and the Horfes and Carts which carried them away,
are to be enquired of; iot xhty ^iQ aW forfeited ^ by Ld Richardfon. Jo.
282. In Relton's Cafe.
18. For evening a Windmill on his own Ground within the Foreft a
Man was fined 5/. Becaufe it frighted the Deer, and drew Company to
the Difquiet of the Game. 8 Car. Jo. 293. Sir Sampfon Darrel's Cafe.
19. VV^here Trcfpajfers in a Forelt, Chafe, Park, W^arren or inciofed ^^ n r^ . -
Ground, wherein Deer are kept, will nut render themfelves to the Keep- b— Crom^'-
crs upon a Hue and Cry to llaod to the King's Peace; but fly or defend 30. b.— D."
themfelves, in fuch Cafes they tnay be lawfullyyAw/. Hawk. PI. C. cap. "i^^- pi ^ "
28. S. 15. cites as in the Marg.
20. As to Imprifonments for Offences in the Forefl, which are not within * Regifter
the Benefit of a * Replevin, they mufl be for Offences in Forelts ftriftly w- b.— 4
fuch, and not in f Parks or Chafes, but 'tis not mat-erial whether the Fo- ^"i^- '.'^- "~"
rell be the King's, 4: or a Subjeft's. 2 Hawk. PI. C. Abr. cap. 15. S. 20. g^ b^RN.
the Book at large. S 38. cites as in the Marg. B. 6-.CD)—
PLC. 124.3.
f. I Inft. 2. a. 233. a-
21. Perfons
428
Forells.
4 Inft. 290. 21. Perfons indi£led or taken ivith the Manner, being imprifoned, have
8 h^'^'F^"^ x.\\^'\x Klet^!cn^ cither to purfue the Remedy given by the Statute i E. 3.
Isj'q ~(a^ ^tM. I. cap. 8. or to be bailed by the judges of Wellminltcr Hall on a
(3)(C). — Habeas Corpus. But it' a Perlbn be imprt'foned for anOHence relating to the
45 1. 37. ¥oKi\ "-jiJithoiit having heen iudi&ed ior it, or taken with the Manner, he
■P'- 3- may have an Aft ion oi' fa/fe Imprifonmcnt, &ic. z Hawk. PI. C. Abr. cap.
15. S. 22. the Book at large. S. 39. cites as in the Marg.
Scc(K) (^K. 2) Offences in hunting and in killing Deer. Pu-
nilhed how ; and Pleadings.
j^ ^5 J J I. The Court of B. R. were of Opinion, that upon a Conviftion of
Shando'is v hunting on the Stat. W. 1. 20. The Fine and Imprtfomnent isfm- theKing
Wye & i\. and not the Party ; and the Defendant fhall not be difcharged out of Prifon,
but by the Kings VV^arrant direfted to the lame Juftices. Trin. 13 H. 7.
Kcilw. 39. pi. 5.
2. Indiftment of killing of a Hart proclaimed, found before Jufiices of
Peace ; there it is laid, that the Place ought to bejhewn where'twas proclaimed,
and where it was killed; For if it was killed out of the Forell, it is law-
ful for every one to kill him, quod non negatur. And per Fineux Ch. J.
he may plead this Matter to the Jurifdiftion of the Court j For the Juj-
tices of the Toreji ought to determine it. Br. Indiftments pi. 8. cites zt
H. 7. 31.
3. A Man having a Chace within a Foreji, is y^t Jinalle for hunting or
kiiling any Beajl oj the Forejl ; fo ii" one have a Chace adjoining to the Fo-
rell, and denies the Keepers of the Foreji to fetch back any Stag, &c. he is
finable. 8 Car. Jo. 278. the Cafe of the Manor of Windlelham.
c fh -- 'i 4" S^^^^'^^ were committed on the Warrant of the Chief Jultice in Eyre
C. it is'thcre ^^ ^^^ Foreft, directed to a Mellenger ; and on their Removal by Hab.
faiJ, that Corp. cum Caufi into B. R. it was argued, that by Charta de Fonjia k3 i
the Warrant £.3. c. 8. & •] R. 2. c. 4. None Jhall be i)?iprifoncd bejore Prefentmcnt
d'"^ M f ^^ ^^^ Svvanimote, and the C. J. /;/ Eyre is zvithin thofe Statutes, and (o
fenger, when reltrained, and the RegillerdeB. 80. and F. N B. 67. (C) was cited to
ro Officer of the lame Purpofe. Holt Ch. J. faid the Statutes do not by exprefs VV^ords
the Foreft is exclude the Ch. J. in Eyre from committing, till Prefentment made ; but
^h^^'n^^ yet he is within the general Words of them; and by Eyres J. the C. J.
wastheefpe- ^^ Eyre cannot commit, but only where the Party is taken in the Atanner,
cial Reafon viz. with bloody Hands, or with Venifon in the Forelt, or in the Act of
the Commit- cutting downTrces, &c. But Timber found in a Yard, which was cut in
hTrp^t the Foreft, is not in the Manner ; to which Dolben J. and the reft agreed.
And that^ k P^mberton Serjeant, fiid, altho' one be taken in the Manner, yet the G
was agreed J. in Eyre can t commit ^ for he can ground his Warrant on nothing but a
by three of Prefentment ; but Holt thought he might, on Oath made that the Party
the Judges .^^^^g jaken in the P.Ianner. Per tot. Cur. the Warrant was illegal, and
TZ viL the Prifoners difcharged. Mich, i W. & M. B. R. Comb. 159. Lord
„er is, Lovelace s Cale.
■when a Man
■was taken in the very Faft, or ready to do it, or with his Bow bent, or readv to flip his Do^, or
Hands bloody ; but that finding Timber of the P"oreft in a Man's PoflefTion, viz. in his Yard, was not a
taking in the Nlanner within the Statute, tho' of this the Ch. J. doubted ; but all agreed, that the tak-
ing upon a frcfh Parfuit, was a taking in the Manner
(L) Pleadings
Foreil. /).29
(L) Pleadings and Proceedings.
1. 9 i/. 3. Si.it. 2. cap. 2. Ehacrs that Afc« that dwell out of the Fore ff^
(kail not come before Jitjtices of the horefi by common Summons.^ tinkfs they
'be ifiipleaded there., or be Sareties for others that are attached for the Fcrejl.
2. 9 //. 3. Stat. 2 cap. 8. Direih "ijhen SoJammotes pall be kept, and
•■xhofjall repair to them.
3. 9 //. 3. Stat. 2. cap. 16, Dtreils how Pleas of J he For eft pall he
haldeii. . ' . '
4. 34 £. I. Stat. S- c^p- !• DireHs how Offences dojie hi Forcjis foall' be
prefeuted.
5. 34 E. I. Stat, s cap. 6. fhe Juftlce of the Foreft or his Lieutenant],
in the Frefence or by yiffent of the •'Treafiirer^ pall take hines and Amercements
ofthofe indibied for Trefpafts in Fore/lsy and pall not tarry for the Eyre.
6. 7 -R. 2, 3. "Enacts that a fi/ry^ ;(or the Trial of a Trejpafs within a Fo-
?■£/?, pall give their Vcrdiif whire ttey received thetr Charge.
7. 7 R. 2. 4. Enacts that none pall be taken or iniprij'oned by any Officer
of the Fcrepy without hidt(fiii-:nty or being taken with the Mainour^ or tref-
■paj/ing in the Forcfi.
8. Trelpais of a Clofc broken^ the Defendant faid that the Place where Sec.
lies adjoining to the FonpofJ'F, of which he is Forever of Fee; and he and his
Ancellors Time out ot -Mind, have /fed in the fame Pla.e where to chafe
the Savages of the ForeP with his Dogs., and to re-chace them to the Forejt •
and that 4 Deer came out ot the h'orelt there, wherefore he re-cliaccd
them &c. to the Forell &c. and a good Prefcription, per Mordant,
Frowicke, . Vavifor & Brian ^ lor it may have a lawful Commencement.
Br. Prefcription. pi. 107. cites 13 H. 7 16.
9. Inditlmcnt tor killing of a H.rrt procLumed^ found before the Jtflices s C cited S
of the Peace., the Indictment was challenged, becaule it was not pewn in C.ir. Jo^ zrt:..
the Indictment, in what Place the proclaiming was made., nor in what Place '" ^'^^ ^^'^
the Hart was killed; for if it was killed out o^ the Bounds of the Forclt, lii-Ja of War-
it was lawiul for him to kill it. Per Fineux J. he may plead tothe Ju- grave,
riidiction of the Court, becaule the Jullices of the Forell ought to deter-
mine this Matter, &c. Br. Forell. pi. 9. cites 21 H. 7. 30.
10. In i'j'Vi??^!.';/? a fpecial Verdict was found, upon which the Quellion . . •
was, -whether or no a Prefcription for Common cfPaPitre for all Cattle and
Swine in a Forell at all Times of the Tear., were a good Prefcription, or
not ? It was objected, that it does not appear that it is a Forell ; for it
does appear to have been difaflbrelled ; and a iiVi- Words in a Special Ver-
dict found afterwards, lliall not by Inlerence and Conltruction make it a
Forell again. And it mull ha\e been a Forell Temps d'ont, &c. or the
Prefcription cannot come here in Qiicllion. It was argued pro Quer', that
the Prefcription was naught, which was agreed to by the Court and the
Counfel ot' the other Side ; But for ?wt finding exprejly that it was a
Foreft ; Judgment w>s given pro Defendente. Hard. 87. Mich. 1656. in
the Exchequer. Woolridge v. Dovey.
1 1 . The Procefs in Eyre is de Hnra in Horam ; and the Party may
plead prefently : and the Preientment of -all the Officers is fufficient Evi-
dence. 8 Car. Jo. 26S. W'hiclock's Cafe.
12. Ji arrant Irom the King to fell for Repairs^ was held to be not legal j An l'?uier-
foT the Decay ought ftrft to have- been viewed, and an Eftimate thereof w/^r^^, kn^tr, on a
and then thereupon the Warrant to have gone. 8 Car. To. 269. Sir Cha. ,'''''"/.'"''"'
II J'or tor cutting
Howard s Cale. ■ u„la-.itiil
BniijelFicJ,
f.vA he did it i) tie Kini;'s Ccmmand to Lay fhy for the Deer in hard Times, but he was fined lo /. for
not having it fiill viewed. Ibid. zyy. R*p!ey'i Cafe. S. P. where although the Vcrdcrors affirmt-il
that it \V3S emplpycd in Repairs, yet the Party was lined ^i for the undue Way of uking. Ibid.Cliftou':..
C;ifc
^R 13 One
430
Foreftallers.
12. One being presented tor felltng Trees in 3 Acres of his Woods,
fhewed the General Pardon ; Mr. Noy, on reading it, faid that TrefpaJJls
were there pardoned, liut not Vajia, and therelbre he was fined 40 J'.
jo. 279. Sir VV.Tichborn's Cafe.
14. Per Cur. Certiorari may be granted out of this Court to the Jtijiices
in h'.yre ; but they would not grant it in this Cafe, which was to remove
a Record before them, concerning Pickering Foreft, for cutting iVood
there, becaufe the Matter is only a rrefcription of a I'hing, and enquirabk
and pinijtable by the Regarderors there; For by their Law, whofoever is
Owner there, can't cut his Wood without leave of the King. And to the'
Intent that fuch Offences againft Foreft Law fhould not go unpunifliedj
they refolved that they -isjoiild not grant a Certiorari upon Prefentnient tilt
Convi^ion there ; but they further declared for Law, that no Prefentnient
nor ConviRton upon it before Jufiices in Eyre, concerning Matters of the
Foreft, /;/j// conclude the Right of the Party ^ but that he may, notwith-
ftanding this, have his Action at Common Law for the Trefpafs, or for
the Recovery of his Right. Sid. 296. Trin, 18 Car. 2. B. R. Duke of
Norfolk V. Duke of Newcaftle,
Foreftallers, &c.
(A) What was a Foieftalling, Punifhable at Common
Law.
^'"'ip^' I. A Lombard was indlSied for attempting, by Words, to enhance the
Br'^Indid- JTx. ^^'<^^^ of Commodities ; and it was objected, that this did not
ment. pi. 40. found in Foreftalment, fed non allocatur. 43 Aif. 38.
S. C omits
the Words (Non allocatur) Lord Coke cites S C. and fays, th.it hereby it appears, that an Attempt
by Words, 10 enhance the Price of Merchandiies, wa.s punilhable by Law, unddid found in Foreftal-
ment. 5 In^i 196-
* 4; Afl[ 58. 2. All endeavours -johatfoevcr to enhance the covmion Price of any Merchan-
9 Inft_i95, dize, and all kinds ofPraHices which have apparent Tendency thereto,
)^a 4"" ^h^t^her hy fprcading * falj'eRu?notirs,oi by f buying Things ;'« aMarket be-
Prifanment fo^^ ^^^ accufiomed Hour, or by buying and felling again the fame thing in
12. the fame % Market, or by any other luch like Devices, are highly criminal
|Crom. 80. at Common Law, and all fuch Offences anciently came under the general
b t Crom. jsj^otion of Forcftulling, which included all ki.ads of Offences of this Na-
ture. I Hawk. PI. C. 234. cap. 80. S. i. cites as in the Marg.
; Inft. 196. 3. But liny Merchant mzy i-i.\v'[aMY bring Vtiiuah, or any other Mer-
H. P.C. 152. chandize, into the Realm mgrofs, and fell them ingrofs ; But no one can
lawfully buy within the Realm, any Merchandize in Grofs, and fell it in
Grofs again, i Hawk. PI. C. Abr. 269. cap. 80. S. i. cites as in the Marg,
4. Alfo it is an Offence at Common Law, tor a Man to ingrofs a whole
' Commodity, Kjutth an Intent to fell it again at an unreafonable Price, whe-
ther he (ell any part of it or not j And even the buying Corn in the Sheafs
is an Offence at Common Law. i Hawk. PI. C. 4. cites 3 Inft. 197. H. P.
C. 152.
(B) What
Foreftallers, &g. /j.^i
(B) What is Foreftalling ; And who a Foreftaller, ^c.
by Statute.
r/'
5 & 6. Ed. TJ'NACTSj that ifdnj PerfoHpallbii)\ or caufc to hehoiighti, Buying ,
i). \\.S. I. r J any Merchandifs^ * VUtucil^ or other Thingy coming by (^"rr. to maki
Lander J fata- towards any Market or Fair, to be fold in the fame i, oi- caning )"//j^*/'j''t''''
toii-ards any City or Port from beyond Sea to be fold, or make any Bargain, Con- ler'^ards/
trail, or Promifc, for the having or buying of the fame, before it jhall be in was held by
the Market, Fair, City, or Port, ready to be fold, orJhflUmake any Motion by Pophamand
Word, Letter, Mejjage, or othcrwifc, to any Perfon for enhancing the Price, xoh^^^sxoh
or dearer felling any of the -Things abovefaid, or dtjjwade, or move any Perfon fing within
coming to any Fair or Market, to forbear bringing the Things abovementionedtQ tl'i^ i>tat.
/iny Market, Fair, City or Port; he fhall be adjudged a Forcjtalkr. ^•^''='^35
S. 2. Dircffs who pall be deemed a Regrator. ^''';- ^si^
S. 3. Jnd whofoever (hall ingrofs or get into his Hands by buying, cm- Anon ^
trailing, or Promife-taking^ other than by Grant or Leafe of Land, orTythcs, But if d Mi-
any Corn growing, or any other Corn, or Grain, Butter, Chetfe, Ftp, or other ^^ ^'(y^Orr,
deadViiiuals, to the Intent to fell the fame again, fjall be deemed an In- Zi'S'fit"'
S."]. Provided that the buying of any Barley, Big, or Oats, Us any Perfon Houfc, this
Jhall buy to con-vert into Malt or Oatmeal in his own Hotife ; or the buying by ''' within the
any Ftpmonger, Butcher, or Poulterei-, fuch Things as concern their Trade, fj^^Q^
ctherwife than by Forefialltng, who flmll fell the fame again at reafonabk Pri- bv Coke Ch'.
ces by Retail, or the taking of any Cattle, Corn, Grain, Butter, Cheefe, or J. as Pal'ch.
other Things abovefaid, referred tipw any Leafs for Life or i'ears ; or the buy- ^^ ^^'"•
ing of any U~tne or other dead Vtiiual, by any Innholder or Vi^ualler, to fell ^<^y"°'^^^
by Retail in his Houfe, or to his Neighbours for reafonabk Prices ; or the /jVt it was ad-
buying any \ dried or falted Fiflj ; or of any Corn, Ftp, Butter, or Cheefe, judged, that
by auy Badger, Lader, Kidder, or Carrier, as pall be allowed to that Office, »^ here a Man
by three Jtiftces of Peace of the County, who pall fell or deliver in open Fair V ^^^^^^
or Market, or to any other ViHuallcr, or to any other Perfon, for the Provijion tht famh.to
of his Houfe, within one Month after he (hallfo buy the fame, without Fore- St.mh, and
flailing ; or any common Provijion made without Fraud by any Perfon cf the **=*'* j^ ''^
Things abovefaid, for any City or Town corporate ; or for Provijion fvr vitlual- '^i^r'','/'--^'
ing of any Ship, Caftle, or Fort, without Foreft ailing, pall mt be deemed or and k 'is out
taken to be any Offence againft this A£l. of the Stat.
ii^. 12. Cornmay be tranfported fromone Port to another. bccau(c 'tis
S. 13. Provided, That it pall be lawful for any Perfon inhabiting within one q^', -.'^'^ m'-"u
Mile of the jnain Sea, to buy all manner of Fipfrep or falted, not foreft allitig c ^I'a'c" i.
the fame, and fell them again at reafonabk Prices. Le. 241. pi.
592.
* Ho^s were adjudged not to be 'S iftuals v !tl.in this Statute. Cro. C. 251. Mich. 7 Car. I. B. R.the K.
V Maynard. S.P. per Roll. Ch. '. Sty. 190. Ar-d^-sHcX-i. lyjac. Rot. ^5. it was adjudged,
that buying y/^^/f J to fell again, was not within this Statute. Cro. Car. 251. — For the Law n.temts
onlythoje things that are ufuall) fold in Markets in great ^lantities, as Corn, Cattle, Butter, Cheefe, &c.
to be within the Statute. Ibid. ^ So much of this Statutt as cor.aernt SeaFijh unfalted, or Mud Fijh,
it repealed hy tie Stat, cf ^ Etiz. 5.
2. By 13 KHz. cap, 25. S. 21. The abovefaid Aii of $ ^ 6 ^d. 6. 14. is
made perpetual ; and it is provided, that the faid A^ againft Foreftelkrs, Re-
grator s, and Ingr offers, pall net extend to any IVines, Oils, Sugars, Spices,
Currants, or other Foreign ViiJuals imported Jrom beyond Sea, (Fip and Salt
cnly excepted.)
3. In Information for buying Seed Cor«, having fufficient of his own, and
not bringing fo much of his own unto the Market, it was faid by the judges
to be Law, that a Contrail in the Market, for Corn not in the Market, or
which was not there that Day, is not within the Breach of the Statute,
But if Corn or Grain be in the Market, although the Central! be made
out (fthe Market, and delive-red to the Buyer out of the Market ^ yet it is
withia
4-32
Forcftallcrs.
within the Statute ; And that the Market Ihull be laid, the Place in the
Town where it hath been ufually l<^t^pr, and not ellewhere. Hill. 29
£liz. in CIB. Ciudb. 131. pi. 148. Anon.
4. One bought Barley^ and becaule it was ot fuch Qiiantity that he could
not make Maft of it in his own Houfe, he rrtade it in another Man's, bv his
own Sj^r.vantSi And it was relblved ; Firlt, that the Converiion ofCorij
jih'o Malt in his own Houfe, to fell agaiii^ was within the Statute, unlefs
there be a laving for it : Secondly, Becaufe it was in another's Houfe, hcia
out of the Provifo, and fo within the Penalty of the Statute. Cited Ow,
135. by Coke^ Ch. J. as Mich. 39 & 40. Eliz. B. R. Framlington's
Cafe. ■
* ? . ^ 5. Information On the Statute 5 E. 6.' 14. for buying Wheat-Meal, and
Duvffon V. converting it into* Starch ; Refolved, by 3 of the judges, that this is not
Culier— SP. within the Statute, but they agreed, that \t' one. buys Com, and makes it
held, by 5 of fnto Meal or Oatmeal, and fells tt, it is within the Stat, tor there is no Alte-
the Judges, nation in this Cafe, but it remains the fame Corn ^ but Starch is altered by
the Statute^," ^ Trade, and lb is not the fame Thing. But Coke, Ch. J. contra. Ow.
but Coke ' 135. Trin. 9. Jac. C. B. the King v. Welt.
contra.
Mich 9 Jac C B. 2 Brownl. 108, 115. Crofs v. Wcftwood.
6. One was indi£ted and convicted by the Name of DaviesFiihmongerj
for ingrolfing and buying feveral Salmons, quas tenuit & vendidit • it was
objefted, that every Filhmongcr, by the Statute, might buy and fell at
Pleafurc; but the contrary was adjudged, x'i xt itnreafonable Prices; And
the Book fays, that ingrolfing Filh ^M/;^ to Market \^^\im'^\'3k>\t. Palch.
12 Jac. in B. R. Roll. R. 11. The King v. Davies.
-S P. Per ■ 7. Information on the Statute 5 E. 6. 14. for ingrolfing loo Bnpcls of
RolT. Ch. J Salt to fell again, and upon Demurrer thereto it was objefted, firll, that
Stjr. 190. Ibreltalling and regrating, are not in themfelvcs Offences punilhable befbre'
the Statute; Secondly, that Salt is not any Viftual uithin the Statute,'
but only a Condimentum, and ibr Prefervation of Viftnals, tho' if any
■ ■ one Ihall engrofs Salt to fell it at nnrcafonable Prices, he may be indi£led at
common Law, fed adjournatur. Mich. 7 Car. i. B. R. Cro. C. 231. the
King v. Maynard.
* By Coke, 8. And a Record of Pafch. iS Eliz. was cited, where * ^//^v'//^ .B^r-
Ch. J- Mjlt- j^y^ ^j,^^ converting it into Malt, and lelling it, had been adjudged no Of-
buy^andVeir ^^nce, punilhable in a Mayor, nor made him a Victualler, (the May-
again, atun- or being prohibited to fell Victuals) Ibid.
reafonable
Rates, fhall be within the Statutes of Ingroflers. Trin. 12 Jac. iBuIll. 249. in Gife of Suckcrman and
Coates V. Sir Henry Warner. So likewife in I Roll. R. 12. the King v. Davies.
Jo. ^20. S. p. Indiftment for ingrofling (y/CYTj XzWjc/ F//^, \'\z. Smelts, Whitings,
C. the King y^- jQ ^^]] again, contra Formam Stat. Upon Not Guilty pleaded it was
— ByCoke found againlt him, and being removed by Certiorari intoB.R. it was
Ch. J. Fifh- moved in Arrell of' Judgment ; for that by exprefs Words of the Statute,'
mongers may j;^ 6 E. 6. 14. Fijbmongers and Batchers, &c. are not Ingrollers within
well juilify ji.jg j-j^f^ if ^hgy byy only Things belonging to their Trades i But held,
ofFirti'"if per tot. Cur. that if they >v^»v?/(.' and fell at unreasonable Prices, thev are
theyfel'lit within it. Trin. 9 Car. i. B. R. Cro. C. 314. Penn's Cafe.
again at rea-
fonable Rates, othervvirethey fliallbc within the Stat. Trin. 12 Jac. 2 Bulft. 24.9. in Cafe of Su.kcr-
inan and Coates v. Sir Henry ^^'■arner.
Mon er^who ^°' O" ^" Ip^iftment at the Aflizes in Kent, upon the Statute made
bought 'Pip- ?§^'"i^ ^^g^o^l^rs of Viftuals, lor ingrolling Apples, Pears, a:id Cherries,
pins to fell L it was infilled againlt the Defendant, that Apples, Pears, and Cherries,
gain, was are Victuals within the Stat, and i'o expounded by Stat. 2 E. 6. \vhere
gudgedin Fm/fwj are called Sellers of Viauals ; But Roll.' Ch. J. faid, that 4
brought in J^'^- Apples were adjudged no Victuals ; and after, upon \Vrit of Error,,
the Kxche- that Judgment was affirnred in the Exchequer Chamber. Jerman, juitice,
diriered.
Foreftallers. ac^^
difieied, and Nicholas, JulHce, held, that Apples are Victual within the quer Cham-
Stat, becaule better than Fiih. Alh, Jultice, hcld^ that Apples are Vic- ^er, not to
tual, but not within the Stat, lor a Stat, cannot alter by Realbn ol'Time, ^-'W"l"nthe
but the Common Law may. Adjournatur. Hill. 1649. &. K. Sty. 190. ted'by'^Cokc
Anon. ' Ch. J. Uw. *
155. as the
Cafe of Bavon V. Biifc- The Barons of the Excheqijer lield clearly, that Applei ^ere not within
the Stat, and adjudged accoidinj;ly ; which afterwards, on a Writ of Mrror brought in the Exclietiuer
Chamber, wa>; affirmed. Althoun;h the 2 £". 6. 15. mentions Butchers, Brewers, Bakers, Cooks, Qjter-
moneers, and Fruiterers, as I liluatlcis, vet Apples are not dead Victuals within the Stat. 5 E. 6. and no
Information before this Time hath been exhibited for them, no more than for Plumbs or other Fruit,
which lerve more for Delicacy than necellary Food. But the Stat. 5 E. 6. is to be intended of Things
Kecrffary, and oj common Ufe jor the Siiflenance cfMan. But the Stat, z E. 6. 15. rtadt ao^ainji Qnjbira-
lies to enfance the Prices, extend to I'hin^s more of Pleajiire than Prof.t. Mich. 6 Jac. in the Exchcijucr,
i; Rep. iS Baron v. Boys. S. P. adjudged in Error in the Exchequer Chamber. Mich. 6 Jac.
Cro |. 214. Braddon v. Brown ; And pcrCoke, Ch. J. there is not any Thiyig proljibited within the Stat.
lilt it has a Prozt/,', how, in jome kind, it nii^y he bought; but there not leing any Provilb jor ^-/pples^
therejore they are not -Within the Intent of the Statute.
11. In Debt upon the Stat. 5 E. 6. 14. for ingrolTing 2000 Quarters
of Oats i alter Nil debet pleaded, it appeared in Evidence, that they were
preign OaTs^ and excr/ipted by 13 Ehz. cap. 23. and alio, that the Detendanc
was a licenfcd Badger, and by that too, exempted ; to all which the Court
agreed. Trin. i4Car. 2. in Scucc. Hard. 231. Hammond v. Taylor.
12. A poor Woman that cried Filh was indifted tor Foreltalling, by
hiyirig of tljh at B'tlUngJgate;, Holt, Ch. J. on the Trial at NiliPrius held,
that Ihe was Not Guilty j For BiHingfgate was a Market Timeout of Mhid,
and io the Party was acquitted ; And he laid, that were it otherwile, all
Filhmongers would be liable to Profecutions. i Siiow. 292. Mich. 3
W. & M. the King v.
(C) Punifhed or Reftrained. How;
3 1 Ed. i.lj'Nafts, that 110 Forefialler jhall be ftiffered to diacll in any T'o-joa, -.^^^^ liaw-"""
I. Pj afidifanybecoHviiiedofthatOJfeiice, for the JirJiTime he jhali ^\m,\W.\\>iV,
leamerced, and lofe the Thiftg fo bought ; For the Second, pall have Judgment PLC. Abr.
of the Pillory ; Jor the Third Jhall be imprifoned and make Fine; and for the ^'°- "^^P ^°-
Fourth pall abjure the Town j and like Jtidgnmit dlfo pall be given his Ac^ t^jf i)jy ^n
cejfarits. fuch Ortend-
ers are lia-
ble to Fine and fmprifcnment, on an Indi&ment at Common Law,
2. S^ 6. Ed. 6. 14. S. 4, 5, 6. Enafts, that every Per/on who pall of- 3 Inft. 195.
fend in any of the Things contained in this fiff, fjall, for the firft Oflence,
fuff'er two Months Iniprifonment, without Bail cr Mainprize, and Ibrleit
the Value of the Goods, Cattle, and Vi if ttal fo by hitn bought or had ^
and for the fecond Offence, one half 2 cars Imprsfonment, and forfeit double
theValue of the Goods, ^c. And fcr the third ORcnce, Jhall be Jet in the Pil-
lory, /« the City, Town, or Place where he dwells, and forfeit alibis Goods
and Chattels, and be imprifoned during the King's Pleafure.
S.%. And if any Per fon, having fii§icient Corn of his own, do buy any Corn
in any Fair or Market, jor change of Seed, and do not bring to the fame Fair
or Market, the fame Day, fo much Corn as hep^all buy for Seed, and fell the
fame if he can, he pall forfeit double the Value of the Corn fo bought.
S. 9. And ij anyPcrfon pall buy any Oxen, Sheep, or other live Cattle, and fell
the fame again alive, milefs he keep and feed them by thefpace of five Weeks
before he fell them again, hepall Jorjeit double theValue of the Cattle fo bought
and fold again, one Moiety of all which ForJ'eitures, to go to the King, the
other to him that wilt fue for the fame in any Court of Ricord by A^ion of
Debt, Bill, Plaint, or IfiJor?nation.
S. 1 1. None pall be punilhed twice fcr the fame Offence.
5 S 3. Information
^9,^ Foreftallers.
3. Intbfination iigainft feveral for ingroifing 1 000 Quarters of Corn ;-
upon Not Guiltv pleaded, the Jury found one of the Deiendunts guilty for
700, and the others not guilty at ail. After much Debate, Judgment was
given againll him found guilty. Trin. 7 Jac. in Scacc. Lane 59. Vaux v.
Aultin & al.
4. Intbrnisition againfl: a Foreftailer, who pleaded guilty, and prayed ti\t
Couxtto mitigate the Forfeiture; Coke, on hearing the Stat. 5 E. 6. 14.
read, feemcd to think they might mitigate the Forleiture becauie it was
only of the Value. Pallh. 13 Jac. B. R. 1 Roll. R. 194. the King v.
W'ray.
(D) Pleadings.
ON an Information on the Stat, of 23 Eliz. 25, for ingrofling Bar-
ley, and converting it into Malt, the Queltion was, whether
the Defendant might plead Not Guilty, and gi\e the fpecial Matter in
Evidence ? and held that he might. Mich. 29 Eliz. B. R. Godb. 144. pi.
180. Anon.
2. Information upon the Statute 5 E. 6, 7. for buying Wools ; the De-
fendant pleaded to all, except 50 Stone of Wool, A'b? Guilty ; and asto that,
Repleaded an Information depending Agd\n^h\m in C. B. at the Suit of B.
G. and averred, it "-jjas jor the fame Offence, unde petit Judicium, &c.
Upon Demurrer it was objected, that the Plea was not good, becaufe ic
was not fet forth, that any Procefs iffued upon the Information ; and if no
Procefs, then the Information was not depending j but adjudged, that as
loon as the Information is filed, 'tis depending j and therefore the Plea is
good. Mich. 33 & 34 Eliz. Cro. E. 261. the Queen v. Harris.
(E) Indi£iment and Informaticn. How laid j And
where.
I. 5 &? 6. £. 6.T7'Na£b, that the Jujlices of Peace in every County, at
14. S. 10. I^j their Quarter Scffions, are impozvered to hear and de-
termine the Offtuces, by Inquijition, Preferittnent, Bill, or Information before
them, and award Procefs thereupon.
S. ID. Profecuttons for this Offence muji he within time Tears after the Of-
fence committed.
.s. P Hawk. 2. Upon the Statute of 5 E. 6. of IngrofTers, if the Information be, that
PI. C. 2;S. j.j^g Defendant hath bought Corn, &c. it is noz futficient ^ tor the Words of
favs^that ^^^ Statute are. Get into his Hands. Arg. 2 Le. 39. 'I'rin. 30 Eliz, in the
i ) every fuch Exchequer, in Martin Van Henbeck's Cafe.
Information,
the Words of the Statute rauft be quickly purfued.
3. By 31 Eliz. 5. S. 5. It is provided, that nothing in this Ati flj all ex-
tend to any Information, &c. for any Offence in any Statute againjl Ingrojfing,
Regrating, or Foreji ailing, where the Penalty Jhall appear to be to the Value
oj- 20 /. but that every fuch Offence may be laid m any County.
^^n°ir -"°v 4" Exception was taken by Folter Juftice to an Information for In-
3&fa2fct It g''°^^g that it concluded, contra formam Jiatuti, whereas it ought to
-.vas holden, have been, contra formam Jlattttorimi ; for this Stat, of 5 E. 6. 14. was>.
that the Stat, determined by the 8 Eliz. and revived. by the 13 Eliz. and fo there were
"> /^ ^- '.4 two Statutes ; but Warburton contra j tor the Information did intend
thou^h\'he ' ""'^7? 5 ^- ^- ^4' ^^^ Words whereof it recited. Irin. 9 Jac. Ovv. 13;'. iq
JDay of m;ik- Cafe of the King v. VV^efl.
ing thereof
rr.ilbkcB in the 13 Elii. 25. Skin. no. Triij- 3 J Car a- S P. and rccms to be S. C.
5 An
FordtaJlcrs. ^c^^
5. An Inlormation on 2 E. 6. lor ingrolfing dtverfos Ciimtilos grant was i RoH- R-
adjudged ill lor the Incertainty of tlie \\'ord Cumulos ; lor the fame 'I''" ^'•'^
might be a Heap thrajhed^ a- in Shocks ; Alfo a Detinue lieth not, nor is Goufdsbur-
-an Indi&mentgood, de uno Cumulo tritici, pretii j And this Information rough. S.C
being on a pc/ial Lazv, the certcnn ^tiajitity of Corn engrolied ought to ap-
pear. zBuh. 317. Hill 12 Jac. Gouldesborovv v. Whider.
6. One was indifted on the Stat. 5 E. 6.- us a Foreftaller, and the In- s, P Hawk,
diftment was, that he met with J. S. at D. near Brillol, and bought lb PI C. 257
much Lead of him, -which was to have been fold at Brijio! Market i it was cap. 80. S. i
objetted, that the Indiclment was ill, becaufe it did not Jet forth that
J. S. was coming towards theMarket with theLead ; tor the Statute, is, that
a Forertaller is he, who buys any thing of one coming to Market with
it, and the Averment ought to be, that it was coming to the Market at
that 'Th/ig. Mich. 14 Jac. B. R. i Roil. R. 4^1. the King v. Hook.
7. Information in the Exchequer for engrolfing Butter and Cheefe ;
Upon Not Guilty pleaded, it was found againft the Defendant, and a
Writ of Error being brought in the Exchequer Chamber, the Exceptions^
amongft others, were, for that the Forfeiture was pray'd, legalis Monet£
Angl. (with a Blank) ad Valorem predict. Butyr. S Caf. but held well
enough, without mentioning any particular Sum, that being to be fettled by
the jury, lo for that it was not alleged in the Information, f/?^? theDefendant
had it not by Demife, Grant, &c. but this was alfo held good, it being a
Matter for the Detendant himfelf to give in Evidence ; laltly, for that the
fhintitf de^nanded his own Moiety, and took no Notice of the Moiety be-
longing to the King ; but this was d Hallowed, lor all the Precedents agree
therewith, and accordingly the Judgment was affirmed. Mich. 20 Jac,
B. R. Jo. 156. Bedoe. v. Alpe.
8. Several were indi£ted, for that they ingrolled magnam qttantitatem
Straminis i3 Feni, at C. with an Intent to fell and make it dearer ; it
was objected, that the Indiftment was ill, becaufe it did not fay, quilibet
eormn ihgroffed; fed non allocatur j then it was objefted, that it was ill,
for that the Indiftment did not mention how many Loads of Hay and
Straw thev ingrolled ; and for that Caufe the Indiftment was qualhed.
Mich. lo Car. Cro. C. 380. Anon.
9. Indictment for ingrolling upon $ E. 6. Exception was taken, that
the Indiftment was laid in London, and the Sale tn Surry ; Ruled, that
it was well enough, (on a fpecial Verdi6t) Comb. 3. Mich, i Jac. 2. B.
R. the King v. Copeland.
(F) Cognilable ) In what Court.
1, 'TUdglticnt was given in a Court of Piepowders, upon an Information
J on the Statute of buying Leather ; theDelendant was in Execution,
and being brought up by Habeas Corpus, it was objefted, that the Judg-
ment was coram non Judice ; tor though the Court of Piepowders is the
King's Court, yet they have not Authority to hold Pleas upon penal Sta-
tutes ; and fo it was adjudged ; but having Power to hold Pleas in
Debt, and fo having Colour to hold Plea in this Aciion, the Judgment
is not void, but voidable by Writ of Error. Mich. 38 Eliz. C. B. Cro, E.
530. Wilkinfon v. Netherfal.
2. Information by the Jttcrney General in B. R. on the 5 E. 6. 14. for i SalLi;-:;.
felling live Cattle within fi-ve Weeks after they were bought ; upon Not Guil- S. C the K.
ty pleaded, there was a Verdlft againft the Defendant, and it waa moved ^- *^*"'-. ~»"
in Arreft of Judgment, that no Information would lie in this Court ; becaufe bioup-ht b
by 21 Jac. jac. i, 4.^?// Injonnations by the Attorney Geiicral, upon any penal the Sherirt's
Statute in any cf the Courts at }VeJlminJier,Jhall be i-oid ; And the Court was Court, in
of Opinion, that ilnce it was clear, the Defendant might have been in- J^°".'^°"' ^"^
difted at the Seflions, on the s F. 6. therefore this Cafe was within the f^^\^a\ivQ
Reftraint Cattle, on
436
Forfeiture.
the Stat " Reltraint of the 21 Jac. and the Information iv.is quiijljsd accordingly-
& +E. fi' Mich. 10 W. 3. C.utti, 465. the King v. Galle.
■was, upon
Removal into B. R. held ill, becaulc it ought to have been brought in the SefTions of the Peace, accord-
ing to 2! Jac. 4. though there it was held, that B. R. was not reltraincd. Latch. iy2. Anon.
(G) Licences ; And Pleading thereof.
1. 5 £5*6 £. 6. THNACTS, that itfiall be lawful for any common Drover,
14,6'. 16. Tj Ikenfedbythree Jitjiices oj the Peace, .Ghioriim tm. to
buy Cattle in fuch i^ihire where Drovers were nfed to buy Cattle, and fell the
fa?ne in common Fairs and Markets, Jorty -Miles dijlant, fo that fuch Cattle
be bought without for ejl ailing.
S. 17. Provided, that no fuch Licence pall continue in Force above one
7 ear, unlefs the fwic be renewed,
2. Information for ingrolfing Cattle, the Defendant jujlified as to a cer-
tain Number under two fevcral Licences, without Jhewmg bow many by one,
and how many by the other ; -xv^^ on Demurrer it was adjudged for the
Plaintiff: Mo. 879. Dawkes v. Hill.
3. It was faid by Hubbard, Ch. J. and Winch, but Warburton con-
tra, that a Man, having a Licence of Foreftalling on 5 E. 6. need only,
in Pleading, recite the Statute of 5 £. 6. without pleading ; For the Li-
cence is grounded only on the 5 E. 6. and the 13 Eliz. only qualifies the
Perfon. Noy. 27. Anon.
4. Information on 5 E. 6. for ingrofling Corn, the Defendant jujiifed
as to 'part, by Licence from three J uftices of Peace, but did not aver his
felling it again within one Month after. It was held not good without
fuch Averment, it being Parcel of the Stature, and not in Nature of a
Condition fubfequent, which is to be alleged by him that will take Ad-
vantage thereof. Trin. i6Jac. in B.R. 2R0II. R. 33. the King and
Smith V. Carter.
5. It was doubted, whether a Defendant, on an Information brouglit
againft him on the 2 E. 6. for ingroffing, might plead Non Ciilp. and give a
Licence from Jullices of Peace tn Evidence, or plead it in Juftification ;
or whether the general Plea of Not Guilty is good, ^\ithout faying,
contra formam Statuti. Quaere. Trin. 17 Jac. B. R. 2 Roll. R. 92. Anon.
Forfeiture.
(A) Forfeiture. In Cafes of Treafon. In what Cafes.
This Aft ^- 34 £. 3- 1_.'NACTS, that there Ihcll be no Forfeitures of Land fit
fives nothing 12. ji i !7)-f<?/o« oC dead Perfons not attainted /« ?te> X/1'f J.
to the King, .
but what -wasin Efle, and pertaining to him at the making it. % Inft. 12. and cites a Judgment in Parlia-
ment 29 H.6. cap. I. ^acbCaOt'5 Cafe ; that he being (lain in open Rebellion, could no way be pu-
riftied, or forfeit any thing, and therefore wa.s attainted by that Act of High Treafon,
2. If a Man be adherent to the Enemies of the King, in France or elfe-
where, it is a Forfeiture of his Land. Br. Forfeiture de terres. pi. 94. cites
jR. 2.
3. iiH.
Forfeiture. /^KJ
3- II //. 7. c.?/). I. Ena6ts, that none pall jorjeit atiy thmg for firving
the King for the Tune being m the IVars'-jJithin the Realm or without.
4. At this Day, tho' a Man be aiding and aHiiting the King's Enemy,
or be killed lit open Rebellion againll the King, he Ihall not forfeit his Land
or his Goods ; but if the Ch. J. of EngLuni, (who is Ibvereign Coroner of
ail England) in Per(bn upon Vt ew of the Jiodj of him killed in open Re-
bellion viakes Record of it, and returns it into B. R. he Ihall forfeit his
Land and GocdSjas wasdoneand refolvcd in time of H 7. per Fineux. Ch.
J. 4 Rep. 57. b. in a Nota of the Reporters, in the Cale of the Commo-
nalty of Sadlers.
5. ii H. 8. cap. 20. S. I. Enafts, that if any Perfn commit High T'rea-'
fon when he is of perfeff A^emory^ and after jlccufation. Examination, and
Confefjion thereof bcjore any of the King's Council, pall fall into Lunacy, he
pall be enquired of m any County, where the King by his CommiPion pall af~
fign ; and if he be there indiiied, he pall there be arraigned without his
perfonal I'refence, and if he be found guilty, he pall fuff'er Death, and for-
feit as if he had been of perfeSi Memory ; but this is altered by i & 2 P.
& M. cap. 10. S. 8.
S. 3. If any Per fon he attainted cf High Treafon, by the common Laws or
Statutes oj this Realm, fuch Attainder by the covimon Law, pall be of as
good Force, as if it had been done by Parliament, and the King pall have as
much Benefit thereby, viz. of Lands, &c. of fuch Offender, and pall be
as well adjudged in aifual and real Poffepiou of all fuch Things of the Offen-
der which the King ought or might lawfully have, or which the Offender ought
or might lawfully lofe or forfeit, or as if he had been attainted by the Parlia-
ment, without any Office or Inquifttion to he found of the fame.
5. 4. 'The Rights^ ^c. of all others, (except the Offenders, ^c.) is
faved.
6. 5 C^ 6 £. 6. cap. U.S. 9. Enafts, that the Off'ender in Treafon being
lawfully convided thereof, fijall forfeit to the King all fuch Lands, Tenements^
and Hereditaments, as he pall have of an Eft ate of Inheritance in his own-
Right, in Ufe or Poffejionm the Kings Dominions, at the Time of the Trea-'
fon cojnmitted, or at any Time after.
7. 7 Jnn. cap. 21. S. 10. Jfter the Deceafe of the Perfon who pretended
to be Prince of Wales, during the Life of the late King James, &c. no At-
tainder for 'treafon pall extend to the difinhcrittng of any Heir, nor to the
Prejudice of any Perfon, other than the Offender, during his Life.
8. Tho' the Jit of K.W. 3. liives Corruption of Blood in Cafes of
Treafon by Coining, yet, notwithftanding, the real Eftate is forfeited ;
For there are other Aas which give the Forfeiture to the Crown in all 'Trea-
fons ; And when two A£^s feem to crofs one another, fuch Conflruftion
jhall be made, that both iliall Hand together : Befides, it is not like the
Cafe of Felony ; For there it is the Corruption of Blood only, that pre-
vents the Defccnt, and occafions the Efcheat. MS. Rep. faid to be Lord
Harcourt's. tit. Forfeiture. 21 Jan. 1710. Horton v, Hinton.
(B) In Cafes of Treafon ; What Things or * Eftate l^^ Copy-
lliall be faid to be Forfeited.
i.T^ IGHT of Jit ion is not fi-irfeited by the Words in the Statute 33 S.P.rcfc
JX ^- 8. 20. 3 Rep. £. b. Trin. ij Eliz. Marq. of Witichefter s 2^.^^"/^;
. rclblv-
a
_ ' Difference
V-ale. taken, be-
tween a naked
Right of ASion, and an Eftate of Inierltanre, which ii forfeitable., coufUclv)itb an antient Right, far which
ikeVtrjeiture of the Poffejjlonis barred, by the i.6 H. 3. 15. Mich. 4 Jac. X- 12 Rep. 6. Anon.
2, By the general Words in Attainder of all Hereditaments, neither a
Condition, nor an Uje was given to the Kins, for thev were not forfeitable
^ T " ' at
43
8 Forfeiture.
at the common Law j Eur there is a Difference in this Cafe, becaufe inhe-
ritames end Ckattels. 3 Rep. 2. b. 3, Trin. 25 Eliz. Marquels of VV'incheC-
, tei's Cale.
V'Tlr - 3" R^K^^ rf c. (iifcoininmd FJiate Tail, before zi H. 8. is barr'd againft
ti«Lj md the Iliiie ot that Entail, by the 26 H. 8. 13. notwithftanding the Re-
commits mittcr. M. 4 Ju. 12 Rep. 6. Anon.
Treafon, and
is att;;intcd , this Right of Aftion is not forfeited, Jenk. zS6. pi. 21 . But if tie Difcontinuee enfecfs
the Ten^ti.t hi TmI, the Right of the Tail is forfeited ; for the Inheritance it involved in the Potleirion.
yen!:. 2S0 pi. 21. £«f if the Difcontinuee had w/^We a Leaf e for Life /o the Tenatit in Tail ; ihc-
fail had not bee n forfeited ; for in this Cafe, at the Time of the Treafon, he had not any Inheritance to
forfeit, as the Jjtatute 26 H. 8. requires. Jenk. 286. pL 21.
So was it 4. Trttff of a Leofe for Tears, granted by the King's Patent, is forfeited
EHzTnone '^o the King by Attainder of Felony. Cro. J. 512. Mich. 16 Jac. £. K. _
ArmitK)n"^s ^^^ J^^ing V. Daccombe, Exec' of the E. of Somerfet.
Cafe. Ibid.
■'s But it was faid to be held by all that in one ..... .s's Cafe, that a I'ruft of a Freehold was not
forfeited upon Attainderof Treafon. Ibid.
$. The 7'rnjl ef aT'erm upon the Marriage of IV. was conveyed to H. till
W. payed fo much, and then in triifi for W. and his Wife, and their IJftie.
W. is attainted of" Treafon, and by the new Stat, all EJiates, Trtijls,
&c. of fuch Perfbns, are given to the King. The Money is paid by the
lyife of TV. and upon a ipecial Verdift in Ejectment, it was held, that
this Trull is not forfeited to the King ; for it is a Purchale to the Wife
and their Iff lies; And Twifden J. faid, that it had been a great Doubt,
whether the Trull of an Inheritance Ihould be forfeited for Treafon before
the new Statute ; but Ibme have been of Opinion, that the Truit of a
Term fhould be forfeited beforefor Treafon. Sid. 260. Trin. 17 Car. 2. B.
R. W'haley v. Anderfon.
6. A Subje^ of England, attainted of Treafon, was fuppoled to have
married a Foreigner, who was Cefly que I'rufl of S. S. Annuities of the Va-
lue of 50,000 1 It was inlifled, that if Ihe was married, the Law of
England Ihould not be the Meafure of the Decree of this Court, (as to
Forfeiture or not) but the Law of another Country, this being a bare
Trufl fcr a Foreigner, and that the Court has always a Regard for the
Laws of other Nations, as of Holland, and of the Plantations j And that
lince all Foreigners are encouraged by AH cj Parliument, to place their Mo-
ney in the publick Funds, it would be very hard that this Money fnould
be forfeited ; But this Point was not determined, the Marriage being dc"-
nied by the Lady's Affidavit, and no Proof made to the contrary, and io
the Securities decreed to be alTigned to her. 9 Mod. 1 01. Mich. 11 Geo.
in Chancery, Drummond v. Decker.
(C) Forfeiture in Cafes of Trealon. What Lands, in
Reipe(3: of the Limitations of the Eftate 3 or of Sta-
tutes made.
ThisAftex- 1- 26 H. 8. <r<7/). XT' N ACTS that e^jery Offender, convi[l of High treafon
teniedoxii^to 1 3. §.5. f;^ by Prcfeiitment, Confeffion, Verdi [i or Procefs ofOnt-
^v:^\ V, ^'^^'!?'5 P-"^li forfeit to the King all fuch Landi^ 'Tenements, and Heredita-
.ittabtedPer- "'^'^^^i ivhich he fhall have of any Eflate or Inheritance in Ufe or Poffeffton,
ion had in ^ ^"y R'gl'h ^^^i^' or Means -within the King's Dcniinions, at the Time of
PofTelTion, J uch Treoftt commit tedy or after.
and riot to
Rights, Conditions, &c. nor did it extend to Attainders by ParUunitm, or when the Pai-ty floc^d »:ttie. But
the Aa of 5; //. 8. 20. e.\tends to all manner of Attauiders of Treafon. 3 Rep. 10, b. Trin. 16 Elii,
in the Exchequer in DomicV Cafe.
The
Forfeiture. ^1.39
'the Rights, titles, I//tere/fs, Pojfcffion, Lcafes, Rents, Offices, arid ether
Projits ej all Perjons, thar Heirs and iSiicceJJors (except of the Offenders or
others claiming to their Vfe) are fwued.
2. 33 H. 8. cap. 20. §. 3. Makes a t"orteitiire of Lands, Tenements, * y^^ ^.j^^^
Hereditaments, Goods, Chattk-s, Ufcs, Rights, Entries, Conditions, Pof- a Liffdjce, is
fefftons, Rever/wns, Remainders, and all other Things of fiich Offender ; and attainred,
that the Kingjhall ha'ce as much Benefit thereby, and Jhall as "-jaell he ad- "o*'.by liis
judged * in aaiial and real PcjJiJJicn, -withcut any Office cr Inquijition to be the Kin^''iiis
found of the fame. only a Right,
For thofe
Words {hall be conftrued thus, viz.. that he fhall be in aftual PoflefTion without Office ; that is, as if an
Office had been found of it ; and at Comn-.on Law if tlie DilTeiffee h.ad been attainted of Treafon, and
the Seifin and Difleifin had been found by Office, the PolTeffion fhould not be in the King, till Sci. fa.
filed, &c. or Seifure at lead ; becaufe when a Stranger is feifed at the Time of the Office found, the
King fhall not be in Pofleffion till Seifure. And all Poffeffions are faved by this Aft, as if the faid Att
bad not been made ; and therefore the PofTeffion ot the Difleifor is faved by it, in the fame manner as if
an Efpccial Office had been found at the Common Law. 5 Rcp. 11. Trin. 26 Eliz. in the Excheouer.
Dowtic's Cafe.
Tiie Words of this Statute, that the King fhall be in aftual PofTeffion, fhall not be conflrucd to ex-
tend to an attual and abfolute Poffeffion ; but fuch a Pofleffion only, which he had at Common Lav,-
after Office found ; fo as the Statute doth not give to the King a larger Pofleffion, but an eafier without
the Circumftance of an Office. Trin. z6 Eliz. Le. ;i. In the Duke of Northumberland's Cafe. .
2-Hawk. PLC. 452. ch. 49. S. 23,
3. Note that Sir John Hufley, Knight, enfeofed certain Perfons in Fee, Br. N. C. 57
to t/je Ufe of Anne his Wife for her Life, and after to the Ufa of the Heirs ^-f: P'- ^o^-
Male of his Body, and for Default of fuch IlFue, to the Ufe of the Heirs Live~fi'
Male of the Body of Sir W. H. his Father; and for Default ot fuch Illije, s. P. cites s!
to the die of his right Heirs ; and after had Ifjue W. Hulley, and then Sir C but Brook
John was attainted of treafon Anno 29 H. 8. and put to Execution; and at- makes a
ter jinne died, and the faid W. Hitjfey prayed Oujier le Main of the King; Qi^*""^-
and by the King's Attorney he lliall have it ; For this Name Heirs Male
of the Body, is only a Name of Ptirchafe; and Sir W. Huffiey [the Grandfon]
pall net have it as Heir to Sir John, but as Purchafor ; but it was agreed,
that the zd Remainder to the right Heirs of Sir John Hufley was forfeited by
the Attainder ; For none can have it but he who is Heir in Fa£ti note the
Difference. Br. Nofme. pi. i. cites 37 H. 8.
4. ^V'hcre tenant in tail is attainted of treafon, before the Statute of z6 H.
8. his Son Ihall have the Land ; For he does not claim only as Heir, but
by the Statute, & per Formam Doni. Er. Nofme. pi. i. cites 37 H. 8.
5. thomas Duke of Norfolk in Anno 1 1 Eliz. conveyed his Lands to the s. C. cited
Ufe ofhimf'lffor Life, and after to the Ufe of Philip Earl of Arundel, his Mod. 40. i
eldejt Son in tail, with divers Remainders over, with a Provifo, that if he ^'^^- ^'9-
pjoiild be minded to alter and rez'oks the faid Ufes, and ftgnijied his Mind in
Writing, under his proper Hand and Seal, and fubfcribed by 3 credible Wit-
nejfes, that then &c. and after the faid Duke was attainted of High
Treafon ; this Provifo or Condition was not given to the Queen, by the
Mk. of 33 H. S. becaufe the Performance of it was perfonal and infepara-
bly annexed to his Ptrlbn, viz. to lignify his meaning by Writing under
his proper Hand, which no other can do but the Duke himfelf Upon
which Point, all the Pofleffions of the Dukedom fo conveyed, ut fupra,
were faved, and not forfeited by the Attainder. 7 Rep. 13. a. cited per
Cur. as refblved 11 Eliz. in Duke of Norfolk's Cafe.
6. Cranmer the Bilhop of Canterbur}', made a Feofffimcnt of Land to p) ,,. j
the Ufe of kimfelf during hts Life ; and after his I)eceafe^ to the Ufe of his -i^.^Pafch.'
Executors and yifftgns for 20 7 ears ; and after to the Ufe of t. Crantner in i^^M^- S.G.
tail, &:c. after the Archbilhop was attainted of Treafon ; and if this was ^°. '-^°-
an Intereft in the Bilhop or not, w as the QuclHon ; For if fo, then it ap- Ci'anmer^; '^'
pertained to the Queen ; and if nor, t.hen otherwife. And 'twas agreed Cafe.
by the Juflices, that the BilLop had no Interell: in the Term and Remain- Le. 196 S.C.
der ; now it cannot be becauio the Bilhop did not, nor coicld he tnake an Exe- ~^ ^^ 5- S.
cutor. Sec. And. 19. pi. 35. Hill. 14 Eliz. Kirke v. Bails, al. Cranraer's j;'^!"^ c'
Cafe. 7. King '' ' '
A
I
4
o Forfeiture.
S.C. D. 532. -7. King H. 8 granted a certain Manor to A. and his Wife, and the Heirs
b- pi- 2.7- of their two Bodies, &c. afterwards A. by Aft of Parliament was attainted
—S(' cited '^^^ Treftfon, and executed leaving his Wife and a Son; and by the
j^ob. -\6. flime Aft it was ordained, that he Jkould lofe all the Lands whereof he was
Entuifca feifcd, 8cc. The W'ite died, and the (^ellion was if the Son Ihould have
Lands were the Manor by the Entail^ or the King by Attainder; refolved that the
^y", ^-ll'the ^'"d ^ould have it as forfeited ^ tho' 'twas argued ior the Son, that his
Jif.itute 26H. ^^^ther furviving, he was inheritable to the Manor, by Defcent from her^
S. in Cafes and might claim from her per Foniiam Doni-y and tho' the Blood between
ofTreafon, jjig Father and him was corrupted, yet 'twas not fo between his Mother
und this not ^ ^ p^^^ . LjJ Elfiugham r. Carew.
bv the gene- 5? r a
ral Words,
ell Lands, 'fenements, and Hereditaments, hwi by the Words following, v'u.. Of any Efiate nvhatfoeier.
j\rsr. 1 Lev 1 "o Trin. a8 Car. 1 B. R. in the Cafe ot Brown v. Wayte. If Tenant in Tail be at-
tainted of Treafon and dies, the Land fhall not vcft in the King before Office found ; For the Aft of
i.6 H 8. fives the Forfeiture, but neither the Aft nor the Attainder makes a Corruption of the Blood,
as to the Defcent of the Land in Tail , and fo it was agreed as Popham faid, in the Cafe of Ld. iLuiTl?
ikP, that where the Gr.wdfali er was Tevaiit in TaH, and the Father was attainted of Treafon, and died
if.' tie Life I'hue oj the Grandfather, the Land fTiould defcend to the Son notwithftanding the Attainder,
vhich was affirmed per tot. Cur. to be good Law, in which 2 Cafes the Aft of 26 H. 6. gave the For-
feiture only, and his Attainder is not Corruption of the Blood for Land intailed. But now hy the •,% H.
8 the aclua! PoJfeJJfon is transferred and vej}cd in the King prefenth by the Attainder, as well m the Life
Time, « at the Death of the Perfon attainted, and as well of Lands entail'd, as of Lands in Fee Sim-
ple. 3 Rep. 10. b. In Dowtic"s Cafe.
Mo. 95 125- 8. Lands were given to A. and M. (whom he afterwards married) in
S C; 3 ^^P- 7l?/7, Remainder to B. in Tail, A. alone fiiffered a common Recovery anddiedy
>T r '!, '^ and M. furvivine died without I/Uie^ by which Writ of Error accrued by
J^targs of the Stat. 9 K. 2. to B. m Remainder, and he was Attainted of Treafon liy
Winchfter's Parliament, and all his Rights and Conditions given to the Crown, upon
Cafe. which the Queen would have brought a Writ of Error to reverie the Re-
covery againit W. R. who was the Tertenant, and adjudged that ihe
could not have it in Refpeft that it was a 'Thing in Privity, lb united to
the Perfon of B. that it could not be given by Parliament to the Crown.
Arg. Mo. 323. cites Trin. 25 Eliz,. B. R. Braybrocke's Cale.
Mo. 303.8. 9. A. feiied in F"ee, by Indenture in Conftderation of Blood Covenants
C— 4Le. rj}ij{j 2 his Nephew tojlandfeifed to the Ufe of hiinfelf for Life, and after
— And.' 29^! to the Ufe of B. in fail, the Remainder to the Right Heirs of B. Provifo if
S. C— Poph. the faid A. hy hitn/elf, or by any other during his natural Lije tender to B. a
iS. S C. Gold-Ring to the intent to make void the faid Ufes, that then the faid Ufes
pall be void; afterwards A. is Attainted ofTreafon and Outlawed upon
it j the Attainder is confirmed by Aft of Parliament ; the King by Let-
ters Patents under the Great Seal, reciting the Ufes, the Provifo, and
the Benefit thereof given him by Aft of Parliament, authorifed E. to de-
liver the Gold Ring to B. to the Intent to make void the Ufes ; E. reads the
Patent to B. and offers the Ring to him, which he refufeth to accept ; all
which with the Patent he certified into the Exchequer. Upon which
an Information was brought in the Exchequer, averring the Life of A.
an d it was refolved ; (i) that the Condition in the principal Cafe, viz.
the Tender of the Gold Ring was not annexed to the Perfon of A. but
that any one might make the Tender, and that is was given to the King
by the Aft ol'Parliament. (2) That the Tender and Certificate was good,
without Office found. (3) That prefently by the Tender, according to
the Provifo^ the Ufes were determined, and the Land vefled in the King
by Force of^che i.\ct of Parliament. Mich. 33 & 34 Eliz. in the Exche-
quer. 7 Rep. II, b. Englefield's Cafe.
Jtnk. 1%. 10. Tenant in Tail attaint of Treafon, the King fhall have Fee deter-
pl ii- minable on Death without Iirueandhas no greater Elbite. 2 And. Arg. 139.
II. Tho' an Earldom be a Dignity, and within the Statute de Donis
Conditionalibus yet it had been Forfeited by Attainder of Treafon tho'
the Statute of 26 H. 8. had never been made ; adjudged. Mich. 2 Jac. i,
7 Rep. 34. in Nevil's Cale,
12, A,
Forfeiture. aai
12. A. Covenants by Indenture tojlandfeifed to hhnfe/f for Life, Remain-
der to B. his Brother's eldelt Son tor Lite, Remainder to the firll Son of
the faidB. and lb to the 8th. Son, &c. Remainder to the Right Heirs ofA.
A. is Attaint of Treaibn, and executed before the Birth oi any Son to B.
the So/is born ajtc;- are all utterly barred by that Attainder, and the King
Ihail have the Fee difcharged ot all the Remainders limited to the Sons
not yet born. Noy ic2. Trin. 9 Jac. Sir Thomas Palmer's Cale.
13. I'eihvit in T'ail 6 H. 8. made a Fcojfhicnt in Fee to W. and others, to -Roll. R.
the Ufe of his laft Will, and died ; the Right of the Land, together l\'^- '''• „
with the Intail defcendcd toD. ivho, 21 H. 8. made a Feoffment to the \}fii of |^g t^ ' "^^
bivifelf and K. his i^'Je, and the Heirs of their tivo Bodies^ and had Iff'tie C. Het.
£. a Son, and F. a Daughter. — D. in 2.6 H. 8. -was Jttaiuted of Treafon 150. S.C—
and Executed; and 31 H. 8. a fpccial Aft of Pai-liament was made of his J°j '^9^^- C-
Attainder and Forfeiture ; 5 Eliz. F. Son and Heir of D. was rejtored m c'^-^^'codb "
Blcod by Parliament, and died without Ifftie ; F. married J. S. and they had 514. s. C.
IJtie W.S. 8. Eliz. K. died; 33 Eliz. all was found by Office ; 34 Eliz.
the Queen granted the Lands to R. and the Heirs Male of his Body. It
was refolv'd ; ill. That the Feoflinent gave away all the Ellate, which the
Tenant in Tail had concerning himfelf; but concerning his Ilfue in Tail
there remained a Right by force of the Statute of Welfminller 2. And 2d.
That this old Right of Intail was Forfeited by the Statute of 26 H. 8. for
that there was an a6tual Entail in the Perfon Attainted at the time of the
Attainder. 3d. That their Rights were bound by the exprels Words of
the Statute, there being no Saving therein for them. Then 4thly. when
the Office was found the Ilfue in Tail was barred notwithjianding any pre-
tended Remitter. Mich. 13 Jac. in the Exchequer Chamber. Hob. 334.
Lord Sheffield v. Ratclift:
14. A. made a. Feuffhient to divers Feoffees, to the Ufe of the Feoffor for p.. ., <-
Life, with divers Remainders over, provided always, that if the Feoffor c. Noy'-p V
during his Life, tender a Ring, or a Fair of Gloves, or any Sam of Money, to C— S.C. cic-
any of the Feoffees, or to any of ther Heirs {ipfo A. declarante that his Intent ^'^> '^^^^ -''■)•
fhould be to alter the Ufe and tu make thofe Ufes void) that then all thoie Ules To _ m !.^'
fhould be void ; and aiiier this, the faid A. was Attainted of Treafon, and by ton y. Akid"
a Ipecial Acl of Parliament, 28 Eliz. that he fhould forfeit to the Queen all 43. cited this
his Lands, Tenements, Hereditaments, Rights, Conditions, &c, and alter '•-J'"'-" as a
this the .^leen by her Patent, reciting all the Matter aforefiiid, authorifed Sir f^ f! .
John Forte/cue to Tender a Ring accordingly ^ and he did fb, and certified it in ^]\ thcCourts
the Exchequer ; after this B. obtained a Leafe of this Land, &c. now the of Weftmm-
Queltion was, whether the Power of the Tender of the Ring, &c. be fter Hall and
forfeited to the Queen by the Attainder afbrefiid, or be tied to the Per- f.'^^'^ ^y ^"-
fon of A. becaufe 'tis a Declaration of the Intent annexed to the Perlbn of \VorJs^»^i'
A. And adjudged not forfeited. Lat. 24. Harding v. Warner. Dechraiue it
could not be
forfeited.- Jo. 154 Tiin. ; Cjr. B. R.Warner v. Harding. 2 Roll. 395. Warner v. Hargrave.
15. Tenant in Tail to him, and the Heirs Males of his Body, Rever- Inthi-sCafc
fion in the Croicn, made a Feoff 'meat of the Lands, and afterwards was Ac- 't w:>s agreed
tainted and Executed for Treafon, andby a fpccial All of Parliament, L>y T'cnar,t\n^'
which his Attainder was confirmed, it was Enaffed that he lliould lole Tail of a
a.U his Lands, &c. and that they fhould he veffed in the j^ueen without Of- common Per-
fice tbund ; the Queltion vvas, whether there was any Eftate, or Right re- 'on- where
maining in the Tenant in Tail after the Feoflinent, which was not for- "^ j,i'tll'P''^
feited by the Attainder and Act of Parliament ? the Judges on Arguing ma.keaFcoti"'
this in the Exchequer Chamber were divided, fonie held, that by the ment, it is a
Feoffment of Tenant in Tail (the Reverllon llill remaining in the Crown) .■^':'-'^'.?"?^r
there could be no Dilcontinuanceof the Elfate Tail, and therefbre, being ^""b' a'taint-
in him at the Time of the Attainder, was by the Forfeiture veiled in the ed of Tr'ca-'
King, by the Stat. 26 H. 8. but if the Eltatc Tail was not in him, yet ion, there is
the Jt<.ight of the Intail remained, which was given to the King by the "of'orfciturc
33 H. 8. 1'he other Judges argued that tho' theReverfion was in theKing to^°Rep^,
S U and ^ '
442
Forfeiture.
b do C. and fb no Dilconcinuaace, yet all was divefted out of the Feoftbr as itrong-
4iu II) Caic ^y ^g jf- fi^j^j-g h.j(j \)Q2n a i)ifcontinuance, and lb nothing remained to be
Newman. F'^iieited i * No Judgment was given. Pafch. 7 Car. ni the Exchequer
* Exceptions Chamber, Cro C. 427. Stone v. Newman.
being after
w.ivds taken in B. R. to the Pleadings, it was there agreed, that according to the greater Opinion in the
Exchequer Cliamber, Judgment ihould be entered in B. R. for the Plaiatirt', [and ib tlie Eltate was ad-
judged Forfeited] Pafch. iz Car. Cro. C. 460.
16. Land is conveyed by A. to J. S. and his Heirs, to the Ufe of him
mid his Heirs, in Trtij} for A. and his Heirs ; the King in this Cafe upon
the Death of A. fhan't ha\e Ward, nor Forteiture for Treafon, or Felony ^
but if J. S. dies, his Fleir within Age ihall be in W^ard ; if J. S. be at-
taint of Felony, or Trevtlbn, the Land and the I'n/Jl 2 s kf. In Cafe of
Chattel fo conveyed upon Trull by A. and A. commits Felony, or Treafon
the Truft is loft. Jenk. 219. pi. 66.
17. Lands are given upon Condition not to commit Treafon, and afterwards
the Party commits Trealon the King's Title Ihall be preferred and he iliall
have the Land. Arg. Hard. 24.
18. A Writ of Error was brought in B. R. to reverie a Judgment
given in C. B. upon a fpecial Verdict in Ejectment; the Jury found than
one Sifnon Mayne was pojfeffed of a Re£toryfor a long Term, and having con-
vejed the whole T'erfn in Fart of tt to certain Perfons ahfolutely, he conveyed
hts 'Term in the re/idiie, being 2 Parts in this Manner ; viz. in Truji for
himfclf during Life, and ajtcrwards in Truft/or the Payment rf the Rent re-
ferred upon the Original Leale, and for feveral oi his Friends, Sic provid-
ed that //' he poiild have any Iffue of his Body at the 'Time of his Death
then the Triijls to ceafe, and the AlTignment to be in Truft tor fuch Ifliie,
^fc. and there was another provifo that if he -were minded to change the Ufes,
or otherwilc to difpofe of the Premifles, that hepould have Power fo to do
hy writing in the Prefcnce of tivo or -more iVitnefjes, or by his laft Will and
Teftanient; He had IJftie Male at the Time of his Death, but made nc dif
pofition purfuant to his Power ; all which was found bv \'erdict, and that
m his Life time he had committed Treafon, and they find the Act of his
Attainder. I'he Quellion was, w hether the reft of the Term that re-
mained unexpired at the Time of his Death were forfeited to the King;
'twas inJlfted that the Deed vvas fraudulent, becaufe he took the Profits
during his Life, and the Affigmes knew not of the Deed of Trnjl. But ad-
judged that nothing was torfeited but during Simon Mavne's Life, and
the Judgment before given in C. B. was Affirmed. Palch. 23 Car. 2. B. R.
1 Mod. 16. 38. 40. Smith v. Wheeler
Lev. 2-Q.
S. C.-Vent
128. S.C.
2 Lev. 1 69.
S. C. and
Javs, that in
1 W. & M.
this Judg-
ment was
Affirmed in
Parliament
by one Voice
only. Ibid.
I -I. — Pollex
185. 3 Keb.
459-
19. Upon a fpecial Verdict in Ejectment, the Cafe was, viz. A. the
Father of the Lelfor of the Plaintiff" was in Anno Dom. 1646. Tenant in
fT^/V of the Lands in Queftion, and afterwards Inftrumental in bringing
the late King Charles to Death, and fo was Gndty of High Treafon and
died ; afterwards the Act of Pains and Penalties, made 13 Car. 2. 15.
Enacted, That all the Lands, Tenements and Hereditaments, which Sir John
Danvers had the zsth Day of March 1 646. or at any time/nice pall he for-
feited to the King ; and whether thele entailed Lands lliall be forfeited to
the King by Force of this Act was the Qiieftion ' and adjudged that the
Lands were forfeited. Mich. 28 Car. 2. B, R. 2 Mod. 130. Brown v. Walte
als. Sir John Danvers's Cafe.
(D) In Cafes of Felony.
I. TF a Felon be aljured, he fhall forfeit his Lands and Goods. Br. For-
\^ feiture de Terres. pi. 121. cites 6 E. 2.
Centra where 2. A Man dijirained his Termor for Rent Arrear, and after the Termor is
^trains'thlg^' ^«^/W for Felony done before the Di/refs taken ; and by the Opinion of the
TiantinTJi Court, the Kingih.ill not have the Diftrds as forfeit, unlefs he fatisfics
ft* Rent, and the
Forfeiture.
443
the Party who dillrain'di For ic was Lrj^fuUy taken 'Tempore Captio/iis. ^^^^^'^^^^Tz'
Br. Pledges, pi. 31. cites 13. R. 2. 13. nantinTailiS
° ^ r^ - attainted tor
Felony dene hefcre the Dijfyefs ; Vor the Donor may diftram tlieHcir of the Tenant in Tail after Execu-
tion of his Father; But iu the firlt CJ.iIc he hxs no other Remedy. Br. Pledges, pi. ?r. cites 12 R
2.15.
3. It a Man pledges his Goods, and after is attainted of Felony ; yet the
King ihallnot have the Goods pledg'd, without paying the Sum tor which
they were pledg'd. Ibid.
4. By 24 H. 8. cap. 5. If any be indiBed or appeard,for the Death of one
attempting to murder, rob or cornmit Burglary (and fu jonnd by Verdtti) he
Jhall forfeit no Lands or Goods for the fame, but pall be fully acquit and dif~
charged thereof.
5. For fuch Crimes as Murder, Homicide, burning of Houfes, &c.
for 'which Judgment jhall be gt^'en, that he be hanged by the Neck till he
be dead -^ the Oliender Ihall torteit all his Lands in Fee Simple, and his
Goods and Chattels. Co. Litt. 391. a.
6. But tor Felon}' by Chance-A4edky, Se Defendcndo, or Petty Larceny,
he tlmll tbrleit his Goods and Chattels, but no Lands of any Eltate of
Freehold or Inheritance. Co. Litt. 391. a.
(E) In what Cafes not. Killing in Defence, 6cc.
t. T TE who kills a Man fe Dcfendcndo * fhall forfeit his Goods; but the * r> p
Xrl -^i^cejfory was not arraigned, theretbre it feems that he Ihall not feitJie de'
fbrteit his Goods ; for the Principal was not Felon of Death, and Ihall Terre;; pi.
not have Judgment of Lite ; and lb fee that a Man flj all forfeit his Goods ">}■ S- P.
where Judgment flmll not be given. Br. Forteiture de Terres pi. 13. cites '^""4^. 7.2.
15 E. 3. Fitzh. Coron 116. & 11 H. 4. 93.
2. If a Man is arraigned de Mortc Hominis, and it is tound te Defen- S""- Coronc
dendo, yet he thall forteit his Goods ; For it was faid, that by the Common F- 4o- cre^
Lazv, he (}.mll have Judgment of Death; and the Statute oi Gloucefler c. 9. -'inil. 56.
gives no Remedy but for his Lite only, and not tor his Goods. Br. For- 220.
teiture de Terres pi. 15. cites 21 E. 3. 17.
3. A Man was arraigned of the Death of W. N. and pleaded Not
Guilty; and the Jury tbund, that the deceafed Jlriick the Defendant to the
Ground, and draived his Knife to have killed htm, and the Dependant * like- * Lying up-
ivife drained his Knife; and the Deceafed, for Hajle to have killed the De- o" i^^cj
fendant, fell upon the Defendant's Knife, and fo killed himfelf, and demand- ^'■°""'^- ^'■■
ed Judgment, &:c. Per Knivet, If he had killed him l"e Dctendendo, he i°.'^citcsS.C.
had tbrteited his Goods and his Body at the Grace of the King to have
his Charter of Pardon ; but now 'tis found that he killed himfelt'; there-
fore we will advife, if he thall be adjudged Not Guilty, or if his Chattels
thall be tbrteited or not. Br. Forteiture de Terres. pi. 8. cites 44 E. 3. 44.
And after 44 Alf 17. he was adjudged Not Guilty, and his Chattels
faved. Br. ibid.
4. In Appeal of Murder againft A. the Jury found that the Deceafed if'^e^'sut
viade the Jirji Affault prope altam Viam, but did not fay, ad ipfum 7nur- the Judt^cs
derandum, and therefore the Judges were clearly of Opinion that A. thould of B R. held
ibrfeit his Goods, and that by ttie 24 H. 8. c. $. Mich. 3 & 4 Ph. (ScMa. ^'^^^^ '^^'''^
Bendl. 47. pi. 86. Newman v. Punter. ^^JfflZ lU
in the High-JL-ay to Kinder or r.b j7:other, or to commit Burglary; there if the Party fb to have been mur-
dered, Sec. kills the Felon in his own Defence^ be Ihall not forfeit his Goods. Mich. 5 & 4 Ph. & Ma.
Bcndf 47. pi. 36. Newman v. Punter.
5. A Felon robs a Merchant and kills htm ; the Merchant's Boy comes
quickly after, and finds this Fa£l juft done, and kills the Felon. In this
Cale there is no Forteiture of Goods to the King ; and the Stat. 24 H.
8. 5. is only an Ailirmancc of the Common Law. fenk. 30. pl, si-
' •' (F) If
4+4-
Forfeiture.
A"
(F) In Cafes of Felony by Actellbrles.
BrCoronc I, T T^ THERE £x/^f;;f is aivarded in Appeal of Death, the Goods are
, p "^^'l V V forfeited, and Exigent Jhall not be awarded againji the AcccJJory,
—-Br' An- ^'^^ ^^^ Prificipal is attainted^ if it may appear to the Corirt, zvho is PrincipaJ
peal. pi. -. and who AccelJory. But where Appeal is brought againji 3, and at the Kx-
cites43 E- 5- iS'^>'t one is outlawed, and the others render themfehes, and the Plaintiff
'"> iS> '9 counts that he who is outlawed was Principal, and the hther 2 Receivers of
him, there the Goods of the Accellbries are iorleited ; For it does not ap-
pear to the Court till the Count ; and a Thing veiled cannot be devefted,
per Knevet clearly, notwithftanding that the Appeal be adjudged againlt
the Plaintiff, becaufe the Aft was done in one County, and the receiving
in [another County. Br. Forfeiture de Terres. pi. 6. cites 43 E. 3. 18.
2. A Man is indicted as acceifory to the Death of a Man before the Co-
roner j and 'twas Ibund that he fled for the Felony ; and by all the Jus-
tices of both Places, he Ihall forfeit his Goods ; and fo of all Accefjories
at the "Time ol the Felony done, but not of Acceffories after the Felony done.-
Per Townfend, where the Accellbry is acquitted, yet it fhall be inquired
of the Hying. Per Huffey Ch. J. this is the Courle in B. R. Br. For-
feiture de Terres. pi. 52. cites 4 H. 7. 18.
(G) In Cafes of Felony. Eftates in Lands.
Man feiled of Land, fhall forfeit it for Felony ^ and by Attainder
_ _ of him, the Feine Ihall lofe her Dower. Br. Forfeiture de Terres.
pi. 78. cites 21 E. 3. 49.
2. 25 E. 3. Stat. 5. cap. 14. Enafts that after a Man is indiBed of Fe-
lony before the Jiijlices to hear and determine, it pall be commanded to the
Sheriff to attach his Body by Writ or Precept of Capias ; and if the Sheriff'
return that the Body is not found, another Capias fhall be made returnable at
3 Weeks, and m it jhall be comprifcd, that the Shtrijf caufe to be fcifed his
Chattels, and keep them till the Return of the Writ ; and if the Sheriff' return
that the Body is not found, and the Indi£fec comet h not ; the Exigend Jhall be
awa.rded, and the Chattels fljall be forfeit.
3. A Diffeifor is attainted of Felony, and the Land was holden of the
Crown. The Diffeifce enters into the Land, and afterwards Office is found
that the Dillcifor was feifed. The Remitter is devejlcd out of the Diiieifee.
Arg. Godb. 326. cites 3 E. 4. 25.
4. Tenant in Fee of a common Lord is attained of Felony j his Lands
remain in him during his Life, until the Entry of the Lord, and where the
King is Lord, until Office found ; but in the Caie of a common Lord after
the Death of a Perfon attainted, they are in the Lord before Entry, and in
the Cafe of the King before Oifice, for the M if :hief of Abeyances. Arg.
2 Le. 126. in Cafe of Venables v. Harris.
5. Lord and Tenant. Tenant is Attaint of Petty Trcafon or Felony.
Efcheat of the Land of the Tenant with the Charters of the Land, belong
to the Lord ; but Goods, Leafcs for Years or Life, and Clofes en Affion belong
to the King, and ]l:ar Day andllafte. jenk. 125. pi. 52.
6 Trujl of Inhcrit.-rnce not to be forfeited by Attainder of Felony to the
152. s"c— Lord hy Efcheat. Palch. 21 Car. 2. 3 Ch. R. 36. * Att. Gen. v. Sands.
s'p. But It — cites 3 Rep Marq. of Winchelfer's Cafe.
is orherwife
of a Chattel A Feoffee of a Truft at this Day, commits Trcafon or Felony, the Land is loft, and c:"
cheats, and the Truft is excindl:; For theKing, or Lord by Efcheat, c-nnot be leifed to anLMcor TruU ,
for they are in the Polt ; and are Paramount the Confidence. Jenk . 1 90. pi. 92 .— JrJ fo upon a Title
elder than the Ufe or Truft, vii. the Right of his Lo.dfhip by Efcheat for want of a Tenant Jenk.
245. pi. 30. — ;- Arg. Hard. 466 & per Hale Ch. B. 6<)-,. that he who comes in the Port ihall not be
liable to a Truft Trin, 9 Car. 2. In Scare in Cafe of Pav/lct v. Att. General. 7. Attainder
* N. Ch. R.
Forfeiture. 44.5
7. Attainder of Felony makes a Forfeiture of the Ellate to the Lord Hard 496.
by way oi KfcheJt only, 'pro DetiauTenentis, and the not delcending is si"(?^re^"
the Confequence of the Corruption ot Blood, i Salic. 85. Hill. 8 Annse. s^nds N.
In the Houfe of Lords. Sir Salathiel Lovel's Cafe. Ch. R. 133.
2 1 Car. 2.
In the Exchequer S. C. Jenk. 245. pi. 50.
(H) In Cafes of Felony. What Eftates in Offices, Dig-
nities, &c.
I. TF the King creates one to be a Baron to hhn and bis Heirs Males of
\^ his Body {/filing, without faj'ing of any Place, be lliall not have an
Ellate Tail, but a Fee Simple Conditional, which fhall Jle forfeited for Fe-
lony. But if he creates him Baron of a Place, then he fhall have an Ef-
lateTail. 12 Rep. 81. Pafch. 9 Ja. Anon. ^^^
2. Cefiy que Trufi of a Grant of the Licence of Wines for Tears committed ^ q Micii
Felony; it was refolved by the Judges una Voce, that the fame was for- i6jac. B. R
feited. And after it was refolved fo in the Exchequer. Hob. 214. pi. — Jenk. 295,
275.
the E. Somcrfet's Cafe. , pl- 39-
(I) In Cafes of Felony, &c. to whom.
9 K 3. cap. 22. TT'NACTS that the King pall * not hold the Lands of ^.r ,
Tj PerfoHs convict ^ of Felony, longer than a Tear and a 1^4 ^y^^ '
ne
Day, and then they Jhall he delivered to the Lords of the Fee. and 7'enatity
and the
Mefne is attainted of Felony, the Lord Paramount fliall have the Mefnalty prefcntly ; For this Pi-ero-
gativc belonging to the King extends only to the Land, "xhich might be ivajled, in Lieu whereof the
Year and Dav was granted. 2 Inll. 37. And this is to be underftood when a Ten.int in Fee Simpte
is attainted ; t^or when Tenant in 'fail, or for Life is attainted, there the King fliall have the Profits ot
the Lands during the Life of Tenant in Tail, or of the Tenant for Life. Ibid.
:j: This muft be underllood of all manner of Felonies funijhed ty Death, and not of Petit Larceny, which
notwithftanding is Felony Ibid. 58.
2. 11 E. 2. 14. Enafts that the King Jball have the Efcheats, daring the
Vacancy of the Bif}:<oprick.
3. 17 £. 2. 16. Enafls that the King have all theGoods of Felons and Fu-
gitives ; and the Tear-Day and IVaJie of their Land, and then the Lend pall
be delivered to the Lord of the Fee, who may alfo (if he pleafe) compoandwith
the King for the Tear, Day and Wafle.
Except Lands holden in Gavelkind, ^c. where the Lands of the Felon go
to the Heirs by Cuftom ; And the Wife has Dower.
4. Obligee in Truft is Felo de Se, Cefty que Truft was relieved againft the
King in Equity upon the Statute 33 H. 8. 39. Hard. 176. Hill. 12 & 13
Car. 2. In the Exchequer. Hix v. the Att. Gen. and Sir W. Cooper.
5. If I purchafe an Ellate in the Name of J. S. and after am attaint of
felony, the 'Trtiftee fhall hold theLand to him and his Heirs, free of all 'Trnjls.
Sid. 403. Hill. 20 & 21 Car. 2. in the Exchequer. Sir G. Sand's Cafe.
6. In Cafes of Penalty by Statute for any publick Offence the King is in-
titled to the Penalty, if no particular Application of it is direfted. MS.
Rep. faid to be Ld Harcourt's. tit. Forfeiture cites 23 Feb. 1720. Thorn-
by V. Fleetwood.
5 X (K) For
446
P'orfeiture.
(K) For Crimes at Common Law.
ALL Felonies puniHiable according to the Courfe of the Common
Law, are either by the Common Law, or by Statute. There
is alfo a Felony punilhable by the Civil Law, becaule it is done upon the
High Seas, as Piracy, Robbery or Murder, whereof the Common Law
did not take Notice, becaufe it could not be tried bv 12 Men. If this
Piracy be tried before the Lord Admiral in the Court of the Admiralty, ac-
cording to the Civil Law, and the Delinquents there attainted i yet
lliall it work no Corruption of Blood, nor P'orfeiture of his Lands ; other-
wile 'tis if he be attainted before CommiJJloners by Force of the Statute of
2S H. 8. Co. Litt. 391. a.
2. The judgment againft a Man for Felony is, that he be hanged by
tlie Neck till he be dead ; and by the Common Law he was puniihed alfo ;
Firft, in his Wife, that Ihe fliould lofe her Dowerj Secondly, in his
Children, that they ihould become bafe and ignoble ^ and his Blood fo ftain-
ed and corrupted, that they can't inherit to him or any other Anceftor j
Thirdly, that he lliall forfeit all his Lands and 'tenements which he had in
Fee ; and which he has in Tail for Term of his Life ; and all his Goods and
Chatties, 3 Inll 211. but A6ls of Parliament nave altered the Common
Law in fome of thele Points. Firft, by the Statute de Donis Conditionali-
bus. Lands in Tail were not forfeited, neither for Felony nor for Treafon j
but for the Life of Tenant in Tail ; And this Statute was made to pre-
ferve the inheritance in the Blood of them to whom the Gift was made,
notwithftanding any Attainder of Felony or Treafon ; and this Law con-
tinued in Force from 13 Ed. i. until the 26 of H. 8. when by Aft of Par-
liament Eftates in Tail were forfeited by Attainder of High Treafon; but
as to Felonies, the Statute de Donis Conditionalihus, does yet remain in
Force ; fo as for Attainder of Felony, Lands or Tenements in Tail are
not forfeited, but only during the Life of Tenant in Tail 3 the Inheri-
tance being preferved for the Iflue. , R. S. L. 3 Vol. 197. cites i Inft.
(L) In Caies of Felony. In Refpe(9: of the Place where.
'. |,^0R Robbery, Pyracy or Murder committed fuper alt um Mare, and
JP tried in the Court oi Admiralty by the Civil Law, and not by Jury^
the Attainder there, works no Corruption oi Blood or Forfeiture ^ but if
he be attainted before CommiJJioners by Force of 28 H. 8. it doth. L. P,
R. 627.
(M) What may be forfeited.
I, rTpHE Donor in 7'ail may give or forfeit his Fee Simple, Quod nota.
1 Br. Eftates pi. 40. cites 4 H. 6. 119. and 5 H. 7. 14.
2. A Man has the Ward of his Son and Heir Apparent , and he is out-
lawed ; yet 'tis faid, that the Father fhall not forfeit this Ward ; for he
cannot compel his Son to marry, as the Lord may his Ward, no more
than a Guardian in Socage. Br. Forfeiture de terres. pi. 70 cites 33
H. 6. 5S.
3. A Man is attainted of Felony, he fliall not forfeit his Charters of his
Land i nor fhall he, who has Catalla Felonum & Fugitivorum, have
them. But, per Moile, the Lord (hall have the Charters -with the Land.
Br. Forfeiture de Terres. pi. 60. cites lo E, 4. 14. and 21 H. 6. i.
4. Goods
Forfeiture. aaj
4. Goods Jtoktij aiidWaivd are forfeited, quaere, if the Owner makes Frefj
Suit. Br. Forleiture de Terres pi. 62. cites 12 £. 4. 5.
5. jlnd in Appeal of Robbery, if the Plaintift takes * the Mainour * Ori<^ (a-
[or Thing taken in the Manner,] and the Defendant dtfclaims in the Pro- "^^'"'^ ''^ ™"
/)«*fy, ^ff5 after is acquitted ; the King f Ihall have the Mainour [or Thing +0 ; /-
taken in the Manner.] Br. Forfeiture de Terres. pi. 62. cites 12 E. 4, 5. Je manmo)"
6. Note, if a Man be attainted cf T'reafon by Parliament^ his Lands
and Goods are thereby forfeited, wtthcut Words of Forfeiture of Land or
Goods in the Aft. Br. Forfeiture de Terres. pi. 99 cites 35 H. 8. and 4
H. 7. II. concordat per Townfend.
7. Grant of Licence of Jf'incs, fhail be forfeited for Felony of Celly
que Trull. Hob. 214. E. of Somerfet's Gale.
8. A Pounderpip can't cfcheat or be forteited by Attainder of Felony Br. Tit. Co-
or Treafon ^ For it is a Thing annexed to the Bloody which can't be fepa- '■?'^>'- P' 5-
ratcd. Arg. 4Le. 138. cites Br. Time of H, 8. ^T' l"^ ''
Rep. 13. a. Arg.
9. A Man fa fed in Right of his Wife, may grant, but not forfeit 5 and 3, Lc. 190. S.
fo may * Guardian in Socage. The Husband may grant a Term for '^•~r~4 ^'^
Years, which he hath in the Right of his Wife, but he cannot forfeit it, p __i^^^
&c. Arg. 2 Le. 126. in Gale of Venables v. Harris. G'odb.;i6. s.
P. in Cafe of
Sheffield V. Ratcliff * PI. C. 295. Osborne's Cafe
Executor may give Teftators Goods, but not forfeit them by Outlawry. Guardian in Socage may
grant his Guardianfhip, but not forfeit. Arg. i Roll. R. 525. cites PI. C' Osborne's Cafe. — ■ 10 E.
4. I. — Godb. 516. Arg. 323. S. P. in Cafe of Sheffield v. Radcliff
tenant by the Curie/y, in the Life of his JVife, cannot grant his Eftate of Tenant by the Curtefy to ano-
ther, but he may forjeit it for Treafon or Felony, viz. by Way of Difcharge, Arg. Godb. 323.
10. Annuity pro Coucilio impendendo, cannot be granted or forfeited, ^nd not-
Arg. 3 Le. 185. becaufe there is a Gonfldence. Wroth's Gafe. wirhftanding
Attainder
and Imprifonmcnt of the Grantee, yet he may give Counfel, if the Grantor comes to him as well as he
could before the Attainder and Imprifonmcnt. D. i. b. z. 2l, Mich. 6 H. 8. Oliver v. Enilbn.
11. An Earkdom may be forfeited lyWay of Difcharge and Exoneration.
Godb. Arg. 325. cites 7 Rep. 33. Nevil's Gale.
12. A Park may be forfeited by Attainder, but a * Parker-Jhip is a 1T["^ ^'"S
Matter of Service, and cannot be forfeited as an Intereft may. Arg. Godb. ^.^^^ j"° Qf_
418,419; cites PI. G. 399. ficeofKeep-
er for a For-
feiture, becaufe 'tis a Matter of I'ruft: But if Keeper of the King's Park be attainted, he fhall forfeit his
Office by Way of Difcharge and Exoneration. Arg. Godb. 325. in Cafe of Sheffield v. Ratcliff
PI. C. 379. Sir H. Nevill's C»!"e.
13. One may forfeit as much as he may grant. Arg. Litt. R. 122. Contra, For
if//„ei,i7'.}il
in Life of his Father, is attaint of Treafon, and dies, 'tis no Forfeiture of the Eftate Tail; but if he le-
vies a Fine in his Father's Life, 'tis a Bar to his Iflues. Arg. Godb. 316. cites 3 Rep. 50. Sir George
Brown's Cafe.
14. If bv Forfeiture of all Goods and Chattels, a Bond be forfeited to 2 Show. 135.
the King ? ' Per Goke Ch. J. it feems not. Roil. R. 7. Pafeh. 12 Jac. B. J'Ir ',^^^;;-
R. Gullom, Betts, &c. v. Sherman. ItisheVd that
where aPer-
fbn hath a Grant of Bona Fclonum & Fugitivorum, he Ihall have rea3y Money See Inf pi. 24..
15. At Gommon 'Liw Ccjly que Ufe did not forfeit theUfe for Felony or ^ndifaFeof-
Treufon; For it was only a Confidence; and it is the fame at this Day, fe^ "t^n^'^ft
ioTaTfti^of Inheritance orFreehofd, but ctheyjuifeofa Chattel ]tnk. 190.pl. 92. commit iTrea-
fon or Feloi.y,
the Land is loft, and Efcheats and the Truft is extinft. For the King or Lord by Efcheat cannot be
feifed to an V^e. or Truft ; Becaufe they are in the Poft, and are Pai-aroount the Confidence. Jenlc.
190. pi. 92.
16. Ufe
448
Forfeiture.
Jenk. 245. 16. Ufe was not forteitable at Common Law, but it wts grancable. Triijt
P'- 5°. - is not grantable at this Day by Law, nor forfeitable, but lor Chattels,
-tniiil'^y, Jenk. 219. pi. 66. cites Hob. 2x4.
i'o long as it
is fo, can't be forfeited; ai if the Mort^a^crht attBinted and paidoned mefne between the Mortgage and
Day of Redemption, &c. per VS'iay C!i. J. Lc. 260. iS £lii. B. R. in Cafe of Manning v. Andrews
17. Ccw?wo« or i?t'»/ cannot be forfeited. Arg. Hard. 492. in Cafe of
Att. Gen. v. vSir Geo. Sands.
1 8. Infuntaneous Safin gained by a Fine is not forfeited for Treafon.
2 Lev. 170. in Cafe ol Browne v. Waite.
sinft 10 zi ^9- ^"^ '^ ^'^''^) ^'■^^ ^^ Inheritance of things, not lying in 'femtre, as of
Rent-charge., Rent-iJir^, Commons., ^c. lliall be Ibifcited to the King by
an Attainder of High Treafon, and that the Profits of them lliall be for-
feited to the King by an Attainder of Felony, during the Life oi an Of-
lender, and that the Inheritance Ihall be extinguifhed by his Death j For
it cannot Elcheat, becauie there is no Tenure ; nor defcend, becaule the
Blood is corrupted. 2 flawk. PI. C. 449. cap. 49. S. 4.
, Staundf 45, 20. It feems agreed, that aWThtngs whatfoever, which are comprehended
46 S. P C. under the Notion of a fcrfonal EJiate, whether they be /// JtJton or Pojfef-
.18: C^)*^''° y/c«, which the Party hath or is intitled to in his own Right, and not as
Rep ^ 2 1' S. Executor or Adminijirator to another, are liable to fuch Forfeiture. 2 Hawk.
P C. 188, ch. PI. C. 450. cap. 49. S. 9. The Book cites as in the Marg.
.28. 44 E. 3.
44. Fitz. Core. 517, 318, 519, 523, 554, 5:9, 580. 2 Le. 5, 6 And. 19. Mo. 100. D. 309, ;io.
Truft of a 21. It feems to be fettled. That a Bond taken in another's Name, or a
Leafe for Lejfi made to another in I'rufi., for a Perlbn who is afterwards convifted
^""'o'/*"^" of Treafon or Felony, are as much liable to be forfeited, as a B©nd made
King's Pa- t^o him in his own Name, or a Leafe in Pofielfion. 2 Hawk. PI. C. 450.
tent, is for- cap. 49. S. 10. The Book cites Cro. J. 512, 313. Hob. 214.
feited to the
King by Attainder of Felony. Cro. J. 512. the King v. Daccombe, E.^ecutor of the Earl of Somerfct.
So it was held, 24 Eliz.. in one ArniHrong's Cafe. Ibid. But, 'twas faid to be held by all,
that in one .... 'a Cafe, that a Truft of a Freehoid was not forfeited upon Attainder of Treafon. Ibid,
2 Keb. 564. 22. Alfo it feems to be in a great Meafure fottled, That the Trtift of a
608, 644, 'term granted bv a Man, for the Ufe of himfclf, his Wife and Children, ^c.
'^}' "'.*' is liable in like Manner to be forfeited ^\i fraudulently i>iade with an Intent
Lane 54., ^o avoid a fubiequent Forfeiture ; but that it fhall be forfeited fo far only, as
113. Mod. itis referved to the Benefit of the Party himlelf, if made BonaFide, whe-
1 '5, 38. ther before or after Marriage for good Conlideration, without Fraud, which
A^d 1 ^^ '"° ^^ ^^f^ ^^ ^^ 'Jury on the whole Circutnjtances of the Cafe, and fhall never
Raym. 120. ^^ prefumed by the Court, where it is not exprelsly found. 2 Hawk. PI.
2 Rofl. Abr. C. 450. cap. 49. S. 11. The Book cites as in the Marg.
;4, pi. I, 2-
Roll Abr. 343. F. 5, 6, ;. Mar. 45, 83. Sid. 260, 405. i Keb. 939.
(N) In Cafes of Treafon or Felony. Chattels.
I. "T"F a Man be arraigned of Felony, and takes to his Clcrg^', he fhall for-
\^ leit his Goods, and the Profits of his Land. Br. Forfeiture de Terre
pi. 117. cites 4 E. 3. 46.
2. Indiftment of the Death of a Man, the Exigent is awarded, and the
Party comes, and is found not Guilty ; yet the Goods are forfeited, and the
Inqueft compel rd to fay what Goods he had: who faid that he had to
the Value of 40^. Thorp asked what Vill fhould anfwer for the Chattels;
the Inqueft fiid the Vill at W. and fo 'twas entered in the Roll. Br.
Forfeiture, de Terres. pi, 32. cites 22 AIT 81.
3- A.
Forfeiture.
440
3. A. was brought into the Exchequer to anlWer the Queen for a certain S.P.Br. For'
Sum of Moiii:y, by" him received of B. to fay over to C. att.'.iatcd of 'Trecfoii, Tcrres "^l"
and a Bill mads by C. io B. but not iealeu was Ihcvvn forth, upon which A. ^. citc,s 50.
demurred in Luvv ; and becaule, 'tis only a Chofc en Action^ and -i. miked AiTi.Scthat,
Cohtrati upon the Matter, he was diliiiiis'd. But if a Servant receive tlio'theMat-
Money to the life of his iVlalter, and brines this into the Houle of his If'r'^/""*'^
Malter, who alter is attamted ; tins is torteited which is in the ivlnjter s tiicOuccn.
Pojjel/ion. Savil. 40. pi. 91. Mich. 24 and 25 iiliz. Anon. i^;;/ Ibid. pi.
48. cites 50
Afl". 5. Contra. That the Queen fliall have the Money, and that the Land of A. fliall be thereof charged,
notw itiillanding that A. wight have waged his L.tiu agawfl C. \v here the Receipt was by his proper Hand.s.
Brooke makes a Quere how this Cafe, and the former Cafe pi. 47. agree.
Br. Chofe in Attion. pi. lo. cites S. C. and P. and lays, that ./ v;as [eifed of certain Land., after that
he w^s Debtor to the King, Part in Fee Simple, and Part for io Tears, and flicwcd who was Tenant of
the one, and who of the other, by w hich a Scire facias iliued againft the Tcrten.ints, and the King had
Execution, and fo lee Chofe in Jiiion forfeited to the King. Br. Charge pi. 34. cites S. C.
4. A Termor isdillreined for Rent behind ; afterwards he is attained for
Felony done before the Difirefs taken; the King ihall not have this Diftrefs
as a Forfeiture, unlefs hefatis/i'es the Party that diltreih'd ; For this was
lawfully talcen Tempore Captionis, per Doderidge J. 3 Buls. 17. Hill.
12 Jac.
5. If A. ga^e Goods to B. and after A. is attainted of Felony., yet the
King Ihall not have the Goods thus gaged, without Pavment ot the Sum
for which they were gaged ; becaufe neither of them hath the abfcltite Pro-
perty in the Goods fo gaged, per Doderidge J. 3 Buls. 17. Hill. 12 Jac.
6. A Covenant to fay Money Ihall be ibrlcited to the King by Attainder
of Felony, per Cur. Noy. 155. and lays that ^o it 'twas adjudged in
the Cafe of George Norris. Itf - '
7. If a Perfon is attainted, the King is intitled to perfonal 7'hifigs in- this fhould
tirely, as to an Obligation, Horle, &c. fo the Attainder of one Jointe- be Dame
nant forfeits all, Arg. Raym. 121. but notfoof -Things in Pcffef/ion^ which Hale's Ci^l-
may be divided, cites 3 Inll. $$. of a Chattel real in Polieliion, and that 1^^^/" '^-''
PLC. 243.* intimates fo much, becaufe heinftances only in entire Chattels.
8. Triift of a Chattel is forfeited for Felony, if it be a.Leafe in Grofs^ but ]^^^- ^''^ p'-
otherwife, if it be to attend the Inheritance. 3 Ch. R. 36. Pafch 21 Car. ^^,*^' M^r*!'
2 in the Exchequer, in Cafe of the Att. Gen. v. Sir Geo. Sands. ouefs of
Winchefter'i
Cafe.— Arg. Hard. 46<J. and per Hale Ch. B 467
(O) In Cales of Treafon or Felony, what is to be done
with Chattels before Convi6i:ion.
1. 18. £. 2. Enafts that Felon's Goods may he fee iired before Attainder., but
he fhall be maintained out of them., and they /ball be be reflored to him if ac-
quitted.
2. Stat, de Catallis Felonum, Ena£ts that None taken for Felony., for which
he pall be imprifoned., Jhall be dijjeifed of his Lafids or Chattels, until he be
couviifed thereof ; but as feon as he ts taken, his Tenements and Chattels Jhall
be viewed by the Sheriff, and other Officers of the King and lawful Men, and
inventoried, and kept by the Batlijf of him that is fo taken, who floall give
Surety to the Juflices, of the Chattels, or the Price ; faving to the Accufed
and his Family their Necejfari-es, as long ss he fhall be imprifoned, and his
reafofiable EJiover; fo that when he is conviBed, the Rejidne of his Chattels
(be/ides his Ffiover) may remain to the King, with the ) ear and Day of his
Lands ; but if he be acquit, his Chattels Jhall be rcjlrrcd.
3. The VtU mayfeife tlie Goods of a Man outlawed for Murder, where
they can find the.ii. Quod nota. .Br. Forfeiture de Teire«!. pi. 32. cites
22 AfT 81.
5 Y 4- The
45 o Forfeiture.
Jon
;)f .! Fe- 4- '^'^^^ Officer nor the SherifTcannot take * the Goods away \\ ith him,
...1. Bv. Of- uiilciy they be ibiieited. But where one is appealed or iiiditJcd of Felony^
fee ard Oii. he mii!t leifc and take Sccnrity, that thty pall not be c/lagnd, but not re-
t;— b"co ""'"^'^ thenii and if the Party will not find Surety, he Ihall put them into
lone, pi. 9. f^'''-' Hchids of the Ncigblours to keep, per Cur. Br. Forleiture de Terres,
oiresS. C— &c. pi. 7 cites 43 E. 3. 24.
Br. Forfei--
turc de terres. pi. 44 cites 44. AflT. 14. S. P. per Finch. Quod Curia conceflit And it fecms that this
cught to be ui (Jrder every one thiir comrtiits Felon}', till he is attainted
5. If a Alan kill another by Misfortune, he fliall forfeit his Goods, and
he ought to have his Charter of Pardon of Grace, per tot. Cur. Br.
Forfeiture de Terres, &c. pi. 9. cites 2 H. 4. 18.
6. Where a Man is indicted oi Felonv, till he be attainted, his Goods
fhall not be removed out of bis Honfe, but ihall be in keeping of the N'eighboiirs
qiwtfque, ^c. and all the mean Time, the Felon Jkall have his Living of
his Goods; Quod nota, that thev are not forfeited befbre Attaifider. Br
Forfeiture de Terres. pi. 10 cites 7 H. 4. 47. per Huls.
Thi.'! Statute 7" ^ -^'^- 3- ^^P- 3' JEnafts that No Sfoeriff', Under Sheriffs Efcheator^
is (aid to be Bailiff' of Franchife, or other Perfon, /ball feife the Goods vf any PerfoH m-^
in AfHr- refied or iniprifuned jvr Siifpicion of Felony, before he be convitied or attainted
nianceofthe i})(y(of, or the faiHs Goods be otherwtfe Iciuifully forfeited^ en Path of double
LawTHawk ^^'^ Value of the Goods fo taken, to the Party grieved^ to be recover d by Acfioh
PI. 455. Cli. of Debt, ye. ivhcrein no KJJdin, ^c. to be alloivd.
49 S. ;y.
It wa-v Ey.aP.c.i hy 25 f. 5. T4. TV.tt? in the fecor.A Capias, given by that Statute, on the Return of a
Noil hientHS, it Jh^ll he ccmprifeil, that the Sheri^' ih.iW caiife the Party's Chattels to he fcifed, ani fafdy kept
till the Day of tie IFrit cr Precept returned, &c. and this is ftill in Force, notwithftandlng thi.s Statutt
of 1 R. ;. 3. For this prohibits only the Icifing of the Goods of thofc who are arreftcd. z Hawk. Pi
C. 455. Ch. 41). S. 57. _
It feems plain from this Statute, that Goods may be feifed as fooh as they are forfeited ; and it feems
tlie -svholc Townfhip is anfwerable for them to the King, and may feife them wherever they cati be
found. 2 Kawk. PI. C. 455. Ch. 49. S. 40.
See Lutv/. 1 5 2. for the Pleadings upon this' Statute. . -Debt upon this Statute, for that the
Plaintiff beirg iv/prifon'd np:n Siifpicicn of Felor.y, the Defendant took his Coods before he was conviHed
cr attainted. Contra Formam Statitti, &c. and demanded the double Value. Upon the liTue non Debet,
It was found for the Plaintiff, and moved in Arreft of Judgment, that the Declaration was not good, for
that it is not alleged thct they •u;ere fei/ed J'or this Caiife. tor if he took them as Trcfpuls, an Aftion lieS
not Upon this Statute, Sed non Allocatur : liecaufc it fhali be intended, that he feifed them for this
Caufe, when no other Caufe is fhevvn. And the Addition of Contra Formam S'tatnti explains it, and
makes it good, if it had been before ambiguous. As in 14 Eli/.. D. 512. in an A^Slion for dilh-eining A-
vcra CarucrE, contra Formam Statuti; altho' it be not averr'd, that he had other Goods liitficient for the
Dillrefs, 'tis well enough. For contra Formam Statuti implies as much, wherefore it was adju:lged
for the Plaintiff Crc'E. 749. Pal'ch. 42 Eliz. B. R. Hill v. Langly.
Trefpafs upon this Statute for taking the Plaintiff's Goods (being arretted for Sufpicion of Felony)
before Conviction, and declares of feijmg a certain Parcel of Money; and after Verdict for the Plaintiff",
'tuas moved in Arreft of Judgment, becaufe the Words of the Statute ai-e, I'hst rone jhall feife rf;e
Goods of any Perfon, &c. and that Mo^ey is not Goods cites Fitz. Brief 512. But adjudged for the Plain-
tiff, and that Money is Goods ; and that Cafe i» only the Opinion of Finchden. Mich 52 Car. 2. B. R.
Ravm. 414. Osborne v. V^^andell.
And upon Exception taken in an Aftion upon this Statute, after Verdidt ; For that the Declaration fays,
Bona & Catalla, and then alleges Money and Goods, v/hereas Monev is not included under Bona,
according to * Fitzh. 'twas anfwered, That 'tis true, tho' Motiey can't be demanded hy the Name of'
Bcna, yet it may ie granted by that Name ; For the Perfon who hath the Grant of Bona Felon. & Fogi*
tivorum, fhall, without Doubt, have his ready Money, tho* a Declaration for Money is pro Pecuniis nu-
nieratis. 2 Show. i;2, 15^. Mich. ;2 Car. 2. B. R. Anon, feems to be S. C as above, Osborn v.
V\''andell. — * Fitzh. Abr. Tit. Brief 512. cites M. 59. E. ;. 2;.
It has been adjudged to extend, as well to the Seifureof Money, as of any other Chattels. 2Hawk. 455
Jnd another Exception was, for that the Declarati:n recited X.\\c Statute, and laid, m Sheriff n.^r [/nder-
Sheriff, nor Efchcator, nor any other Perfon ; and in the Statute, Cnder-Sheriffs are 7iot ynenticn'd; yet held
that this doth not enlarge the Statute ; For that 'tis included in the Word Sheriffs; and then 'tis, mr
any other Perfon, and therefore that is well enough. 2 Show. 132, 133. Mich. 32 Car. 2. B. R. Anon.
An Ailion being brought upon this Statute, and a Verdidt for the Plaintiff, 'tw.js moved in Arrell of
Judgm.ent, that the Statute was wy/Vfc/tcrf, whereupon the Parliament Roll was brought into Court and
read, and the S/.atute was for Sufpicion of Felony ; wliereas the Declaration vas for Felony, which being
Matter of Subftance, the Court ordered a Nil Capiat, per Billam Sty. iS> Mich, id+g B R Archsr
V. Holbidge.
Forfeiture.
451
(P) From what Tims ; and what Power ths Offender has
over Goods before Conviction.
I. TT F -Goods are forfeited by Outlawry or Attainder of J'redfon, the
\_ Property is in the King immediately, and the King mav grant them
over immediately; and the Grantee may have an A6lion in his oun Name.
Br. Forfeiture de Terres. pi 26. cites 39 H. 6. 26.
2. If a Felon be conv'Uicd by VerdUi^ Confeffion or Recrenncy^ he doth
forfeit his Goods and Chattels, 8<.c. prefeiitly ; For, where a Keafon has
been yielded in our Books, that the * prayuig of bis Clergy was a Refufal of * Se; the
the Judgment of the Law, and a Flight in Law, and that for that Caule he Koteonni.4
tbrleited his Goods and Chattels, that doth not hold ; For it" a Man be
convict of Petit Treafon, or Murder, or any other Crime, for which he
can't have his Clergy, yet by the very Convifton he forteiteth his Goods
and Chattels before Attainder. And Stanibrd (ipeaking of a Felon convitf
by Verdift) fiith, that he Hull forfeit his Goods which he had at the
Time of the Verdift given, which is the Conviftion in that Cafe, and by
the Stat. I R. 3. 3. no Sheriif, Bailiff, &c. Ihall feife the Goods of a Felon
before he beconvifted of the Felony, whereby it appcareth that the Goods
may be feiled as Forfeit after Convi6tion. Co. Litt. 391. a.
'Twas held by all the Barons, and fo they delivered the Law to the
Jury; That where B. entered into a Statute to A. and A. afterwards was a
fugitive beyond the Seas in 27 Fliz and after, before Office, h.rettmied, and
releafed this Stat, and Office is after found, thisKeleafc ihall notbe a bar to
the King ; For he was tntitkd by the Flight ., and the Oifice is but an Inform-
ing of him, and the Statute was in him before the Office. Mich. 3. Jac.
'i. Cro. J. 82. the King v. Sir Rich. VVendman.
4. The Goods are not forfeited till ConvitJion, and till then the Party The trayhi,/f
ought to have them for his Maintenance. And before Convi6f ion they can- ofCkrc"^ docs
not be feifed for the King's Ufe, tho' they may be put /;/ Salva Ciiftodia. ^ot make any
Godb. 206. Mich. 1 1 JacC in the Starr Chamber, in the Cafe of Miller v. Jut hi'.Goo'i.
Reynolds and Baflet. and Chattels
are forfeited
immediately upon his Convii^iion. li Rep. 121. ^Ikh. i; J.ij. Ar.o:i
5. Soy a Felon or Tray tor may, after the Felony or Treafon, and before
Convi6fionjyi'// Bona fide for his Siiflenance, ^c. his Chattels., be they real or
ferfonal; per Coke Ch. J. 8 Rep. 171. b. Pafch. 8 Jac. in Sir George
Flcetv.ood's Cafe.
6. trover for diverfe Goods was brought againff the Defendant, being
Sherff nf Lmdoii, ^' the Plaintiff, who was the Son of Jctics, who was fx-
cciitcdjor Robbery., and Burglary; and he being in Newgate, and his Goods
feiied by the JDofendant, Jones jiiade a Bill of Sale of the Goods mcn-
tion'd in the Declaration, to the Intent to make Provijiun for the PLwitiff^
being his Son; and by Holt Ch. J. the Bill was tmIqA. fraudulent; For tho'
a Sale Bona fide, and for a valuable Conlideration, had been good, becaul^
the Party had a Property in the Goods till CowoitfiQn^ and ought to be rca-
fonably fufiained out of them ; yet I'uch a Conveyance as this, cannot be
intended to any other Purpofe, than zo prevent a Forfeiture, and defraud
the King; and HoltCh. J. laid, that there was a Fraud at Common Law,
as in fuch a Cafe as here ; and tho' this Bill would not be fraudulent againlt
a fubfequent voluntary Difpofal by Jones; yet, when he h cofiviffed for
n Fail before the Sale, this pall relate and avoid the Sale, and no Coun-
tenance ought to be given to fuch a Contrivance as this, where a Man
has gained an Eitate to a conliderable Value by Robbery, and whtn he is
detcfted, he would give this to his Polteriiy; and the Plaintitt wasNon-
fuit. Skin. 357. on aTrial atGuildhall. Trin' 5 W. &M. Jones v. Afliurif
7. No Part of the pcribnal Eftatc js vcited in the Kine, before the
^Self^Murdet
452
Forfeiture.
Sclf-Miirdcr is fcund by fome Inquilition, and confeqiicntly the Forlei-
tuie thereof is laved by a Pardon of the Oifencc, bclbre fuch finding, i
Hawk. PI. C. 68. tap. 27. S. 9.
8. But if there be no fuch Pardon, the whole is forfeited immediately
after fuch Inquilition, from the Time fuch Mortal Wound was given,
and all intermediate Alienations are avoided. 1 Hawk. PI. C. 68. cap.
27. S. 10.
(Q^)Forfeiture of one Perfon, in what Cafes it Ihall be
of another.
* Br Forfei- ^- A "'^^^ hoilnd to fjco in 20I. and o;;^ of the x.\wo "-xas Felo de fc\
ture de Tcr- _/a.* which was tbund by Office, and per Chocke J. the * whole
res pi. 58. S. Obligaiion is forteited. But contrary per Younge^ For by the Death it is
.P. after Of- yerted in the other by the Survivor; and the Office which came after,
tllc^reoT ates cannot develt this wliich was veiled before, quiere. Br. Jointenants pi.
s' c — Br. 34. cites 8 E 4. 4.
Prsrcg. pi.
6-. cites S C. Jenk. 65. pi Z2. S. P. Becaufe the outlawed Perfon, without the other, might
have reka'ed the Obligntioii.
2. Goods taken ly a T'rcfpaffor fliall be Ibrfeited by the Attainder of the
Owner tor Felony; For the Right and Property remains in the Owner, and
the Law Ihall adjudge them in him, untill he makes his Ekff ion to the
contrary, l^'j bringing Writ of 7'rcfpafs. Cro. E. 824. Pafch. 43. Eliz. C,
B. in Gale of Bilhop v. Lady Montague.
3. ^ivo Jointcnauts of a VVard,o//c' does Wajl^ both fhall be pnnifhed in
Aftion of vV'alt Co. Litt. S. 67. 54.
4. Mortgagee of Lands forfeited to the King muft: make his Demand of
the Money at the Exchequer, and not upon the Land, nor need the King
tender it. Golds. 137. pi. 41. Sir Rowland Heyvvard's Cafe.
5. A. de%'ifed to Ji. the Fatheryor Lifc^ Remainder to C. his Son an In-
fant in Fee, and devifed 400/. to the Son, to be paid at 21 ; A. made the
Father Executor, and left 2000I. perlbnal AHets, and B. having ipent the
perfonal Ailets, mortgaged the Lands to y. S. and made Affidavit that they
were free from Incumbrances, and that he was feiled in Fee, and levied a Fine
for corroborating the Mortgage, and fo declared the Ufe thereof for him
and his Heirs; the Son having entered for a Forfeiture, the Mortgagee
brought his Bill to be relieved^ and the Court decreed that the Mortga-
gee, notwithftanding the Forteiture, fhould hold and enjoy the Lands
•againll the Son, during the Life ot the Father. Hill 1699. Abr. Equ.
Cafes 257. Willis v. Fmeux.
6. If Tenant for Life, of the Office of Marjhal of B' R. grants an Office
for Life, and then commits a Forteiture of his Eftate; yet the Under
Grantee ihail continue in for the Life of the Grantor; becaufe the Grantor
Ihall not, by his own Aft, defeat his own Grant ; per Holt Ch. J. 12
Mod. 558. in Sutton's Cafe.
(R) Relation as to Lands and Chattels.
S P. Br. Re- ^- A ^tainder in Felony or Treafon, by Verdift, ConfefTion or Outla\vTry
lation.pl. 5 iS. j\_ forfeits ail from the Time of the Otfence committed, as to
cites :?;E. 3. Lands ; and fo 'tis upon an Attainder of * Outlawry. But for f Goods,
Fotfeimle ^^'^"^^^ ^^ ^^^"^S' ^^"^ ^'"g's Title fhall look no farther back than to
^Oi^eiture ^j^^^^ Goods the Party, attainted by Verdiif or Confejion, had at the Time_
'•S. P. Bur ' of
Forfeiture. ^^^
of the Verditt and C^onlcinon, and in OutUwries at the Time ot the Brook makes
Fxi?cnt^ as v/eli in 1 lealbns and Felonies. Bacon's Ule of the Law. 41. a ()iixrs
thereof ; for
he fiys, that it feems to him, that it -fiiall only be from the Time of the OittLxvjry pcrcunced, cr after ;
For Outlnvry hjs no Re/.itton, as Verdirt has. Br. Forfeiture dc Tcrres. pi. 98. cite; z,o H. 6. S. [but it
fliould be 50 H. 6. 5] S. P. Br. Relation, pi 4Z. cites ^o H. 6. 5. as -well as upon Attainder by Ver-
dift. Centra, held in the Time of H. S. ot Attainder cf Felony ; tut it is good Law upon Attainder
ty * FcnfiSl ; For this iliall have Relation to the Aiit; contra of Outlawry. Mote the Diverfity. Ibid.
♦ S. P Br. Relation, pi. 14. cites 42. E. 5. 26.
Attainder hy Outln'xry ihall have Relation unto the ± Exigent, as unto Lands and Tenements; fo thrit
a Fcoflmcntor the Land or Grant of a Rent, before the Exigent awarded by him that is attainted in
fuch Manner is good. Perk. S. 28. iji Br. Relation, pi. i^j. cites 42. E. 3. 26. S. P.
.4)id Attainder by t^erdici fliall have Relation unto the Time of the Felony ccmmitted ficcorMng to tie
Stip^ofal of the Indtclnient, as unto Lands and Tenements, and fo fhall an Attainder by Confcffton. Perk.
S. 28. cites 50 H. 6. 5.
I Perk S. 29 So that a Gift made of the Goods before Judgment, is good, circs 41 AfT. 15. — ■ —
Br. Forfeiture de Terres, pi. 58. cites S E, 4. 4. ace. per Danby Ch. J. and Needliam J. i^ncre, if by
Covin, per Brook, ibid.
2. W^here a Man is arraigned of Felony, a»d acquitted, and 'tis found that S. P. Br.Pc
he fled tor the Felony, he ihall forteit his Goods which be had at the 'Time l«'o"- p'-^^ i •
of the Acquittal, and not at the Time of his Flight. £r. Forfeiture de Coldsb »-'-
Terres. pi. 119. cites 3 E. 3. It. Nor. cites S.C.aVd
3. But y^^itxQ^the jlymg is found before the Coroner, they are forfeited which Fitzh. Co-
he had at the 'Time of the Verdiif taken before the Coroner. Br. Forfeiture "^^"^ ^9^-
de Terres pi. 119. cites 3 E. 3. It. Nor.
4. In Attaint, Judgment was given againli the Petit Jurors, and it Thejudg-
wus doubted, if the Jurors having aliened their Lands vufne betwe£n the I'cfte ment,astotli:
if the Writ and the Judgment, \vhether the King Ihall have thofe Lands or 9^^\ !^^"
not? therefore qusre of the Relation of it. Br. Relation, pi. 14. cites tiorT/o^/ls
42 E. 3. ZO. 'fejlecf the
... . ^^ '■'* "f -'^*~
tjint, where they have alien'd for fear'of the Attaint, viz. by Covin. Br. Relation, pi. 45. cites S E. 2.
and Fit7.h. Affife. 'i,6Q. S. P. Br. Collufion. pi. 44. cites S E. 2. and Fitrh. Affife 596. — Therefore it
feems contra of Goods fold before, or after the Telle of the Attaint Bona Fide ; For if thev are fold
before Judgment, it feems that the Sale is good. Qu^rc, of a Sale before Execution.
5. And of the Relation of a Judgment in Premtinire alfo, and fee the Qu^^e as to
Statute thereof Ibid. an India-'
ment on a
PitmiAiire, on 1^ Eliz. For it was not refolvcd. Cro. C. 172. Mich. 5 Car. B. R. Grots v. Gavcr '
Jo. 217. S. C. by Name of Grofs v. Gay he.
6. And, it feems, that where Treafon is made by Statute, fhe Ihall forfeit
in like Manner. Ibid.
7. J^UiCre, if it be not the fame La-j!) in the Premunire or Attaint. Ibid.
8. If a Man commits Felony, and after Pttrchafes Land, and after is at-
tainted; there the Land purchafed is forfeited, as well as the Land which
he had at the Time of the Felony committed, per Perfey and Belknappe.
Qtiod nullus dedixit. Br. Forl^eiture de Terres. pi. 80. cites 48 E. 3. 2.
9. It' Goods be grje'/i to A. by Deed in his Ab fence, and A. co7nmits Felony
belbre Notice of the Gift, yet the King flmll have the Goods; For his
Notice fhall have Relation to the Gift. Br. Done &c. pi. 30. cites 7
E. 4. 29.
10. It one be found Feb de fe by Office, the Office fliall have Relation g^^g^ j^j
to the Jirjl Stroke, per Littleton. Br. Prairog. pi. 67. cites 8 E. 4. 4. Feme Jdnte-
n/ivts /(>)■
Tears ; the Baron is Feb de fe. Feme is in by Survivor ; yet if this be afterwards found by Office, the
King ihall have the whole Term. PI. C 458. Trin. 3 Eliz. Hales (Dame) v. Petit.
11. There \s -x grfxt Diverjlty, as to the Forfeiture 0^ Land, befxeen
an Attainder of Felony by Outlaiory, upon an Appeal, and upon an h'diff-
inent; For in the Cafe of' an Appeal, the Defendant ihall forfeit no Lands,
but fuch as he had at the Time of the Outlawry pronounced ^ but in Cafe
of Indiftment, fuch as he had at the Time of the Felc^py committed,
S Z ' ' and
454- Forfeiture.
and the Rcafon ot" this Diverlity is evident ; For that /'/; Cafe of Jppeal
there is no Tune alleged in the Writ, isuhen the Felony was done; luid there-
tbre of Necellity it mult relate, in that Cafe, only to the Judgment of the
Outlawry; but in theCale of lndi£tmcnt, there is a certain lime alleged ;
and therelore, in that Cafe, it Ihall relate to the Time alleged in the In-
didment when the Felony was committed. Co. Litt. 390. b.
♦Forthemhe 12. But in the Cale of the Indiifmcnt^ there is alfo a Divcr/itj to be ob-
"Jitlc of the ferved; For as it hath been faid, it Ihail relate to the Time alleged in
Kingappe:irs j-j^^ Indiftment /or avoiding of Efiates^ Charges and Incutnbrances, made by
S Rc^T-o ^^^ Felon after the Felony committed ; but jor the mean Profits of the Land,
in Tourfon's it lliall relate only to the * Judgment, as well in this Cafe of Outlawry,
Ciifc— anrf as in other Cafes. Co. Litt. 390. b.
cites PI. C. j^. A. committed Trealbn, 18 Eliz. for which 26Eliz. he was at-
^ ' tainted by Trial ; and in the mean Time, between the Trealbn and the
Attainder, he was Com/fee of a Fine of certain Lands, convey'd /])' one B.
to the Ufe of the fatd B. and his Wife^ Sifter of the faid A. and of the
Heirs of the faid B. And after this, B. and his Feme bargained and fold the
Lands to J. S.for Money\ and they convey'd them to him by Fine. And now
upon Difcovery of the Treafon, and the Attainder oi A. J. S. was ad-
vifed by Plowden, Popham, and many others, that the Eftate of the
Land was in the Queen, becaufe the C^ueen is intitled to all the Land that
Traitors had at the Time of the Treafon, or after. So the Ufe, which
Ihould create Eftate to B and his Wife upon the Fine, by the Relation of
the Right ot' the Queen by the Attainder, is deftroyed^ wherefore J. S.
fued to the Queen, and flie granted him the Land again by Patent. Mo.
196. Trin. 27. Eliz. Pimb s Cafe.
14. The Trealbn oicompajing the King's Death was laid in the Indift-
ment to be the 'ioth of May, 11 Car. 2. yet upon the Evidence, it ap-
peared that Sir Henry Vane, the very Day the late King was murdered, did
fit in Coiinfelkr the ordering of the Forces of the Nation againji the King^
that now is, and fo continued on all along, until a little before the King's
coming in. It was rejolved, that the Day laid in the Indi£lroent is not
materia], and the Jury arenot bound to hnd him guilty that Day, but m^'
find the Treafon to be as it was in Truth, either before or after the Tifne laid
' m the hidttiment, as is refolved in ^PCC'lS Cafe. Co. PI. Coron. 230. And
accordingly, in this Cafe, the Jury tbund Sir Henry Vane guilty of the
Treafon "in the IndiSlment, the 30th of January, i Car. 2. which was
from the very Day the late King was murder'd, and lb all his Forfeitures
relate to that Time, to avoid all Conveyances and Settlements made by
him. Kelyng. R. 16. pi. 6. Trin. 14. Car. 2. Sir Henry Vane's Cafe.
But ikiCom- j^ jf there are two Joint-Obligees, and one of them is outlawed, the
ThleifpHor ^^'^g Ihall have the whole, becaufe each had Power of the whole.
totheKing's, Hard. 26. Arg. cites Fitz.h.. Execution 113.
it is other-
wife. Ibid cites 49 E. 3. 16. t
16. If A. gives B. a mortal Wound, and then A. fells his Land, and thea
B. dies ; there ihall be fuch Relation as to make the Land tbrteited from
thefrfi Stroke. Arg. Vent. 37 1 cites PL C. 293. Dame Hale's Cafe.
(S) Purged, or difpenfed with, by what.
Itid. pi. 4^ I- "TT was agreed, that where Exigent is awarded in Felony, and after
S. P- cites 45 j^ the Party Ihews Charter of Pardon of elder Date than the Fxigent
Aii; awarded, and Surety put in in Chancery, Secundum For mam Statuti, before
the Exigent, the Goods are faved and not forfeited ; becaufe the Charter
and Surety appear by Matter of Record. Br. Forfeiture de Terre. pi' 6,
cites 4jE. 3. 18
2. No
Forfeiture.
+55
2. No Part of the perfonal Eftate is veiled in the King before the Stlf'
Murder is found by fomclnqiti fit ion -^ and confequentiy the Forfeiture there-
of isfavedby a Pardon ot the Oltence before fuch hading, i Hawk. PI.
C. 68. cap. 27. S. 9.
3. But if there be no fuch Pardon, the whole is forfeited Immediately
after fuch Inquilition, from the Time fuch mortal V\"ound was given, and
all intermediate Alienations are avoided, i Hawk. PI. C. 6S. cap. 27.
S. 10.
(T) What Charges are avoided by it:
I. ^~Y^Etiant in 7'ail^ Reverjion w the King. Tenant in Tail made a
JL _ Lcafefor rears, and levied a Fine to the King. The King Ihall
not avoid the Leafej For he comes in in the Reverter. But in luch Cale,
if he be attainted of Treafon, the King fhall avoid the Leafe. So a Sta-
tute of Forfeiture is llronger than a Statute of Conveyance. Arg. Godb.
324. cites 2 Mariac- ^Uttm'0 Cafe cited in Walfinghum's Cafe.
(U) Forfeiture. By Flight ; and how to be feifed, and
when.
I- "f^Ote, That if it he found before a Coroner by Inquefl, that a Felon
jL\| or thief -withdrew himfelf, the Chattels are forfeited without
morci and the Sheriff ought immediately to feife his Land into the Hands
of the King, by fimple Parol without tnquejl^ and caufe to feife all his
Chattels into the King's Hands, and to caufe 'em to be apprifed, as well by
Villains as by Free Men, and put the Price in the Roll of the Coroner, and de-
liver them to the Fill, to anfwer to the King. Br. Forfeiture de Terres.
pi. 33. cites 22 Air 96.
2. In Jppeal of Death, the Defendant made Default, by which iix/-
gent was awarded; and thereby the Goods and Chattels were forfeited. A
W^'rit may iflue to the Sheriff', or to the Efcheatm; to feife them. But per
¥^tvtt,CommiJpon oat of the Exchequer, to feife them, is againlt L.2.W; For
they were not forfeited till now. Br, Forfeiture dc Terres. pi. 40. cites
41 AfT 13.
3. A Man was taken for Sufpicien of Larceny, and bailed to J. N. Bai-
liff of D. to keep him, and he efcaped for Default oi^ good keeping ; and
there 'twas fiid, that if he was not indicted, his Goods ihall not be for-
feited; quodMirum! For he who flies for Felony J] lall forfeit his Goods.
But it feems, that this Word (indicted) is intended, that it Ihall be found
by Indiftment, that he fled for Felony before the Goods were forfeited ;
For the Flying ought to be of Record. Br. Forfeiture de Terres. pi. 43.
cites 42 Alf s-
4. j^peal was brought by a Feme againft three, of the Death of her
Husband, one is outlawed, and the ether two raider themfehes at the Exi-
gent, and their Goods were forfeited, becaufe they llaid till the Exigent.
Br. Forfeiture de Terres, pi. 45. cites 44 Aff 16.
5. jlppeal againji two, the one as Principal in one County^ and the ether as
jicceffary to the fame Murder in another County, and the Exigent was award'
ed ; and after the Jlcceffory goes quit, becaufe 'twas in another County, and
prayed Rellitution of^his Goods, and could not have it ; For the Goods
are forj'eited by the awarding of the Exigent, which yet Hands in Force. Br.
Forfeiture de Terres. pi. 46. cites 45 Afl! 9.
6. Upon a Jims finding that the Defendant fled at the fame Time
that they acquit him of an Indictment of capital Felonv, or as-fome fay,.
"of
40
Forfeiture.
ot" Ln,iueny betore Jmlices of Oyer, &c. he Ibrleits ail his perfo-
nal Eibite. But I'uch u finding caules no Foifcirure of the Klues of thie
Land J becaufe by the Acquittal^ the Land is dilcharged. Neither wpU
it ha\e any ElFetl as to the Goods, if the Indutmcnt Avere iufuffrcuin; or
if the Flight be difp-c'ved en a 3'ravcrfc^ which, as all agree, may be ta-
ken to any fuch Finding, except that by a Coroner s Iiiqnejl ; and as fome
fay, even to that, as well in Refpect of the Flight, as ol tiie Particulars
oi the Goods. 2 Hawk. PI. C. Abr. 445. cap. 49. S. 11.
7. Upon a Prefentment, by the Oaths of 12 Men, that a Perfbn, arrefted
.ofTreafon or Felony, lied from, or reftfied thofe who had him in Cu!lod\',
and i<cas killed by tliem in the Purfuit or Scuffle, he forfeits all his ^e/fo/ul
EJlate. 2 Hawk. PI. C. Abr; 445. cap. 49. &; 11.
(W) In Cafes not Treason nor Felony, or of inferior
Nature.
I. TF a Man be Mifcreant, 'tis a Forfeiture of his Land, pef Belknap.
j[_ Br. Forfeiture de terres, pi. 94. cites 5 R. 2.
i'l^^i^'- 2, In Trefpafs, it appears, that where the Defendant is att.iched for
^fOTf infuch G'co^j in an Action of Trefpafs, and makes Default at the Day, his Goods
Cafe,' is the are forfeited. Br. Forfeiture de Terres, pi. 23. cites 14 H. 6. 14.
Default of
£aron and Feme. Br. Forfeiture de Terres. pi 23. cites 14 H. 6- 14.
3. For Petit LarcenyyUnden i2d. the Party fhall forfeit aJ! his Goody,
hut no Land, quod Nota; For this is Felon v, tho' not Felony of Death.
Br. Forfeiture de Terres, &c. pi. i. cites 27 H. 8. 22. per Fitzherbert J'
4. Attainder of Premunire worics no Corruption of Blood, but is a For-
feiture of Lands in Fee Simple, but not oi Lands in 'tail. Co. Litt. 391. a.
5. By <) Amiie. 14. One challenging a7iother jor Money -joon at play forfeits
his Goods.
6. I Geo. I. 55. PapiJ^s not regijlering their Fflatcs forfeit them.
7. An Heretick, tho' burnt for Herefy, forleited neither Lands nor
Goods. Becaufe the Proceedings againft him were only Pro Salute Animai..
Hawk. PI. C. cap. 2. S. 10.
(X) Where, after Forfeiture, a Subje61: may enter without
Livery of the King.
I. TTCTHere a Man is attainted of 'Treafon by Parliament, and to forfeit
\ Y his Land tn life, and in Pojfeffion, and after the Heir is rcjiord
ly another Parliament after that the King had made a Feoffment tn Fee of
a Manor; he fliall not have Scire Facias to refume the Land, and to have
Livery i For --iiohere the King depans with Fee Simple, he cannot refume. Br.
Livery, pi. 13. cites ') H. 4. 20.
So where the 2. But where the King is fetfcd hy jittainder of Felony, and le.afes for
■*^F V"^*"" Z//e, and J, N. has Title, he lliall fue to have Refumption to the King,
Felof'th!'" ''"d to have Livery out of the Hands of the King; F'or the Rcverjion and
Layid of the Fee ivas in the King. Ibid.
HeirinlVarA,
there ihall be Refumption and Livery made to the Heir ; For the Kim, had not the Fee Simple to give ;
contra where he has the Fee, and gives the Fee; Note, a Diverfity: Ibid.
3. 'Tenant in Tail levied VVar againfl the King by Treafon, and was
kili'd in Rattle, and fo died before he was attamted, by which it was
(naiicd by Parliament, that hejkculd forfeit all his Lands of Fes Simple, and
that
Forfeiture.
457
that the King Ihould fcifc as well the Land of P'ec-Siniplc as the Land
tailed ; and by Mandamus it wasjoiaiii that tke Laud tatkd was tailed-^
&;c. cuid that thu Heir ts 'juithin Jge, upon which che Heir at full Age,
fued in the Chancery to have Livery of the Land tailed, where, upon
Argument, the bell Opinion was, that he ihall have Liserv; V or •where
the Kingjcifcs by a Title ftirmifed, and has other true T'itk^ the Law will
adjudge him in by the jiift Title, which is here by the Wardlliip ; For no-
thing was forfeited by the A£t of Parliament but Land ot Fee Simple,
and It appears there, that none Ihall have Livery without Office ler\ ing
lor him ; and lb the belt Opinion is, that he ihall not be put to lue by Pe-
tition. Br. Livery, pi. 14. cites 7 H. 4. 32.
4. Office was found that^.iV. who held of thcKifig^altciied withotitLiceiice
to W. S. and returned in the Exchequer, and thence lent into Chancery,
and thence into B. R. to be dilculledj and thtrt joioid fcr JF. S. that it was
held of T. R. who held over of the Kttig; by which he had Livery out of
the Hands of the King, with the Iflues in the mean time. Br. Livery,
pi. 15. cites 7 H. 4. 4:,
5. Where the King is itititled to feifi, as for Outlawry of FcIoHy, Ws.rd, Jmi theri-
Alienation without Licence, &c. there the Party who has Title Ihall be /<"? there,
compelled to fue Livery^ contra upon Outlawry in a perfonal Alfion j For ^ "'hen a
there the Kingpall not feife, but only take the Profits. Br. Liveryj pi. jf, oZ'lawd
cites 9 H. 6. 20. and the
Term expiretf
the Leflbr, or he who has Right, may enter viitloitt Liuery; For the King is not ftifed but of a
Chattel, or of the Profits of the Land and never could feile the Soil of the Tenant of the Franktene-
mcnt but only the Profits in the one Cafe, and the Chattels in the other. Br. Livery, pi. 5. cites 9 H.
6. 10.
(Y) Levied or * Recovered. HoWi * sec Prcrgv
^ ' gative.
r. 31 £. 3. Stat. I, cap. 4. Ena£b that the Efcapc of Pehns, ffud the
Chatties of Felons.^ Fugitives, and Clerks Conviffy adjudged by the Kings
J^ttjlices pall be levied as they fall.
2. T. B. of Kent Knight, was Attainted of Treafon, and the King by
his Letters Patents gave all his Goods to W. and he brought thereof] Subpoena
in Chancery eo quod bona devenerunt ad manus ejus, and per Cur. it lies well,
tho' he may have an Aftion of Detinue at Common Law. Br. Preroga-
tive, pi. 45. cites 39 H. 6. 26.
(Z) Pleadings.
I. 3 £. 3. Stat. I. cap. 3. Ena£ls that tf anj' charged with the Goods of
Fugitives and Felons ivtll, in difcharge of hivifelf, allege another that is
chargeable therewith he pall be heard, And Right pall be done him.
1. In an Information for a Debt forfeited, and Ibund by Inquifition to be
due to the Felon by Bond, it muft be dire£lly charged againlt the Debtor i
that he became bound by his Bond, in fuch a Summe, and muft not be laid
by a Front patet by an Obligation hie in Cur. prolat. Per Saunders. Sand.
275. Trin. 21 Car. 2. in the Cafe of King v. Sutton.
(A. a) Forfeiture. * Relieved in Equity. \vt^l
Condition.
I. TN Cafe of Forfeiture Equity can Relieve, where they can give Satis- jVcm. 594.
I faction. I Salk. 156. Gnmlton v. Lord Bruce & Ux. in Cane. Mich 1:07.
^ 6 A 2. A S-C.
458
Forfeiture.
2. A iziifnl Forfeiture, hy fiific-ruig a Rccc-jiry in Point ot Law was fup-
plyed and helped in Equity, becaule of an Jg-reemantivecident. Pafch. i6
Car. 2. Chan. Cafes i^^. Goodrick v. Brown.
3. A Fortciture o\' a Copyhold by fding 1'tmler was relieved in Equity i
but Lord Keeper declared, that in C.ife of a wilful Forfeiture he would
Sec Copy- not relieve Hill 19 Car. 2. Chan. Cafes 96. Mary Thomas v. Porter and
hold. ' jhe Bilhop of Worcclter.
See Rent. 4- ^^ ^'^^'^ °^"^ Forfeiture of a Leafefor Non-Payment of' a Ground Rent,
and a Recovery in Ejeftment, Cnancery will not relieve on tender of Ar-
rears and Colls, where the Forieiting Perlbn was oftered the lame Terms
by the Ground-Landlord before the Bill brought and refufed them, per
jefFeriesC. Vern. 449. Pafch. 1687. Dorrington v. jackfon &: Watibn.
5. An AJfent after Reftifal was allowed to prevent a Forfeiture 3 For a
Forfeiture Ihall not bind where a Thing r/iay be done after-wards, or any
Compenfation made for it, unlefs where there is a Deviie over to a third
Perfon. 2 Vent. 352. Cage v. Ruflell.
6. Equity will not relieve againft a Forfeiture incurred hy A^i of Par^
liament. MS. Rep. faid to be Ld Hareourt's tit; Forfeiture 1723.
Sweet V. Anderfon.
(B. a) How far Equity will aid the taking Ad\^antage of
a Forfeiture.
1. 1 Tj PON the Diflibling Statute of ii^ 12?^: 3. cap./^. §. 4. LdCowper
\J^ inclined, upon a Bill brought by an after Protellant Remainder-
man, and upon another Bill by the Heir at Law a Protellant, to direft an
Jjftie to try 'whether J. S. to whom a firlt Remainder was limited, was a.
Papifi at the Time that the Remainder froiild have vejfed in him ; and this
was deiired by the Plaintiffs i but in regard, the Act inflicts a Forfeiture
and Difabitity, and therefore is to be taken flriftly, and that J. S. being
above 18 at the making the Settlement, and fo not within the Clanfe of Re-
trieving the Eitate ly returning to the Proteftant Religion (which probably
was intended by the Parliament) his Lordihip would not affill the Plain-
tiffs fo fa,r j but left them to go on and try their Ejeftments upon feveral
Demifes, and direifed that none of the 'fraJf-Terms, or EJiatea in the Settk-
inent, previous to the fatd EJlatc limited To J. S. or Mefne bcrjuixt him and the
after Protcfiant Remainder-man^ fhould be given in Evidence, or i/ijifled upon -^
to the Intent, that it might be tryed whether J. S. who was Itrongly af-
firmed to be a Papift but had controverted it^ was capable oi taking or
Not, and who had the Title, in Cafe he was not Capable of taking, whe-
ther the Remainder-man by the Settlement, or the Heirs at Lav\ . V\"ms's
Jlep. 3 jf 2^.353. Tfin. 1717. Vane v. Flexcher.
Forgery.
Forgery.
Forgery.
(A) At Common Law, or Now. In Rcfpeci: of the Deed
or Writing, or Thing contained therein.
I. I H 5. 3. "tliTHEREJS Pcrfofis have foij^ed falfe Deeds to change if a Man
y Y the Lands of the good People of the Country, and to forges «
dejiroy and trouble the PqlJe^ons and 'titles of the Suhjcifs of our Lord the ^■''^' i"^
King^ therefore our Lord the Kin^. ^r. provides and ordains, that the '^"\,^^','.
Pari)' jo grieved, may have his Suit infuch Cafe. Smtuie: For
where the
Statute faj-s, to change the L^nds, and trci'ble the Pojfejfiijn and 'T'ttle, it Cannot be intended of an tihte
for Years. PI. C. So. Arg. in the Cafe of Partridge v. Strange. a
2. In Forger of a Deed, becaufe the Defendant forged a Deed of cer-
tain Lcind, and fou.r Shillings Rent) and Letter of Attorney of the fame
Lund, and Rent. Deiendanc dcm:mdtd Judgment of theBill ; for Rent does
not he in Livery of Seilin, and therefore cannot be * grieved of the Rent, * Ori='.
by the Letter of Attorney. And yet becaufe by this the Tenant may (greavcOand
give id. in the Name of Seilin, and lb the Plaintiff may be difturbed >" the Year-
iind \e.Ked, therclbre he was awarded to anfwer, quod nota. Br. Forger . °° ". '*
de flits, pi. 4. cites. 33 H 6. 12. 5 ^ .j
3. li' a Notary, or other Perlbn, of Covin counterfeit Seal of c.ny Par-
fon or Vicar y and forge Letters of Rc/ignation of his Parfonage or Vicar-
idge in the Naiiie of the Parfon or Vicar of his Benefice, he Diall thereupon
have a Writ of Difceir. But whether by that he ihall be Rellored to his
Beneilce, Qutere ? It ftemech not, becaule the removing of him is a Spi-
ritual Atl. F.N.B. 99. (K)
4. 5 Kliz. cap. 14 S. 2. Enacts that. If any one afonc, or with others, forgery 0?
fiali 'Xillmgly, fuhtilly, and fcljly Jorge or make, or caufe, or ajent to be a Jf^'H,
forged or made, any falfe Deed, Charter, or Writing fealed, Court-Roll, or '■f^'^yh *
IVill in zvriting, to the Intent that the Freehold or Inheritance of Lands, or ^f-' ■''"
lean is cc/7-
jhe Right or Title thereof, may be troubled, defeated or charged, or Jhall pub- -jefd, &c.
lilL or Jheiv forth in Evidence, any fucb forged Writing as true, knowing the is within the
fame to be falfe and forged, and Jhall be thereof convicted upon an Atiion of ^^'^^^^■' °y
Forger of falfe Deeds (to be founded upon this Statute) at the Suit of the the Word
Party gnevcd, or other'-ji-ife, be Jhall pay to the Party grieved double C(^s, ^c. (Writiig)
only. Trin.
33 EI. D. :;2. h. pi. 45. Anon. Grandfather, Father and Daughter. Land defccnded from the
Gr.indfithcr to the Father, ^he Father made a Leafe for loo Years and died. The Daughter, to avcid <in
£xeiiitici: of a Statute-Staple, {the Leafe being defeated) forged aJflU of the Grandfather, by •vnhich he gavi
the Land 10 the Father for Life, the Remainder to the Daughter in Fee. It was argued by the Solicitor
General, to be within the firlt: Branch of the 5 Eliz. Becaiife Leffee for Years has a Title, an Intereft,
and s llight, and therefore within the Words of the Statute, ana that thole Words Ihall be referr'd
to the V\' ords, Liwds, T'enennents, &i: But Coke on the other Side faid, that they fbould be referred
to the Words Precedent, viz. EJlate of Freehold or Inheritance, and then a Leafe for Years is not with-
in them. Then the Solicitor in'lifted, that a 'fefiamiftt in l-Vriting is within the Words, If anr fkad,
]!ublifh. crjJ-t'O) forth, Sfc. to the Intent:, to have cr Claim thereby any EJlate of Inheritance, Freehold
i>r Le.-ife fr i'e.rr.!. And he faid, that a Statute Staple is an Ellate for Years, tho' it be not a Leafe for
Years, becaule it is not certain. But Coke anfv.ered, that the Statute is, whereby an £/?^/<! foe Yearf
p)all he claimed, and tljat in this Cafe, the Daughter rxoiild defeat an EJlate for Tears, and not claim one,
and a Stature Staple is not a Leafe forYe2rs,and that the Statute is aPenalLaw, and net be taken iy Equity.
The Soi;iclti.>r replied, that when the Statute is extended it is a Leafe for Years, the' it be uncenain.
If a Man i'o;i;e a Leafe for Years, it is direttly within the Statute. But if a Alan has a Leafe, and
Another is forged lo defeat it, it is a Quettion, whether it be within the Statute. And all the Doubt of
this Care, is upon the Reference of thefe l^'crds, Riffht, 'title, and Iriterefl. And it was adjourned. Godb.
62. Mich 2H, 29 Elii. B. R. Sturgie's Cafe. -Nelf Abr. tit. Forgerv. pi. 3. S. C. fiys, the Cour:
feen-.cd to incline, that this was not within the Statute; for an Eftatc for Years was not fuch an In-
tercft or Tirlc as is intended by the Statute, by fuch a forged \Y\\\ or Deed ; befidcs the Defendant
<ii4
460 Forgery.
did rot cliim the Lc;iie, for hci- Intent was to defeat it; and thi,', bcinp it Penal Statute, llii;li not luvc
an ciiuitablc tjonlbuction, ;i;id tites S. C. and Hook. But C^Jtrc ; for ilierc U notliiiijj nioi'c tl^rc,
1 llic Principal Caic hci--
One Hand- §. J. J Porter, ^c. of a Leafe for Years, of Land twt Copyhold, or of
ford, before ^f, Annuity, Obligation, Bill, Acquittance, Releale, or other Dijcharge
Ms Sut. r PerlofniJ Ihiug, and he iijhajhall tiibiilh and gr.-e the fame tn Evt-
Joy fears, dcncejhall fay douLiIe Lojts, t/t.
<U).u niterwiirds redeemed By one Weynman for zoo/, and cancelled. After Weynman, perccivirtj it to be
foro-ed, fued Handford for RelHtution of the 2oo /. and theu Hanford, after this Stat, maintained the
Lealc as good and true ; whereupon Weynman fued him in tiie Star Chamber, and there it <u.:is l.clden^
fut to be li-ithin the Statute, becaufe the Deed was cancelled, and Hanford made no Title to the Intcreft
of the Term. 5 Inll. 1^2. cites Trin. 11 Eliz. Weynman v. Hanford.
The 5 Eliz.- 14- extends net to Forgery of a Deed, conveying a G'lh of Cjaiteh terfcml, and a*; to
that Point, extends kut to Ohligathns, Bills Obligatory, ^Jcqaittayice, Releaje or ether Difchar.re. And it
extends not to an Affignment of a Leafe of Land in Ireland. But the Court may punifh lucli Oftences,
as Mifdemeanors at Common Law. 5 Le. i ;o. Mich. 29 Eliz. in the Star Chamber. Newman v. Sheriff.
^ 4 Le. 25 Mich. zpElii. S. R. ■ — ♦Counterfeiting an Acquittance for Money, was held For-
gery, tho" withotjta Seal. 2 Nstv. Abr. 568. cites ISlich. 12 Geo. i. The K. v. Ward. S. P. Sid.
a-8.'pafch. 18 Car. 2. B.R. The King v. Ferrars— The Defendant was indicted for imblifhing a
f^ilfe, forged and counterfeited Jffidavit, and likcwife a Certificate of J. S.a Jujlice of P. knowini; tTic
farae' to be forged, by Virtue and Colour whereof, he did unlawfully"and fraudulently, p-oairc the Sunt
cf 57/. 8 J. to be paid him for four Months Penfion, due to. ^.£. as aJVidoiv of a Seaman who died ia
the Service. It was moved in Arreft of Judgment, that this was no Ortence indictable at Common
Law ; For that the forging fuch AtSdavit and Certificate, was no Offence ; and if fo, the publifhin;^
fiich Affidavit could be none neither. The Court ealily over-ruled the Exception, admitting the-
Forgery not to be a Common Law Offence: Becaufe it was making Ufe of the Affidavit, whether
foi-t'ed or not, as a falle Token, and in Order to cheat. But it was likewiie refolved, per Cur' that
this" would have been a good Indictment for Forgery at Common Law, and that had it been laid on
any of the Statutes of Forgery, it would have been ill, for the Stat, of ;;; H. 8 fpeaks only of coun-
terfeit Letters and privy Tokens, which has always been interpreted real Tokens ; as a Watch, Ring,
&c. belonging to the Party. The 5 Eliz. extends only to Deeds and Charters relating to Land, and
the 2 Geo. 2. 25. extends to Deeds, Bills of Exchange, Notes and Affignments, Indorlcments of Bills
of Exchange, and nothing elfe ; and they held, that nothing could be inferred from its being omitted
in the Statutes, to prove it therefore to be no Offence at Law ; but that all Foigerie.< were indictable
as fuch, before ^ny Statute was made, where it appear;, that a third Perfon has been pyejudired thereby
For all which, the Cafe of the Jiimg i), SUlarD* Mich. 12 Geo. i. was relied on, as in Point. Mich.
14 Geo. 2. B. R. King v. Obrian.
Forgery of a Rent Charge, or a Leafe for Tears, is within the Statute. But Forgery of /7» w/T?,^?;-
tJient, or [of] a Rent Charge in ejfe, or a Leafe for Tears, is not within the Statute , For tliat doe.s "not
charge the Inheritance of any ; faid by Coke to have been agreed by the Julliccs in the Star
Chamber. Noy. 42. in Markham's Cafe.. -S. P. 5 Inft. 170. favs it was fo refolved, Pafch. 38 Elii.
in the Star Chamber, between the Lady Grefham and Booth. Markham & al.
Indiftment for forging a Deed of Jffignment of a Leafe flgned with the Mark of one Godard. Cujus
tenor Sequitur, but fets down the Mark, as in the Affignment, and yet well, i Salk. 542. Pafch.
a Annx. Queen v. Smith. It is directly within the Statute. 5 Inll. 1 70.
§.9. Provided this jiif pall not extend to charge any Ordinary^ Commiffary
or Official for putting their Seal of Office to any Will not kncwing the faiae to
be forged^ norjor Writing fuch a Will or the probate thereof.
§. 12, 13, 14. Provided, this Act ffjall not extend to any Prod or. Ad-
•vacate or Regijler, for Writing, fetting Jorth, or pleading of any Proxy for
the Appearance of any Perfon cited to appear in the Rcclejiajlical Court, nor
to any Archdeacon, nor Official for putting their Seal to fuch Proxy, nor
to any EccleJIaflical Judge, for ad?nitting the fame, nor to any Attorney or
Counfellor for pleading or giving in Evidence any fuch forged Writing, being
not Party nor privy thtreunto, nor to any Perfon that pall plead or ftav Jcyth
any Writing exemplified under the Great Seal, or the Seal of any oj the Courts
cf this Realm^ nor to any Judge, Jnjlice, or other Perfon that p .dt fct any
fuch Seal thereunto^ not ktKrjcing the fame to le forged.
5 It
J*-
Forgery. 461
5. It' a Man forge a Statute Staple^ or a Rtcogfiizatic: ."7 th Nature (f ^ £ x .
Stutate Stap.'e, wr. acktic-jolerlges thehi tn the JS urns oj .':ficthcr; thefe are jmjtr'ment h
Obligations within the Statute ; For each of them hath the Seal of the Ireland, was
Party i othcrwile ot' a Statute Merchant, or Recvgnizancc, becaule they afTigned, that
have no Seal of the Conulbr. 3 Inlt. 171. cites Mich; 13 and 14 Eliz. °''8'"g " .
Hinde v. Crieviil. -,„„f^ is not
within the ,
Statute, as [it woold be] if it were in the Nature of a Statute Staple, being only befor^ a Mjfter of
Chancery there. But per Cur' this Recogniiance, being no Writinjr (baled by tlie CoiuCor, is not
within the Statute. 5 Keb. 4S6. pi. 22. Trin. 27 Car. 2. h. R. the Kinp v. Leilranirc. — Cites New-
ton i Cale.
6. A Copyholder of a Manor iflade a Ciijioiiiary of the A Liner in Piirlia- ^ Le- io3.
ment, with Labels and Seals ot" himfelf, and other Tenants of the Manof, J,^"'' ^^°-
infertmg therein diverfe CuJJoms vet-y lalie, tending to the Difhferifon cl ^ ' '"
the Lord, and by the Title thereotj pretended to be collefled, renew ed,
and iet forth by Conlent ot' all the Freeholders and Copyholders of the
Manor, being at leall 100 and allowed and permittca by the Lord of
the Manor, and feveral Names were fubfcribed and Seals pat, and men-
tioned to be io done the Day and Year above-mentioned, but no Day
nor Year appeared in the Title, nor was there in Faft any Confent of all
the Tenants, or Allowance ot the Lord : This by rhc Opinion of the
Major Part of the Judges, upon a Reference to them, was held to be
Forgery within the Statute. D. 322. b. pi. 26. Palch. 15 Eliz. in the
Star -Chamber. Tavern er's Cafe.
7. If a Soldier counterfeits the Warrant of bis Captain^ 'tis Felony.
1 Roll.R. 266. Mich. 2Q Jac. B. R. in Stones Cafe cites Statute 39 E. 3. 17.
8. An Intbrmation was brought againll three for Ibrging, iScc an En-
try in the Regijier Book of a Marriage, between the Husband and another
Woman, to the Impeachwent oj the Dower of the true and lawful IVije, and
to the Deprivation of the Inheritance ot the Daughters by the true Wife,
and Judgment was given againtl him. Patch. 1658. B. R. 2 Sid. 71.
Dudly's Cafe.
9. One counterfeited a Proteffion, in the Name of a Priiy Couufellor of
the King, but neither a Nobleman nor Member of Parliament, and fold this
Proteftion tor 61. He was try'd, and found Guilty of this Counterfeiting
and Extortion. It was mov'd, that this was no Offence, inafmuch as
the ProteBicii was merely void. But the Court thought it a great Ot-
tence, becaute by fuch Protections many were impoverillied and difabled
to recover their jult Debts, and fin'd him 50/. and Imprifonmcnt 'till
paid. Sid. 142. Pafch. 15 Car. 2. B. R. The K.. v. Deakins.
10. The Plaintiff produced a Deed inrolled, at a Trial at the Affiles,
which in Faft, 'Mvcr was inroUed ; and the Detendant moved for a new
Trial, which the Court retiifed, altho' there is no Remedy againll any
of the 1 arties for Forgery or Perjury. And Twifden faid that lo
was the Cale of one PollItStOn, v/ho had paid Fees, but the Clerk o-
mitted the Inrollment, and the Party added it, and no Remedy againft
him ; lb of a Cyrograph of a Fine But by Keeling, luch an Indorfement
is Forgery, when nothing will pals without it ; Sed Curia contra, that ic
is only a great Mi [demeanor, but no Forgery, i Keb. 568. pi. 15. Mich.
15 Car. 2. Noy v. Tucker.
11. Putting the Chief fif/fice's Hand to Common Rail, is Forgery, i Keb.,
841. pi- 28. Hill. 16 and 17 Car. 2. B. R. Sherwood's Cafe.
12. Defendants were indifted at common Law for forging two Pa-
tents under the Great Seal, by affixing an old Seal to a new Patent. 2 Keb,
;74. pi. 57. Trin. 18 Car. 2. B. R. The King and Monox v. Winter
ikal.
13. In Information for Deceit in nunttrfeiting a Letter, the Court were
divided, whether it was punilhable as an Offence at the Common Law,
where no Mifchief is intended, nor does any enfue. Mich. 33 Car. 2,
2 Show. 20. The King v. Enierion. ■ --.•-'
6li 14- -*^-
4^2 Forgery.
14. A. B. and C. were indiftcd upon the Coroner's Inquelt tor the
Murder of R. D. ut H. in Kent, and were thereupon indicted and ar-
raigned. The Fa£t upon the E\ idence appeared to be, that the Prilb-
ners were Cu'ionihoufc Officers, and fulpecting that Ibme Wool would be
traniported, went to the Sea Side in the Night, where there happened
an Atfray, and A. was twice knock'd down, and recovering himfelt, ilwt
the Deceafed. They were all acquitted 01' the Murder, and then upon
Complaint made, that A. only was Ibund guilty upon the Coroner's In-
queft, two of the Jury depofed in Court, that they, tipo/i the Coroner's In-
qiiejij jotind the ludttirncnt againji y^. alone^ which Jndiftment was ;;/
Ktiglijh ; But one J. D. who was then Mayor of H. and by \ irtue of that
Office was alfo Coroner^ took the Indicimtnt^ and told tjoe Jnrry it nitifi be
turn d into Latin, which was done^ and be then inl~erted the Names of B.
and C. the other two Prifoners at the Bar, whereupon J. D. was called,
and he appearing, was bound in a Recognizance to anlwer this Matter.
And upon an Information, was found Guilty ^ but having fpokc with the
Profecutor, he was only fined 20 Nobles. 3 Mod. 66 Palch. i Jac. 2.
The King v. Marih.
Mod z"- ^5- ^ '^^^ ^'^'''^^ indifted for forging a Bill of Loading, but the Indift-
S c.- ' * ment being uncertain, was held naught, i i^alk. 342. Mich. 7 W. 3.
For forging The K. V. Stocker.
a Cocket for
five Packs of Linnen Cloth. tJ Mod. 87. Mich. 2 Annx. The Queen v. Browne.
16. It is no Forgery, v/h^rt no Perfn cm be prejudiced but the Pet fon
doing it. I Salk. 375. Hill. 11 W. 3. B. R. The K. v. Knight
17. A Man was indifted, for that he quodddut Scripttnii Obligatorium
fabricavit y contrafecit ; Exception was taken, that it was a Bond to the
Sheriff of London, for the Jppeara?ice oi a Perlbn under Arrell a Die
Punjicationis tn Ocfavis Diebiis, and there is no fuch Day, and therefore
the Bond is ivid, not being according to the Statute, and bv Confequence,
the Forgery, no Crime, becaufe no prejudice to any. But it was held, that
the Ociavis Diebus, may well be underllood lor the 0£ta\ e of, &c. Be-
fides thefe Bonds are not merely void by the Statute, but only voidable,
and therefore you mull plead the Special Matter, and not Non eft faftum.
And you may lay, that a forged Bond binds no Cody, (as in Truth it
does not) and thence infer, that it is no Crime to forge. Per Holt, Ch. ].
and the Queen had Judgment, notwithltanding this and other Excep-
tions. 7 Mod. 150, 151, 152. Hill. I Annse. The Queen v. King.
iS.By ']Annie, cap. 20. §. . Any Perfon forgi^ig or counterfeiting any Entxw
of the acknowledgment of any Memorial, Certificate, or Indorlement, at
is therein mentioned or dire^ed to be Regiltred, and be thereof laivfully con-
vi^ed, fuch Perfon pall incur, and be liable to fuch Pains and Penalties as
are impofed upon Perfons for forging and publiping of falfe Deeds, ^c. by
5 Eliz. cap. 14.
19. By 8 Geo. i. cap. 22. §. I. Forging Authorities, ^c. to transfer
Stock, or receive Dividends, Sc. andperfunating Proprietors is made Felony.
20. 9 Geo. I. cap. 12. §. 4. Enafts that If any Perfon after the fe-
cond of April, i^zi. pall Forge or Counterfeit, or procure to be forged, Qc.
or htowifigly A^ or afftfl tn the Forging, Sc. any Order 7nade forth in
purfuance cf the A^s of 6 Geo. i. c. 11. and 8 Geo i. c. 20. or of this
Aif, or any Aflignment of fuch Order, or of the Annuities payable
thereon^ or any Receipt or Difcharge to the Exchequer, for the Annuity
due on fuch Standing Order, or ^wy Letter of Attorney, or other Autlo-
rity, to transfer, aliign, i3c. any fuch Order, or to receive the Annuities
due thercQHj oxfball counterfeit, (^c. any Name of the Proprietor of fuch
Order, in any AJftgnment, Receipt, Letter of Attcrncy, Sc. ox pail frau-
du'ently demand to receive any fuch Annuity, by A irtue of fiich forged
Receipt, i^c. ox Jhall fal/ly, ^#rt' rt'fm?//;//)' Perfonate -any true Proprietoi'
if uny thefaitt Orders, thereby ajftgning or endeavouring to ajpgn anyj'uch
■■■ "-■ tf
Forgery. 463
Older, or recehiftg or endeavoirrin^p; to receive the Afoiicy cf Jucb Proprietor, aT
if fiich Offender luere the LT-joful O'xner thereof, in e-vcry facb Cafe^ every
j'lich Perfon^ {being convitied thereof indue Vurm of Lj-ji:) fball be adjudged
Guilty of Felony, "without Benefit ef Clergj-.
21. 12 Geo. I. cap. 29. §. 4. tna£ts that Perftfis convilfed of
Forgery, ^c. Pra&ifing as Attornies, &c. offending ag-iiufi the Ati for
preventing frivolous and vexatious Arrefts fk all ^f. traiifported lor 7 Years.
22. 2 Geo. 2. cap. 25. §. i. Ena6ts chat Forger, k^r. or Counter-
feiter, or Jjjijfer, ^c. of any Deed, Will, T'fiavicnt, Jiond, H'r/ting Obli-
gatory, Bill ot" Exchange, or ProinilKiry Note /or Payment of Money, In-
dorfhncnt or AJJignment of fuch Bill or Note, or any Acquittance or Re-
ceipt either for Money or Goods, or pall utter or pub lip any fuch Deed, £yi';
tvith Intention to defraud any P erf on kno-dcing the fame to he falfe, &c. Ihall
fuff'er Death as a Felon, without Bensfft of Clergy.
23. 4 Ctu 2. 18. §. I. Enafts that Any P erf on Forging or CountcrfeitiHg
any Pafs, for any Sbip, commonly called a Mediterranean Pals, or who fhall
alter or erafe any Pafs, made out hy the Commiffioners for FLxecuttng the Of-
fice of Lord High Admiral ; or pall publi/h as true, any forged, altered, or
erafed Pafs, knowing the fame to he Forged, Sc pall be guilty of Felony with-
out Benefit of Clergy.
24. 7 Geo. 2. 22. Makes the Forging, altering, i^c. the Acceptance
of Bills of Exchange, or the Number or Principal Sums of accountable'
Receipts, for any Note, Bill, or other Security for Payment of Money; or
Delivery of Goods, ^c. and the uttering, i^c. the fame as true, with Intent,
to defraud any Pcrfon, and knowing the fame to be falCe,-^c. to be Felony
without Benefit of Clergy. • . .
25. 9 Geo. 2. II. Makes the 2 Geo. 2. perpetual.
(B) In Ref]'>e£i: of the making or proclaiming the Deed
or Writing, &c.
I. ^ I ■^WAS agreed, that if a Man Forges a Dted, and does not prodaim Br. Forger
J^ it. Action does not lie. Br. Forger de liiits. pi. i. cites 9 H. de fairs, pi.
6. 26. '^-^^^^ 1^
2. If the Father Forges a Deed and dies, and the Son knowing it, pn- p PcrPafton.
flaims it ; Aftion lies againll the Son, quod ipfc Scie/is Faf^um illud fore
falfum 13 Fabricatum illud proclamavit. ' Per Bab. & Palton. Br. Forger de '
fairs, pi. I cites 9 H. 6. 26.
3. In Trefpals upon the Cafe, the befl Opinion was, that where a Maa
Forges an Obligation againjl me, and puts it in Suit, I iKall have Aftion
apon ir.y Cafe tor t'le Vexation ; contra, if be Forges it and docs not put it
tn Suit. Br. Aftion fur le Cale. pi. 89. cites 5 E. 4. 126.
4. So, I Ihall haveAftion upon the Cale for Forging of a falfe Tt-/?^-- - ■'■
inent, or of a falle Releafe which is pleaded agaiiifi mc, by which I am de-
layed; wherefore after Argument, the Defendant pleaded Not •Guiky,
notwichitanding it was faid for the Defendant, that the Aftion does not ^
lie, inafmuch as the Plaintilf, in Suit thereupon, may plead Xon ell fittum; * ■ '":
and Aftion upon the Statute is not given in this Cale. Ibid.
5. If o»e For^fj a Deed, and another proclaims h, Aftion of Forgery of ' ' ..;
Deeds does not lie againll him who proclaimed ; for the Writ is Fab'rica- ■ . '.
vit & Proclamavit, and 'tis fufficicnt for the Deiendint 10 traverfe the ' ' ■
Farming, without the Proclaiming in an Atiion againji one, otherwife' 'ti* '•f
in an Aflion againll twoj For one may forge and the other proclaim, - '-"
PerNeedhamJ. Br. Forger de fairs, pi. 18. cites 14 E. 4. 32. •■ . '
.''■'■ •■■• 6.15
Forgery.
A:i{ a the 6. li' A. m.ikcs a Deed ot" Feoliinent in Deceinbtr, and afccr this, nnd
Ftorfec bel'ore Liver)- and SeiJin executed, the Feoffor fells the Land iy good Ajjk-
cuuics the ranee to ancther, arid after this^jirji Fcojjee takes Lrcerycf Seijm of the
Ijo^cd'^ci::- t'l^'^Mf'^ i ^^'^ ''** Fdrgcrv ill the Fcoiibr and Feolfee. -Mo. (>ss- Mich. 44 &
rally, v,i:h- 45 Eliz.. in the Star Chamber. Salway w Wale,
out clpecial
Djy ot the milking of it, this Indorfement \% alfo Forrjerv, becaufe 'tis writcn to the Intent to dcfrjui
tlx: rrcan Allurante. So 'tis of * JnteAating of a Deed, for fuch Purpofe. Mo. 655. S'alway v. Wale
. '5 Inft. 159.
But Ante- 7. Jnd Jntedating^ a Counterfeit Deed is Forgery, and fo is Cotiiiter-
L"'"''^/.^ Yf^f'''^"'i ^^-^ Hands ^ Names, and Seals vf the FeoJ/ees to the Counterpart of
there'^'^c not ^^'^ f^'orged Deed. And. 102. Trin. 24 Eliz. Puckering v. Filher and
a rr.ean Inte- LangtOH.
reft in any
ti.hd Pcrfoji to he pejudUed by it. Mo. 655. Sal way v. Wale.
If a Man
makes an
lOH
S. If a Man forges a Bond in my Name, it's poflible I may be damni
^, .. . £ed by it, but 'till 'tis put in Suit againlt me, I cannot bring Acfioh
in nifName, "g-^inft the Forger. Per Gold. J. Arg. 6 Mod. 46. cites 19 H. 6.* 24
I niall not ' Hob. 267. 6 E. 4. 7. 2 Buls. 268.
have Difccit,
becaufe I may fkad Ken eji faHiim. F. N. B. 96. (B) Marg. cites 19 H. 6. 44. — ♦This Icems mifprinted.
9. A Perfon cut of a dead Mans Hand, and put a Pen and a Seal iit it,
and fo Signed and Sealed and dclii'ered the Deed ivith the dead Hand, and
fwore that he law the Deed fcaled and delivered, and upon tliis he was
tonvifted of Forgery. Sti. 362,363. Hill. i652.TheKing v. HowellGwin.
10. Darnell (Serj.) laid, that Detendani may bring an Aftion upon his
Cafe againft the Plaintiff, for filing him tipcn a Forged Bond, and that a
Verditi therein "juoiild be Evidence for him, it being between the lame Par-
ties. 6 Mod. 234. in Cale of Selby v. Green.
(C) In Refpe(3: of the Alteration of the Deed, SCc.
If r h P i-/^NE wrote the Will of a Perfon mortally Sick, and rnferted a
fon fo infcrts V-X Claufe in the Will after the deflator was Speechlefs and without Me-
aClaulein mory and without any Dire^ ion before, tor the inferring of it, and it being
the Will mov'd, whether this was Forgery ol the ^\'ill and punilhable, bv the Stat.
T"*?^"'"!^ 5 Eliz. it was agreed and refolved by the better Opinion, chat it was not.
of^ylinds ^- 288. pi. 52. Pafch. 12 Eliz. In the Star Chamber. The Cafe of Sir
orTcne- John Marvin's Will.
inents,which
Teflator had in Fee Simple falfly, without any Warrant or Direftion, tho' he did not fjr<^e, or
falfly make the Whole Will, yet he is punifhablc by the Statute 5 Eli/.. u> hath been ofrsn held i.t the
Star-Chamber, contrary to the Opinion reported by my Ld Dyer, j Inlt. 170.
Nov. 99. 2. If Obligee Alters or Razes (Libris') &i inferts (Marcis,") thii 1 j not
^ '& '^ Forgery puniih.ible, becaufe it prejudices no body but himfelf in voiding^
f'H?. Black his Bond, and leliening the Duty ; but if he had increafed the Sum, or
V.Allen.— lejftned it to avoid any Collateral f-'rejudiie to himfelr, or to prejudice ano-
1 Salk. 5-5. ther, 'twould be Forgery. Mo. 619. Mich. 42 and 43 Eliz. in the Star
S^P^KiU. Chamber. Blake V. Allen.
r, R. in Cafe 'i- Omitting a Thing or Legacy out of a lllil, which is appointed to
of the K V be inferred is not Forgery. But if he is directed to give Eitace lor Life,
Knight. wii.h Remainder to another in Fee, and he emits the Fflatefor Life, by
which Remainder in Fee takes LffeCi prefently, this is Forgery, h riting
/z Wy// and bringing it to a Perfon of non fan£ A'lemcrix, and he allows
i.c, it is void but no Forgery -, hm filing up Blanks, during the I'ime of
his bein^Tion fiQ3e Menioris, was thouiiht to be u A-Ii 'i.-meaner if l:e knew
him
ForgciT' 465
}nm to be non linia; Memorise. Mo. 760. Pullh. 3 Jac. in die Star Ctiuni-
bcr, Combes 's Gile.
4 If A. makes a true Deed of Feoffment of the Manor of Dcik unto -''': '^ •' ^'•"^
J?.— andB. or \'omc other tvr/e 0//? i;. (the firll Letter of Dale) and /)//^ ^^^J '"*
tn S. whereby it is filOy altered, and made the Manor ot SjIc : This is p^„„,-j, by
within the Statute. 3 Inlt. 169. the Year be
{^ranted out
■ of Land in "Fee, or for Life, &c. and the Grantee or any other r/tfe out (ewe) and inftcad thereof
urite (/cio) this is within the Statute. 5 Lift. 169.
5. But if one having a Lci^fe fir fxeuty 7'ears, alters the fame into
thirty Years ; this is no Forgery, becaufe it was a good Deed, and not
forged at the firit making. Star Chamber Cafes. 44.
6. A Man may lofe an honeit Debt by playing a Trick to come at it ;
and Sir \Vjii. BeVerlkmi's Sillers Cafe, was cited, who adding a Seal to
a Note, which was fufficient without a Seal, loll her Security j cited, by
'Hutchins Commillioner. Trin. 1690. 2 Vern. 162. in Cale of Hitchcox
■V. Sedgwick.
(D) Forger. Who.
I. TW^TO yfcrty/o/;)' can be in Forgery, but all are Principals. Mich.' 44
i\ & 45 Eliz. Mo. 666. Booth's Cafe.
2. To catift, IS to procure or connfel cue to forge^ &c. To ajjent, is to give
his Alfent or Agreement afterwards to the Procurement or Counfel of
another ; Toconleiit, is to agree at the Time of the Procurement orCoun-'
fel, and he in Law is a Procurer. 3 Inlt. 169.
3. In a llri£lSenfe, he that Quifes a Forgery to be done is a Forger
himfelf; But then it ought to be laid fo in the Indiftment. 5 Mod. 13S,
Per Cur. Mich. 7. \V". 3. in Cafe of the King v. Stocker.
(■E) Publication thereof j What is, or amounts to it.
-J, TT^ORGER of Deed lies where T'ermor Jiiay pray to he received,
jj and pews a firged Deed of Leafe ; per Moile ; tor he cannot be
roceived wtt"hout Ihewing Deed. Br. Forger de iaits. pi. 15. cites 9 E.
4- ■37-
■2. A Man fliall fhew Deed //; Formcdon in Remainder, and yet,
though when it is fevvn, the Tenant Ihall not have Anfwer to it, if the
Deed be forged, he ihall have a"n Aftion of Forger of the Deed^ per Cur.
Br. Forger de fairs, pi. 20. cites 10 E. 4. i.
3. If J. telkth B. that fiich a Deed is falfe^ and firged^ and yet B. ^ ^..^ '•
zvi/l after fronoimce or fubltfii this to be a true Deed, and afterwards it fall- j^ w'lilch
eth out by Prdol^ that the Relation of A. was true, and the Deed forged j fee at (A)
B. is in the Dagger * rfthis Statute ; And fo -was it refolved in the Cafe
of the lanj) tS^fii^am ii. "BootJ), &c. 3 init. 171.
4. li -sn innoc^M Perfon recerje Money iipo}i a firged Note, not know-
ing any thing of the Forgery, it is no Crime in him; but he ihall
anfwer lor the Money fbleiy; iiwir receiving Money upon ii forged Note,
knowing the Forgery, is a Pnblication of the Forgery. Per Holtj Ch. J.
12 Mod. 494. Pafch. 3. W. 3. the King v, Elkr.
6C (F)What
466 Forgery.
(F) What may be done in Cafe a Deed be denied, as
forged ; And if found forged, Avhat fhall be done
with the Deed, &C.
I. \SJij
SJife ^vas adjourned into Banco, upon Devimrer of Bajlardy^ and
_^ the Defendant at the Day --xotild have ■pleaded Releafc^ and was not
fuhered ; For ;/ Wus not made after the yldjoiirnmcnt, and the Plaintiff re-
covered; and notvvithllanding that the Deed of Rekafe appeared to be falfc
and Oufter is confeiled ; yet the Defendant was not iniprifoned, lor the
Juftices are out of the County where the Affile was brought. But it
leenis to me that the Reafon is, becaufe the Plea was not admitted oftlie
Releafci For the Juftices of Banco, upon Adjournment, lliall give fuch
. Judgment as the Juftices of Ailife Ihould give in the County. Br. Impri-
Ibnment. pi.. 54. cites 23. Afl' 5.
2. In Alfife, zheTemnt pleaded falfe Rekafe^ to which the Plaintiff was a
' Stranger, and therefore they were at IJfue upon the Seifin of the Feoffor^
and found for the Plaintiff, and that the Rekafe was lalfe, and the Te-
nant was taken, quod mirum ! where the Releafe was not in Iffue, and
alio the Releafe was made to A. .^le EJlaie the 'Tenant claMd^ and
not to the 'tenant himfelf. Br. Impriionment, pi. SS- <^ii^cs 24. All.' 3.
3. In D^^t /or /ojp;/^ of Deeds, \i Judgment pafs for the Ptaintif!^
it flmll be agoodBarr m every Court afterwards, in A6tion brought up-
on this Deed, quod nota bene. Br. Faits pi. 43. cites 37 H. 6. 13. per
Choke.
4. When a Deed is denied, the Law has appointed it to remain in
Court, andthc Cuflos Breviuin to have the Cuflody of it. 5 Rep. 75. a. per
the Reporter cites ¥. N. B. 243. (L) [but it fhould be (I). J
5. If the Husband and Wijefue a Bond, madetothe Wfe, inC. B. and
the Deed is there denied, lor which Reafon it remains in the keeping of
the Cuftos Brevium, and the Husband dies, xheWlfe may have a Writ out
of Chancery, d'lreSied to the Cu/los Bre-vi urn in C. B. to deliver the Deed to
the Wife, becaufe the Plea is determined by the Death of the Husband.
F. N. B. 243. (I)
A Bond be- 6. A Deed upon Evidence was found not to be the Defendant's Deed,
ing found g^d by Conlequence forged; and it was in/ifted on, that the Court ought
Dcfcndanr ^^ cancel it, yet the Court denied it, becaufe there might be Error in the
prayed, that Proceedings, for which the Verditl might be fet alidc, and then the Bond
n might re- would ftand unimpeached, and {o the Matter be brought in Queftioii
main in again ; and fb it was refblved it fhould not be cancelled, but remain in
SrCoun Court uncancelled. 6_ Mod. 233. m Cafe of gyClO? v. ©rCClt- Cited per
denied it, and Holt, Ch. J. as Sir Sol. Swale's Cafe.
faid, that
fuch Matter had been often moved, but never granted, and caufed the Bond to be delivered to the
Plaintirts. Sid. 131. Pafch. 15 Car. 2. B. R. Guillimsv. Huley. — Jenk, 70. in pi. 32.
A Deed found forged by Verdift, and which concerned an Ellate of 1 200 1. a Year, was, by Order,
brought into Chancery, and a Tears time rriven to jijjiify the Deed, by a new Trial, where he plealc ; and •
becaufe within the Year he had a yiew 7'rial at Chefter, and found .xgainfi him, it was now moved, that
the Year being paft, the Deed fliould hz cancelled, anddamned, and decreed .iccordingly. Sid.170. jilich.
15 Car. 2. Gerard v. Phitton,
* Sid. 131. 7 A. was fued as Executor to J. S. upon a Bond of 10,000 1. fet up
Pafch. 15 hy ati old Woman, that looked alter J. S. an old Mifer, as his Nurfc;
g Q ^' ■ and upon Non eft Fa(fnm pleaded, it was found upon a Trial at Bar, not
f 5 Rep. 74. to be the Deed of J.S. and upon the Authority of f l©pmarU'£i Cafe, in
5 Rep. it was made a Queftion if the Bond fliould not be cancelled ' and
it was held that it fhould not be cancelled, becaufe the judgment might be
reverfed by Writ of Error, but iliould be kept in Court, i Salk. 215.
cited per Holt, Ch. J. as Sir Huley's Cafe.
8 The
Forgery. ^6^
8. The PlainiiiT making Dctauk, and upon opening of the Caufc, it
appearing that the Plaintilf" had torged Icveral Notes or Writings in
the Delcndant's Name, it was prayed by the Defendant's Counlel,
that fuch Bills or Notes might be torn or obliterated ; but Mr. Solici-
tor General obferved to the Court, that a forged Deed or Writing,
cannot be torn or defaced by Laiu^ but mufl be kept, ^o that the Khir may
proceed upon it againft the Criminal. Mich. 1682. Vern. 66. Frankland v.
Hampden.
9. The Obligee made a rriaterial Razure in the Condition of a Bond, and •^■*''"^'' ^^^■■
after brought an Aftion upon the Bond ; and the Defendant having had {hisCi^"^^
Oyer, and the Bond being now in Court, and the Raz.ure difcovered, the and after the
Defendant pleads Non clt Factum, and Notice of Trial given j but when ^o^" ''-id
the Plaintiff underltood that the Defendant had found out the Cheat, and gj^^lt'ic"'
could prove it, he countermands the Notice ^ and it was moved, upon jaid"'tliat'^
Affidavits of this Matter, th.it the Bond i\\o\i\± ronain in the Qijfody of the D^fen-
the Officer of the Court till the Caulc was tried ; For otherwife the fl^'." "I'S'^"^
Plaintiff would fhiy until the Defendants Witnelfes were dead, and put ""'"^ an Ac-
this forged Bond in Suit againft him^ when he could by no Polfibility cv? "/^^ /;,.
relieve himfelf againlt it^ and now if he fhould try it by Provifo, the ing him on a
Plaintiff would be Nonfuited, and might begin again. Per Cur. the A'y^ ^onti ;
Defendant's befl way would be to carry the Caufe down by Provifo ; f^'^j'.^^^*
and if the Plaintiff would fufFer himfelf to be nonfuited, whereby the therein
Suit would be at an end, and the Plaintiff entitled to take his Bond out would be E-
ot Court, yet the N'vnfuit 'Vjonld be great Evidence againfl him in another vidence for
ABion to be brought thereupon, or elfe he might get his Witnefles !^''"! " ^^'
Teltimony perpetuated in Chancery. 6 Mod. 233. Mich. 3. Anns. B. R. t||',f jfj^^^"
Selby V. Green. Parties ;
and 'io he
took nothing by his Motion. Ibid. 294^
10. Tn Eje^ment the Plaintiff made his Title under feveral Deeds,
but the Jury found againjl the Deeds; and upon Motion^ the Court or-
dcrcdthemto be kept in the Officer s Hands, in order to a Profecution for
Forgery ; But upon Application to the Court of Chancery, whence the If-
fue was direffed, a new Trial -jvas granted, and therefore the Plaintiff
moved to have the Deeds out of Court ; And Holt, Ch. J. heldj that they
muft be delivered out, as this Cafe was, becaufe the Deeds were not in If-
fue dtreiily upon the Pleadings in the Caufe ; otherwife if the Ilfue had
been Non eft Faftum. 1 Salk. 215. Hill. 4. Annas. B. R. Fitch v.
Wells.
(G) Adions and Pleadings:
I. ^^OnCplracy againjl' feveral for forging a Deed of Entail o£ hand of
\^ the Plaintiff, by which he waj put to great Travail, Cofts, and
Expences, and [forced] to fell his Chattels, but becaufe it was quod talis
frocuravit ficb a one tojorge the Deed, and he was the fame Perfonwho was
named in the Writ, ;ind lb he cannot procure himfelf^ therefore
the Writ was abated quod nota •, but it is badly reported. Br. Confpira-
cy, pi. 7. cites 46 E. 3. 20.
2. In Forger, &c. Defendant faid, that at the time of the making and pub*
lifjing fuppofed he himfelf was feifed of the Tenefnents in fee,abfquehoc that the
Plaintiff then had any thing. Newton faid, 'twas no Plea, for it may be that
he dilleifed us, and made the Deed, and we re-entered, and fo dilturbed
of the Poffelfion ; after Cot. J. faid the Plea id good prima facie ; For
then you cannot be dilturbed of your Polfeflion, and if you have fpecial^
Matter fhew it. But note, that the Stat, of i H. s 3- ^eaks of
Poffeffioa
46 b
Poliellioii and Title, and Dillcifor has Title. Br. Forger dc lliits. pi. 9.
cites 8 JJ. 6. 33.
3. ll\i h\..m brings an Action, and ftippofes that the Defendant forged
. and pnchuwcd a Deal, Ya JIjjU anf-xcr to icth. per Bub. Jir, Forger de
. t'aits. pi- 1. cites 9 H. 6. c6.
* NotGuiltv ^. If an Aft ion be brought ^""t?/;//? fxo, and one fays, that he did not
f ? ooj"lf. /'^/■^''^5 ^witliQ vt her fays, that he did nut -proclaim, it is not good ; But
^■y^^^\\.^\^o^i eachtnujl plead * Nut Guilty as to all. per Bab. Br. Forger de la its. pj. i.
Argument. citeS 9 H. 6. 26.
Br. Forger
dc f;iits. pi. I7. cites 3- H. 6. 57. S. P. Ibid. pi. 21. cites z\ H. 7. 15. and 10 H. 6. 3. ace.
Br. Accord ^ Forger de faits ; Defendant, Proteflando that he did not forge, pro
C .L Br^* p/i^f/?o fiiid he gave a Gallon of Wine in SatisfaSion of the T'refpafs, to which
Bane. pi. 22. Pl^dhtiff' agreed, ]n'igmcm\\ KQdo. Plaintiit'faid, this is no Plea, without
cites S. C. laying, that they accorded, &:c. Newton laid. Defendant has pleaded
belt ; by which Plaihtiff' faid, he did not receive it in Satisficlion of this
Trefpafs, prf/f. 19 H. 6. ig.
* The TFrit In forger of Deeds, "the Dejendant faid that the Plaintifivas feifed of the
li-tij, that Afanor of D. in Fee, and covenanted with J . N. to enfeoff him oi the Manor
/<'/.7i.i//.j/;if- i^if ])_ ^^,ii ^_ jv. prayed the Defendant to write the Deed accordingl}-,
'*!/ "^^^"■> which he did, and put a Seal to it, by the Command of the Plaintiff,
una ccuiiteii 1 1 i>, 1 1 r 1 • t 1 t • j ^^ • - 1 • 1 • 1
that he 'i^d read the Deed at the [makingj the Livery and oeilin, which is the
■forged cm lanie forging and proclaiming; Judgment fi Aftio ; and a good Plea,
Deed only, pej- ^^^^^ (jyr. notwithltanding that the Writ be * ieparalia £ifta fiibrica-
the&ount° ^''■' ^^"^^ hejujlijiedverafatia; quod nota. Br. Forger de faits. pi. lo.
&non alio-cites 21 H. 6. 4.
catur ; th« _ ■ _
Keafon feems to be, becaufe //pcc is no other Form of the Writ. Br. Forger dc faits, pi. 9. cites S H
•<J. 55. Br. Genewl Brief pi. 6. cites S. C. 8 H. 6. 54.
S. P. perPaf- -y. Tht Defendant faid, thdt fbe Plaintiff had f:othing in the Franktene-
ton, tho'he ^;;^;/^ flt the Time of the Forgery and proclaiming, which was admitted a
tTthTtim^o'f S*^*^ fls'^, and IlTue taken thereupon ; quod nota bene. Br. F"orger de
the p-oclaim- laics, pi. II. citCS 21. H. 6. 5I.
i>ig ; for the
Forgery and proclaiming is fuppofcd on one and the fame Day ; and after they were at IlTue ut fupra,
viz. without mentioning of the Proclaiming as it feems. Brook fays, he \vondcr.s at the Plea ; for it may be
that he had in Reierfori or Reniuinder^ thougli he had not in the Franktenemcnt, and the liluc is good.
Br. Forger dc faits, pi. 12. cites 22 H. 6. 16.
And the If- g. In Forger of Deeds, for that the Defendant fuch a Day and Year
(•"ived^T-' ^'^^S^^ and proclaimed a Deed, by which the Feme of the Plaintiff' made a
H. 6. -'.a.' Feoffment to N. of his Land in 1). and Letter of Attorney, by which the
pl. II. fame Defendafit potild be Jttortiey to deliver Seijin to the laid N. &c. to
Fitzh. tit. which the Defendant faid, that the Feme, before the Coverture, was feifed
^f "s^'s^c'*'' '" ^'^'^l ^'"^ call fed the Defendant to write the 'faid Deed and Letter of At tor-
t,cy of the ^xid Lands in D. to the faid N. but he alleged other Date than
the Plaintiff' alleged, and that he wrote it, and delivered it to the Feme of the
Plaintiff' to fcrd, which pe fealcd and delivered as her Deed, by which the
Defendant made livery of Seilin, and publiped it proiit ei bene licuit, alfqite
hoc, that he is guilty of any fuch talfe forging or publifhing mode & lor-
;ma. Br. Ibrgcr de faits. pl. 3. cites 27 H. 6. 3.
Br. Traverfe p_ Forger and proclaiming of a Deed by A. to IF. N. in Fee, &c. the
-3o dtcszz ^if"''^^'i'''t fjid that ji was feifed, and injeoff'cd W, and his Feme tn Fee who
H. 6.11.— '^'^^t ^"^ ^f ^^ ^"'' '■^'^'T^ ^»^ p-Qclaimcd the Deed, 8zc. and the belt
But it fhould Opinion was, that it Is no Plea without traverfmg the Forgerv ; but bv
■be 52 H. 6.1. others it c.innot be intended the fame Deed, for that which v\-as a Deed to
"■ P' ^ ^\^ and his Feme, -was a Deed a'Ifb to W. and fcveral e contra, in .-is
much as it not to W. only, tlicrelbre quaere. Br. Conlels and avoid,
pi. 62. citGs 32. H.-6. I. ■'
• *" " 10 The
Forgery. 4.69
10. The I'Liintiff counted (inter ali;t) that he forged a talfe Rcleafi\ly
•s-'hich J. ought to rekafe to the Dcjendaiit all the Right '■johtch he had in
certain Land, the Defendant faid, that the [aid J. by the Deed '■johkh he
Jbnvcd, releafed to hm all the Right, dec which is the fame Deed, which
he pronounced, publilhed, and lead ; al'fjiic hoc that this Releafe is
forged af/d falfe, 6cc, and tie Plea ; /or the abfque hoc, dees mt aupx-cr
the Dtclaraticn ; by which he juliificd ut fiipra, atfqiie hoc, that he is
guilty o\ the making, ponoiincing', or fithlif.iiig of any ftich Deed as in the
Declaration aforcfaid ffecified i and a good I'lea. Br. Forger de fairs, pi.
5. cites 33 H 6. 21.
11. yind note, that none can jultify as above, if he has not the Deed
in his Handsready to fliCW; and ifnot,iTiuli: plead Not Guilty generally.
Br. Forger de Fairs, pi. 5. cites 33 H. 6. 21.
12. In Forger of Deeds, the Jfrit was, diver fa feparalia Facfa S Mini- ^,-^ ^''■
vienta, and the Ccttnt -was of a Deed of Feoffment, and a Letter rf Jttor- ,,'°"JJt(.f s
fjey ; and therefore the bell Opinion was, that the (xiunt pall abate, be- q — -^ in
caufe it is not warranted by the * Writ. Br. Forger de fiits. pi. 7. cites Br. u u
35 H. 6. 37. _ , , ^""''^
13. Forgery ot Deeds, and proclaiming of them i?? D. by which the
Plaintiff' was interrupted of his Poffejion of certain Land in S. the Defen-
dant faid that No fi'.ch Vill Hamlet nor Place was known out of the Fill
and Hamlet, by the Name cf S. in the fame County ^ And this, &:c.
Judgment of the Writ, and the others econtra, and this Ilfue leems
to be by Reafon of the Vifnc. Br. Forger de fairs, pi. 19. cites 3 K. 4.
26. and 4 E. 4.41. accordingly.
14. And Quiere if it be a good Plea to fiy, that the Plaintiff' never
had Land or Teneinent in S. for it feems that he may plead Not Guilt}-,
and give this Matter in Evidence. Br. Forger de fairs, pi. 19.
15. Forgery of Deeds, the Defendant fatd, that J. S. made the Deed,
and fealed it, and delivered it to the Defendant, fecundum vim Faffi, alf-
qne hoc, that he forged or proclaimed ; VV^ood laid, the fpecial Matter
Jhall not be entered, & Cur. contra. But per Brian, he lliall ihew the
Deed, and otherwile it fhall not be entered, becaule it feems that it is
only the general Iff lie. Br. Forger de fairs, pi. 23. cites 10 H. 7. 29.
16. Note, ic was agreed Arguendo, that Ne forgea pas, oxNot Guilty, is a
good Iliue in Forgery of Deeds. Br. Forger de fairs, pi. 21. cites 21
H. 7. 15.
17. For Pleadings on this Statute, 5 EUz 14. S.z. fee Lutw. 190.
Collingwood v. Jefieryes.
(H) A£i:ions ; By what Perfbns, in refped: of Eftate-
I. TN Forger of Deeds by \y. againft J. and faid that he had forged Sowhci-c
X and proclaimed certain filfe Deeds of fuch Land in Dijiurbance one abates
of the Title and PoJJeJ/ionoithe. Plaintift! Halz. Prctefiando, not confcfjing "vA gorges,
the making, and for Plea faid, that at the time of the making fuppo fed, ^^'/(^ai)
^c, the Defendant kimfelf was feifed of the Land in Fee. Cot. before have A ft ion. .
the Defendant had any thing the Father and Mother of the Plaintiff Br. Forger
were feifed in Fee, in Right of the Wtje, and had Iff lie the Plaintiff; ^' F^"^- P'
the Feme died, and the Father was Tenant by the Curt efy till dtjfeifed by '4- cites 4 H.
the Defendant, which Defendant, feifed by Difjeifw, made the falfe Deeds, ' ^'''
e?:c. and fo fee, that at the Time of the Dilleilin, he in Reverlion
had neither Polfelfion nor Reverlion, \)\xx. Right of Rever/tcn, And yet,
by the Opinion of the Court, the Atlion wx'U lies ^ by which he 'bid
Halz. to aniV.er Quod nota. Br. Forger de liits. pi. 14. cite« 4 H.
6. 2$
6 D 2. Plaintiff
/^jo * Forgery.
2. Plainciii' declared, that the Defendant forged a Releafc in Name
of thi AnccfibY of the PUniitiff. Fukhorp faid, that the flime Anccltor
made the Releaie to R. then Tenant ot the Land, whofe Eitate we
have, and at'cer the Releafe came to us, and we proclaimed it prout
bene licuit, abfque hoc that we forged prout, &c. Per Fallon, vou
ibrged, prilt. &c. and fo fee here, that the Heir pall have this 'Ac-
tion of Forgery in the time of his Anceflor. Br. Forger de faits. pi. 8.
ceres 7 H. 6. 34.
3. If a Man dilieifes me, and, during the time of the Dijfeijtn^ J.N.
forges Deeds., &ic. and I re-enter^ I fhall not have Aftion ; per New-
ton. Br. Forger de fairs, pi. 12. cites 22 H. 6. 16.
4. In Forger of Deeds by T. M. againft R. D. Defendant faid, that
where the Ji rit is of Forger of Deeds., of his Lands and 'tenements in
D. he faid, that the Plaintiff had nothing in them the Day oj the IVrit
piirchafed, nor ever after., Fnil. the Plaintiff faid, that long time L-efcre the
Forging, A. was fifed in Fee, and gave to K. in tail, the Remainder to
the Plaintiff, &c. and the Statute is. Si qtiis de Poffeffione terre t? 'I'ene~
menti tiirbatus £5' vexatus fuerit, &c. And the bell Opinion was, that
it well lies, for he has Poffcffion of the Remainder, though he has not
Podellion of the Demefne during the Tail; but it is not adjudged;
and cited 15 E. 4, by Skreene, that a Remainder may be limited, and
therefore it is a Tenement. Br. Forger de fairs, pi. 6. cites 33 H.
6. 22.
5. If a Man forges Deeds of the Land of my Father, in the Life of
my Father, and after his Death it is proclaimed ; I who am Heir at the
Time the Deed was proclaimed, fhall not have a Writ of Forger o'i
talfe Deeds ; For the Son had no Right in the Life of the Father, and the
AHion is forging and proclaiming. Br. P'orgerde fairs, pi. 14. cites 15 fj.
4. 24. per Brian, Littleton, and Choke.
^«W per Lit- 6. But it' a Man forges in the time of the Diffeifor, and the Diffeifee
"^^^M^'T ''^ r(f-«;^frj, and the Forgery is proclaiined, the Di[Jeifee iiiiiW have an Action;
^and procllfms ^'^^ ^c had Right during the Diffeijin. Per Chocke, Littleton, and Neale.
in the Time Br. Forger de tiits. pi. 14. cites 15 E. 4. 24.
of the DiJJ'ei-
fa; and the DifTeilee re-enters, e^ch oftlempnll have Rrger of Deeds ; for one had Ri^ht, and the ether
had PoJfeJfiMi. Br. Forger de faits. pi. 14. cites 1 5 E. 4. 24.
7. And if 7enant for Life be, the Remainder over in Fee, and a Man
forges and proclaims falle Deeds, the Tenant for Life Jh all have Acficn,
and he in Remainder flmll have another AS ion alfo. Br. Forger de flits.
pi. 14. cites 15 E, 4. 24.
(I) Indi6i:ment. Before whom.
1.T3Y 5 FJiz. cap. 14. §. 4. Juftices of Oyer, and Terminer, and
J3 Alfife, in their Sejjions fhall hear and determine thefe Offences.
^oofForging 2. Jiiftices of the Peace in their Seffions, cannot inquire of Forging a
'lr^'""'J"J''c Falfe Deed on the Statute oi 5 Eliz. Cro. E. 87. Hill. 30 Eliz. B. R.
Name ofJ.S.-' ' ■'
&c. For their Power is created bv Aft of Parliament within time of Memory, and they have no other
Authority than what is thereby given them ; and the general Words of theirComrni(rion,De omnibus alii^
TranfgrclTionibiis & Malcfaftis ciuibufcuiique, mull be underilood of Inch Crimes as they have Power
over by the feveral Statutes which created or inlarged their Power. 1 Salk. 406. Mi^h 9 Annz I3. K.
the Queen v. Yarrington.
3. But this Felony is to be heard and determined before jfuf ices ofOj.
and Terminer, and Juftices of AffiCe, in their Circuit ; and tho' Juftices oi
Peace have Power to hear and determineFelonieSjTrefpailc.s, &c. yet thev
are not included under the Name of JulHccs of Oyer and Terminer ; "For
Juftices of Oyer and Terminer, are Ichown by one diftinft Name and
lullicc;?
E
orgery. 4.71
julHces oi' Peace b\' aiiocher. 15ut the Jafticcs of B. R. are Juftices ol'
O^er and Terminer ^\•ichin this Statute. 3 inft. 103. cap. 41.
4. Indi6lment lor Forgery upon the Statute ot the 5 £J. ^-f/ore y1. and Tridiclmcnt
.B. Jiifiices of the Peace, ncc non ad drcerfas Fe/oi/ias, ike. andia/d. y ter- V^^-l _^'^^^''*
mivand. afjigvat. It ■nas held by three Judges, Popham doubting, that K'a"e'^^„°_
they liad not Power to take this Indictment j For the Statute, which ap- ciuahg c.ptr»
points that the Oiiences Ihall be enquired bclure Juftices of Aflire, or oii fo''"'^"- ,^'''-
Oyer and Terminer, intends thofe who have general Conmiifftons, and, not ""•'> '^'""'S
thofe who ha\c but a Ipccial CommiHion, as Juftices of Peace. JViich. 39 y'^'-'d"-™"""/
& 40 Eliz. B. R. Cro. E. 601. \\illbn's Cafe. bdngfor *
Forgery, the
Cctnt i-ffttfeil to oi!/jjV it, but left him to Demur, or Plead, 5 Keb. 775, pi. 12. Trin. 29 Car. 2. S. R.
the King v. Mithingale.
(K) Indiclmcnt. Exceptions to Indictments, orlnforma-*
tions.
I. ^ ■ ^HE indiclment was, that he feienter fuMck ^ fa fo fal^ricavit * 'SonaVuy-
1 qtfoddam falfuni Faiiir/u ^ Scriptitni indeittatiim BarganicP S Vendi- catar.^ 2Keb,
lionis, which was laid to htlnro/kdy per quod A. and B. did fell to jF. S: ftich 5°™ ^ y ~
Lands, and then fets forth the Indenture Verbatim, & quod Pojiea pra-du' lasaniVct^d
tiis R. (the Defendant) Scicns predict. Chart am efjefalfam ^ contrafat:iam vi Arg. that
Sarmis pronunclavit 6? ptiblicauit, and this was ea Intent iu/ie ad perttirbandtim '^^'■e « not a
Statumtitidum i3 hitenjfe of A. and B. and their Heirs. It was aiiigned 1^^^'""^"':^
tor Error * that the Indentures fct jortb ivcre a Leafe and Relcafe ; but the ^^ u-g t,',, '
Indi6tment was of a Bargain and Sale, and it did f not appear ishere it was the Statute,
inrolled, and it mull be inrolled in one of the lour Courts at \^'eltminiIer, yet it carries
or betbre the Tuttices of Peace at the SelTions, to make it a Barmin and ^" ^'^
Sale ; and that only A. was Party to the Deeds fct forth, tho' the Indift- Lg.^ . ^pj
ment is of a Deed by which A. and B. did fell ; and that it ought to have per Cur. atiy
been | /// quo continetur that they did fell, and Not that they did lell j be- Thing pur-
caufe the Deed was void, which was faid to be OppoJitum inObje<Slo; K'"j"§^
and that Vi S Armis Chart.-.m pronnnciavit, 6?f . ihould have been Vi & .j^ithin the
Armis pradtifam Chartam pronunciavic, &c. and alfb that the Forgery Statute. But
was laid to be ca Intentione ad pcrtnrbandum ftatum, ^c. of them and their adjornatur.
Heirs, and it did || not appear, that they had a Freehold ; and alfo, that it ^ T^^^-I^h^'
** ought to appear hi whom the Freehold was at the 7'ime cf the Forgery, isbutlnducc-
Adjornatur. Vent. 23, 24. Pafch. ::i Car. 2. B. R. the King v. Ring. ine.".t, and
therefore
IsJon allocatur. 2 Kcb. 501. Pafch. 21 Car 2. S. C— — — ± It fecms by Keble, that thofe Words
were in the Indiftment, and tliat for want of alleging, that he did (ell or convey, it was held by Twif-
den to be ill, but Keeling and VN'indham contra. 2 Keb. 24.5. Trin. 19 Car. 2. S. C — .But 2 Keb. 552.
Trin. 21 Car. 2. fay> it was afligned for Error, that the Indittment was f.tbricaijit Scripttim, and that by
that Deed A. and B. Bargained ai":d Sold, and doe.s not fay. Colore, or that he Forged a Deed purportin"'
af Bargain and Sale, and that Twifden agreed this Exception on i^^SVDCitl's Cafe, that, being on an In-
dictment, it muft be taken ftrictly, and mult evprefs all without Intendment, which is without prejudice,
becaufe the P«rty may be Indicted again; but Curia contra ; yet adjornatur.- 1| Per Cur. this is intetid-
ed FrcehcUi, the Forgery being ot a Deed, bv which Copvhold cannot pais; and a Leafe for Years ma/
pafs without it 2 Keb. Si-- S. C. ♦* >;on allocatur. 2. Keb. jot. S. C. 3 Keb. 51. S. C.
and Judgtnent for. tlie King.
2. An Information v.'as brought againji three for Forging, and malitioufly
Conlpiring and contriving an Entry of a Marriage in the Regifter Book,
between Sir R. Dudley and Fra. Vavafor, to the Impeachment of the
Dower of the true Wile of Sir R. Dudly, and to deprive his Daughters of
their Inheritance ; one only of the Defendants was /c.v?;^^///'/?)'. It was Ob--
jetted in Arrcll of Judgment, that as two were acquited, the other could,
not be alone guilty oi' the Confpiracy ; but it was anfwered that the In^
diftnicnt wasgnod n'ithout the Confpiracy^ whicli '■^::'.s only an Inducement
.... ...... theretoj
:*\r
472 Forgery
theieto, and n()t the Ground of the Indictment. Judgment was given,
a^ainlt the Defenduni;. PalLh. 1658. B, R. 2 Sid. 71. budly s Cafe.
3. The Statute requires it to be a Deed feukd^ ^W here it was only
Scriptiim ; Sed non allocatur ; For when the Deed is recited, 'tis conclud-
ed with dat. & ligillat. luch a Day and Year, tho' before it is only laid
quoddam Scriptum ; tlie Judgment was affirmed. Palch. 30 Car z. B. R.
2 Show. 5. the King v. Marriot.
4. Error was alligned, for that the Indiftment had not in it Vi^ Jrmis^
and that the Indictment is not tov Nonleafance, but ibr Misfeafance ^ and
Jones J. held that this is cured by the exprefs Words of the Statute 37
H. 8. 8. and cited Cro. J. Jpart'gi Cafe, fo Refolved. But Twifden and
Windham J. totis viribus Contra, and to this Rainstord Ch. J. inclined j
but as to this Curia advifire Vult. But afterwards, on reading theStatute,
it was agreed by all, that the want of Vi & Armis was cured. Another
Error was, that the Indidment lays, that he Forged it Super Caput faum
proprium, where it ought to be Ex Imaginatione fua propria or Ex Capite
fuo proprio ; For as it is, it muft be intended, that the Writing was writ-
ten upon his Head, and this might be by another ; but this was a Literal
'Irafi/latwfi of the words of the Statute^ and therefore by all held well
enouo-h, tho' it be not fo Elegant Tranflation as might be. 2 Lev. 221.
Pafch. 30 Car. 2. the King v. JVlariot.
5. Iniormation fet forth, that the Defendant did Forge quoddam Scrip-
tum contiuens in fe Script U7n Olilgatorium per quod quidcm Scriptum Obliga-
torium A. Obligatus fnit pradiif. Dejendoiti m 40 libris^ &c. the Defendant
was found Guilty, and Exception was taken, that the Fa£t alleged was
a CoutradiCiton of itfelfi For how could A. be bound when the Obligation
was Forged ? and alio, that it did not fet forth zuhat that Scriptum Ob/igo'-
torium was^ whether it was Scriptum Stgillatum or Not ? Per Cur. the De-
fendant is found Guilty of the Forging of a Writing, in which was con-
tained quoddam Scriptum Obligatoriuni, and that may he a true Bond.
Judgment was arrefted. 3 Mod. 104. Pafch 2 Jac. 2. the King v
5 Mod. 157. 6, The Indiftment was, that the Deitndant fabricavit feu fahircivri
S. C. caufa-vit a Bill of Loading, and it was held Naught up on Demurrer ^
For an Indiftment ought to be certain and politive. i Salic. 342. Mich. 7 '
W. 3. the King v. Stocker.
The Rcafon 7. Indifilment was for Forging .^loddam Scriptum Obligatorium of J. S.
oftbeExcep- jj- y^^iS objefted that it fhould be Scriptum purporting aWrithi?^ Obligatory oi'
tion was.tbat . 5 g^^ ^^^ allocatur ; For the 5 Eliz. 14. mentions Falfe Deeds as well
IT It W2S J •
forged, it as Falfe Writings. 1 Salk. 342. Hill, i Annas B. R. the Queen v. King.
was not Ob- . ... . -
lieatory ; but the Court Refolved, that tho' in reality it is not, yet in inew and appearance it is, and that
is cnouo-h ; and fo it is an Obligation, tho' a Falfe one. 7 Mod. i 5 1 . S. C.
8. In the Indi6tment it was laid, that the Defendant falfo ^ laalitiofe,
i3c. quoddam Scriptum Obligatorium fabricavit y contrafecit. Exception was
taken, that the Crime charged was Forging falfcly^ whereas it could be no
Crime, if it was not truly Forged ; but per Hole Ch. J. the falfb tabrica-
vit is' as much as to fay, that he, being a falfe and malitious Man,did Forge,
and not that the Forgery was a true Forgery, but the Thing forged was
not true but falfe i and Judgment accordingly. 7 Mod. 150, 151. Hill.
1 Annae. the Queen v. King.
9. Indi£lment was for Forging a Cocketfor $ Packs cf Linnen Cloth ; and
it was moved in Arreft of Judgment, tor that it was too uncertain. But ir
was held well enough; and per Holt it 1 ulfices that the Things which it
contains be certain enough, and if any new Action be brought, Defen-
dant fliall fay, that a former Action was brought for the lame by the Name
of fo many Bundles, &c. and the Queen had Judgment. 6 Mod. 8-.
Mich. 2 Anns, the Quesn v. Browne.
10. Indiftment for Forging a Deed of A(]ignn:cnt of a Leafejigncd -iisith
the Mark of one Godarci, cujui tenor Scquitur _; but fet s net down the Mark
ilS
F
orgery. 47 ■^
as til the JJjignment -^ and this was Objecled lor without that it could not ~"
be a Forgery. Sed non Allocatur. iSalk. 342. Palch. sAnnse Queen v. Smith.
II. Ihe Defendant was Convifted on an Indictment, lor that A. and
his Wife being ftifed of Lands, &c. known by the Name of Jajivick, the
Defendant Forged a Conveyance from them of f^'jiv/ck-Park, with intent to
molelt and dilturb the Seilin and Enjoyment, &c. and tor this Variance
it was moved in Arrell of Judgment, there being no A-jerr/:ent, that Jay-
wick was known by the Name" of Jaywick-Park, or was Parcel thereof,
or that A. and his Wite were feiled thereof, or that there was a previous
Treaty concerning Jay wick,and that in Confequence thereof, aConveyance
was oi" Jaywick-Park, an Averment of any ot which, it was held, would
have been Material ■ but as there was a Forgery, and an * Intent to mo- * ^\^y ^^^
left the Owners of Jaywick fully laid in the Indiftm-ent, and found by Or. a BR*
the Jury, 'twas adjudgeil by the whole Court to be within the Statute, tiic King v."
Pafch. 2 Geo. 2. B. R. Gibb'. 57. and 261. Pafch. 4 Geo. 2. the King v. R'^-g-
Croke. ^
(L) Verdi6):, &c. What Is a fufficient Finding, or Proof.
I. TN Forger of Deeds the Defendant pleaded Not Guilty, and 'twas -^W yet 'twas
J^ found that he was guilty of the Publication and not of the Forgery j and '^^''^cd by
'twas doubted if the Plaintift Ihould recover or Not. Br. Forger de f^°,' vt'^"'^
„ . , . TT ^ ° and Newton,
FaitS, pi. 2. Cites 20 H. 6. 11. that if For-
ger of Deeds
be Ircuglt agairfl t-jso, and 'tis found that pjie is.Guiliy of the Forfjry, and not of tie Proclaimtnj, nr.A t'.iat
the ciher Picclaiiiied, bat r.ot Fcrged, that by this the Plaintiif ihall recover. Br. Forger de faits, pi. z.
cites 20 H. 6. II.
2. In Forger of Deeds, if Judgment pafles for the Plaintiff, this ftall S. P. per
be a Bar in e\ ery Court, in an Aftion brought upon this Deed alter ; quod p'^.^'^'^ ^f:^
nota bene ; and fo fee that a Deed found Ibrged is not Pleadable. Br. ^.^y°^\ ''f,
F'orger de Faits, pi 16. cites 37 H. 6. 13. citesS.C.
3. A. brought a Writ of Forger of Falle Deeds againft B. and counted Information
of an Indenture in quo ccntinettir quod quidam Abbas Monallerii de Glou- fuppofedthat
ceiter dim fit Jit um inaneriide R. y terras Dominicalcs, &c. TheLeafe pro- pefendant
duced in Evidence contained the Site, and all the deniefne Lands, except 2 leafe^'^md ^
feveral Cloj'es there, ^c. called, ^c. This Evidence was held good enough ; faid, that the
For it is not Ncceilary to conftrue Terras Dominicales to mean Omnes Lcafc was of
terras Dominicales, for the Lands not excepted are terri'e Dominicales and '''-'''/« f-tnds
fo the Count is Satisfied by that Evidence, &c. i Le. 139. pi. 192. ZglTeare''^
FJill. 30 Eliz. C. B. Atkins v. Hales. ^as infened
itwciicfi tie Refi, bur upon producing the difpured Leafe Long Meare was not contained in it, either by
Name, or by general Woi-ds, but all the Reft of the Lands were in it. And the Defendant havine
j>leadcd Not Guilty, the Court held, that as the Bill was laid, he was Not Guilty ; For it is not the Jama
Lcafe. Hob. 272. pi. 35S. Mich. 17 Jac. Meyre's Cafe.
4. The wrong alleging the T'ime of the Forgery is not Material, be it
Icfcre or after the Offence ccnnnitted, if it be ccminitted before the Exhibiting
the Bill ; but if the Date of the Writing fuppofed to be forged had been
vitjlaktn, there the Defendant could not be condemned of a Deed of an-
other Date ; For that is not the Ollence complained of in the Bill, of
which the Court can gi\e Sentence ; refolved in the Star Chamber 13 Rep.
34. Pafch. 7 Jac. Read and Booth. S P h • •
5. Upon an IndtBmei.t for Forging and Piihlifljing a Deed, the Jury was ob°eited
found the Defendant Guihy oj the -irefpafs and Forgery aforefaid ; it w.as that there
Objected, that this was inlufficient; becaufe nothing is found as to the ^verc other
PuBlication, fed non allocatur j For de Tranlgrellione prsedicta includes T'^'^?' j'^^ "^
it, as in Trelpafs of Afiiiuk and Battery. 2 Lev. m. 1 rin. 26 Car. 2. B. m^^nt which
R. the King v. Newton. iktisfied the
word Tref-
'pa'- ; For Tranfgref^i. pra;dift. includes Forgery and all the other TrefpalTes. 2 Lev. izi.Pufch. ;q
Ca" 2 the King'"'-. Marriot,
CE 6. In
474-
F
orgcry.
6. In a Writ of Error brought on a Judgment given upon an Indict-
ment for Forgery, Come of the Exceptions were, that the jury b:-'d found
hihi guilty^ dc Forgcria^ whereas there is //o/tfJ:' Word-^ fed non allocatur.
For the Words make it plain enough what their Verdift means. "-^-'-
30 Car. 2. B. K. 2 Show 5. the King v. Marriot.
Pafch.
*SceCA)
(M) * Punillinieut. And what fhall be recovered.
I. s Eliz. cap. 14. §.2. Enafts that any one who pall he ConviB editi-
on an Aiiioii of Forger of Falfe Deeds (to be founded upon this Statute) at the
Suit of the Party grieved, or otherwife, pall pay to the Party grieved double
Colts and Damages to be qffeped in the Court where fuch Conviifiou pall be,
pall be fet upon the Pillory in fame A^arket Town, or other open Place, and
there have his Ears cut olf, a?td alfo his Nollrils flit and feared Avith an
hot Iron ; he pall alfo forfeit to the J^ieen her Heirs and Succeffors the Iffiies
of his Land, and fuller perpetual Imprifonment di/ring his Life • and the
faid Cofts and Damages fball befirP levied upon the Goods and Iffhes of the
Lands of the Offender, uotwithp anding the Queen's 'Title thereunto.
§. 3. A Forger&c. of a Leafe for Yeafe of Land not Copyhold, or of an An-
nuity,
Obligation,
Bill, Acquittance, Releafe, or other Difcharge of any
Per foil al thing ; and he who fhall Piiblip and give the fame in Evidence, (ex-
cept Lawyers &c not Party or Privy to the Forgery) pal! pay Double'Colts
and Damages to the Party grieved, be Pilloried and lofe a'l Ear Sc
A- being in-
debted to B.
upon a Re-
cognifance of
600 1. Penal-
ty for pay-
ment of?, 00/.
was Convided in the Star -Chamber of Forging a iJf/c/r/c thereof; and the Queftion was, whether the
dci'.ble D.vna^es, given by the Statute, fhould he according to the Penalty, or only the Debt ? It was Re-
folved, by all the Judges, that the Di-.mages fhould be afTeffed to double the Penality ; For the Penalty
fhould' have been recovered by Law, if the Releafe had not been. Mich. 15 & 14 Eliz. D. 504. pi. 51.
Mich. 13 & 14 Eliz. Hind v.Grevil.
§. 4 Remedy for Coffs ^c may be by Originall Writ oiit of Chancery as in
Cafe ofTrefpafs by Rill in the King's Bench or Exchequer, and no Effoign, Sc:
to be allowed.
§. 6. Plaintiff''s Releafe pjall not Pop the Proceedings for the Forfeitures to
the ^iieen.
2. A. delivered loool. to a* Scrivener to put out at Intereff, who fpent
the Money but delivered to A, feveral Bonds, as entered into byfeveral Per-
fons of Credit and Sufficiency, for feveral diltinft Sums, amounting in all
to the faid Sum of loooA and he witnelTed the fame as a publick Notary,
but in Truth, the Parties knew nothing of the Matter, and the Bonds
were forged by the fiid Scrivener, as he confeifed on his Examination up-
on Interrogatories. The Doubt was whether hepould lofe one Ear only, or
both his Ears ? and whether A. being but the Obligee, and not any ot the
Parties in whofe Names the Obligations w^re forged, fhould have double
Cops and Damages ? and Refolved, per Fleming and Coke Ch. Juftice.s,
he lliall lofe but one Ear ; For it ihould be taken as one Forgery, being made
at one time, and A. was the Party griev'd within the Statute ; but the Ld
Chancellor expounded the double Damages not to be intended double In-
terelt but only the principal Debt. 2 Brownl. 49. Hill. 8. Jac. Andrew v.
Ledfam.
3. For Forging the Chief Jullices Hand to Common Bail, and taking
Fees thereof^ as Attorney, being only a Clerk, the Court adjudged him
to pay a Fine of 20 1. to come with Papers to every Court with his Confcfpon,
top and in the Ptllory here from 10 to 12, and /;; London 2 Hours, and in
the Marfbalfea an Hour, 3 Aionths Imprifonment, and good Behaviour for a
Tear. 1 Keb. 841. pi. 28. Hill. 16 & 17 Car. 2. B. R. Sherwood's Cafe.
4. One was convifted oi Forging an Acquittance, and Fined by the
Court 100/. and to be on his ^00^ Behaviour for one Tear. Note, he was a
Perfon
* MrHughes
in his A-
bridgment
tit. h orgevy
pi. II. calls
the Offender
a(Taverner)
and Mr Kel-
fon in his
Abridgment
has varied
the word in-
to (Vintner)
but the Book
is plainly
(Scrivener)
as here.
'*•#■
Forniedon.
475
Perlbn of 700/. per Annum, ;ind the Acquittance forged ibr 7 /. Pafch.
18 Car. 2. B. R. Sid. 278. the King v. Ferrers.
5. For forging a Will, he had Judgment to fi and in the Pillory 3 times^
viz. at W'eftminlter, the Exchange, and RatcIifFj was /^>/f(^4ol. and im-
prlfontd, till Sureties found for good Behaviour during Lite. 2 Keb. 376.
pi. 32. Trin. 20 Car. 2. B. R. the King v. Tyniberley.
(N) Punifliment for fecond Offence.
I. 5 Eliz. cap. 14. §, 7. 8. Second Ofience after Conviiiion^ or Condem- 'r|'^^°.''S^^,'T
tiatton as aforefivd^ is made Felony ivitboat Benejit of Clergy^ but net to bar iony'^hy\hir
Dower, or dijinherit the Heir. Aft ought
to be afrer
tlie Conviction, or Condemnation, as to a former Writing ; For the Forgery of feveral Writings one
after another, fo as the fame were all forfjed before any Conviftion, is not Felony by the cxprefs words
of the.Stutute. 15 Rep. 55. Pafch. 7 Jac. Read v. Booth.
(O) Punifhcd in Chancery, and Relieved.
I. A Perfon \vasyf»/'ra("f(^ /;/ the Court of C^^»^«j for Forgery. 8 Jac.
J^ Toth. 167, 168. Barker v. Ireland & Morris.
2. A. by a forged Letter of Attorney attefted by 2 Witnefles transfers
S. S. Stock of B. to J. S. for a valuable Confideration paid by J. S. who
after received the next Dividend j Lord Macclesfield held this Transfer
void, and that it was Incumbent on the Purchafor, and more in his Power
than any other Perfon's, to fee that the Letter of Attorney be valid, and
Real ; and Decreed, that the Company, (who were (as he faid) only In-
Itruments and Conduit pipes) take the Stock from the Defendant, the
Transferree, and reftore it to the Plaintiff, the original Proprietor, and
that the Defendant, and not the Company, pay back the Dividend, which
he has without any good Authoritv received, to the Plaintiff^ and pay
both the Company and Plaintiff their Cojis^ the Default being the De-
fendant's bv realbn of his Neglect. 2 Wms's Rep. 76. to 78. Trin. 1722.
Hildyard v. S. S. Company & Keate.
3. So of a forged Letter of jittcrney in the Name of a Copyholder to A.
to ftirrender Copyhold to the Ufe of J. S. who furrenders accordingly, and
J. S. is thereupon admitted, yet this admittance is void ^ per Lord C. Mac-
clesteld Ibid. 77, 78.
Formedon.
(A) Of Formedon in General.
I. yj^Ormedon is a Writ of PofiJ/ion, and * no Writ of Right. Br. For- * Br. For-
P medon. pi. 31. cites 38! £ i. 37. m^^don, pK
-*- r J 3 I 3/ ^^ cites^H.
;. 10. Con-
tra, per Fairfax J. Br. M-onftrans- pi. 18. cites S. C. per Huflcy and Fairfax, that it is in the
Rij^ht.' Br. Formedon. pi. 4H. ci'es iS£. 4.23. That Formedon in Defcender is a If'.it of Right
in lis Nature, per tot Cur' So ibid. pi. 77. cites 40 E. 5. 21. per Belk. f This feems to be mif-
printed in all the Editions, and that it fhould be 5S E. 9. 57. Vid. Br, Juris Utrum. S. C. and P.
2. Formedon
■V
476
Formedon.
A .^' ^^^^^'^ -■ Formedon /« Raiiaindcr was ;;of <7.^ common Law i becaufe at com-
layfthatat "^'-'" ^?^^'' ^'' Eltates in Fee were Fee Simple ubfolute, or Fee Simple
Common Conditional, which now are called Elhitcs Tail, and io no Remainder
Law, there could be limired on the later, becaufe 'twas a Fee Simple. But the
was no For- Formedon in Remainder was by the Stat, de Bonis. See PI. C 239 a b
S'/°Lv", '^""- 4 Eli2^- Arg. in Cafe of W'illion v. Berkley.
but that 'tis
given by W. 2. i- Goldsb. 5, 6. pi. 11. Pafch. 20 Eliz. in Capel's Cafe.
3. Formedon, or de forma Donationis is fo called^ becaufe the Writ
coir.prehends the Form of the Gift, Co. Litt. 326. b.
(B) Of the Formedon in the Defcender^ and in what
Cales it lies.
5 Rep. 9. a. ^- X ^'^'^- ^' 7^- ^''^- Tenant by Copy, takes Notice of a Formedon in
ini|ipDon'5 I J Defcender at common Laiv.
Cale, cites
Litt. S. P. and adds, that it appears in our Books, that in Special Cafes, Formedon in Defcender lay at
common Law before the Statute of Weftm. 2. and cites 4 E. 2. tit. Formedon 50. and 10 E. 2. tit.
Formedon 55. 21 E. 5. 47. PLC. 246. b. &c. Contra by Popham and Fenner. Poph. 34. Mich.
5 5 and 56 Elii. in Cafe of Gravenor v. Brooke.- And fo is 2 Inft. 356.
.■4s where an Affife of Isloitdancellor would not ferve the IlVue, as if a Man had I'.Tue a Son, and
his Wife had died, and then he took another Wife, and Lend 'H'.is grjcn to him r.tu-i lis fecovd IVife^
/rr.d to the Heirs of their Bodies, begotten, and they have another Son, and tlie fccond Feme dies, and
then the Father dies and a Stranger abates; in fuch Cafe, before the Statute, the Son could not have
AlTife of Mortdancellor, becaufe one Point of the Writ is to inquire if Demandant be next Heir to
lis Father, which he is not, but his Eider Brother is, and therefore he fliould have a Formedon in
Defcender, before the Statute, which was no other than a Writ founded upon his Cafe ; But thea
this Writ was to recover Fee Simple, per Bendlowe PLC. 259. 4 Eliz. in Cafe of Willion v. B.irkley.
But Brook 2. If the IJJiie in 'tail he barred by Warranty, and ajfets dtfccnd., and after
makes a he aliens the yiffets and has Iffiie and dies, ^r if the Ajjcts he recovered a-
Qusre gainfi him by Elder title,, the Iffue of the JJftie pall have Formedon of the
'tis 'fa'id' con- T^'T^ T^'^fid lail'd ■, faid, per Finch, for Law. Br. Formedon. pi. i8. cites
trary, tern- 48 E. 3. 9.
pore H. S. if
he be barred by Judgment. But if fuch a thing happen.s, before he be barr'd ly Judgment, the Iffue of
the Iffue fhall have Formedon, as appears in the Formed' i.i Old Nat. Br. Br. i'ormedon. pi. 18.
3. If Land in Fee Simple, and Fee Tail defcend to two Sifters, and
Ihe who has the Fee Simple Land aliens it, and has Iffue and dies,
the Illue lliall have Formedon oi the Moiety of the Land tail'd. And
fo fee that after Partition the one Heir llmil have Formedon alone. Br.
Formedon. pi. 2. cites 20 H. 6. 2. 13.
Formedon 4. Formedon in Defcender \s grounded tipon the Stat, of IVeffm. 2. c. 41.
lies for a and lies where a Man gives Lands to one and the Heirs of his Body, or tinto a
^7"''^hf^"i ^'^" ^"^ IVbman, and the Heirs of their Bodies, or unto a Man and Wo-
'theclllom. ^ ''"^"s '^^^° ^^ Coulln, in Frank-marriage, by Force of which Gift, they
F.N. B. 486. are leifed, and afterwards he alieneth thefe Lands, or is dilleiied of
In the Notes tliem, and dies; his Heir lliall have the Writ; and fo, upon every Gift in
there(a.) Tail of Lands or Tenements, if the Anceftor aliens or be dilieifed and
dies, he who is Heir by Force of the Gift fliall have fuch Writ. F. N. B.
2.11, 212. (L)
5. Tenant in Tail diftontinttes in Fee and dies ; the Difcontinace makes
a Leafe for Life, and grants the Reverfton to the Iffue ; he ihnll not have a
Formedon againft the Tenant for Lile ; lor by his Formedon he m.ult re-
cover the Estate of Inheritance, which the' Leffee for Life hath not,
but the IfTue in Tail hath it himfelf Co. Litt. 297. b.
(C) In
Formsdon.
4-77
(C) In ths Rcmahidcr. la what Cafes it lies.
I. TT^Ormedon in Remainder, upon an F.flate T:iil, hiy net at Coinnum
Jf^ Lesjo ; becaufe it was a Fee Simple conditional, whereupon no
Remainder could be limited at the Common Law ; but Jince the Stat.
W. 2. 13 £. I. a Remainder may be limited upon an Eitate Tail in
Rcfpeft of the Divilion of the Eftates. 2 IniL 336.
2. Formedon in Remainder lieth, where a Man givith Lands to one .^n it is if the
in 7'ail, the Remainder to ahotb'er in Tail^ and the Jirjt T'enaht in 7'ail dieth ^||."<^ .^^^'^.^
•witkoitt Iffue, and a Stranger ahateth and deiorceth hini in Remainder, he Jje'f r^aJout '
in Remainder, or his Heir fliall have this Writ. F. N.E. 217. /jf„, ; for
^ then on the
Whole Matter, the Tenant in Tail is dead without Iflue. F. N. B. 499 (b) in the Notes cites D.
4 Elii. 255.
3. So if the yfr/? 'tenant in Tail alieneth in Fee * and dieth -joithcut *OrinTaiI,
Ifjiie^ he in Remainder Ihall have this Writ to recover his Ellate. F. N. B. 3J'['"',f '^'^•
-' ' /,^x F.N h. 2I-.
2^7. {^) ■ (E.)
4. Ix a Man give Lands for Term of Life^ the Remainder to another So it feems if
in Fee, and
the Tenant for Life aliens in Fee, or in Tail, or for Life, avti dies, and a Stranger alates, he in Remain-
der, or his Heir fliall have this Writ. F. N. B. 217. CE)
5. If he, who hath the Remainder, or His Heir be once feifed of the
Lands by Force cf the Remainder, he fb.all never have a Formedon in Re-
mainder for that Land but a Formedon in Dcf>:ender, becaufe the
Remainder is once executed. F.N E. 219. (A)
(D) In the Reverter. In what Cales it lies.
-A
T Common Law, if a Gift had been to a Man and his Heirs of
_ his Body, or Heirs Males of his Bod}', if he had IJfiie, then * Formedon
he JfjoHld have Fee Simple, and if he dy'd his Ijjiie Jhould have Afortdan- j" Reverter
i'ej/cr ; For it was Fee Simple at Common Law ; Contra after the Statute rnon Law"'
of Weltm. 2. c. I. Per Grene J. and Hufc agreed to the Mortdancellor, 2 Inft. ^^6.
and that ajter I[fiie had, he might alien ; But it he died without Illue
and did not alien Fonnedon in Reverter * lay j And by him. Heir
Collateral lliall not have Mortdanceftor. Br. Tail & Dones, &c. pi. 19.
cites 18 ah; 5
2. a a Man gives Land in tail, fo that the Donee may alien in Advan-
tagc of his III tie, and •warrants the Land to him, his Heirs and JJfigns,
and the Dcnce aliens and dies "without IjJiic, the Donor fliall not have For-
medc>n in Reverter, per \V"ilby ; becaufe he has Warranted the Land
to the Donee and his Adigns, and the Alienee is Jl}ign:e. But Brook
maivcs a Quaere thereof; tor nothing is given but Ffiate tail, and the
\\ ords atcer, and the Warranty, cannot make Fee Simple in a Donee ;
contrary it may be in a Devife or Will. Br. Formedon. PI. 57. cites 46
^- 3, 4-
3. torn-.edon in Reverter lieth where one gives Lands to a Man in tail So if one
or i'lankmai riage with liis Daughter, and aii:crvvards the Donee or his S'^'*^ '"?"'!'.
Heirs die ivithout JJ/iie, then the jjonor or his FJeirs may bring this Writ 7",,//"°the '"
againll the I'enanc of the Lands lb given. F. N. B. 219. (E) Revlrfon in
Fee to ai.o-
t'^-r, and the Donee in Tail dies without Keir of his Body, the Grantee of the Revcifion, fliall have
a For;::£dcn in Reverter to recover the Lard. F. >5. B 219 (£)
6 F (E) Lies
478
Formedon.
(E) Lies of ivhat.
I. TN Scire facias, a F:»e was levied to J. S. fur Conufance de Droit
JL '^of>'^ ^^"5 &^*-' ^^'^ the Conufce grants and renders to the Contifor
again for Life, the Remainder over in Tail^ 'tis faid there by diverfe,
that he in Remainder fhall not have Forniedon, becaule there is not any
Gift, and others econtra ; therefore quaere, if Formedon lies not as well
upon a Grant and Render^ as upon a Gift. Br. Formedon, pi. 9. cites
42 £. 3. 5-
2. For of Land recovered in Value Formedon lies, and yet it was not
given. And P'ormedon lies upon Devife. Br. Formedon. pi. 9.
3. Rent is given -with a Seigniory in Tail, and Donee aliens the Rent-, the
Tertenant does Felony and is attainted ; the Donee dies without IJfue ; the
Donor pall have Writ of Efcheat ; but if the Donee had not aliened, but had
entered into the Land after the Attainder, and had died without Illue, the
Donor jhould have Formedon in Reverter oi the Land, and not Writ of Es-
cheat j for this was in lieu of the Land and veiled. And fo fee For-
medon [lies] o/" a Thing which was not given. Br. Formedon. pi. 15. cites
46 E. 3. 4.
4. It Lands are recover' d in value for Lands intaiPd, the Iflue fhall have
Formedon in Defcender upon the fpecial Matter. Br. Scire facias, pi. 47.
cites 48 E. 3. II.
5. The Iflue in Tail fhall not have Formedon of an Advowfon in Grafs
d n °[T" ^^'^"'*i ^y hisAncellor, but a Quare Impedit at the next Avoidance in his
S. P. cites Time, and fo it feems, that Precipe quod Reddat, lies not of an Ad-
53 E. 5. vowfon. Br. Formedon. pi. 28. cites 4H. 14. 33.
So if a Man ^- ^ ^^" "^''^Y ^^^^ ^ Formedon in Defcender of the Profit apprendcr
grants tlie ttt Lands or Tenements, or iffuing thereout.- As, if a Man grants
Moiety o} the 20 J. or, &c. ifluing out of Lands or Tenements unto a Man and the
*^f h^^y'ii ^^'r* °^ h'^ Body, or unto a Man in Franlcmarriage with his Daughter,
unto'another '^ ^^ Donee aliens that Rent, or is dilleifed and dies, his Heir who is
andtheHeirs his Son or Daughter fhall have the Writ. F. N. B. 212. (A)
of his Body,
and the Donee dies, and his Heir is deforced, the Heir fliall have Formedon in Dclcender. F. N. B.
212. (B)
But if com- 7. iS'o it lecmSjifaMan grants to one and the Heirs of his Body /'.7/?«rf_/rj-
monofPaf- go Oxe», or loo Slieep, &c. and the Donee dies, and his Son, who is his
'"d\oo^r^' Heir, is deforced thereof, he fhall have Formedon in theDefcender.F.N.B.
and the 212, (B)
Heirs of his
Body, and the Donee die and the Heir be deforced, the Heir fhall not have Formedon in Defcender,
but a ^ot/ permittat, in the Nature of a Formedon. F. N. B. 212. (B) A Formedon in De-
fender of a Serjeanfy of the Cathedral of L. brought a^inft the Bifhop there, and one [. S was, witli-
out being joined to a Quod permitrat, adjudged good. F N. B. 4S7. Notes (.C) there cites iS E. 5. 27.
* PI. C. 1 54. 8. A Formedon fhall be brought of * Gorfes, but not of an Advowfon.
b Arg. p j^r fi. 217. (B)
9. If Land Efcheat to the Seigniory, which was given in Tail, Formedon
lies of the Land, and yet the Seigniory was given, and not the Land.
Br. Formedon. pi. 43. cites 3 H. 7. 9.
Litt.S.77Co. 10. Formedon may lie of <? Copji'i'oA/ in the Defcender, by Protefiatioti,
Litt.<5o.a. b. ;« JVature of a Writ of Formedon in Defcender at the Cmmnon Law, and
jr*p'^f"'^'* well by all the juftices, for tho' Formedon in Defcender was not given,
and Fenner. t>ut by Statute, yet now this Writ lies at (Common Law, and it lliall be
Poph. 54. intended, that it has been a Cultom there Time out ol'Mind, and the De-
Mich. 55 & mandant recovered by Advice of all thejuftices. Br. Tenant per Copie,&r.
^f^''f g" P^* ^4' '^''•^^ * ^^ ^' ^' — ^"^i^rook fays, the like Matter was m Efl'cx, Mich.
vcnor° V. '^' 26 H. 8, and that Fiiiherbert affirmed it afterwards in the Dutchy Cham-
Brookes.' ' bcr,
Formedon. ij.79
ber, and that the fame is agreed by Littleton, in his Chapter of Tenants
by (.]opy.
II. It will riot lie of a Croft of Land; but an Aflife doth well lie,
becaufe a Formedon is Breve adverfarium ; theretorc, where a Judgment
was given in a Formedon for a Croft, and for ocher Parcels of Land,
it was reverfed for the Whole upon a Wric of Error ; z Bulll. 214. Palch.
i2jac. Ellis V. W^allis.
(F) In what Ca(es Formedon in general lies.
I. "jTF Alienation [were made] by the Dome in Tail, before the Statate^and .- .
\_ bejore IJJue had; yet if he had IJfije after ^ the JlicnatioH was good, ^"e/^-jthmt
Br. Formedon. PI. 70. cites 19 E. 2. and Fitzh. Foremdon. 61. //«c, Fcr-
Tiiedon in
Reterter lay for the Donor, his Heirs or AflTigns. Br. ibid. .-ini fee that a Lea(e was made for Lrj'e,
the Remainder in T'ail, the Remainder in Fee to the Demandant. Br. Formedon pi. 70. cites Fitzh. For-
medon. 66 and 11 E. 3. ca. Jl. j4nd upon a Devife for Life, the Remainder to B. and hii Heirs, B.
Ihall have Formedon in Remainder, where there was no Tail in any Part of the Gift. Br. Formedon.
pi. ;o. cites 34. E. 5. ca. 68.
2. Formedon ;>/ Remainder was at Common Law ; for it lay upon a Leafe j„j f^ i„
for Life, the Remainder over for Lite, or in Fee, and where there was no the faid
Tail and fo it continues to this Day ; which can't be by reafbn of the Writ of
Statute of IF. 2. c. 1. for 'tis not Tail, and the Statute gives Formedon ^°^^j^°^_
in Defcender. And it was laid, that Formedon in Reverter is enough ^er in Old"
ufed in Chancery ; for by the Common Law the Donee had Fee Simple Nat. Br.
conditional, and hadPower to alien, but if he had alien'd before he had If- that upon a
fue, and had died without IlTue, Formedon in Reverter lay at Common Law, T,", ^°\
and fo if he had had Ilfu;-, and after, he or his Illue died without Iffuej Remainder
Formedon in Re\'erter lay at Common Law, contrary if he had had in Fee, he
Ifliie, and had alien'd and died without lifue. But Formedon in Remain- >" Remain-
der is not mentioned in the Statute aforefaid, therefore it leems that this ^^'' ■l'^'
was at Common Law, and efpecially where there is no Tail, as above. rf„„inRe-'
Br. Formedon. pi. 69. cites Old Nat. Br. mainder.
Br. For-
medon. pi. 69. cites 24 E. J.
3. If Tenant in Tail enters into Religion, and J. N. enters, the IJfue in
Tail pall have Formedon immediately, inafmuch as his Father took upon J|"g^e' the
him a Religious Habit. Br. Formedon. pi. 74. cites Old Nat. Br. I'enant in
Tail aliens
■ the Land, cr rharges it, and enters into Religion; for this fliall take Effeft during his Natural Life;
contrary of Abatement, ut fupra. Br. Formedon. pi. 74. cites Old Nat. Br
4. If the Heir in T'ail be once feifcd after the Death of his Ancejlor, he
fhall not have Formedon, "till this Seijtn be lawfully defeated, tho" he be
oujied, but Ihall have Atiton of hts own PcffeJ/ion. Br. Formedon. pi. 47.
cites 7 E. 4. 19. Per Danby Ch. J.
5. As where the Iffue inTail enters upon the Difcontintiee, and another otijis ^ , .r i -
Ipim ; he fhall not have Formedon unlefs the Diflontinuee enters. Br. For- yyn,^ mTail
medon. pi. 47. cites 7 E. 4. 19. f«/er/ after
the Death
of his .\nccftor, upon the Difcontinuee •within Age, and Aliens in Fee, he fliall not have Formedon, but
Bum ttiit irfra xtutem, bfCaufe the Dijfeijin is i.ot purged by the Defcenl. Br. Formedon. pi. 47. cites
7 E. 4. 19. Per Danby Ch. J.
6. If the Husband alieneth the Land of his IFife in Fee, and sifteTw^rds
the Husband and Wife are divorced ; the Wife Ihall have a Writ of Cui
ante Divortium againft the Alienee. Bin if the Lands be to the Wife of an
hjlatc Tail, and not in Fee, and after they are divorced, and the Wife dieth ;
the Heir of the Wile Ihall not fhall not have a fur Cui in Vita ante
Divortium,
480 Formedon.
Divorcium againit the Alienee, but in fuch Cafe t\\t Hei;- pall le put to
his U'rit of tonncdon in the Deicender. Fitz,h. Nat. Br. 204. (F) (K)
7. In a T'ormedbn in the Difcendtr, if the Demindant be barred by
VerdiR or Dannrrer ; yet the JJpie in Tn'il Jhall have a new Formedon in the
Delcender ; So if he be barred ifi a W'rit of Error upon the Releafe of his
his Jnce/ior^ his Ilfue lliall have a new Writ of Error ; for he claims in,
not only as Htir^ but per Jormam doni, and by the Statute of \Veft. 2.
Ihall not be barred by feint, or falfe pleading of his Anceftors, fo lono^
as the Right of the Entail remains. 6 Rep. 7. b. in Ferrer's Cafe.
o
(G) Writ and Pleadings in general.
Miffion of the Ccftnage in the Writ of Formedon lliall abate the
W rit, notwithltanding that it be exprefs'd in the Count j Contra
in Scire Facias. Br. Omilfion. PI. 5. cites 49 E. 3. 20, 21.
S to Ibid pi 2. Formedon in Reverter by Earon and Feme, [where the Revcrlion
q6. cites S. was limited to the Feme] Jhall be ad Virum t? Usorem revertere debet, &c.
C. And in But Formedon in Defcender by them Ihall be ad Uxorem * defcendcre
Formedon in ^^,/,^y. for the Baron is not Heir to the Tail. Br. Formedon. pi. 68.
Remainder, • „ it /- .a ^
it ihall b« Cites 19 H. 6. 46.
to them * re- _
rnr.r.ere debet ; for flie is Purchafer, and it cannot remain to one without the other. S. P. Ibid.
pi. 4. cites 3 5 H. 6. 10 1 3 . per Wangforde ; quod niillus negivit.
3. In Formedon upon a Gift made to W. and J. his Feme, and that
after the Death of W. &c. and did not fpeak of the Death of j. his Feme,
the other Donee, and therefore the Writ -was abated without Amend-
ment. Er. Formedon. pi. 64.
4. By I H. ']. I. It was maintainable again ft the Pernor of the Pro/Its.
5. In Formedon, if the Tenant pleads JVon-tenurc, t\\Q Demandant fays,
that he made a Feoffment to Perfons unknown to detraud him of his Ac-
tion, and averrs that he took the Profits ; there the Feoffment to Per-
fons unknown is not traverfable. Br. Traverfe, per &c, pi. 180. cites
4H. 7. 9.
6. In every Formedon, there are two things requiftte ; one is the G//>,
the other is Conveyance to the Demandant ; and if either of thefe fail, the
Writ is infufficient in Subftance, nor helped by the Statute. Hill. 43
Eliz. Goldf 126. Dewnall verfus Catesby.
7. 21 Jac. I. cap. 16. S. I. Enadfs, that alllVrits of Formedon in De-
fcender, in Remainder, and in Reverter, fhall be fucd within 20 Tears af-
ter, the Title and Caufc of A£iionfirJt j alien ■, and no P erf n Jhall make any
Entry into Lands, but within 20 Tears after his Right or Title fhall Jirji
accrue.
S. 2. If any PerfoHy that fhall be entitled to fiich Writs, or fljall have
fiich Right or Title of Entry, be at the tune of the f aid Right or Title (irfi
accrued within the Age of 21 Tears, Fetne covert, Non compos mentis, Impri-
foned or Beyond the Seas ; fiich Perfon and his Heirs may bring jiciion, or
make Entry, within ten Tears after their full Jige, Difcovcrture, coming of
found Mind, Enlargement out of Prifon, or coming into this Realm, or
* And the Death.
Judgment is g. A. brought Formedon in Defcender againft B. for 23 Acres of
t'h ''D^f"" t ■'^^-^"^ '^ ^^- '^^^ Tenant vouched to warranty C. The Plaintiff' coiinter-
C-o. C. 51- pl^'^(^'^^ the Voucher, that the Vouchee, nor any cf his Ancejiors, a I: quid
Mich. 14. ' in Tencmcntis predict. i3c- (leaving out the Word /ArZ'Wfr///;/^. J ThcJ'ouches
Car. B. R. joined Iffiie upon it, and Niji Prius awarded. Demandant appeared, but
Vj . f Tenant made Default ; Ideo prxdift. 23 Acres capiantur in manus, & fuin.
Tomiir.s v. returnable i Mich, & Vic. non mific Breve, and Summons i:i Nature of
Brett. a Petit
Formedon. /j.8 1
a PecicQipe returned, and Tenant made Default, and Sheriff return-
ed quod cepit in Manus Domini Kegis, upon which Judgment pro
Quer. and Error brought ^ and tho' no Iliue was well joined tor Deliiulc
ot (habuerunt) yet, wlien the Tenant made Dciault, * all the Pleading
before the Counterplea ot" the Voucher, was out of the Court, and
Judgment well given, and the firlt Judgment affirmed. Jo. 412. Mich.
14 Car. B, R. Brookebutt v. Tomlyii.
9. In Formedon in Defcender ; Exceptions were taken to the Count,
lor tliat tlie Demandant, (being Brother to the Tenant in 'tail, who died
without IHiie) ftt forth, that the Lands belonged to him poji mortem of
the tenant in Tail, without Inlying, that he died 'joithoiit IJjiie ; the Pre-
cedents arc, quce pojl mortem ot the Donee r evert i dehent, eo quod the Donee
died without Ijfue; which is very true in a Formedon in Reverter, becaufe
there the Ellate-Tail being fpent, the Donor may not know the Pedi-
gree ; and thereupon it is liatficientto fay, xhzt pojl mortem of the Tenant
inT-Ml defcenderc debet, wttkout fetting jorth, that he died without Jffiie ;
for if he had any Iffue, then it could not defcend to the Brother. Trin.
28. Car. 2. C. B. 2 Mod. 94. Anon.
(H) Pleadings. Writ and Declaration in the Defcender.
I. TT^Ormedon in Defcender, the Demandant couated that A. gavt
X/ to B. in tail, ■dndfrom B. it defended to H. as Son and Heir, &c.
and from H. to G. the Demandant, as Son and Heir, &c. and the Writ
was, and that after the Death of the ajorefaid B. to the aforefaidG. Coufin
and Heir of the albrelaid B. defcendere debet, Sc which was challenged
for Variance between the Writ and the Count, becaufe H. did not * hold * Viz. wa»
Eftate ; and therefore there is no Occalion to make mention of him never /ty/cA
ia the Writ, as in a Writ ofAiel, [tor] there the Demandant ihall make
himfelf Heir to the Grandfather, and not to the Father. Br. Formedon.
pi. 66. cites 5 E. 3.
2. Land is given to j^. and his Jirjt Wife whotn he (hoitld marry, and to
the Heirs of their Bodies, See. and after he efpoufed A. and had Iffue, and
alien' d, and died, the Ilfue brought Formedon as Heir of the Bodies of J.
and A and theretbre the Writ was abated j For A. had nothing by the
Gift, and therefore it ihould be, that defcendere debet to the Demand-
ant, as Heir of J. of the Bodies of J. and A. begotten. Br. Formedon. pi.
78. cites Tempore E. 3. Itin. North.
3. Formedon in Remainder j the Demandant fet forth fpeci ally, (as he
ought) that is to Hiy, that the Land given to N. &c. revertattir to
X he Demandant, where \tJhotild be remaneat, &c. and the Tenant chal-
lenged it, and dared not demur j for Revertatur is a good Remainder .,
and this Aftion does not lie without Ihewing fpecialty ; and yet when
it is Ihewn, the Party, Tenant, fhall not have Anfwer to it, andA'i; dona
pas by the Deed is no Plea, wheretbre by Award he was compelled to
Anfwer over, and faid, that he, Ne dona pas as fuppofed by the Writ, Prill j
and the others econtra. Br. Formedon. pi. 33. cites 21 E. 3. 49.
4. Formedon of a Gift to his Grandfather, and makes the Defcent from
him to his Father, and from him to the Demandant j Fencot laid, after
the Death of the Grandfather, the Father was feifed, fo ought he to be
made Heir to his Father, and demanded Judgment of the Writ ; the
Demandant faid, that the Grandfather enfeoffed the Father, and his Feme,
and the Heirs if the Feme, and this EJlate continued till he died ; Judgment ;
the tenant faid, that the Father was within Age at the time of the Feoff-
ment, and fo remitted and feifed in tail ; and after they palled over ; and
{o lee that lafi Seijin is a good Plea to the Writ in Formedon. Br. For-
medon. pi. 29 cites 38 L. 3. 24.
6 G ;. Ia
Formedon.
^^ C cited J. In i-onnedon by B. the Writ was, and that aftir the Death of R.
I ^ ^'yf"^' ^^ ^^- '^"■'^ ^^^ ■^''"" "/ the fame R. to the /iforefntd B. Sou and Heir of
{^^-^^1 '^^ the aforefajd IV. defcendere debet, &c 3 and the Tenant * pleads thac
* b.ig. W. was never fei fed ; Judgment ot'the W^rit, which makes him Heir to
(tend) — W". where he ihould be made Heir to him who was latl leifed^ and by
Contra that Award the Writ is good, lor bv this Way he is made Heir to R. alio..
he ou-^nt not tj i ■ j i 7> • r^
to mention ^r. tormcdon. pi. 38 cites 39 t. 3. 10.
c.ci-y Heir
in the Writ, thouf^h he muft make himfelf Heir to him who was laft feifed of the Eftate Tail. Het
78. Hill. 3 Car. C. B. Jenkins v. Dawlbn.
S. C. cited 6. Formedon of a Gtft to E. in 'Tail, the Remainder to P. and that
f\^^h'°^ (j/Zer the Death of the ajorefaid £1 and P. and R. Son of the fame P. to
Kotes there ^^^^ aforefaid W. the Demandant, Brother and Heir of the ajorefaid R.
• But defcendere debet, becatife the aforefaid R. died ■without Heir of his Body ^
Brook fays, and becaufe hc did not Jhcw alfo, that E. is dead without IJfue': there-
that it feenis, j-^j.^ j^jg Writ was abated, and yet it was Formedon in Delcender. Br.
that he»/»?^// r^ j i • t?
hmefuppfed Formcdon. pi. 39. cites 39 £. 3. 27.
the immediate
Gift to have been to P. and omitted E. as he is dead tiithoiit fjfue, and then well. Br. Formedon..
pi. 39.
In fuch Cafe *j, Formedon as Cott/in, the Plaintiff ought tofhew how Coufm in the
'^'^^f^^'^'p-'^ Writj otherwile it Ihall abate; contrary in Scire Facias, as Coulin and
^1 afte'r" the' Heir. Note a Diverfity. Br. Formedon. pi. 6. cites 41 E. 3. 14.
Fieti', and fo
it feen« that the Party fhall not plead it after the View, but fhall jLca- it as Amicus Curix, and the
Court for Error ought to allow it. Br. Brief pi. i 24. cites 12 H. 4. 1.
8. in Formedon in Delcender, the Demandant made the Def cent from H.
theDoneeto A. Daughter, &c. zn&from A. to the Demandant ^as Coiijin and
Heir to H. The Tenant faid, that A. Mother of the Demandant, was
feifed by Force of the Tail, after the Death of H. and therefore pe ought
to have been made Heir to A. Judgmentof the Writ; and-the Demand-
ant was compelled to anlWer to it 3 per Cur. Br. Formedon. pi. 53.
cites 43 E. 3. 7.
9. Whcrejore he faid, that A. was feifed in Fee by the Feoffment of
H. Judgment, &c. The Tenant faid, that H. leafed to A. for Life, and
atter died, by which he was then feifed in Tail 3 the Demandant faid,
that he was feifed in Fee, Prift 3 and the others econtra. Note, the
lafi Seifin was in Illue. 'Br. Formedon.pl. 53 cites 43 E 3. 7.
Br.Omiffion, 10. FormedoD of a Gift to the Baron and Feme in Tail, the De-
C — * O i ' ^'^^'^^'^ff made Defcent from them to P. as Son and Heir 3 and from
(tend) ^ ^ -P- to the Demandant, as to the Son and Heir 3 the Tenant '^faid,
that the Baron and Feme had Iffiie D. Elder than P. who* held the Ej-
tate, and furvi-ved the Donees, and died feifed, of which D. he has made
Omiffion, Judgment of the Writ 3 and becaufe P. ^e;i7j w^/rt'f Son and //^/V
to the Baron and Feme, where he ought to have been made Brother, and
Heir to D. of the Bodies of the Baron and Feme begotten, therelbre
the VVrit was abated. Br. Formedon. pi. 55. cites 46 E. 3.9,
* He mud ^ ^ ■ In Formcdon of a Gift to J. and A. his Femein Tally x.\\q Writ was,
(hew expref- and that after the Death of the aforefaid J. and A. and R. Sen, and
lyt!;e Name Heir of the aforefiid J. and A. and 71 Son of the aforefaid R. to the
**r'"wHHf-^^°^'^/^^'^ P/^///?/;/f, Son of the aforefaid T. as Couf/n and Heir of the
edasikeir. aforefaid R. defcendere debet by Form of the Gift aforefaid, &c. And the
D.ii6. a. pi. Tenant demanded Judgment of the Writ, for where the Demandant
s6. Trin. 4 is made Heir to R. he -faid, that the faid R. never had any Thing,
^''^^"""•T and the other econtra, but not de Rigore juris, biit by Accord ; and lb
make him- ^^ feems that that the * Demandant ought to make hi7nfelf Heir to him
lelf either who was lajl feifed. Br. Formedon. pi. 17. cites 48 E.. 3. 7.
Son and Heir,
or Cmtfn a?id Heir ; for a later Seifin in any Heir in Tail after will ab.ite the Writ 8 Rep. SS. b. Re-
<olvcdia Backmcr's- Cafe.
12. In
Formed on.
483
12. In Fornicdon the Writ was Precipe the Tenant quod Julte (Sec. * Ibid pi.
rcddat to the Deimmdant &c. the Manor of D. zcbjcb f. 7'. gave to R. ?f '^"^"■^ \^
and M. his IFife^ and the Heirs of their Bodies.^ Sc. and that after the and'thercforc
Death of the atorefaid R. and M. and N. Son and Heir of the atbrefaid the Writ
R. and M. and N. Son and Heir of the aforefaid N. and R. Son and ''''^^''^^teii
Heir of the aforefaid N. Sou of N. Sm of the ajorefaid R. and M^ to the "i'^' '''
ajorefaid Demandant^ Coulin and Heir of the aforefaid R. Son of N. ''^" ficio' CurL"
Son of N. Son of the aforefaid R. and M. defcendere debet, by Form ot" the ■ But in
Gilt, &ic. And the Demandant counted i'urther, how Ihe was Coulin Writofy;/?/
and Heir to the faid R. Son of N. I'lz. Daughter cfT. Sen of M. Siffcr j^^'^^^d^n"'''
cf N. Son of R. and M. the Donees ; And * becauTe the Colmage was fhew^how"^
not alleged as well in the Writ as in the Count, the Court was ofCofininthc
Opinion, that the Writ iliould abate ; and after, bccaufe the lenant had Writ. Note,
hadtheVieisJ^-^Qi m Count iv as made before the View, and fo affirmed j,|-'j'',^'l'"^-' •
tlie Writ, therefore he lliall not have Advantage after, and fb the Te-
nant was awarded to anfwer to the VV^rit, quod Nota. Br. Formed on.
pi. 19. cites 49 E. 3. 20.
1 3 . ^;/? contrary /■» Scire Facias upon Tail by Fine, there it fuffices to ^ „ .
count * further j note a Diverlity. Br. Formedon, pi. 19. cites 49 E. 3. ],ors^'^ ^
20. Per Wiching.
14. And in Formedon, the Writ pall he (where the Heir is not feifed)"^^tYonv.zct
a.nd that after the Death of the Donee, and R. Son of the Donee, &ic.^^^^^^^'^
.without this Word fMv/y and to make the Demandant Heir to him k-'^o .oumedi
•ijoas lafi feifed. .Br. Formedon. pi. 19. cites 49 E. 3. 20. Per Wiching. Formedon,'
that lis eldefi
Brother ivas'Heir to his F.ither, and that after his Death, he is rcvj Heir, and Exception was taken, that
this cannot be ; for that none is Heir to the Father, but the cldeft Son, and that the elder Brother be-
ing dead without lilue, the next Brother is Kcir to him who was lafl- feifed, and not to the Father ■
Rut the Court held, it to be no Contradiftion to fay, that two are Heirs of one I'empre divifo. i.
Mod. 94. Trin. 28. Car. 2. C. B. Anon. — But i Wod. 219. is S.C. by Name of Burrow v. Hao-crct.
15. But Inhere the Heir is feifed, there he lliall {ay, and that after the
Death of the Donee, and R.Son and Heir of the afore faui Donee, and fb on.
£r. Formedon. pi. 19. cites 49 E. 3. 20.
16. Formedon in Defcender, and counted how the Donor leafed to W. Where a
for Life, and granted tht Rez-crjion to J. and T. and io the Heirs 'f ^- fj,!'j^ll"'£'
who granted the Reverlion to the Father of the Demandant in tail, and ilf,„aivdey^
^hat.the tenant fv. Life is dead, and fo defended to him by Form of the ow.t in'Tail,
Gift and Grant aiorefaid, and it was doubted of the Form, if he iLall ^"'i ^hc I'e-
lay by Form of the Gift only, or not. Br. Formedon. pi. 20. cites 50 E. ^'ff 1°" J^li^
O' *■• in Remainder
enters, and
aHeKS avd dies ; the Tffue in 'fail, after the Death of the LelTee, and of his Father, who entered and
difcontinued, may chufe in iiis Writ to wake mention of the Leaf t for Life, and of the Remainder ; or to
at/ege immediate Grft to he m»de to his Father, (^od Nota. Br. Formedon. pi. 6z. cites iiH, 6. 20.
■• The IlVue need not make mention of the Leafe for Life, but that the Donor gave to his Ancef-
tor. Sac. per I\larren, J. Br. Formedon. pi. 79. cites 9 H. 6. 53.
17. In Formedon in Defcender, the Count was, that the -^--w^ ^£;- Formedon in
rcendedfrom the Donor to B and from B. to C. and from C. to the De- Defcender ;
mandan:, as Brother and Heir., and it was pleaded to the Writ, be- the Tenant
caule he did notjhew that C. his Brother ivjs dead ; But non allocatur in ^'P*^^^ '"^
this Action i Contra in Formedon in Remainder. Br. Formedon. pi. 21. and^exceptl'd
cites 3 H.'4. I. againftthe
Co««/, be-
cau!t' it in-as th.it ih^Rfght defcended tohim after iheDeath of 'Leomrd, as Brother nvd Heir to Leonard, who
■was .Son and Heir of the Dtmee, and did not allete, that Leonard died without Ifjite ; it is true, this
might have been an Obje6tion in a Formedon in Remair.der or Reverter, but it is nota Formedon in
1 'cicodcr ; for in the laft Cife the Demaidant is only to fet forth the Pcdirjree, and therefore .they
do not mention, that the Pcrfon' under whom they claim, died without llVuc ; bcfides, in this Ca;e
the Dem.mdant could not be Heir to Leonard, if he had left Iflue. Nels.a. 882. pi. 5. cites, i Mvd.
■219. * Burro v/ vtrfus Hagget. * Trin. 2ii. Car. 2. C. B.
' ' ' i8 Formedon
48+
Formedon.
Br Nug-.'.tion, 1 8. Formedon in Descender, tho' the Gift was oj u Re-jeyjluji of alaiant
pl. 4. >.nei t>. for £tfc to two in 7'ail, the R^mduider to the A/iccfior of the Demandant^
C — IbiJ. pl^. ^^,p ^^j /f'i/tr/ by the Remainder^ lo that the Remainder was executed^ the
l^^^'i^t'x^.^ Plaintiff m}!Y fay, in his Writ and Declaration, that the Gift was imme-'
Gifthcmadt diate tu his jncejhr. Br. Formedon. pl. 23. cites 1 1 H. 4. 39.
hi 'feil to D.
and his Heirs Mules theRcw.T/nrfo'/o^^. in V/i//, and/), difcontinued in theLifeofJ. and died without IlT'ie.and
the Heir vf\-!. brought his IVrit, as the immedinte Gift to J. h'l-i Anccftoi-, who never was fci!ed in his
I.-ife, and for that Caule the Writ was naught ; But if A. had been (eifed of the Land, tlien it had
not been necefTary tt) have fhewed the firft Gift to D. by the Opinion of the whoh Court, i
Brownl. 155 When the /^ewM/wrffc ;/ owrc <xp<;«<f</, Formedon in Remainder does not lie, but the
pcner.i! Writ in the Defcer.der ^iW Icrvc, and he dial 1 count as of an inn!iedi.ite Gift. 8 Rep. 3S. Trin.
7 Jac. a Note of the Reporter's in Buckmere'sCafc. S. P. and fhall not mention the Remainder.
F. N. B. 2iy. (D) fays, it lb appears by the Rule in the Regillcr.
If Tenant in ^9' ^^Tefidnt in^ail has IJfue a Son and a Daughter, and difco»ti»ties.
Tail hath and after the Son dies without IJfue, in the Life of the Father, and then
twdSons, tht Father dies i the Daughter Ihall have Formedon, and may make Ow;y-
and a Su-m-jj^^^ ^ f^g ^g„^ becaufe he died in the Life of his Father, and therefore
and enters "°^ ^^^ Daughter is inmediate Heir to him who was laft feiled. Br.
into the OmilTion pl. 7. cites 11 H. 4. 72.
Land, and
afterwards the cldeft Son dies before he entereth, the youngeft need not name his elded Brother
Heir to his Father, in the Writ, but only Son, becaufe he never had Seifin. F. N. B. 212, 213. (J)
If the Fa- 20. Contra h feems, where there are Grandjathcr, Father, and Son, and
ther does the Grandfather Tenant in 'Tail difcontinues, the Father dies, and after
not |i"'vive ji^g Grandfather dies, and the Son brings Formedon, he ought to make
ther theSon ^iention of the Father ; For the Son cannot be immediate Heir to thi
need' not Gr^^^^trybfr, but by Means of the Father. Ibid.
mention the
Father in his Writ. F. N. B. 489. in the Notes there, (a) cites 5 E. 2. S E. 2. pl. 54.
S.C. cited 21. In Formedon the Writ was, that R. P. gave to N. and B. his M'lfe,
J-^-^-'^^^- and to the Heirs which the j aid N. of the Body of the faid B. frotild be-
Notes, (a) ^^^ _ Norton demanded Judgment of the W^rit, for it ought to be, that
R. gave to N. and B. his VVite, and the Heirs of their Bodies begotten;
& non allocatur ; but the Writ awarded good, for it is all one. Br.
Formedon. pl. 26. cites 12 H. 4. i.
22. Formedon in Defcender ; the Writ was, and that after the death
of W. the Donee, and W. Son and Heir of the ajorefaid W. {^and^ J. Son
and Heir of the aforefaid W. Son of W. and IV. Son and Heir of the aforefiid
y. and T. Son and Heir of the aforefaid W. to the aforefaid A. the Deman-
dant, as Daughter and Heir of the aforefaid "T. defcendtre debet, 8cc. the
Tenant faid, that 'T. never held EJiate, and yet the Writ awarded good by
Judgment, for where he is made Heir to every one as here, therefore
he is made Heir to the Donee, and to him who was laft feifed, whofoever
he was; and where the Grandfather is Donee, and he and the Father die,
the Father not feifed, and the Writ of the Son is, and that after the
Death of the Grandfather, and the Father, Son and Heir to the Grand-
father, to the Demandant, Son and Heir of the Father defcendere debet,
&c, it is a good Writ, per Cur' and laji Seiftn pleaded in a Writ of Aiel,
Mortdancejior and Cofinage goes to the Aifion, therefore 'tis a good Plea
there accordingly. But in Formedon it does not go but to the Writ. Quod
Nota diversity. Br. Formedon. pl. 62. cites 11 H. 6. 20.
In Forme- 23. And Note per Cur' that where the Writ is, and that after the Death
don by E. p^ ffjg Donee, and W. Son of the Donee, without the Word Heir, tj'r. to the
Se g5^ w ^('"^"^^"t defcendere debet as Son and Heir of fK fuch Writ fhall abate,
be^o J. avd for he does not make himfelf Heir to the Donee ; for it may be that W.
Al. hisif'ite was youugcr Son ; for in Formedon in Defcender, the Demandant always
fcT Life, the ought to be fnade Heir to the Donee, and to tm who was laji feifed^ &c. Br.
uT'^tili Formedon. pl. 62. cites 11 H. 6. 20.
Formedon.
48,
Hi IFife ill T'nil, ayjcl that ajter the De.u'o of the atorcj;ud J. ai:d M. B. ,n:d K. jiiJ C. Son of tie /tforrfaid
fi. and N. atid D. Son of lU ^.Jsrefr.id U. to tie afrtf.xid E. B.iuci.ter jjid Heir of the i>forff.unC. defc'evc.ere
debet, &c. Skicpe demai.dcd Judgment of the V\ rit ; Foi- E. cugl.tto be wade Sijler and Heir to D & non
allocatur, becaufe C. iias tic laji who w.xs feifed, und file is made Heir to him, as flie ought. And there-
fore the Tenant vas compelled to Anfwer, <^od nota. Br. Forn:edon. pi. 25. cites 11 H. 4. jz.
24. In Formedon upnii 'Difcontihuance^ the Demandant counted that d'e-
fcendtt Ji'.s^ ^c. and }iot,qiioddefcendit feodum. But Contra upon Abatement a~
garnjl the Abater. \\\. Formedon. pi. 61. cites 19 H. 6. 30.
. 25. In Formedon, it" the Defcent be made [thus, viz.] from the Donee
dcftendit Jus., (sc. to J. as Son and Heir to hnn., andjrom f. to R. as Son ^■9'5'i^"'^»
and Heir to hitn^ and from R. to W. aS Son and Heir to hjm, -And from IV. tlwt the moll
to him.y as Son and Heir, and makes hi info If Heir to the f aid iV. his Father fui-c Way
and no other i albeit that ^^^ isas not fcifcd by Force of the Gift., but fbme for the De-
of the others., by ishom he has made the Conveyance., were feifed, the Writ ■"-'"'^^''"^ i*
is good, and Ihall not abate, becaufe lie has made every one Heir to the everyone •
other. Per all tiie Jultices. £r. Formedon. pi. 37. cites 22 H. 6. 36. who is *-
named ill the
Writ, to be Son and Heir in the \Vrit, tho" they never were feifed by Force of the Tail, and it he
names them Heir, it is not Material whether they were feifed or not, and by tiiis Means the Deman-
dant will be certain to make himfelf Heir as well to the Donee, per formnm Doni, as to him that was
Lift feifed. 3 Rep. 8S. b. the 4th Refolution. Buckmer's Cafe.- — _F. N. B. 212. (H) S. P. and S.C.
cited in the Notes there (c). Hob. 51. in Cafe of Fieake v. Bindford.
26. Eut if the Writ be [thus, viz.] and from the Donee defcendit ^^^'H'l^^- S
Jus to J. as Son and Heir., Midjrom f. to R. Son of f. and from R. to W. |j'"'' ^ -^■
Son of R. there he ought to make himfelf Heir to him isiho was laji feifed by tT^^\J,[. y '
Force of the Tail. Per all the Jufticcs. (^od Nota Diverfity. Br. ibid. "Dawibii. ;
27. Formedon by tivo Barons 'and tkcir Femes in jure Uxoris; the Wiit s. P. Hob. r.
■vv-as, y quod fnf} Aiortem ^c. to the Barcni and their Femes defccndcrc and. S. C.
debet, where it Ihould be to the Femes only, and 'twas amended ^ For '^i-'-"'^- Mich,
'twas not well. But per Wangforde, in Formedon in Remainder^ he faiil ^^. ■f'^'^pl^-"'^'
lav, reinanere debet to the Baron and Feme. Quod nullus nega\ it. Br. <,f .cianr'i-
Formedon. pi. 4. cites 35 H. 6. 10. 13. ckard,(£.of)
28. In Formedon in Defcender, which is only by Statute, the Statute v- Sidney.
is not re-kears'd, but this is inafmuch as the Writ is re-hears'd ift the
Statute., as it is of the Quod ei Detbrceat. Br. A6lion fur le Statute, pi.
47. cites 5 H. 7. 17.
29. The Demandant fIjaU make himfelf Heir in Formedon in Defcender Kcne holds an
to hnn ^Jjho was hijl feifed in faii^ and not ol' the lalt Seilin in Law, and ^/?""' *"* ''^«
yet he Jhall inake mention in his Writ of him ivho fo * he/d Efi'ate, thd" he ]) 'f j'„[l'n"
did not enter in Fa(i, but ihall not make himfelf Heir to him ^ but yet Br. bmiiho 1.
the Pleading of him who held Eliate is, to fiy, that he was feifed ^ Pl-'S. cite*.
and fo without Seilin in him, the Writ ihall not abate, which is Seilin t^..^,^-^"'^
in Faft, as it feems. Br. Formedon. pi. 60. cites F. N. B. 212. (F). medon 4^
49. But
fee there 11 E. 2. pi. ^6. that it is net hiding of an Eftate, unlefs he who held 'u: as feifed. Brook fays,
cjti.zre !!:de, for the Dfrent to the Her ti'ho dies before Entry is a Seifn in Law, and upon this the Younger
Erotlicr fhall make himfelf Heir to him of the Body of his Father. Br. Oraiflion. pi. S.— — — .
* Orig. (tend )
30. The CLiufe of (eo qucd, ^c.) fer^'es moil: conveniently ■\\'hen
Eftate Tail is ipent, and lo is well in P'ormedon in Reverter or Re-
mainder, hut not in Defcender, ualQ^s in Special Cafes. 8 Rep. 88. b. a
Is'ota ol the P,.eporter.
31. In a Formedon, the Count was oi" aGift to B. and Hicredibus de
Corpore fao legitime prccreat. The Tenant demanded Judgment of the
Writ, tor that (among other Things) the Word (Procreat.) ought not
to be in the Writ, but cxenntibus. But the Court thought it might be
amended. Hct. 78. Hill. 3. Car. C. B. Jenkins v. Duwfon.
32. In a Formedon in Defcender, the Demandant let forth that H. O. .
ham^^ feifed in Fee, made a Feoffment^ S:c. to the Ufe of himfelf for Life, J^^J^^p
Remainder to the Uls of £. V. and Ellen his W\fe, for their Joint Lives, tij^ ^-^^ ^^^
4-86
Formedon.
the Obilrva- and atter their Deceafe to the TTe of the Heirs of the Body of the Hus-
tions of the ]^,^^^ begotten ou the Body of the Wife; chat HO. died, 'and that, by
nothin"' i" Virtue ot' the faid P'coffinent, xX-^q Husband aud IVijc -xere fafid, that is
mentioned of to fay, the Husband ill Fee-Tail, and the Wife of the Freehold, dur-
the Court ing their joint Lives ; that the Husband died, and then the Wife became
Ke'wt'^'rnd-^^^^/"^''^^ lor Life, Reiuaindcr to H. her Son ; that the Wife died, and then
asloTh'e O- ^^^ Whole furvived to her Son, and from him, jus defcendit to the De-
pinioii of mandant, as Cotifin and Heir of E. V. (that is to fiy) Son and Heir of
Fitzhci-bci-t, Hugh, who Was Son and Heir of H. (the Son) who was Son and Heir of
'■'^pf^'^j- ^"^^ -E- ^- 0'' ^^^ ^ody if Ellen begotten ; In this Caf.- the Seilin was alleged
pL •'.^\lieie ^'S'^*^? contrary to the Opinion of Fitzherbert, ^^ ho held that Seilin
Brooke niull be thus alleged, (viz.) By Virtue whereof the Husband and Wife
makes a Avere feifed together, and to the Heirs of the Body of the Husband be-
Quire of it, gotten on the Body of the Wile, and muft not fay, that either of them
Litt S ^^6 y^^^^ feifed of a Freehold for Life, or of a Fee-Tail. Nclf Abr. tit. For-
-wherc it is mcdon. 879. pi. 12. cites * I Lutw. Repi 974. Vaughan v. Rowland.
faid. that if
Lands are {^iven to the Baron and Feme, and to the Heirs of the Body of the Baron, in this Cafe the
Baron has Jiftate in Tail general, and the Feme has only an Eftate for Life, and the common Form of
Precedents is accordingly. * It fliould be 2 Lutw. 974. to 276.
(I) Pleadings, Writ and Declaration in the Remainder.
t ^"TT^r^^-^-^ a Man conveys by Remainder, hz ought to allege the Gift
In Forme- y y ^.^ 'fail, and all the Remainders before him to be deterviined by dy-
mTinder the ^"g without Ilfiae, otherwife his Writ ihall abate. Br. Formedon. pi. 39.
Plaintiff in- cites 39 E. 3. 27.
titled him-
felf, becaufe the IJfue hi 'fail is dead nvithctit TJftie, but does mt fay the fenant In fail is dead withcHt
fjfue. Holt Ch. J. held, that it mutt be fhewn, that the Tenant in Tail is dead without llVuc ; for that
it is the very Point of the Aftion ; and it mutt be fhcwn, that the firft Donee is dead without Ilfue;
and it is net implied at all, that becaufe the IfTue is dead without Iflue, that therefore the Tenant in
Tail is ; For he may have other Sons befides his Eldeft. 5 Mod. 17. Hill. 6 W. & M. Herbert v.
Morgan.
2. In Formedon in Remainder or Reverter, the Demandant fhall
the Forme- "^^^e mention of the Death of every one who held Efiate and furvived, (kc.
don in Re- Contra in Scire Facias. Br. Formedon, pi 11. cites 42 E. 3. 20.
mainder is
broueht as Heir- 8. Rep. 83 a. in a Note of the Reporters, in Buckmere's Cafe. Br. <^)nuiTion, pi.
I. cites 42 E. 5. 19, 20.
j,, „ ^ J. 3. Formedon in Remainder was brought upon an Efiate fail limited to
cited ".Lev. ^- Remainder to C. in Fee, and was, which, after the Death of B. and C.
219. and to D. Son and Heir vf C. remanere debet. And the Writ was adjudged
there it is good without laying exprefsly the Death of C. tho' the Form of the Re-
^id, in the gj^gj. ^^s fo ; becaufe the laying of D. to be Heir of C. imports as
24^ they much. Hob. 51. in Cafe of jf?cafe i. OattttlfOrtl, cites * s'^-'- 5- iS- and
are' men- 7 E- 3- 47 j 48. cited in the Regifter.
tioned to be
ruled good, and that there is no mention there, of their being not good, but only that tlie Form of the
Regifter is better, Arg. and the Court fcem'd to be of the fame Opinion : Tnn. i Jac. i. C. B. in Cafe of
Dinghurft v. Batt.
4. If a Leafefor Life be made to A. Remainder in fail to B. Remainder
in fail to C. It B. dies without IJfue in the Life of A. and afterwards a
Formedon in Remainder is brought by C. he ought to mention the Re-
mainder toB. tho' it was determined and fpeat as aforelaid ; For tlie De-
mandant, in the Formedon in Remainder, ought to mention all precedent
Remainders in Tail. 8 Rep. 83. a. in a Nota of the Reporter, cites
8 E. 3, 19. a.
S. la
Formedon. 487
5. In Formedon, the I'Jemandant counted^ that f. Wtis fcifcd, and c.ffigncd
ft tn Do-xcr to A. and after granted the Reverjkn io G. for Life, the Rc-
matnder to S. in Tail^ mid that S. ivasjafed and conveyed to the Demandant -^
and the Writ was, that J. granted, &c. and after the Death of A. &c.
TO hold, &c. and that alter the Death of the atorefaid G. Remainder to
S. Sec. and does mt mention in the Uht, -wheth-r the Baron ivas feifed, fb
that there may beZ)owtr, &c. or not, and yet well, per Thorp. For it is
the Courle ot the Chancery. Quaere, for 'tis not exprefsly adjudged. Br.
Formedon. pi. 8. cites 41 E. 3. 27.
6. Formedon in the Remainder, the \^'rit WaS PriCdpe quod rcddat
one MejUiiage and one Acre of Land^ &c. '^o that if the atbrelaid Donee
ihuuld die without Heir, &;c. that then the atbrelaid Mcfftiage, Land, and
Aleadvw Ihould remain to the Demandant, &c. So that there wAsmm-e in
the Perclofe than in the Premiffes, by this Word ( Meadow )j Sec. And
therefore Fencot pleaded it to the Writ. Finch lliid, you have had the
A'iew, therefore it is pals'd the Advantage, and it is only Surpkifage^
\vhich ihall not abate the Writ. Per Fencot, of filfe Latin, and Thing
apparent, a Man fliall have Advantages always before Judgment, Qiiod.
non Negatur i and the Writ awarded good, and this by Realbn, that it
is only Surplufage, as it feems. Br. Brief pi. 68. cites 44 E. 3. 14.
7. J. S. and i\l. his Wite brought Formedon in Remainder in Right
of M. of 3 Meiuiages, which A. gave to B. in T'ail, Remainder to C. in Fee^
and fets forth, that after the Death of the fiid B. and C. to the aforefaid
'f. S. and M. Daughter and Heir of E. Brother and Heir of D. Son and
Heir of C. aforefaid ranancrc debet by form of the Gift aforefaid, eo qiiod^
the ajorejdid B. died "without Heir of her Body i filing, &c. The Defendant
pleaded in Abatement of the Wr"it, that by the Form in the Regilter,
Demandant lliould have fuppofed, that after the Death of B. and C. to the
aforefaid J. S. and Af. as Couftn and Heir f C. remanere debet, ^c. But it
was held good enough by three J. againft vVarbuton J. becaufe it appears
to the Court, by the Pedigree let down, chat fhe is, and mult needs be,
Couiin and Heir to C. And that the Form in the Regiiler may bear fuch
an Alteration. Hob. 51. Hill, ii Jac. Rot. 30. Freak v. Bindford.
8. In Formedon in Remainder, the Demandant declared of a Gift to
A. for Life, Remainder to M. the Wife of A. and the Heirs of her Body, by
A. ita quod, after the Death of A. M. and E. their Daughter, to (the De-
mandant) G. Son and Heir of E. remanere debet, &c. Tlie Defendant
f leaded in Abatement, that E, had Iffue F. a Son and Heir, who furvived
M. and E. net named in the Writ, Judgment oi rhtWnt; and the Court
upon the firll Argument inclined, that the Writ was ill by Reafon of the
Omilfion oi F. *,vho had a Right, tho" he had never any Seifin. But after-
wards, upon a further Argument for the Demandant, in which the* above ♦Pl.j.Marg]
and other Books w^xt cited, they ga\e Judgment to anfwer over
Nili Caufa, within a Week. 3 Lev. 218. Trin. i Jac. 2. C. B. Dinghurll
V. Butt & al.
(K.) Pleadings, Writ and Declaration in the Reverter.
I. '\N Formedon in Reverter, Omiffion is not material, unkfs he who is InForme-
J[_ omitted in the Delcent furvivd his Father, x^s where the Father don in Re-
has lifue two Sons, and the Eideft dies in the Life of his Father with- ^^"f"' ^*
outlffue, there the Omilfion of him is not material. Br. Omilfion. pi. ^"J,tion^the
10. cites * 18 E. 2. Eldcft Bro-
ther, V. Iio
furvived the Father, &c. becaufe he held the Eftatc, altho' he was not feifed of the Land. F. N. B,'
iZQ. CD) ''' S. C. cited F. K. B. 48c;. in Notes there, ^a)
a. Iq
488
Formedon.
If one brings 2. In Formedon in Reverter he need not ll.ew otherwife, but that the
Formedon ])ofi^g died ivithoiit Heir of his Body, tho' 20 were leijed atcer his Death,
rerterorRe- &^'- ^^- Formedon. pi. 37. cites 22 H. 6. 36. per all the Jutticcs.
ni.iir.dcr as
Heir, the Omijficn of an Eldefl Son, ivho furvived his Father, or the hke in the Pedigree of the Part of the
Doner, or of him in Remainder, lliull abate the Writ. But of the Part of the Donee, (tho' the
Donee had many liTues in lineal Delccnt, inheritable to the Eftate Tail, and who held the Eliate) the
Demand.tnt need rot name any of the Iflues in the Claufe, et quae port Mortem ; but fhalUay, et qua
pn- AJortem of the Donee ad ifftim re^erti debet, eo ijucd the Donee cli:t iiitktit f£'ue. Becaufe the
Demandant is a * Strariger to the Pediaree of the Dcnee. And alfo becaufe if the Ilfuc fhall be fuppofed
by the Writ to die v. ithout Iffuc, yet it may be, that the Eftate Tall is not fpent ; For tl.e Ijfue may
have Brothers or Ccujlns i>,heritat!e it the Donee, and the Land ought not to revert to the Donor fo long as
the Eilite Tail continues. 8 Rep. 88. a. in a Nota of the Reporter in Buckmere's Cafe. — And he fayy,
that in fome ancient written Regifters, the Claufe is, (eo quod the Ilfue died without Iflue) but the
printed Rcgifter which imitates the moft ancient and trueft Precedents, is (et quod poll Mortem, of
of the Donee reverti debet, eo quod the Donee died without Illue,) and cites 22 H. 6. 36. * D. 216.
a. pi. 56. Trin. 4 Eliz. Anon. But adds a Quaere of Formedon in the Remainder.
Brownl. 134. 3. A Formedon in the Reverter was brought by J. S. and F. his
^•^- Wife againft W. R. of divers Melliiages and Lands in E. which
Lands A. aid the faid F. then his Wife did give to B. and C. to the
Ufe of E. Daughter and Heir of Sir P. S. Knt. and the Heirs of her Body ;
Q qiiif fvji mortem fradiil. Eliz. ad prcffatam F. rei'ertere del'ent. &c: The
Detendant pleaded in abatement of the Writ, that the faid F. at the
Time oH the Death of the fliid Eliz,. w^j married to the Plaintiff, fo that
the right of the faid Landsy/ qnrd^ &c. to her Husband and her did revert,
and lo by the Writ it ought to have been fuppofed ^ upon which, the
Demandant did demur in Law. It was adjudged, that the Writ was
good ; and this Difference taken, if it were a Formedon in the Defxnder^
upon a Defcent to the Wife, there the Defcent muff he made in the Writ
to the Wife alone ; tor the Defcent followeth the Blood, and to that the
Husband is a Stranger 3 but in a Formedon /;/ the Reverter, where nothing
is already veiled, but the right only returns, there this Right may be
layed to return eitlier to the Wife alone, or to the Husband and Wife:
Hughes's Abr. 966. pi. 7. cites 33 H. 6. 54. Mich. 11 Jac. in C. B. The
Earl of ClitUnCfeatC, and the Lord Yilcount Sidney's Cafe, Hob. i.
and 2.
* Nelf.Abr. 4. Note. If the Demandant in a Formedon in the Reverter, be barred
Formedon. of a third Part of the Land upon her ozvn pciving ; as where the Deman-
(C) pi. 2. S. dant Jheweth, that a Fine "was levied of a third Part of the Land 3 in fuch
this^Word'is ^^^^3 ^'^^ whole Writ, of Formedon, brought for the whole Land, Ihall
(Satisfied)— abate 3 For that the Writ is * tellified by the Demandant's ov\-n ihevving;
Butitfhould and that in a fubftantial Point. Hughes's Abr. 966. pi. 2. cites Hobart.
fce(Fairified) 279. Mich. 13 Jac. in the Earl of Clanrickard's Cafe.
S. In a Formedon in Reverter, the Cafe was, Wm. Vcfcy the Father,
being feiled in Fee, devifed his Lands to his Eldefi Son John Vefcy, and
the Heirs Males of his Body ^ and for Default of iuch Iliiie, to William
Vefcy, and the Heirs Males of his Body, being another Son 3 and tor De-
fault of fuch Ilfue^ Remainder over, &c.The Father died, ihcn John entered,
and died without ijfue Male, leaving fjco Daughters, Elizabeth and Sarah,
the now Demandants 3 then Wm. the other Son entered, and in Conlidera-
tion of a Marriage intended bet\veen him and Anne Hewer, he made a
Feoffment to two Tritflees, and their Heirs, Habendum to the Ufe of the fiid
?/ w. the Feoffor, for Life, then to j4nne, his intended Wife, for Life, (who
was now Tenant) Remainder to the Ufe of the Heirs Males of the f rid Wm.
and Anne in Special "Tail, Remainder ?o his oivn Right Heir's, with War-
ranty from him and his Heirs, to the Feoffees and their Heirs 3 and af-
terwards he died feifed without any IfJ'ue 3 after his Death Jnne his Wi-
dow entered, and had the PoficfTion, and the Demandants Elizabeth and
Sarah, the Daughters, and Co-heirs of John, and Couiins aod Co-heirs
of William Vefcy the Tell:ator, brought a Formedon in Reverter 3 Anne
^thiU'enant would rebut, and bar them of the Re^'erljon ly this collateral
Warranty
Formedon.
489
Warranty of her HiiSiiVnd William Yq^cv^ who was 'Tenant in Tai!^ as de~
fcending on than as Ccn/ias ami Co-heirs^ who were hkewifc CouJJhs and Co~
heirs of the Doner: "The Court was divided, (viz,.) the Ch. juftice
Vauc^han and Archer for the Demandants, who held this Warranty of
the Tenant in Tail, tho' tis a collateral Warranty^ will not bar the Donor
and his Heirs of the Reverlipn. Nels. 880. Abr. tit. Formedon. (C) pi.
4. cites Yaugh. 360. Bole v. Horton.
6. Formedon in Rc\ crtcr ; the Tenant demurred to the Declaration,
lor that )'!0 Explees are alleged in any Doner, and the Books go upon this
Diflerence, that where a Fee-limple is demanded, (as 'tis always in a
Formedon in Reverter,) there the taking the Proiits muil he alleged
both in the Donor and Donee ; l^t/t where an EJlate Tud only is demand-
ed, then it is fufficicnt to allege the Explees in the Donee only. 2 Lutw.
963. Hill. 3 \\\ & -M. H unlock v. Petre.
(L) Pleadings, Writ and Declaration by Parceners.
■F
Ormedon fliall be of the Seiiin of him, who was lafl; leifed. Br.
Formedon. pi. 5.
2. As if Land tail'd defcend to two Daughters^ and one enters into the But if cne
vi/iniiil temiit, for Ihe was * not feiled, and he ftall have ancther Forme- ahr Sifter
tlectler f.i.ill
hate tivo If 'tits of Foi-medon, if a Stransjer, &c. enters ; or one and the f.ime IVrit, ly pieral Prtccife-s ;
[but in i'ucli Cafe] of the we Moiety, he jbal! make limfelf Heir to his J/cther, a-ho irjtmtil ter.!:it with
his Jt<rt, by Reafon t!wt his Mother entered, and was fcifcd, and of the other Moiety, fuH make lim-
felf Heir to lis Graadf/ither, becaul.e the A?/? Se/JJ}! is Material here ; and his Mother was not feifcd of
both Moieties in Tail, but •zuas Jbatrefs a^airiji her Sijhr of cue Moiety, and the inJJmtil tenuit of ihe
other Moiety pall not preindice him, by Judgment. Br. Formedon. pi. 54. cites 43 E. 5. 16, * Was
only an Abacrefs. Br. Brief, pi. 50S. cites 45 E. 5. 16. 2.7.
3. And it fcems that he may have One Formedon o( thele two Moieties
hy fez'eral Precipes j and fo fee two Formedons, by one and the lame
Heir, upon one and the fame Gift, by Reafon that he claims by two fc-
veral Anceftors fub Dono. Br. Formedon. pi. 5. cites 40 E. 5'. 8. and
43 E. 3. 16 and 27. S. P.
4. in Formedon the \\"rit was ^jiod redd.it 20 Acres, which together
with ether 20 Acres }V. gave to R. and the Heirs of his Body, and that
after the Death of R. and K. one of the Daughters of the laid R. who
them inlimul tenuit with J. another of the Daughters of the atorefiid
R. to the aforefaid Demandant, Son and Heir of the afbrefaid K. defcen-
dere debet, &c. And 'twas held, that the Writ is ill ^ For it ought to
be the Moiety of 40 Acres of Land, bccaufc ttie W'ric is which they held in
Common ; For it leenis that before Partition, it (loall he Injiiiiul tenuit by
Moieties, and after Partition, of Acres which in Purpartia tenuit. Fut be-
caufe the Tenant had had the View, he could not abate the Writ. Br. For-
medon. pi. 6. cites 40 E. 3. 3^.
5. Formedon, that he render the Moiety (f 30 Acres of Land, which
D. together with another Aloicty 0/30 Acres of Land, gave, &c. where the
V^'rit ihould be with the other Moiety of the aforefaid 30 Acres of Land,
and therelore the Writ was abated, hx. Biifl, 133. cites s H. 5. 8.
6 I 6. Where
49C
o Formcdon.
And after if 6. Where Land of Fee Simple^ and Land tcul'd^ defccnd to z S/Jrcrs^ and
jbe who l.as thcv iiidke Partition^ io that one has the Fee Siihpk Land^ and the other
tie U7!d in fi^/]^i,fi^-i tailed, and_/te "ivho has the Latid tail d Aliens and dies, her Klue
Mem 'it^apd ^^'^'^ '^'^^^ Formcdon, and iliall rect)vcr the \\ hole, per Newton. Br. For-
dies, her If- medon. pi. 2. cices 20 H. 6. 2. 13.
fue Hiall
have Formcdon, ard Hiall recover the Moiety of the Land tail'd. Qurcre of the P.ecovery of the
Whole. Br. Formcdon. ;>!. 2. cites 20 H. 6. 2. 15.. Fcr if the 'fenant Jheics the M.Jtter of the tivo
SiJIers in tlefyft Forviedon of the ll'lole^ tl ey Jl.all join, and one fliall recover tlie Whole, fer Porting-
ton. ibid. But Brook make.s a (^uxre thereof tor t'lat the other Sifter, tii 0 luii the Land, can't join
in the P'ormcdon ; For flic hJ-f her Portion. Ei:t if ji.e I ad alien'd lie hee Sin.ple Laid alj'o Lcjore the Jjftie
ej the ether bni:glt tie Formedcn, then it feenis that tliere both may well join.
7. Lands given to J. in Tail, Remainder to the Right Heirs of B. B.
has lii'ue z Daughters C. and D. Donee died without Inue; Demandants as
Heirs to C. and D. brought Forniedon in Rtniamder ; the VV rit lliall abate j
For it fhould be brought by the Heirs of the Siirvroor of the two Daugh-
ters, becaufe they have the Remainder as Piirchafcrs. 3 Le. 14. Mich. 8
Eliz. C. B. Lady Stowell v. E. of Hertford.
(M) Plea, by Tenant in Abatement, and at what Time.
♦Thisfeems i, TT^Ormedon is a Writ of PoffeJJion, and no Writ of Right ; for there,
*°.^'^ "'''.. _|j tho' he cannot have another Writ, yet if the Tenant can dejhoy
die^Edidors, the FcffeJ/ion, 'tis fufficient, Br. Formedon. pL 31. cites 38 * E. i 37.
ard that it
fhould be 38 E. pi. 4. 37. See Br. Juris Utrum. 3. S. C. and P.
2. Formedon in Delcender, the Demandant counted oi' a Gift made to.
W. and M. and to the Heirs oj their t-d'o Bodies j and that after the Death of
the afcrefaid W. and M. and K. Daughter of the ajorefaid W. and M. and
H. Son and Heir of the aforefaid K. to J. Son of H. as Cciifin and Heir of
the aforelaid W. and M. defcendere debet, &c. And the Demand was of the
A<foietj of three Parts of an Jcre of Land, and the Tenant demanded
Judgment of the Writ ; For the Dejnandant had hronght other Formedon a-
gainji him, cfthe other Moiety of the fime Land there demanded, fuppoling
that after the Death of the aforefaid W. and M. and K. Daughter, &:c.
and |. Son of the aforeiaid K. who held together with H. Son of the a-
Ibreiiiid K. &c. by which Writ he ilippoied tlie Seilln oi' H. and this
Writ is contrary. Judgment of the Writ j and 'twas held no Plea by
Award, ■without' faying that H. was feifed in Fa ft ; For the Writ is but a
Suppolal, which may be falfe, and therefore it Ihall not abate this \Vrit
which is better; and alfo the other Writ is of the other Moiety. Er.
Formedon. pi. 5. cites 40 E. 3. 8.
3. Formedon ;;/ Dcfcender by J. S. the Tenant faid that at another Time,
r- ^1, ^A^ Demandant brought Formedon tn Remainder againjl him of the fame Tene-
c\ezr]v -^Con- ^"'^"^^■> h' w^'^^ ^^' demanded Fee Simple, to which 'Tenant pleaded in Bar,
traifiiothhad and fo he prayed Judgment of the Writ. But per Belk the Formedon in
leei: of one tir.d Remainder is not more high than this Writ is; For the Formedon in Def-
?^'/^"'^^''./'; cender is a Writ of Right it its Nature; and becaufe he did not take the
Di'verfitvbv firft Writ of the fame Gift which he took now, therefore the Writ is
him, and yet good ; per Fincham J. Qiiocrc. Br. Formedon. pi. 77. cites 40 E. 3. 21.
by t! e one, he
(ietnat.ded Fee Sim-pie, ard ly the other only Tail. Br Brief pi 503. citct S. C, Br' Eftoppel. pi. 225.
ciici 40 E. 3. 14 21.
T.
Ar-T cites S 4-' ^'^ '•'"'^ Tenant hath bad the View, he can't abate the A\'rit. Br. For-
E 3 55 that mcdon. pi. 6. cite.s 40 E. 3. 35.
the Writ a- .,
bared after the View' for'FaiS ^f^if-TJ-zwiT xr /;if /^''i;7 it'clf, and that in 4') E. 3 \yrit of Co(inaf;e abated
af'cr the Vir-.v, becaufe it arpcarsd upon the Wnx it lelf tli.u VN'iit of Befaicl lay, and not Writ of
Cofinai'c,
Formcdon.
491
Cordage. But tliat in 40 E ;;. ^5, ■:,6. it was held, tliat after the Mew, nothing fhoald abate
the Vv rit, but iL-hat arofe iifirt the Ficw. But it was infiftcd, that tlien it ought to have beeu pleaded, and
that if it appears not on the Record, the Court can take no Notice ot it, t!io' the Writ itlclf, and the Re-
turn of it, be brouglit into Court ; but the greater Part of the JulHce-. thought that the Court miglic
tekc Notice thereof, the \\'\-\<: being returned here, and a Record of thi'; Court, tho' not entered upon
the Roll; and a Kefpondcas Oulicr was awarded, Nifi Caula, &c, 5 Lev. ziy. Trin. I Jac. 2. C. iJi
Dinghurft V. ijatt.
5. Formedon in Defender, the Writ «;<7J, J. N.ga-:e and this ij/imcdiatcly Er. Forme-
to his F.^thir, where ihcTrtnh rjods, that he gai-e to ouelV. jor Life, the Rt- ^"pPl/"--
mariidcr to the Anccjior in -Tail ; by which the lenatit fiid^ that he Nc Daui ^ l \ T" ' ^
pas in the Maii^ur^&ic. -dn^. ih& Deindndant Jhc-ivd the fpecial Matter^ and * Vi/.."of tlic
thut his Father entered ; by which the T'euatit^ oj his * Coniifancej pleaded to Demandant's
the Writ, becatife mention is not made oj the Tenant for Lije; and yet the °^''" Confef-
\\'rit was awarded good; For 'tis laid, that the one Writ and the other e^'^c of hk
is good. Ncverthek-rs Tiiorp laid, that the Writ is belt, if it niaivcs Anceilor^vas
mention ol the Tenant for Lilci but Qusere in Fonnedon in Remainder, bvCaufeofa
ibr there he Ikill llievv ])eed. Kr. Formedon pi. 14. cites 44 E. 3. 8. Remainder.
6. In Formedon, a Fine v\ ich \Varrantv w as pleaded ; and, as to Part, ^^^-^ § ^'^V
the Tenant faid, that he himlelt" was feifed at the Tune of the Fine levied,
and to the reji, he laid Nient Canprife^ &c. Br. Fines pi. 26. cites 46
E. 3. 14.
7. Formedon of a Manor, which the Mother oj the Demandant held in
Piirparty, &c. the Tenant demanded Judgment of the Writ, becaule he
did not jhcjo that other Land "ooas allotted to the other Sijler. Per Markham,
this was a good Exception in a Formedon upon a in/iiunl tenint, but
econtra here, lor he cannot liold inlimul, but with other Lands, which
Newton and Fallon agreed. Br. Formedon. pi. 2. cites 20 * H. 6. 13. * (20 H 6.
8. In Formedon, ine Deicnd.iiKfaid, that aj'ter the Gift, he brought Jf- i5-b.i4. )
fife againjl the Donee, and the Seifiii and Diffajin -was joiind, and he reco-
ver d; Judgment li A&io. And 't*vas held no Plea, unlefs he Hiys, that
the Gijt ^vas mcfne befxeen the Di[!eijin and the Recovery, or lliews how the
Gij't was determined. Br. Formedon. pi. 3. cites 27. H. 6. 8.
9. In Formedon, hi,^ Jeifed is a good Plea, and fo conclude to the Writ,
Judgment of tie Writ, and not Judgment if the Court will take Coniifance.
Br. Formedon. pi. 51. cites 38 H. 6. 18.
10. A IVIan feiled of L;,'.nds in Gavelkind had Ifl'ue three Daughters, A. g j^gp g^
jB. andC. and dcvifed all his Lands to A. in Tail, the Remainder of the one 8-. b. Trin.
halj to B. in Tail, the Remainder of the other half to C. in Tail : And if R. ' J^c. Buck-
dyd without l£~He, the Remainder of her Moiety to C. and her Heirs ; and ij' "^'^'■'^ ^ ^''^''^•
C. died without Iffiic, the Remainder of her A4oiety to B. and her Heirs;
the Devifor died, A. and B. both died : Whether C. in the Remainder
lliould have one Formedon for this Land, or feveral Formedons, was the
Quellion ? It lecmcd to all. That one Formedon lyeth well tor all the
Land ; for that it was by one Self-same-conveyance, tho' the Eftate came
by federal Deaths; the Aclion was brought by the Heir ofC. after the
Death of C. 2 Brownl. 274, 275, 7 Jac. in C. B. Buckmer v. Sawyer.
11. Formedon in the Dej'cender againji A. B. and C. who pleaded Non te-
nure, and upon IlFue thereupon it was _/w/;)^ Ipecially, that A. and B.
were Ltffccs jor Life, Remainder to C. and the Queition was, whether the
three weie Tenants as fuppofed by theW^rit? And the better Opinion was
lor the Demandant ; For the Tenants Jhould have pleaded Several Tenancy,
and then the Demandant might [mull] maintain his Writ. But by this
General Non tenure, it is ftifficiint, if any be Tenant ; and the Praecipe may
be biought againlt one who is not Tenant, as againlt a Mortgagor or
Mortgagee. Brownl. 153, Trin. 14 Jac. Rot. 112. Pit v. Staple.
12. Formedon in Remainder, (vii.) th.'re were ;/?rff A_/?«-j-, the f/c/e/?
had an Ffatt 'Tail of a fourth Fart of 140 Acres in three Fills, the
Remainder to the other two in Fee; the Tenant in Tail married the now De-
fendant, and then they both joined in a Fine fur Cognizance de Droit, (Jc.
unit
492
Formed on.
S. C Cart. c!nd declared the UJl-s to the Hitshand and Wife, and the Hcrrs of the Body of
a39.Tnn.z5 ^j^^ Wife, Remainder in Fee to the Right Heirs of the Husband, with War-
— 241'Mich ^'^"^y <^ig^^f'J^ them and the Heirs of the Wife:, Jhc died afcervvards '■without
25 Cur. 2. C. Ifjne, and the other two Stjiers bring a Formedon in Remainder aiamfi the
B. adjudged Hnsband, who pleaded, as to 100 Jcres, part of the Lands in Demand, Noii
for the fc- (fg^jufe, and that fiich a Perfon was Tenant ; and as to the reji, he pleaded
'^*"^' this Fine with Warranty • as to that Part of the Tenure the Demandant de-
murred, and as to the relt, he made a frivolous Replication; to which the
Tenant demurred; and it was obje£led againlt the Plea oi. Non Tenure,
that the Demandant ihould have let Ibrth in which of the Vills the 100
Acres were ; belides, he v/ho pleads Non Tenure in Abatement ought to
fet forth who was Tenant Die l77ipetrdtionis Brevis Originalis ; but adjudged,
that the Tenant is not obliged to fet forth where thofe Acres lie, to which
he pleads Non Tenure ; neither is he obliged to fet forth who was Tenant
Die Impetrationis Brevis Originalis; For 'tis fufficient to tell the Deman-
dant who was Tenant general!}-, and that he himfelf was not Tenant Die
* Pafcli 2'' i^f'p^trationis, Sc but that W.R. eodem Die, was Tenant, which is certain
Car 2 C B enough. Nelf Abr. 288. Formedon pi 4. cites 1 Mod. 181. * P'owle v.
Doble.
13. In Formedon in Defcender the Tenant, after Imparlance, pleaded Non
Tenure; but upon Demurrer, it was refolved by the whole Court, that it
is not pleadable alter General Imparlance, tho' it was objefted, that Ge-
neral Non Tenure oi the whole is; but Non Tenure ot Part is not. 3
Lev. ^$. Mich. 33 Car. 2. C.B. Barrow v. Hagget. cites 5 E. 3. 2. and
Lutw 840 41 E- 3- 31-
b to 8155 —- ^4- Formedon of the Remainder of Etwall cum Pertin, Sec. ^ dc 35 Mcf-
*Thisibmif- fuagtis, &c. the Tenant defendit jus fuum quando, &c. and * the laid lix
printed, and Mell'uages, Parcel of the laid Tenements m Etwall fuperius petit' are,
^.°"''^ ''^ and Time out of Mind have been, Parcel of the Manor of Etwall afore-
hijuaLj'sIc^^'^^^ 'y whereupon, for that they are -B/j- pfW' the Tenant petit Judicium
' de Brevi ; and upon Demurrer to this Plea, it was adjudged ill, becaufe
the lix Mefluages may be Parcel of the Manor, over and above the thirty-
t Trin. 54 five Melfuages; For the Manor might comprehend fifty Melfuages; \tpci{li
Car. 2. C.B. j^(,iyg ig^n^ ff^at the ftx Mcffuages, Parcel of the thirty-five Mefj'uages, are
Parcel of the Manor, and then they might appear to be Bis petita. Nelf.
Abr. 882. Formedon (D.) pi. 2. cites 3 Lev. 67. f Chetham verfus Sleigi).
Lutw. 9^3. j^_ Formedon in Reverter; the Tenant pleads Non Tenure; the Deman-
°'',','^,' dant replies, and maintains his Writ, that he is Tenant ; and upon Demur-
rer to the Replication, it was infilled for the Tenant, that the Deman-
dant cannot maintain this Writ, for no Damages are to be recovered, be-
caufe upon fuch a Plea of Non Tenure he may enter; which is very true,
if the Plea had been Non Tenure with a Difclaimer, but not Avhere Non
Tenure is pleaded, and no more; For in the lall Cafe, nothing is dil-
owned, but the Freehold, and 'tis probable he may have .-. ReverJion in
Fee ; and if fo, then upon the Plea oi Non Tenure the Demandant can-
*Trin 4W '^o"^ lawfully enter ; but upon fuch a Plea with a Difclaimer he may, be-
fit M. C. B. caufe the Tenant hath declaimed the whole. Nelf Abr. S82. Formedon
(D.) pi. 3. cites 3 Lev, 330. Hunlock v. Petre.
(M. 2) Plea by Tenant. In Bar.
-I. XF the Donee be impleaded and lofes, and recovers in Value upon Voucher.^
X (i"d has Execution, and aliens and dies, or a Stranger abates, Forme-
don lies of the Land recover d in Value ; For it comes in lieu of the Land
which was given in Tail, and the IVrit fiall be General, and if the Tenant
pleads Ne Dona pas, the Demandant f hall reply by the fpecial Matter how other
Land was given in Tail, and loll, and this Land was recover'd in Value,
and conclude, and fo Dona [gave'\, and well, and ye: this Land wxi not
given, but other Land. Br. Formedon. pi. 75. cites old Nat. Br.
£.. la
P'ormedon.
493
2. In Formedon j the T'ahint pleaded Warranty and JJjtts^ the Dcmait- If the Iflfue
dant flciidi'd Runs per Del'ccnt; u" 'tis Jound that he bad ty Defcent^ he in Tail 4//c?;f
Ihall be barr'd of all, notwithlhinding that the Uefcent be not to the Va- 'J-^^''-^^'' fJ-"^
lue, &c. qusre inde. Br. Formedon. pi. 32. cites f 21 R. 3. 10. ^^^o'ft\^Xrjji,T
W'ilby, HiII and Shard. jhail recover
the L/tTid;ht-
caufe tlic Iii]e:il Warranty defcends only to him without Aflets. For neither the Plcadinj^ the Warranty
without the All'iits, nor the Aikts without the Warranty, is any Kar in Formedon in Delcender ; but
had he brcuglu other Fovinedon, he had W.en barred, and * fo had the Tail for ever. Co. Litt. 59;.
b. ♦ S. P. Obiter. Hob. 4c. in Ca<e of Cowpcr v. Andrews. 1 So it is ii all the Editions of
Brook ; but it fliould b.- 21 E. 5. 9. pL iS.
• 3. If 'tenant in 'Tail of a Rent grants it in Fee --jsith IFarranty, and dics^
a;id yijjcts defcend in Fee ; ir the Heir brings Formedon of the Rent, the
Warranty and Aliets (hull be a Bar, but it lie diltrains and does not bring
Formedon, it Ihall be no Bar ; For a Rent cannot be dilcontinued. Br.
Formedon. pi. 65. cites 33 E. 3.
4. In Scire lacias, ConJ/rmation with Warranty to the Tenant for Life of the
Tenant^ and yijjets delcended Iron htm "uuho made the Warranty having Right
tn Tail, is a good Bar to the lliLie in Tail, who brought the Scire iacias,
to execute the Remainder in Teil by Fine. Br. Formedon. pi. 12. cites
43 E. 3. 9.
5. It a Afan gives Land in Tail, and -warrants the Land to him his
Heirs and y>Jpgns ^ and he aliens, and dies without IJJiie, the Donor fhall
be barr'd in Formedon in Re\erter by this Warranty. Br. Formedon pi.
15. cites 46 E. 3. 4
6. In Formedon, the Tenant pleaded a Feoffment of the Grandfather of
the Demandant, ^^•hole Keir he is, "with Warranty, Judgment, &c the
Demandant fud,^ that the fame Grandfather gave in Tail to his Father, and
entered upon him, and made the Feoffment ^vith Warranty immediately, lo
that the WaT^nmy ccm:nenced by DiJJetJin, Judgment, ike. by which the
Tenant took other Iliue; and lo lee that collateral Warranty, which com-
mences by Dilieilin, does not bind. Br. Formedon. pi. 16. cites 49 E. 3, 6.
7. In Formedon, the Tenant pleaded tn Bar, that the Grandmother of
the Demandant was feifed in Fee, and took to Baron f. N. and had Iffiie K.
Mother of the Demandant, and the laid J. N, gave tn Tail to the faid E.
and her Barcn, and after J. N. and his Feme died, and the Baron of E. died
aitdjbefitrvived and enfeoff d the Tenant, Judgment, &:c. and a good Plea
to bar the Tail by the belt Opinion ^ For the faid E. was remitted to the
FeeSiviple, which voids the Tail. Br. Formedon. pi. 63. cites 11 H. 4. 50.
8. Formedon in Reverter upon aGift in Tail to the Baron and Feme, who
died without Ijjue ; the Tenant faid, that the Donor enfeoffed the Donees in
Fee, & non allocatur, without rraz'tr/zV/^ the Gift in Tail ^ For 'tis only
Argument, &c. Br. Formedon, pi. i. cites 2 H. 6. 15.
9. Wlerejore he faid, that ajter the Gift the Donor enfeoff d them in
i Fee, & non allocatur, without /^jv;;^ that the Donor was Jtifed in Fee after
the Gilt, and fo fetfed enfeoff d the Donees j Quod Nota; and lo he did,
and the Demandant imparled. Br. Formedon, pi. i. cites 2 H. 6. 15.
10. It was doubted, whether "judgment final againji Tenant in Tail after
the Mife joined fhall be a Bar in Formedon ? Wheretore they took Advile-
ment. Br. Formedon, pi. 56. cites 3 H. 6. 55.
11. In Formedon, the Tenant pleaded a Deed of the Father of the De- But 'twzsad-
inandant, with Warranty and yffets defended m Fee by the fame Father ; "^"^Iv ^'^^^
the Demandant demanded Oyer of the Deed, and had it, and it appeared that ^ and AfTets
'twas an Exchange, and tnat the Father had Land in Exchange for the defcended is
Land tail'd, and died feifed thereof, after whole Death, the Demandant did not a Bar, as
wof ^^jw to the Exchange, nor occupied it, but utterly dilagreed to the ^J''^" ?f j." **-
lame, Abfque hoc, that /■« had other Land defcended to him iy the fame ^^^ ^^ ^^jf^
Anceflor, and demanded Judgment, &c. and held a good Plea in Avoid- Cafes,theDef-
ance of the Warranty, and yet heconteiled the Warranty, and the Def- cent cnly with-
cent in Fee Simple. Br. Formedon pi. 40. cites 14 H. 6. 3. ""' ^"^'^y '-*
6 K. fuffcient
494- Formed on.
ftifiiient to bar the Don ar.daiit , if lie does i)ot enter ir.to the Land cxc^ianged, becaule he has brought
tlic Adtiun of Formedon ; contrary, it feems, if he had eiiter'd and taken --IJftfc, as he might ; for an
Exchange is no Difcontinuance. Br. Formedon, pi. 40. cite': 14 H. 6. 5
Lineal Warranty and AiVets dcfccnded, is a good Plea in P'ormedon in the Defcender ; but if there
be no Warranty, the Heir will not be barred. Litt. S. 749.
12. If a Man bring Formedon, andi t\\e7'en ant pleads Warranty and A f-
fets (tefceitded t» Fee, by which the Demandant is barr'd, and after the Af-
fcts is recover d from hnii by elder T'ltle, he lliall ha\ e another Formedon,
and the firft Judgment Ihall not be a Ear^ For 'twas no Bar, but for a
^ime, per Markham. Quod nullus negavit. Br. Formedon, pi. 34. cites
19 H. 6. 37.
13. In Formedon of the Gift of J. the Demandant is noufnited ; he may
have other Fonnedcn oj the Gtjt of IV. and the firll Recovery no Eltoppel.
Br. Eltoppel, pi. 162. cites 5 K ^. 7, 8. and 7 E. 4. 19, 20.
TheotherE- 14. Formedon in Defcender of a Gift to theFatherand Mother-^ the 'Tenant
ditionsare(9) [aid, that before the Donor had any 'Thing he hnnfelf "was fetfed in Fee, and,
andthelall )x\n2, Within Age, enfeoff d the DoHor iH Fee, who was leifed and gave ut
Year Book Is ^^P^a, and after, the lenant within Age reenter d, and fo isfetfid in Fee in
Fol. S. but it hts Remitter. Br. Formedon, pi. 45. cites 5 E. 4. * 19.
is in the long
Quinto, &c. of E. 4. Pag 9. and there the Demandant maintain'd the Gift, &c Abfque hoc, that the
Tenant enfeofted th.e Donor, and the (.^ueftion was, if the Traverfe fhould be of the FeoflFment or of
Seilin fupiioledin the Tenant within Age. And there, Pag. 12. it is fliid, that it feems, that the Sub-
ftancc of the Bar is the Feoffment by the Ten.ant himfelf, during his Nonage, againll which the De-
mandant had maintain'd the Gift, and traverfed the Feoffment over, which as it feems fuffices in Avoid-
ance of the Bar, &c.
15. \\^here the IJfiie in Tail enters upon the Difcontini/ee, and another
ottjis him, he fhall not have Formedon unlefs the Difcontinitee enters. And
in this Cafe, in pleading, the Tenant /hall net fay that the Heir after the
Death of hts Anceflor in Tail, entered, andwasfei/ldm Tail, but it fuffices
to fxv, that he entered, and was fetfed, after the Death of the Father. Br.
Formedon, pi. 47. cites 7 E. 4. 19.
Eut Brook 16. In Formedon, the Tenant f aid that after the Gijt the Demandant and
makes a ^^^ others Were thereof fetfed, and enfeoff edW. S. whofe Fflatc the Ttnant
tlus^and°fays ^^-^j Judgment Si Aftio; and per Brian and Cat. J. // the Feoffment was
'tis a new ' made by the Demandant tn the Ltfe of his Father without Jiarranty by
Right de- Dedi, or other Warranty, it fhall not be a Bar in Formedon, no more
^r"v'^ "a'"' ^^^^ ^ Releafe in the lite of the Anceilor without U'arranty. But Trem.
pl"^ <o^^B^t J- contra, and that the Feoftincnt without Warranty Ihall be a Bar againlt
per Cat. the the Feoffor. Br. Formedon. pi. 50. cites 21. E. 4. 81.
Plea is good,
becaufe tt Ihall be intended to be after the Death of the Jnce^or; For if 'twas in the Life of the Anceftor,
he held it otherwife. But Brook makes a quxrc thereof tor 'twas not pleaded whether 'twas in the Life
of the Anceftor, or after. Br. Formdon, pi. 50. cites 21 E. 4. Si.
17. In Formedon, the Tenant may plead, that a Stranger has recovered
againji him by fuch Writ, by Elder Title, by Confejjion of the Tenant, and
the E/late of the now Dejnandant tnefne between the Title of him wbo re-
covered, and the Judgment, 3tie F.Jlate of the Recoveror the now Tenant has,
and if he recovers by Formedon in Deicender, he ought to aver that he
is yet alive. Br. Judgment, pi. 151. cites $ H. 7. 40.
18. A Barm one Formedon in Defcender is a good Bar in any other For-
medon in Defcender to be brought afterwards upon the fame Gift. Co.
Litr. 393. b. _
19. In a Formedon in the Dilcender brought by A. B. and C. of Lands in
Gavel-kmd, the Warranty of their Anceflor was pleaded in Bar againlt them ;
upon which they were at Iffue, tf A[Jets by dtfcent ? it was found by Ver-
dift, that the Father of the Demandants was fetfed in Fee, being of the
Nature of Gavelkind, and devifed the fame to the Demandants, being his
Heir by the Cujlotn, and to their Heirs equally to be divided amonglt them ;
4nd it the Demandants Ihall be accounted in of the Lands by dilcent, or
devile
Formedon.
495
dcvife, was the QuelHon ? ic was the Opinion of the Court, that they
Ihould be in by the Deviie j For they are now Joyntenants, and the Sur-
vivor lliall have the \\ hole ; whereas if the Lands Ihail be holden in Law
to have Delcended, they ihouJd be Parceners, and 16, as it were, I'enants
in Common ^ and fo by the Opinion of the Court, the Warranty pleaded
with Aliets w;is no bar. Hughes's Abr. 966. pi. 4. cites Pafch. 30 Eliz.
in C. B. Leon. 113. Bear's Cafe.
20. Land was given to H:tsba>id aud lilfe, end to the Heirs of their tuoo Hughes's
Bodies begotten ; the Husband made a Feojfiiient in Fee, and died, leaving Abr.<,65. pJ.
T^OT ^? .iw/ of that Marriage i the Wife dud without making any Entry. '3-ciKiS.u
Adjudged, that this Feoftuient by the Liusband made a Diicontinuance of
the' tlhitetail, which might have been purged by the Entry of his Mo-
ther ^ but now it cannot be done after her Death, therefore his Entry
canned be lawful; becaufe he mull claim as Heir ot their two Bodies; anH
he is prevented by the Feotfinent to inherit as Heir to his Father; and if
he Ihould bring a Formedon in DeJcender, it mult he, tor that the Donor
ga\e the Lands to the Husband and Wife, & hxredibus de corporibus
eorum, the Husband and W if-, exeuntibus, & qus poll mortem prsediiSt'
the Husband and Wife profit' B. G. filio & hacredi ipforum, the Husband
and Wile, defcendcre debent per ibrmam doni, which cannot be in this
Cale, becaufe by the Feoftrnent he cannot inherit as Heir to his Father, ♦Pafch.-Tac.
Kels. Abr. Formedon (A) 878. pi. 6. cites 8 Rep. 71. * Greenlv's Cafe.
21. A. made a Feqffmtnt to the Ufe of himfelf jor Lifc^ Remainder to
B. tn Tail ; A. died., B. had IJjiie a Son and 2 Daughters ; B. and his Son
pin in a Fecffiuent icith Warranty and die without ijfiie. fhe Daughters
bring a Formedon ; tlie Tenant pleaded this as a collateral Warranty,
where in Truth it was Lineal, and it was held naught ; becaulethe V\ a'r-
ranty was Lineal. Brovvnl. 1J3. Trin. i6jac. Rot. 62. Bilhopv. Coilen.
(N) Pleadings in Abatement, or Bar by ConfefTing and
Avoiding.
I. TT^Ormedon of the Gift of R. the Tenant [aid, that A. leafed to R.for
Jf/ -t'/^, """^'ho gave^ by which be entered fur the Alienation.^ ivhich F.Jfate
the Tenant has Judgment, &c. the Demandant faid.^ that after this R. was
fcifed m Fee andga-ve; and no Plea, wixhowt pewing how he came by it after ^
by which hefaid, that after the Death of A. T. was feifed and infeoff'dR.
who gave^ &c. and the Demandant faid that R. had nothing of the FeolT-
ment^of T. prill; and the others econtra. Br. Confeis and Avoid, pi. 1 1.
cites 3 H. 4. 17.
(O) Pleadings. In what Cafes there muft be Profert, or
Monftrans of Deeds.
I. TJ'Ojvot,
X' Dee
■niedon in Remainder ; the Defendant muft Ihew Deed, and yet the Br. Formdon
.-ed is not traverfable. Br. Monftrans, pi. 48. cites 21 E. 3. 49. pi;? ckw
ibid. pi. 14. cites 44 E. 5. S Br. Monftrans, pi. 22. cites 45 E. 5. 28 S. P. and yet he fliall
not Count bv the Deed, quod nota inde bene, per Brian, in a Kote. Br. Monftrans, pi. 110. cites 9 H. 7,
15 S.P. F. N. B. 219. (C)
2. But he need ;;cf, till it be demanded by the Party, per Finche. Br,
Monftrans, pi. 15. cites 41 E. 3. 23.
3. Formedon of a Rent-charge againft Tertenant, who faid that the Land
is Hors de fon Fee, Judgment, if without Specialty, «Scc. & non Alloca-
tur, but was comoelled to anfvver. And there 'twas agreed that, where the
Rent
496
P'ormer Action
• S. p. ret Rent had its Iccninmicement lefore tke Gtft, he might fay, that fuch a
Marten, but one was feifed and gave, witftout Ihewing Specialty ^ contra^ if the Rent
Br^Mon-"^ ioniviienctd by this Gtit.^ and this was the 6pinii>n in ancient Time. But it
ftrans, pi, 2. was agreed, that at this Day all is oiie^ and that he need not Ihew Special-
cites 2 H. 6. tv in the one Cafe, nor in the other; For if the Anceltor imbezels, or
H- * burns the Deed, the Heir fliall not be without Remedy, and therefore
was compelled to anfwer without Ihewing Specialty, quod nota. Br.
Monllrans, pi. 21. cites 45 E. 3. 14, 15.
BrNuguion. ^ \^ Formedon /;/ Dcjleitder, which is always executed, a Man need
C-lbkl'uK '"^^ ^'-"■^ ^'^'^^- ^^- Monllrans, pi. 34. cites 11 H. 4. 39.
10. cites S. C Ev. Formdon, pi. 25. cites S. C.
Formahnin _j. If a Gift iii 'Tail be by the King by his Letters Patents which is exe-
DefieK^er up- ^ ^^^^.^ ^ ygj- j-fig j-j(.{|- ijj^u ^ot havc Fotmedon againft the Letters Patents,
Kinf E,2.and P*-'^ Marcen, clearly. Br. Monllrans, pi. 2. cites 2 H. 6. 14.
counted ot
the Gift of the Land hy Letters Patents, Sec. and per Brian and the bed Opinion, he mud fhew the Let-
ters Patents, .notvvithiUnding that the Giji was executed, and after the Defendant fliewed the Letters
Patents, therefore Brook fays, Q^ixre legem. Br. Monllrans, pi. 112. cites 12H. ;. 11.
6. In Formedon in Remainder, the Tenant demanded Oyer of the Deed,
and tht Demandant "xoiild not Jhew Deed :, the Tenant Ihall go * line die;
*P"S- [a and yet if the Tenant had anf vvered without challenging the Deed, it had
^ been good. Br. Formdon, pi. 42. cites 38 H. 6. 19.
* S P. Br. 7. Tho' IJfae in Tail be of a Gift of Rent in Tail, &:c. which can't pafs
Taile and but by Deed, yet ;/ the Gift be executed , the * Heir in Tail lliall have
Dones,pl. 26. fQ).„i^Jofi without ihewing Deed ; For he is aided by the Statute of M'''. 2. cap.
?apetl<.ebie ^- ^^ ^^^ ^^^^'^ ^^ burnt or loll, per Littleton, Choke and Brian J. Br.
and Fairfax ; Monllrans, pi. 60. cites 15 E. 4. 16.
For the Fcr-
wf<4)« is in thi^ Right.
8. So where it is by way of Defence. Ibid.
S. P. Br. 9. Note that the Deed of Tail belongs te the Heir in Tail, and if the
Monftrans, father breaks it, yet the Heir Ihall have Formedon, tho' it be of * Rent
^' H - T" without fl-ievving of the Deed ; For Formedon is in the Right, hnt contra of
perVa'vifour. ^vo'xry or JJJife for this is in the Poffc£ion. Br. Formedon, pi. 44. cites
_* s. P. Br. 4 H. 7. 10.
Formtdon,
pi. 52. cites 12 H. 7. II. But Brook makes a Quaere of it.
PLC 57.2. 10. Leafe for Life Remainder in Tail; Tenant for Life dies ; Remain-
P. per der-man enters and dies ; his Itllie ihall have Formedon and declare on an
Mountague jrr,,yie(;ji.^^t:e Gift, and not fliew the Deed of it; but otherwife if 'twas to
becaufla^H ' execute it, per Hales J. PI. C. 52. in Cafe of VV'imbilh v. Talbois. cites
paffesatone 18 H. 8. 4. Br. Monltrans i.
time and by
one Livery. But if 'twas by Grant of Reverfion, tliere tho' he was once feifed, yet it fhould be
otherwife ; For in tlie 20 lib. Aff. placito ultimo the Difference is taken between Remainder and Reverjlon
PLC. 5 J. b. PLC. 149.
Former A61:ion.
(A) Pleadings. Good Plea, in what Cafes in general to
the bringing; a New Action.
1. f I 1 H E bringing of a quod permittat by the Ancellor, is no Eltoppel
I to the Heir to bring AJ/ife of the fame Common. Br. Elloppel, pi.
188. cites 15 Ali: 3.
2. In Afjife by A and B. the Tenant demanded Judgment of the Writ ;
i'orat anoth.r t me A. B. andC. brought Ajjife, md appeared and made Plaint,
and
Former Action. ^1.97
and this ianie Land was put in Vwjj^ and agctirtjt this 'Tciuint^ and ivhich C.
is ytt alrjc not naitied ; 6c non allocatur; For if the firlt Writ was ill
brought, it is Rearoa that this Writ may be well brought, and alio ic
may be that they entered, and C. relcaied to A. and B. and aliier thev are
dilieilcd, and brought the Alfire,by which thcW'rit was awarded good; and
it appeared that in tbef.yfi Writ they -jccre Nonfmtcd. £r. Briel, pi. 301.
cites 31 Alii 14..
3. it" a Man be barred in 'Tnfpafs, ytK. he may ha\'e jJppca! cf Robbery ;
quod nota. Br. Elloppel, pi. 217. cites 2 R. 3. 14.
4. A Bar in 2. former Jdio/i ivr(>r:_ly hrvat^ht is not any bar in an Aft ion Tho'oncc 3
rightly brought; as where one deli\ers Goods, and brings '/rcfpafs againlt Bur in drei-
the Bailee for thole Goods, and he is barred by "Verdicl, or Deir.urrer, yet fi"''! -f^^'"'' '*
he may bring Dctiium or ylccoiiut. Cro. E. 668. Palch. 41 Eliz. C. B. Ltual'dwc
Ferrers v. Arden. is to be uu-
cl:i-lFood
when it is a Bay to the Riglt. Rut where an Executor brought Debt on Bond as Adminiftrator, he not
knowing that he was Evecutor, and had taken Admir-illration, by which the Action abated; this was
onlv a Alifconceivwg his .^Rioii, and is no Bar in a new AtHon brought by him as Executor. C-o. ]. i j.
Robinfbn v. Robinfon. See 5 P.cp ^2. b. :;;. Robin'bn's Cafe. 6 Rep. 7. a Ferrer's Cafe. —
The meaning of Ferrer's Cali is tliat it is ji Baf/jc thef.ime lii'di-jidiial Ihwg, per Holt Ch. J. Comb. 167.
5. But where a 7'itk is pleaded in Bar to a Thing demanded, and, by
Reafon thereof, the Plaintitf is barred upon Demurrer, cr Fcrdiif, the In-
tereft thereby is bound, and the Plaintiff barred from bringing a New
A6lion, per W'almlley J. Cro. E. 66S. Pafch. 41 Eliz. C. B. Ferrers v.
Arden.
6. yf. brought 7'refpafs dgainji B. for digging and carrying away Turf This Cafe is
and Stones; B. pleaded' a Prefcription, and upon Ifiue joined, a 'VerdiB Reported
was for B. Afterw ards J. and J. S. bring 7'refpafs againji B. and declare for S'i'"^". ?•'. ^
digging and carrying away Turf and Stones ; B. pleads that he was feiied tiiat as to\hc
ot a Mefuage or Tenement there, and lb juftitied by a Prefcription ; Matter in
Plaintiits in their Replication traverfed the Prefcription, and the Defendant Law,(vi^..)
rejoined b)^ way of Elloppel, that A. fuch a 7'erra brought Tnfpafs againft ^j^'^ Eftoppel
the Defendant, -joherem Dejendant pleaded the fame Prefcription, and upon ^^^ ^^ q j_
Ifite joined thereupon, it was found by Ferdiiffor Defendant, and the Record nion ; but
was fet torth in certain, and averred, that it was the fa?!/e Tfitle, and that Judgment
this A. and the A. in the other Aftion, are the fame Perlbn,and lb conclud- Y'-'^^f^'' De-
ed by way of Eltoppel by the Verdia. Mich, i \\. &M. B. R. Incledon InwherPoint
V. Burges. in Pleading.
• Show.
8,7. S.C. Reports that the Court gave no Opinion as to the Efto'ppel, bat only fiid, that an Eftoppel up-
cin a Verdi>it goes agreat way ; and that liTue in Tail fliall never falfify it;citcs i Cro. 525. but if one Man
is (Jlopped, and he joins another nvitb him ; whether this Ihall avoid the Eftoppel Ls a Quasre. Comb. 166.
S.C. Reports tliat it bemg infilled by the Defendant's Counfel, that as to the Matter in Law, wherein
perfbnal Actions the Perfon is 6nce barred by Verdict, he is for ever concluded, and cited 6 Rep. 7.
Ferrers "s Cafe, to which Holt Ch. J. anfwered, that the Meaning of Ferrer's Cafe is, that it is a Bap
ftr the fame individual T'hin!!; but here is a iieiv Caufe of ABion. I5 E. 4. 2, 5, 4. there one Trefpafs is a
Bar to another by way of Elloppel, but that x-sfor taking a I'Ulain, but that is grounded, perhaps, on the
Reafon of the Favour of Liberty. 7 H 6. 8. In Trcfpal's on an Ijfue, whether fuch a one dtedfeifed, a r'er~
dicl was a Bar to another Action of Trefpafs by- way of EftoppcL becaufc there IlTue was joined on a
Matter in the Re/ihy. Dolben J. faid Ferrer's Cafe is not like this; For here is a new Caufe of Aftion, %
new Trcfpals; but in Ferrer's Cafe, 'twas another Action for the fame Trefpafs, and the Court was en-
tirely againft what was (aid by the Defendant's Cotinfel.
7. Action fur Cafe for erecting of a Nufance 20 February ; the Defen-
dant pleaded a Prior A£tion,brought forerettinga Nulance 20 die Martii,
and a Reco\ ery thereupon, and avers thefe to be the fame Nufance and
Ere£tion. The Plaintiff demurred and Judgment againll him ; For he
may have an Action for continuing of the fame Nufance, but can never have
a new A£i:ion Ibr xh& fame Kredion, 1 Salk. 10. Mich. 10 VV". 3. B. R.
johnfon V. Long
• r>
S. Where a Record of the fame Court is pleaded in Abatement, and the Caith. 51-.
Plaintiff demands Oyer oi the Record, and 'tis not given him in conveni- , ,! V X^.;.
cut Time, the Plea, ought not to be received, but the Plaintiff may Sign
mcr
L lus \\l;kcct.
49B
Former Aclion.
his Judgment i itiid the Rule was, that uiilels :he Detendant gave Oyer
oi tiic Record tlicnext D.i\-, Judgment ihould be tor the Plaintirf' Girth.
454. Trill. 10 VV. 3. B. R. 1 heoD.dd v. Long.
9. Nczo confeqtieiitial Damages ihall not gne a new Aftion in AJjattk
Battery and Maihem after a tbrmer Recovery had. 1 Salk. 11. Trin 13
\\. 3.B. I'L Fetter v. Bcaie.
10. I'he PlaintiiF counted tipn ftvcral Prcmifes for Work and Labour in
the Parilli ot' St Mary le Bow, London; the De;endarn pkaded in Abate-
ment, that before this Action brought thL- PlaiHtijf' had Libelled in tlx
Alviiralty for tkcfimeCaHfe of Mi ton. Upon ])emurrer it was inliftcd for
the Plaintiil^ that this was within the Rule of g)parriC"0 Cafe, j Rep,
62. that a Priority of Suit, in an Inferiour Court, is no Plea to an Aftion
brought in any ot' the Courts at Weltniinller, and the whole Court ga\e
Judgment againll the Defendant, quod relpondeat culler. Gibb. 313,
3 14. 5 Geo. 2. C. B. Dudtield v. Warden.
(B) Pleadings. Varying the Places in which, &c. from
what they were alleged to be in the former Action.
I. ASSISEo/" Lands in Ad. the 'tenant fa'id that at another Time the
x\_ Platntijf' brought Jiffife in 7! a}id the fame Land put in View which
is now put in View, fup-pofing it in 7'. Judgment of the Writ which now
fuppoies it in M. and becaule he did not deny but that M. and T. are di-
verle Vills, nor alleged Judgment to be given in the firll: AlFife, nor did
he allege in Fati: that the Land is in T. therefore the Plea was not allow-
ed i and fo it feems here, that Record is no Effoppel^ unlefs Judgment was
given in that Writ., quod nota. Br. Eiloppel, pi. 137. cites 30 AIT 32.
2. -^Jjife., the Defendant faid that at another time the Plaintiff brought
Cut in Vita of the fame Lands againji J. S. which Eflate this Tenant has.^
Judgment if a Writ of a bale Nature may be brought ; the Plaintiff faid
that the fame J. S. di [claimed in the Cui in Vita, by which the now Plaintiff'
entred, and was feifed till by the Defendant dijjeifed, and good Maintenance
of the Writ. Br. Maintenance dc Brief^ pi. 32. cites 33 Alf 5.
Br. Peremp-
tory, pi. 8
cites
And
awar
that the
PlaintuV Ca-
piatur.
(C) Pleadings ; Agninft the fame Parties, with a different
Charge, as chargmg the one as Principal, and the
other as Accellbry, and after Vice Verla.
his Writ. Br. Eiloppel, pi. 143. cites 40
Former
499
Former Suit.
(A) Former Suit in Equity. In what Cales it Is a good
Flea.
I. ' B 'HE Defendant pleads, that the Plaintiff brought a former Suit
JL for the fanie Matters^ ■xhtch Suit is full depending jcr ought he
hmvs to the contrary. It was inlilted for the Plaintifi, that this Plea
was not good, becaufe he does not politivelv aver, that the former Suit
is Itill depending j and no Iffue can betaken upon his Knowledge to the
contrary. But the Mailer of the Rolls allowed the Flea, becaufe the De-
fendant [Plaintiff] ought not to have fet it do^.vn to be argued ; for by
that he admits that the former Suit is depending j but the Plea ought to
have been referred to a Mailer, to examine whether there was a former
Suit depending for the fame Matter, or not; and faid, that there needs
no poJitive Averment, that the former Suit is lliil depending, for that is
examinable bv the Mailer; and the Defendant ;7(?v'6r fs'ears a Plea of a
former Suit depending., but it is always put in without Oath. Vern. 332.
Trin. 1685. Urlin v
2. The general Rule is, that the Party fhall not be twice vexed tor the
fiime Caufe of Action ; but then it mull appear, that the Court firfl pof-
feffed of the Caufe had Jurifdiffion^ and nothing fliall be intended to be
within the Jurifdiclion of an inferior Court, but what is averred fo to
be. per E>re, Ch. J. Trin. 5 Geo. 2. Gibb. 3 14. in Cafe of Dudfield v.
Warden.
Fractions.
(A)
I. rr^PIE Law will divide the Operations of Acfs done, and place one he-
J_ j ore another, though done at one, or feveral times ; as if Tenant
for Years makes Leafe for Life, &c. the Law lays, that Leflee was
feifed in Fee, and demiled for Life, yet before he made the Leafe for
Life, he was not feifed in Fee, but by making it he became feifed in
Fee, and gained the Reverlion to him, for fo long as the Leafe Ihall
continue; So if A. conveys a Manor by Feofiment, now the Manor
does not pafs, and yet by Attornment of the Tenants it pafles in
fbme Refpefts from the time of the Feoffment, and fo as to palling the
Manor, the Attornment fhail relate to other time than that in which it
was made ; i^o that in fbme Cafe, the Law makes a thing done after an-
other Aft, as if it had been done before, and other A6b done at one
Time, as done at feveral, and Joint Acts as feveral. And. 301. in Cafe
of Matthew v. Johnfon and Taylor.
2. X)civyf was allowed to workbyFraclions. See Devife,( ) Nurfe
V. Yarmyuth.
(B) As
5oo
Fractions.
*
al^P^r' (B) As to*Eftates.
*iRep. S-. I. ''T^HE Law* loves ;/of Fractions of Eftatcs, nor to divide and mul-
Corbst's ' J^ tiplv Tenures ; and therefore Jointenaiicies were fivoured, per
'^^If-T^'Hok, Ch. [.' I Salk 392. Hill. 12. W. 3. B. R. in Cafe of Filher v.
men, if-c. ' ' 'So-
there may
be, but not as to Land ; yet one Parcener, by Feoffment, may enioy the Land one part of the Years
and the other the other Part, becaufe, 'tis only at to PoffeJJicn, or tiking the Profits, but is
not Severance of the Inheritance; per Walmfley. J. 1 P.ep. Sv Palch. 41 tliz. C. B. la Corbet's
(Jafe.— — Wms'sRep. 21. per Holt.
2. A[f of Parliament may make Divifion of Eftatcs. i Rep. 137. Hill.
31 Eliz,. in Chudley's Cafe.
See I Rep. 3- ''Seigniory, or Rent^ cannot ht fufpended in RetPiaiHikr, and in Efle
45.b. in Al- for a particular Eftate in Poflelfion, for then will cnfue Fniftion of Ef-
tonwood's tares, and particular Eftates will be created without Donors or Lellbrs
^^^^' againft the Rules and Maxims of the Law. 9 Rep. 134. b. Mich. 9 Jac.
in the Court ot Wards, in Afcough's Cafe. ^
^^"'^ ?;'^Tper ^ -^^^ ^.^^ j.j^gy ^g fufpended toT part,- and in Elle for part, in refpeff
cont^astothe rf ^^^^ ^^"^^ °".^ of which it is iiluing. 9 Rep. 134. b. in Afcough's
Rent; For Cafe.
•where the ^ . .
LeiTor does not enter wrongfully, there can be noSnfpcnfion of Extingainiraent ; and there can beno
Apportionment z^ainfc ihe Jgreernerit of the fartiej. Mich. 27. Car. 2. ii. R. Hodgkins v. Robfon and
Thornborough. 2 Lev. 143 S. C.
5. Where the Copyholder has the Nomination of his Succejfor^ Coke,
Ch. J. conceived, he cannot nominate part to one, and part to another,
nor divide it into Fra£lions. 2 Brownl. 199. Trin. 10 jac. C. B. Rowles
V. Mafon.
Mo. 894. 6. Advowfon is an Hereditament Incorporeal^ and may be divided by
Mich._i6 Fraftion, fo as one Ihall have the Nomination, and another the Prefenta-
jac^C. B. S. jJqj^ ^ ^j^(j j.}^g Nomination may be appendant to a Manor to one, and the
Shirley T. Prefentation in Common to the other, per Hutton, J. Jo. 25. Hill. 20
Underhill Jac. C. B. cites Sir George Shirley's Cafe,
and Burfey.
This ought Y. £/?^ff J fhall »of /i^/Ji ^_)' Fractions. Arg. 2 iNfod. 113. in Cafe of Pi-
to be under- „q^ ^ ^^g £arl of Salisbury.
flood, if ° , r , ^
there be no Inconvenience the other way,- but frequently to avoid a Tort, or an Inawvenienfe,the
Judges have interpreted Eftates to pafs by Fractions. Are. 2. Jo. 69. Hill. 2^. Car. 2. B. R. S. C.
cites 12 E. 4. 4. Co. Lit. 42. z6 H. 8. 13. Roll Eftate 854. Clanrickard's Cafe. i Rep. -6. Bredon's
Cafe.
(C) As to Time.
J. A N ACi (^Record will not admit any Divifion of a Day, but is
jif\_ to be faid done the firll Inltant of the Day, Arg. and Judgment,
accordingly. Pafch. 23 Eliz. Mo. 137, in Shelly's Cafe.
Hard. 24. S. 2. Ifthe King's Tenant pays his Rent upon the Day, the King's Succef-
C cited. for fliall have it paid over again ^ tho' othervvife it is in Cafe of a
common Perfon. Mich. 11 Jac. 10 Rep. 127, b. cites 44 E. 3. 3. b.
3. AJfnmp/it, to pay 40/. by 55. per Month j where a Man brings an
Aftion for breach, on the firft Day, it is beft to count of the Da-
mages for the entire Debt ; tor he cannot ha\e a new Action ; But
te mult not declare that the 40 1. is not paid, nor any part of it; For
the
Fraight. 501
the 40 1. is not yec due. Cro. J. 505. Mich. 16 Jac. B. R. Eeckwith v,
Note.
4. In Prefumption of Law, when a thing is to be dene upon one
Day, all that Day is allowed to do it in for the avoiding of Fraftions
in Time, which the Law admits not otj but in Cafe ot Necellity. Per
Roll. Ch. J. Sti. 119. Trin. 24 Car. B. R. in Cale ot COmlfi) ^* ConflC,
cites H. 14 Jac. More v. Mui^rave.
5. If a Bijhop colL'.tis the janie Day that he dies^ his Succeflbr fhall
prefent. Arg. Hard. 24.
6. Infurance for H's Lite; H. died on the lad Day. Per Holt, Ch. J.
The Law makes no Fraclion in a Day, yet, in this Cafe, he dying al-
ter the Commencement, and before the end of the lull Day, the Infurer
is liable, becaufe the Injlirancc is jcr a Tear^ and the Year is not corn-
pleat till the Day be over; yet, ifA.be tvrn on the 3d Day o!l Sep-
tember, and on the 2d Day of September, 21 Years afterwards, he
makes his Will, this is a good Will; For the Law will make no Frac-
tion of a Day, and by Confequcnce he was of Age. 2 Salk. 625. I'rin.
II W. 3. B. R. at Guildhall, per Holt, Ch. J. in Sir Robert Howard's
Calb.
Fraight.
(A) Fraight. How much. In what Cafes.
I. T"^ THERE a Sh\^ goes frcttt one Port to another^ and there unloads,
y Y and then guis over to another Place, but in her Paflage, before
her fecond Unloading, ts lofi, the Owner ftiall not recover for Freight,
but from the time of the Loading to the Unloading, and nothing for
the fecond Loading ; For if a Ship be loft befbre her Unloading, no
Freight fliall be paid, but every one mull bear his Part of the Lofs ;
and this is the rcafbn that Mariners lofe their Wages in fuch Cafes.
Sid. 236 Hill. 16 & 17 Car. 2. B. R. Anon.
z. 11 a Merchant put tn more Goods than ivcre conditioned, in fuch Cafe Molloy 258.
the Mailer may take 'tubat Fraight he fleafe. Mai. Lex. .Merc. 99.
3. If a Ship be traighted by the Great, Pofito 200 Tons, for the Sum of ^^o"°y -^°-
600 1. to be paid at the Return ; the faid Sum of 600 1. is to be paid, al-
tho' the Ship were not of that Burthen. Mai. Lex Merc. 100.
4. If the like Ship oi 200- Tons be fraight, and the Sum is not (either Molloy 257.
by the Great or Ton) exprejjed ; then fuch Fraight as is accuftomed to be
paid in the like Voyage is due, and ought to be paid accordingly.
Mai. Lex. Merc. 100.
5. If the li-te Ship of 200 Tons be fraighted by the Ton, and full la- Molloy z^6.
den, according to their Charter- Party, then Fraight is to be paid tor every
Ton j otherwife but for fo many Ton as the Lading in the fame was.
Mai. Lex. Merc. 100.
6. Ifthe Ship of 2co Tons be fraighted, and named to leof thatBurtheri Molloy 157.
in their Co-venant, and, being fraighted by the Ton, fliall be found to be
lifs in bigneis, there is no more due to be paid than by the Ton, for
fo many as the fame did carry and brought in Goods. Mal. Lex.
Merc. 1 00.
7. If the like Ship be fraighted for 200 Tons, cr tkcrealouts, this MoUoy zy^.
Addition (or thtrealoiits') is within 5 Tons comm.only taken and under-
6 M ' ftood
£^02 Fraight.
flood, as the Moiety of the Number lo, whereof the whole Number
is compiumded. JM.il. Lex. Aierc. loo.
^ 8. 11 thii ]ik.c Ship be fniighced ly tke Great^ and the Burthen of it is
Iiloiloy 15 ^^, exprcfled in the Contract, yet the Sum agreed upon is to be paid, with-
out unv Caviljation. JVlal, Lex. Merc. loo.
9. If Fraight be agreed upoix for the Commodities laden, or to be la-
den, tor a certain Price for every Pack, Barrel, Butt, and Pipe, &.c.
"Without any Regard hadto the Burthen cf the Ship, but to give her the
full Lading : No Man maketh Doubt, but that the lame is to be per-
tbrmed accordingly. Mai. Lex. Merc. 100.
But \f the iQ If Fraight be contrailed/or the Lading of certain Cattle, or the
traight be jjj^^^ from Dublin to Welt-cheller, if fame ot them happen to die before
f^the tlanf- ^^'■'^ Ship's Jrrival at W'ell^cheiler, the whole Fraight is become due,
forOxg them, as wcll for the Dead as the Living. Molloy. 256.
if Death hap-
pens, there arifeth due no more Fraight than only for fuch as are living at the Ship's Arrival at her
Port of Difcharge, and not for the Dead. Molloy Z'y6. But if the Cattle or Slaves, are fc:M
aboard, and no Ap;i-eement is made, either for LuAin^^ or T'ranfforlhig them, int getie^\i.'ly, then Fraight
fliall be paid, as well for the Dead as the Living. Molloy 256.
11. If Fraight be contrafted for the tranfporting of Women, and they
happen in the V^oyage to ht delivered of Children on Ship-board, noFxaA'^ht
vi,; becomes due for the Infants. Molloy. 256.
12. If Goods are fent on ho-3.x([ generally, the Freight mu ft be accord-
ing to Freight for the like accuftoraed Voyages. Molloy. 257.
1 3 . li' Goods are brought into a SKi'^ fecretly aga'mfi the Maftcrs Knozvlcdge,
the fame may be fubjected to what Freight the Matter thinlcs fitting.
Molloy 258.
(B) Fraight. Due. In what Cafes.
1. ^^Ovenant was made by the Merchant with a Mailer of a Ship, \ iz-
\^ that if he would bring his Freight to fuch a Port, then he 'UJoiildpay
him fuch a Sum; Mafter brings A£lion, and Ihews that Part of the Goods
were taken away by Pirates, and that the Reftdue of the Goods were brought
to the Place appointed, and there unladed, and that the Merchant hat"h not
paid, and fo the Covenant broken. And the Queftion was, whether the
Merchant Ihould pay the Money agreed for, iince all the Merchandizes
were not brought to the Place appointed? and the Court was of Opinion,
that he ought not to pay the Money, becaufe the Agreement was not by
him performed. Brownl. 21. Trin. 9 Jac; Bright v. Cowper.
* Roll R. 2. A. contracts with B. and alFumes to him to deliver x.o\i\'m. 100 j^uarten
; 1 2. S. C. 0/" Barley on Ship-Board in fuch a Port, viz. at Barton Haven in Cotn' Lbor. and
takes no No- (joes;/o/- mention at 'i-vhat 'time it is to be carried thither, ^c. A. [B] alllimesto
not^mentioii- ^.[A.] to carry it, and to beat this Port with it, and B. [A.] agrees to pay lb
ingany time, much for [the Fraight of] the fiid Quarters of Bi'j-Iey. A. [B.] arrives with
Neither docs his Boat there. A. is bound to feek B. at the laid Haven, and to deliver
3Buk 15;. to him the laid 100 Qtiaj-ters as aforefiid. A. does not perform this,
onfy'tlut alcho' B. has pcrlbrm'd his Promife, and was there ready to receive it. B.
Coke C!i. J brings an A6lion on this Aflumpht, and it well lies. The Place in this
faid, that'if<]ale is certain, the Time uncertain ^ the Law gives convenient Time.
one aflumcs ^^^^ -^^ ^^^ offc^ B. after the faid Agreement came to the Port and llaid
thcHonmch ^^^^ a convenient Time^ and A. did not come, <?cc. Jenk. 324. pi. 39-
vfithin a cites Mich. 13 Jac. Atkinlbn v. Buckle.
Year, hut no
certain Time limited wTien this fhal! be, he oii.'^ht Iiere to give Ihiks'of the 'time whe.i it fliall be,
that fo he may then attend it Molloy 25;. S, C. actiording-to Jen}:- 3-4 pl j?-
^. Fraiglit
Fraight. 503
3. P'raight is the Mother cfWagcs^ and wherever Fraight is due, Wages
are. If a Ship is kji before it coincs to a deiive-rhir lort, no Fraight nor
Wages is duej if Joft a^'teyjuards^ 'tis due at the lall delivering Port.
If Advance Money be paid before in Part of Fraight, and named fo in the
Charter-Party, tho' the Ship be loil; t)efore it comes to a delivering Port,
vet Wages are due according to the Proportion of the Fraight paid be-
ibre ; For the Fraighters cannot have their Money. Ruled per Saunders
Ch. J. at Guildhall, z Show 283. Hill 34 and 35 Car. 2. Anon.
4. li the Ship ia her Voyngc become unable withoia the Majiers Faulty cr Molloy 2,-4.
that the Malter or Ship be arrcfied by Authority of the Magiftraces in her — * f>lolloy
^\'av ; the Mailer may either mend his Ship or iraight another. * But in f^!-'T7TuL
Cafe the Aterchd>it apee net thereunto^ then the Mailer Ihall at leaft reco- evtremc Nc-
A er his Fraight, io far as he hath deferved it. For otherw ile, (except the ccffity, ^%
jMerchatit confent, or f Necefjity confirain the Mailer, to put the Goods into t'lat the Shii>
another Ship worfc than his own) the Mailer is herein bound to all Loiles '^. '"^f I' >■'<"'•/>
and Damages, except both Siiips perilli in that Voyage, and that no Fault aVe'mttySJ.'ib
or Fraud be lound in the Mailer. Mai. Lex Merc. 98. is pajng ty,
or JtHandJic
m^y tranflate the Goods; and if that Ship fink or perilhes, he is there excufcd : But then it muft be
apparent that that Ship feemed probable and fufickr.t. Molloy 255.
5. If a Mailer fet forth his Ship for to take in a certain Charge or Lading, IMolloy 2jS.
and then takes in any more^ efpecially of other Mcn^ he is to lole all his
whole Fraight j For by other Men's Lading, he may endanger his
Mailer's Goods divers Ways. Mai. Lex Merc. 99.
4. If a Ship (being fraighted by the Great for a Sam certain) happen to Moiloy z6~>.
be caji azuay^ there is nothing due lor Fraight; but if the Ship be fraighted S. P. and in
by the Ti/n, or Pieces of Coijimodicics and is f.?/? aivay, and fame Goods are ^J-'i'S- pys
fnxd^ then it is made queilionable, whether any Fraiglit be due for the \^^^^. ''\^^-^'
Goods faved pro rata. Mai. Lex Merc. loo. Wisfortu-.c
happens, t!ie
Enfured commonly transfer thcfe Gcods over to the JJfurers, who take thein towards Satisfaction of what
they pay by Virtue of their Subfcriptions.
7 If Goods are fal/y laded yiboard, and the Ship hath broke Ground., the
Merchant., on Conlideration afterwards, refolves n<5t on the Adventure, but
'Will unlade again; by the Law Marine,, the Freight is due. Molloy 254.
5. If it be agreed^ that the Mailer (Jjall fail from London to Leghorn in
fx'o Months^ and Fraight accordingly is agreed on, if he begins the Voyagg
ivithift the two Months., tho' he does not arrive at Leghorn within the
Time, yet the Fraight is become due. Molloy 255.
9. If Fraight be taken for 100 7'tins of Wine, and 20 of them leak out.,
fo that there is not above 8 Inches from the Buge upwards, yet . the
Fraight become due: One Realbn is, bccaufe from that Gage the King
becomes entitled to Cullom; but if they be under 8 Inches, by fome, it is
conceived to be then in the Election ot the Fraighters to fling them up
to the Mafter lor Fraight, and the Merchant is difcharged. But moll
conceive otherwifc; For if all had leak'd out, (if there w^as no Fault in
the Mafer) tlierc is no Reafon the Ship fhould lofe her Fraight ; For the
Fraight ariics from the Tonnage taken, and if the Leakage was occafsoned
thro Storm., the fame, perhaps, may come into an Average. Belides in
Bourde^.ux, the Mailer Hows not the Goods, but particular Officcis ap-
pointed for that Purpolc, quod nota. Perhaps -i. fpeaal Convention may alter
the Cafo. Moiloy. 259. •
10. A Ship in her Voyage happens to be taken byanEnemy^and afterwards
in Battle is retaken by another Ship in Amity, and Rejlitution is made., and
Ihe proceeds on in her Vcyage; the Contract is not determined, tho' the
taking by the Enemy divelled the Property out o^ the Owners , yet by
the ll-xw' of W'ar, that Poflcilion is defeahble, and beilig recover'd in
Battle afterwards, the Owners become rein\elied : So the Contract, by
F'iclion of Law, becomes as if fhe never had been taken,, and io the entire
Fraight becomes due. Molloy. 259,
(B. 2) Fraight.
$0^ Fraight
(P. 2) Fraight. Decreed in Equity.
Onies agreed to be paid for the Fraight of a Ship were decreed
_ _ to be paid, tho' the Ship did not ani'De at the dehvtrifig Pert,
fl.e being unladed at another Port, and fratidiikntJy caufed ly one'of the
f'raighcers, (and who was likewife a Part-Owner) to be coudennni there ;
but tor the Value of the Ship, the Plaintirts could not be relieved in this
Court but at Law. Mich. 26 Car. 2. Fin. R. 149. Norton & al. v. Bar-
Kardj Serle, & al.
2. A. was Owner, and B. Mafter of a Ship j C. entered into a Char-
ter-Party, by which A. agreed that the Ship pould fail to New Pluzland to
take in Fijh on the Account of C. and thence to Barcelona, and there to de-
Irccr the f'//??. And C. co-venanted "with A. to fay the Fraight en Delivery of
the Filh. The Ship arriv'd at Barcelona, and the Pifh are deliver d to D.
and ii. demanded the Fraight of D. and D. demanded a Deduct ton out of the
Fraight /or 170 Kintals 0} FiJh ivanting, as D. pretended, of what was to
be deliver'd, and for Damage of Part of what was deliver'd. Crofs
Suits were commenced between B. and D. in the Courts at Barcelona, by
vyhich Means, the Fraight being ordered to be brought into Court, and Con"-
fideration to be had for Damages tor D. and by D's appealing alter to a lu-
periour Court there, B. finding his Fraight not likely to be got out of Court in
fome Tears, came away without any Fraight for Want of Money. Then A.
flies C. on his Chartcr-Party here tor his Fraight. C. brings his Bill to flop
the Proceedings here, tho' the Suit was not for the Penalty, but only to
reco\er Damages. Ld Chancellor, taking Notice that the Caufe was not
fully determined at Barcelona, bccaufe the Damages were not fully afcer-
tain'd, order'd that A. thould proceed to Trial againlt C. upon his Cove-
nants, and therein give in Evidence the Non Payment of his Fraight
and what Damages he had thereby, and that C. might give Evidence iii
Mitigation of the Damage. Mich. 33 Car. 2. 2 Chan. Gates 74. Newland
V. Horfeman.
3. Tho' a Charter-Party is worded fo that no Fraight can be recovered at
Law upon it, yet they may be relieved in Equity. Hill. 1690. 2 Vern.
210. Edwin v. E. India Company.
4. As, A. and B. were Part-Owners of a Ship, of which C. was Mafter,
and A. and B. by Charter-Party, dated 20 Feb. 1652. let her to fraight
to the E. J. Company, and agreed to fit her up with all Neceilaries, to" as
fte might be ready to fail by icth of March then following, and the was
to go trom Port to Port, and to any Port within the Limits of the Company s
Charter, as they pould direfi, but to be difpatched back for England on or
before the 24/^^0/ January 1684, ^'^ f° I'co" '^ft"' ^^ to fave her Moorfcoit for
England that Tear ; or in Default of her beingdifpatched within the Time,
the Owners were to pay four Months Demurrage, at 7I. los. a Day tor her
Moorfoon fo loft, and her Stay in India atler the 20th January 1684.
And there was this turther Claufe, that the Company might detain the Ship
in their Imployment in Trade or Warfare, for any longer Time not exceed-
ing 12 Months, after the 2Qth January 1684. after the Rate of 7I. los. 6d.
a Day Demurrage, mitill the Ship be difpatched from the lajl ladim Port, or
Expiration of 12 Months, which pall 'firfi happen; but after the 12 Months
expired, Jhe ts to return to England, and the Company net 'to be liable for any
further Demurrage, or any Damage that may accrue by her Detention after.
The Company covenant to pay Fraight en the Ship's Arrival into England,
for 301 Tun, and Demurrage f rem 20th January 16S4. until fhe be dif-
patched for the Space of 12 Months after the faid doth January 1684. And
It was thereby provided, that until fix Days after thf Shi fs Return to fhe
Port of Lendon, and making a full Difcbarge of c.ll her Lading the Company are
net to pay any of the Sums of Money aLneed on tor Fiaighc or Deimirruge
cr lor detaimr.g her in India ; it king ^tke lnt:nt of the PcirU:s, that if the-
' Ship
Fraight. 505
Shipjl.ahl he lojl c\t\\<i\: in her oatu'ard or homevviird bound Vovage, fw-
thtng liwidd be fj.id by the Coinpany fur Deninrrage. — The Ship let fiiil
according to the Charter-Party, and arrived in India, and vv;is employ 'd
by the Company in Trading tiom Po-t to Port tor o.ne Year and upwards.
She arri\ed in India 23 November 16S4, and was to enter into JXmur-
rage in tour Months after, which was the 23 March X684, and the 12
Months aliier (during which Time the Company by their Charter-Party
might detain her) ended 23 March 1685. But the Snip loas iinpiofd in the
Company s Service ^fo that jhe did not arrinjeat Stirattill 1686, and thenceisjas
ordered to Bomkry, where ihe having been fo long detain'd in thole Seas,
was fur\'cy'd, and Jvand not frifiaent Jor a Voyage to EngLvid^ and on Sepr.
24, 1686. the Seamen "-jiiere difchafgrd^ and the Ship left there. The Com-
pany rel'ui'ed to pay any Thing tor tiie Fraight or Demurrage, becaufe by
the cxprcfs Provilion of the Charter-Pattv, they were not to pa)' till fix
Days alter the Ship's Arrival in England, and difcharged of her Lading.
And if they were to pay any Thing, yet they wete to be charged with
Demurrage until March 23, 1685 only, and no longer, and that lb it is
pro\'ided by the Charter-Parcy, and relufed likewile to account tor the
V^alue of the Ship, or Ihew how they had dilpofed of her. The Court
held that the' the Charter Party Wcis fo penn'd, that nothing coidd he reco-
I'erd at Lwjo ; yet the Plaintiff had a jufl Demand, and ought to be re-
lieved in Equity ; And decreed the Company to account lor what they
mide of the Ship, that they ihould pay Demurrage according to the Rate
mention'd in the Charter-Partv, and ihould alfo be charged in refpcft of
the Fraight. But as to the Quantum of the F'raight, the Court would
further conlider of it, in regard, that by the Charter Party, there are il-
veral Rates agreed on to be paid for tlx Honie-juard bound Cargo of the fci^rid
Sorts of Goods^ viz. tor Calhcoes, &c. 21I. a Ton ibr Salt Peter
iS/. a Ton for Iron, ' Copper, cvc. 6 /. a Ton; and therefore, Lx^ine
final Judgment, would be informed what Quantities of thefe Refpcctive
Commodities were iifnally brought Home onfuch a Voyage, and how much
in Proportion to each other. Hill. 1690. 2 Vcrn. 210. Edwin & al. v.
the Ealt India Company.
5. Fraight was agreed to be paid, not for the Goods exported, but only
jor Goods imported. No Goods warQ provided by the Fa61or Abroad, fb
fhat the Ship returned empty. The Court decreed the Payment of Fraight,
itedperCur. Hill. 1690. 2 Vern. 2i2.astheGaleofWeltlandv. Robinlbn.
(C) Who liable for Fraight or Lofles.
I. TF a Merchant in Ireland co;///^« Goods to a Merchant in London j
J[_ and the Majler figns a Bill of Lading, the Merchant here fhall be
liable Ibr the Fraight by the Cullom oi Merchants, and held good. 2
Show 443. Mich. 1 Jac. 2. B. R, Roberts v. Holt.
2. Three Part-Owners of a Ship, one refuted to fit out the Ship toSea, Molloy 257.
and the others fit out "H'lthout his Confent, and the Ship is lojl in the Voyage. ■ — S. P. per
Per Ld North ; The Lofs of the Ship Ihall be equally born by all three. 2° Tr^'''''''*
For he that relufed would have been intitled to one Part of tfie Fraight, ^^1-. 2.' 2'
and Ihould have had an Account here of the Profits ^ but if the other Part- Ch.Cjfcs^tf.
Owners had applied to the Court of Admiralty, as regularly the)' Ihould Anon.— Tlie
have done, that Court would ha\e made an Order, that on one Part- ,''f'^(^^7"a"
Owner retuling to navigate the Ship, the other two ihould have had Li- pHeci"to chJ
berty to do it alone, and Ihould not have been accountable to the other Admiralty
Part-Owner, that refufed to join, tor any of the Profits ; and there, in Cafe ^or Security lo
the Ship had been loft, the whole Lots mull have reifed on thote two pX'hJ^Jlf °
that let out the Ship, but in the prelent Cale, the third Perfon, that re- ^^^ °^ p/ohi-
fuled to join with the other two, would have been intitled to a Share of bitiondc v'd
the Profits of the Voyage, if any h.id been made by the Ship, and fo m.B. RGibb.
ought to bear his Proportion of the Lois. Hill. 16S4. Vern. R. 297. (•'p„ '^'i|j^
Strellv v. N\ ioloa. I)imn-.ock v,
6 N NN'here Ch.ir.dkr.
5o6 Fraight.
But where 3. Where Part of a Fiaighc of a Ship is fiaig over Bop.rd for faviiig
tins iso.cufi- if^^ y^ji_^ the Remainder Ihall be cvntnhiitury to the Lofs. But where Part
v.r'^"^'' '^ carried to Land and favcd, that Ihall not be contributory to the Lofs of
Goodsxfiiec- the relt being taken by an Enemy tor lear of whom the other was carried to
iaU> of otliei- Land. Pari. Cafes 18. Sheppard y. Wright als. Dormer v. W^right,
ISlen tlian a-
gfccd foi-. It flialt not be made gro \ bv Coitribution or Averaj^e, butjby the Mafter's own Purfe For if he
oiicf burthen a Ship above the true Mark of Lading, he fhall pay a Fine. Mai. Lex Merc. 99. — Molloy 258.
(D) Who liable. How far.
I. f I 1HE Charter-Party values the Ship at a certain Rate, and you
J[_ fhall not oblige the Owner further, and that only with Relation
to the Fraight, not to the Value of the Ship. Per Finch. C. Mich. 29
Car. 2. 2 Chan. Cafes 238. Anon.
2. Where an A£lion is brought for Fraight and Damages laid to doithh
the Sum of the Penalty of the Charter-party j Execution ihall not go be-
yond that Penalty, tho' more ihould be recovered in Damages. IVlith,
31 Car. 2. Fin R. 435. Eetfworth v. Clerk, Archer and al.
(E) Who liable. At what Time.
i.TQYthe Courfe of Merchants the Receiver is ?o /)^' Fraight on the
J3 Receipt of the Goods. Mich. 33 Car. 2. 2 Chan. Cafes 75. in Cale
of iNewland v. Horleman.
2. If a Ship htfraighted out and in^ there arifes due lor Fraight nothing
till the whole Voyage be performed^ fo that if the Ship die, or is call away
coming home, the Fraight outwards as well as inwards becomes lolt.
Molloy 257.
(F)
Pleadings.
Molloy 252. i_ yNdenture of Charter Party dated 8 Sept. 38 Eliz. made between A.
■ ■^ X '^'^^ Plaintiff, and B. A. having hired of B. a Ship lor a A'os age to
Dantzick for Com ; upon taking the Ship, it was agreed between them,
that the Ship fhould be laden with Corn to Dantzick, and to fail to Leg-
horn. Now by the faid Indenture, upon Confideration .4. had agreed
that B. Jh'o/i/d hasjc the Moiety of the Corn, qmd tunc fait, or cferwards
Jhould be laden in the Ship in the faid Voyage, B. pronufed to pay the Moiety
of the Money for the faid Corn, quod tunc fuit, or afterwards Jhoidd be laden
&c. And allegcth in Fa«£lo, that upon the gth Oflober 38 Eliz. the Ship
was laden with 60 Lalles of Corn, and tor non Performance of this Co-
venant brought the Aftion. .8. pleaded that the Deed was fealed and de-
livered the z'dth Oiioher 8 Eliz. Et quod ad tunc vel pojtea.^ there was not
any Corn laden there., and tra-verfes the Delivery thereof 9 Ocfober., or at any
Time afterwards before the z8th O^ober ^S Kliz. And it was thereupon
demurred, (the Truth is, the Corn was call awav between the 9th and
28th of 0£lober). Rcfolved by all the Court, that in Regard, he de-
clares upon a Deed dated the 9th Oftotter 3b Eliz. It Ihall be always in-
tended to be delivered, and have his Elience at that T'nne, and at no other ;
and if he would afterwards contefs it to be delivered at uny other Time,
+ ^ j^ . J. it is a Departure from his Declaration, as 4: 5 H. 27. primo Eliz. D. 167.
ii. ' ■ I H. 6. 4. and 5 Rep. Ibl. i. And the Words of the Deed, That he JhouH
pay for the Corn then laden, or after'.vards to be laden therein : This
'Word
Fraight. fjoy
Word time, is rcferrdto the Time of the Elience of the Deed by the Ih-
livcry, and not to the Date; For if it were deliver'd lo Months after the
Date, he lliould not have any Benefit of the Corn laden, and Ipent or
Ibid belore the Time of the Delivery, therefore he lliall not be charged
with it for the Time belore the Delivery, wherefore the Plea and thcTra-
yerle are good. And it was adjudged ibr the Delendant. Cio. J. 263,,
264. Mich 8 Jac. B. R. Offley v. St Bapcilt Hicks.
£, A. aliiim'd to B. for a valuable Coniidcration to go fifcb -a Voyage ia
•fuch a Ship before Jiiignft follo-wing. B. brings Allumplit rtnd alleges a
Breach in the Non Perlortuance. A. pleaded that before any Breacli, B.
on the ^h y/pri/, at luch a Place, Exoiiera~Jit earn, of the faid Prcniife.
And upon Demurrer, it was adjudged -a good Difcharge; fFor as the
A6lion was grounded on a Parol Promile, it may be dilcharged by 'Parol.
•Cro. C. 383. Mich. 10. Car. B. R. Langden v. Stokes.
- ^. A. the Mafter of a Ship, covenanted witli B. a Merchant, to.go ivith Poph. i5i S.
■his Fraight the firft fair Wind, and B. covenanted to pay fo much lor t\\t C — r-Palm.
-Fraight. A. brought Action of Covenant for his Wages, and alleged that 59: P'lich.
he had performed his Voyage. B. traverfed that he did not go 'Sj'rth the Jirji ^ ^"'5; ^'
fair Wind. And upon Demurrer, it was held, that the Traverle was not
good ; For it is only a Circumllance, and nothing is traverlable, but what
is material. See Lat. 12. 49. Conftable v. Clobery.
4. W". '■jjas to ratfe 500 Soldiers^ and to bring them to fuch a Port^^J^l '^',.
and G. was to find Shipping, for which he fued upon the Covenant tho' y\^^^ (vIt,.)"
the other had not rais'd the Soldiers j For that can be only alleg'd in Mi- Roll Ch. ].
ligation of Damages, and is no Excufe for the Defendant ; And adjudg. d ^^'^ •'^^'•■- ^-
chatthis was not a Condition precedent, but dillinft and miitua-I Covenants, f^^M'^'j'T'^
upon which feveral Aftions might be brought. Arg. 2 Mod. 75. cites Sti. ^ut after-^^'
iS6- Ware V. Chappel. wai-dsNi.ho-
las changed
his Opinion, and it was adjudged for tlie Plaintiff, Nifi C.iuia. Sti. iS(J. Hill. 1649 B. R 6. C
5. In Covenant, the Plaintiff declared that he covenanted to fail with a
Ship to D. and there to take 280 Men of the Defendant, and to carry
them to J. and Defendant covenanted to have the 280 Men ready there,
and to pay for the Fraight 5 /. for each Man ; and that Defendant had not
the z^o Men ready, but only 180. That the Plaintiff took and carry'd
them, but that Defendant hath not paid him for them. Detendanc pleads
that -that he had the 280 Men ready and tender d thcni to the Plaintiri^ but
that he would not receive them : Rut the Defendant faid nothing in his
Plea as to the Carriage of the 180 Men, nor as to the Ncn Payment of the
Fraight for them. And upon Demurrer, the Plaintif had Judgment, be-
caufe it was not a Plea to the whole Declaration, but only as to the Car-
riage. Lev. 16. Hill 12 and 13 Car. 2. B. R. Tompfon v. Noel.
6. A Mafter o( a Ship covenanted with A. to fail to M. and to have Ma- c p , 7
rincrs ready to re-lade theShip, and then to return with the firft lair Wind zkj.' shower
to L, and deliver the Goods. A. covenanted to pay fo much for the Fraight v. Cudmore.
and Demurrage. Upon an Aftion brought by the Mafter for the Freight,
Detendant pleads that the Ship did not return direflly to L. but made feveral
Deviations, by which the Goods werefpoil'd. But upon Demurrer, the Plain-
tilf had Judgment. For the Covenants are mutual, and reciprocal, and
each Party may have his Action againft the other, but one is not plead-
able in Bar of the other. 3 Lev. 41. Trin. 33 Car. 2. C. B. Cole v. Shallct.
7. The Mafter of a Ship covenants that the Ship Ihall be well furmfjed
ivtth Men, and the Fraightors covenant that the Ship fhall return in 12
Months; 'tis a good Plea tiiat the Ship was not fiificiently provided with
Men. Show. 3^34. Mich. 3 \\^ & M. B. R. NVynne v. Fellowes.
Franchifes.
5o8
Franchifes.
(A) What a Franchife, or Liberty is ; And how it
may be.
F
RANCHISE is Royal Privilege in the Hands of a Subjea.
Fin. 38.
At Nili Prius at Exeter^ Charter was peivn for theVi/J, that of If-
fue arijing within their Vill.^ the Inqiiejl pall be taken by Denizens Inhabi-
tants only^ and not by Foreigners^ and pru\ ed Allowance, by which the
Foreigners were oulled, and was taken all of the Denizens. Br. Franchi-
fes, pi. 17. cites 29 All! 15.
3. Francniles cannot be divided, if they are entire Franchifes, as to
have Goods of Felons, Outlaws, &;c. or ^\"aifs, and Strayes, &c. and
therefore if they defcend to two Coparceners, no Partition can be made of
them. Godb. 17. Pafch. 25 Eliz. C. B. Lord Mountjoy v. Earl oi Hun-
tington,
4. Every Franchife, Liberty, or Privilege, either lies in Point of Char-
ter, and cannot be granted by Prelcription, as Bona £5" Cat alia Iclontim,
i3c. or lies in Prefcription on Ufage in Pais, without the Aid of any
Charter, as Wreck, Waif, Straies, Sec. 9 Rep. 27 b. in a Nota ot the
Reporter's, in the Cafe ot the Abbot of Strata Marcella.
5. Franchifes which lie in Point of Charter, are either before time of
Memory, or within time of Memory, {y\i. from the time of R. i.) if be-
fore time of Memory, either it was by fpecial Words, which ieldoni or
never was done, or by general, ancient, obfcure, ambiguous, and obfolete
Words ; and whether by the one or the other, yet becauie they were
made timeout of Mind, and lb are not any Record pleadable oFthem-
lelves, they ought to be aided by fome other Matter of Record within
* 2 Inft.iSi. time of Memory, as Allowance * before Jullices in Eyre, orofB R. or
C. B. or Barons of the Exchequer, or by Confirmation by the King's
Charter of Record, within time of Memory, and Ihall be all :t\ved but
for fuch part only of the Grant, as had been fo allowed or conhrmed,
though all be in one and the fame Patent ; And fuch ambiguous, &:c.
I 2 Inft. 282. 'Grant, Ihall be f conftrued as the Law was taken, when fuch Charter
was made. 9 Rep. 27. b. 28. a. in a Nota by the Reporter, in the Cafe of
the Abbot of Strata Marcella.
6. Franchife tenere placita is Power to hold Plea of Matters within
fuch a Precinft, but does not exclude any other JiirifdiBion, nor entitle
the Lord to claim Conufance. per Holt Ch. J. 12 Mod. 645. Hill.
13. W. 3. B. R, in Cafe of Crolle v. Smith.
SeePrefcrip- (a. 2) How they may be by Prefcription or Appen-
dant, &c. And claimed How j And Allowance
thereof.
tion
Narhewho I- TF the King grants Liberties to J.S. he cannot grant them over-
las Liberties J[ Br. Franchilcs, pi. 38. cites 6 E. 2.
iti Grafs by r ■l a ■ /■ n
Prej'criptii/n, asHuniireti, 8cc cannot grant tKem over. Br. Franchiles. pi. 5S. cites 0 hi.
2. Ill
l^'ranchiics.
509
2. Jn^Acxouii!;, ^^^ Ditcndar.t Iba'.l not fkad tkit the Matt':r arofc in a
tramhijc^ which has IbnuCmcc of Picas, but the Bailiff's ought to
demand it ; lor ocherwile ic Ihail noc be granted. Br. I'ranchifcs pi.
II. cites 39 ]£. 3. 17. '
3. If a i-'ateiu grants Tcnere placita before his Steward, and he has not
any Sttzaird, it is good i for he may make a Steward j But it Icems
that ha ought to have Court hejore. Br. Franchiies, pi. 4. cites 7 H. 4. 5.
. 4. If a Man has ufed ^_>' Pz-e/m/j/'/o/; to hold Flea by Writ of Right-
Clofc, and has atfo a Charter ^ the King of Conufance of Pleas and tu:-
cepts the Francbife in Court of Record, bv the Charter, he lofes'the Ad-
vantage of the Prefer i prion to hold PleabyW'rit ofRicrht • per Galcoicrne
Br. FrancLife, pi 6. cites 8 H. 4. 19. But z{ H. -j. s Contra by
three Julbces. Ibid. ^
5. Men h^we feveral Liberties in England, wh\c\\ m-ver were allozved in
Eyre; per Hiirn ; But it feems, that they zr&thofc ia hie h never were feir-
cdtn any Eyre. Br. Franchifes, pi. 7. cites 11 H. 4. 16.
6. In Recordare, it was agreed, that where a Man claims Cujlom to
have a Finejor Alienation oi his Tenant, it ftall not be allowed with
out lliewing Allo^vance in Eyre or elfcwhere; bccaufe it is aoainii
common Right. Br. Franchifes, pi. 8. cites 14H. 4. 3. '^ .
7. Note, that a Corporation., who appoint a General Attorney for them in
C. B.Scc. may, by the faid Attorney, challenge Liberties. Br. Corpo-
rations, pi. 36. cites 4 H. 6. 6.
8. Franciiiles, which lie in Point of Charter., may be prcfcribed ibr if
the Party has an Allowance in Eyre, which is fuch Pofielfion as the Sta-
tute iS £. I. intends. 9 Rep. 29. in Cafe of the i^blJOt Of g>t2nta ^H7~
CClIa, m a Notaot the Reporter there; cites 18 H. 6. tit. Prefcripnon
45, and fays, it ftands upon great Reafon i For that tho Charter vmht be
viadebejorc the Conqiicft, and fb anciently, that the Charter itfel^ and
every Inrollment ot it, might be utterly periled and confumed ' '
9. It Conufance ol Pleas, or other Franchifes, are allowed, it binds
the King till It be revcrfcd. By all the Juftices. Br. Franchifes pi 22
cites 13 E. 4. 5. y t ' i •
10. Note, that Allowance of Franchifes in 3tto Warranto, or i„ Cnfra of .W-
Eyre., pall conclude the King j For this is the Suit of the Kino- to try Fran- '"^^"'^^ '»
chifes. Br. Franchifes, pi. 40. cites 10 H. 1. iz. " C.B.or other
• /• 3* Cuiirt. Br.
Franchifes,
pl. 40- cites 10 H. -.15.
11. A Patent of Gr^«? of Cmifance\of Pleas, which is before time of J.difhhc
Memory VIZ. m the Time ot King H. 2. Ihall not be allowed at this ^'■"'"''^ '« /)•
Day, if it has not been allowed after in Eyre. Br. Franchifes pl 12 ""^C. nnd
cites 21 PI. 7. 29. per tot. Cur. » r • 6- has heen al-
lowed in D.
itfnallnotnow be allowed in C. though it be one entire Patent. Br. Franchifes. d1 Tf rfr '" ^'
Ji. 7*20. *r**j l-lUCS 2i I
(B) Power and Privilege; of * Bailiffs of Franchifes, *^S;= k^-
and in what Cafes punifh'd.- ' Trcfpa?;/^
(G.a. 5)pl.
W^r^^un'^'f ^"'^f . ^c^ddar is brought ./ Land, Parcel in ^'.here 4r
Vr WC t""^^r '' f'^^''-'f''" iranchife, the Writ fhall abate, if th^-yu'^
Pranchife has Conufince ot Pleas i Contra, if the Franchife has oalv b-ought,
rcturna Brevium. per Galcoign & Huls. Br. Franchifes, pl 2- cites ^^ ^'■
o li. 4. 7. J r . • Brief, pi.
114. cites S.
C .«;. P.
granted, per Car Arg Ibid n!. i-S. cites cS E ; 16
6 O 2. If
^id
Franchifes.
2. It" a M.'-ii has a Leet, and may enquire of Felony, and has
fufpectcd Pedons, he cannot deliver than ; but the Julticcs of Delivery
Ihall do it. per Cur. Br. Franchiics, pi. 5. cites 8 H. 4. 18.
3. In Quare inipedit, it was granted, that where the Sheriff' does Ex-
ecution in Francbtj'e, it is good j For he is immediate Officer to the
Court J Contra where Bailitt [of a FranchifeJ does Execution in the
Guilciablej And the Lord of the Franchife, in the firlt Cafe, /W/ have
his Remedy for the breaking of the Franchife. Br. Executions, pi. 32. cites
II H. 4. 7. 9
4. Note, for Law that thole who have Liberties of Infofigthief^ can-
not ufe Gaol Delivery, nor give Judgnmit of Beath-^ And if they do, it is
Mifprilion, and they Ihali make a great Fine to the King. Br. Franchi-
fes, pi. 33. cites 2 K. 3- 9-
5. By Grant of Coniifance of Pleas, the Franchife pall make the like
Procefs and Execution as is at Common Law, For this belongs to the Co--
nulance of Pleas. Br. Franchifes, pi. 59.
6. Per Glynn Ch. J. Mich. 1658 j If one be arrefted by the She-
riff' of the County within a Liberty, without a Non oviittas, yet the Ar-
rcll is good ; For the Sheriff is Sheriif of the whole County, but the
Bailiff of the Liberty may have his Jifion againft the Sheriiij lor en-
tering of his Liberty ; But upon a 4?//o Minus, a Sheriff may enter anv
Liberty, and execute it Impune. R. S. L. 116. cites Prac't. Reg. 72.
7. The Sheriftj upon a Non Omittas, Capias utlagatum, or .^lu minus^
may enter and make an Arrefi in any Franchife. L. P. R. 635.
8. The Authority of Bailiffs of a Liberty, and in ivhat Cafes the
Sheriff' may intermeddk, and where he mull direct his \\"arrant to the
Bailiff of the Liberty ; and in what Manner the Prcccfs cut of the
Palace Court mull be executed, and to whom it mull be direfted. See
Skin 413 to 418- the Reporter's Argument. Hill. 5 W. & M. B. R. in
the Cafe of }©Cntll)0?tf) tl> 'B^OaUtUatCr, for executing the Procefs of
the Palace Court, within the Liberty of the Savoy.
(C) Extinguifhed or loft.
I. rnpHe Sheriff •wrote his Mandate to the Bailiff', upon a Venire Fa-
\ cias, and the Bailiff' was the Defendant's Servant, and returned
the Lands of the Plaintiff' and Defendant, by which Non Omtttas iffaed^
and the Lord loll his Franchife for the time. Quod Nota. Br. Franchife,
pi. 29, cites 38 E. 3. 25.
Br Turifdic- ^- Unity of Poflelfion in the King of a Manor, w^hich iswithin the
tion. pi. 17. Cinque Ports, which came to the King by' Efc be at, as parcel cf his Manor
cites S.C. of E. was not an Extinguilhment ol the Liberty, nor did this make
• It Guildable ; And therefore it feems, that it is a Cu^om ii'hicb gees with
the Land, as Gavelkind, &c. and not -with the Seigniory. Br. Fran-
chifes. pi. 3. cites 4y E. 3. 24.
3. It was agreed, that where theee are BaiUff's of a Fill, and they
have Liberties by Grant of the King, and alter the King alters their Cor-
poration into Sheriffs, yet they Ihail enjoy their firlt Liberties. ^Quoci
Nota. Br. Franchifes, pi. 12. cites 14 H. 6. 12.
4. VV^ here the Inheritance of the Crown was given to King H. '].ai;d
the Heirs of his Body, with all Pre-eminences and Prerogatives, yet it dij
not extend to the Franchifes and Liberties of other jVIen^ b\- all the
Jultices. Br. Franchifes, pi. 20. cites i H. 7. 12.
5. If a Vill be incorporated by the King before time of Memory, and
the Franchife never was ufed within tirue of Manmy, they ha\e loil
their Franchife. Br. Franchifes, pi. 10. cites 14 H. 7. i. per- '^ -avifor.
6. Ancient Franchifes are by Forleiture e.stin^ in the Crown, but new
Franchifl'S
Franchifes.
51 [
Franchifes arc not io. The Ducchy of Lancallcr. being ibrteiced ibt Trea-
fon, is not extin6t, being a ;/«:; CrcatiGii. Jenk. 160. pi. 3.
(D) Reftr^ined.
i.TX THERE the King is Part}', t\iQ Venire Facias fkall make Men- S.P per
W ^'''" "f -^^^^ Oimttas-^ tor where the King is Party, the Sheriff ^1''^''":,' ,-^.'''
fliull not write to the Bailiff of the Eranchifc, but ihall icrve the Pro- pi "-.'["'cites
cefs himfclf Br. Franchifes, pi. 18. cites 41 All' 17. per Knivet, Ch. J. 3b' Afl" 19.
And that the
Fninchifc fliall not hold Place. But if this Claule, Iket fiierimtis pars, be in the Charter, then it iccmu
it is otherv.'il'c.
. 2. No Franchife fhall be allowed in any Cale^ where the Franchifc doth
fai/ to AHviiiiiJiLr JtiJUce within the Fronrhile ; but if there be fuch a
failer, this Court by their Authority may intermeddle (notwithllaading
the Privileges of the Franchiie) to compel them to do Juilice (M ich, 22
Car. B. R.) For Privileges are not gi-anted to proteflMen in neglefting to
do Right, or to do W^ong ; and tfiis Court is the Superintendent Court
of the Nation to lee Juflice equally diltributed to all Perfons. L.P.R.635.
(E) Forfeited.
I. \ Man has Franchife, and iifes more than he'ought ithxs is a. Yo't-
jt^^ teiture but if he nfes kfs j this is finable; P'or the one is Mif^ufer
and the otner Non-ufcr. Br. Franchifes, pi. 37. cites the Time of E. i.
Itin. Not.
2. If a Alan has fever al Franchifes^ and the one dues not depend upon the ^"* 'f''-"^ '^"^
other, if he miCiifes any, he fhall not forfeit all, but only thole which are tl/e7ther"hcre
mifufed. Br. Franchifes, pi. 14. cites 22 All." 34. per Thorp. ifhemif-uics
the one, all
Ihall be leiftd and forfeited to the King. Br. Franchiles, pi. 14. cites ;2 Aff. 54. S. P. Fin. 3S.
3. And if a jV/an has Franchife and ufes it welli there if he makes Pur- -^s where he
preiiirrc upon the Kinz-, he Ibrleits nothing but chat which is taken in : per l'^' ■^^'■■'rket to
Bank. Br. Ibid. ^ |f-:>'^
/r e?k on the
Friday, and
he holds it tic Frld.xy and the Monday, in this Cife nothin<^ fiiall be forfeited but that which he has our-
prifcd. Br. Francfiilc, pi. 14. cites a; A(T. 54. But he who has Fair to hold at ; D,-.^s^ and holds
it ^ Days, he forfeits the whole Fair. Ibid -So where a Man has Market to hold the .V f:r-.ij\ , .-.iid he
holds ic a>:cthcr Day, the Market fliall be forfeited, and he fhall make Fine for the Mif-ufing, per Bank,
ruod nota, double punifhmcnt, quia non fiegatur. Br. ibid. Fin. 38.
4. If a Man has Gaol Deli-very by Liberty, and holds Men in Prifon, le- Br. Fran-
caiifc he ivill tiot he at the Charge to have Deliverance, this is a Forfeiture of '^'."'"'^'' ?!,• ^
bis Liberty. Br. Forfeiture de terres, pi. 93. cites 8 H. 4. 18. jj^^g who"^
has Gaol
keeps Prtfoners acqtiitfed, -w'^o had J>aid thir Fees, the King * Ihall re-feife forever for the Mif-ufcr
iir. Franchiles, pi. 16. cites 20 E 4. 5.- * Qr:g. (refccivera.)
5. Error fued to the Bailiff of Reading, and at the Pluries, the Bailiffs
came and prayed anciher Day, and had one, &CC. by Ajjtnt of the Party, and
at the Day did not return the Record, but came and prayed another Day, and
the ether Party ivvuld not AfJ'cnt ■, and per Vavifor, the Franchife Ihall be
re-feifed. Br. Franchifes, pi. 26. cites 20 E. 4. 5.
6. For if the IVarden of the Fleet be ccnwianded to bring in his Prifoner,.
and does net, the Otike Ihali be leiied^ and thi$ -xhere he is commanded by
ihe.
512
Franchifes.
{hi: Court:, contra where he is commanded by Proceis, per Vuviibr. ^t.
Franchilcs, pi. 26. cites 20 E. 4. 5.
S.P.Br. For- .7. If a J^ord refiifes to do a T'lriHg according to his Franchife^ or docs con-
feiturc dc ^f^ry to his Franchife, or Mif-tifes it by hijnftlf by his Batliff' or Deputy^ or
iT-'^cites 20 Non-tifcs the Franchife, the Franchife lliall be releilcd, per Hullcy. £r.
E. 4. 6 per Fraiichifcs, pi. 26. cites 20 E. 4. 5.
Pigot. — See
Show. 276. Mich. 5 W. & M. in Cafe of the King v. the Mayor of London.
S. P. Br. For- jj. yind all Lords who have Franchife pall be jittendant upon the Jiiftices
feiture de ^^ AJftfe in Perfon, or by their Bailiffs, and otherwife they forieit their
iTJ"uL 20 Franchifes tor this Nonteaiance, per Pigot. Br. ibid.
E 4. 6. per Pigot.
Bift if he 9. If the King grants to one a Fair for one Day in the Tear^ and he
claims one /fjo/^j pair 2 Days^ and claitns this in the Exchequer upoa Prccefs, he tor-
p7tell 'miA ^'^^^^ ^^^ ^^^ Franchife. Br. Franchifes, pi. 22. cites 2 H. 7. 11. per Brian.
another by
Prcfcriptton, which is found falfe in the Prefcription, yet he fhaU not forfeit his Patent. Br. Franchifes,
pi. 22. cites 2 H. 7. 1 1, per Bri.an. ..^W Market fhall not be forfeited by Nonnfer, tinlefs of a I'hitig which
cf Neccjfity ought to be done as of Clerk of the Market, 8cc. For there Non-ufer is a Forfeiture. Ibid —
Fin. 50.
10. If the Under-gaoler often fuffers Prifbners, viz. 2 or 3 times, to
efcape, 'tis a Forfeiture of Liberties. Savil. 15. pi. 40. Pafch. 22 Eli/,.
Sir John Arundell's Cafe.
11. Franchife fliall be feifed if it be claimed by any hut by him that has
the Freehold. Yelv. 191. Mich. 8 Jac. B. R. in Cafe of the King v. Stafler-
ton, cites Cro.
12. Quo W^arranto was brought againfl: the Mayor and Burgefles cf
Wiggan in Lancalliire, for Uling of certain Liberties, viz. Fairs, Markets,
and Courts, and at the Day of the Return of the W^rit they do not appear;
and it was agreed, per totam Cur. that if they do not fhew good Caufe
in Excufe ot" their Dcfiult, then their Liberties Ih.ill be fcffed into the
*2Roll.R. King s Hands according to the Book of 15 E. 4. and * 'i5rmg'0 Cafe.
lac. b'r''^ 2 Roll. R. 92. Trin. 17 Jac. B. R. the Cafe of Mayor and BurgelFes o):
1.
Wiggan
13. In a Court Leet of a Manor in a Forefi the want of an able Steward.,
is a Caufe of Seizure, andyo is the not having Officers and Tilings for the
Execution of Jiiflice, as Conflables, yiletajlcrs, &c. and Pillory, Stocks,
and Cuckinifo'jl, Sc fo likewife ior pun ijhing Bakers more than three times,
and not fetttng them on the Pillory, all theie are Caufes of Seizure, 'till
Payment of a Fine for the Abufe, and Replevin of the Franchife, by
Noy 8 Car. i. Jo. 283. Totterfall's Cafe.
14. One claimed Waifs and llrays within his Manor in a Foreft; by
Noy, thefe Franchifes may be feifed, till they be replevied, if there had
been no Allowance in the laft Eyre. 8 Car .1. Jo. 285. Englefield's Cafe.
15. A Judge ignoraittlv condemns a Man to Death/o;- Felony, ^vhen it is
not Felony, in a Manor Court which has the Franchife of Intangthiel"; for
this Offence the Judge fliall be Fined and Imprifoned, and lofc his Office,
and the Lord lliall lol'e his Franchife. Thefe Points were refolved in the
Star-Chamber, upon an Aflembly of all the Judges there, by the Com-
mand of King Ric. 3. Jenk. 162. pi. 7.
16. The conftant Pra6life of Inleriour Courts to ifjue Precepts oi Ca-
pias Without Summons, I think, is fuch an Abufe of their Franchife, that
perad venture, this fhall be a Forfeiture of it ; I know no other Method to
remedy it j per Powell J. 2 Lutw. 157. Mich. 4^5 ^V^ & M. in Cafe
of Gwynn v. Poole.
17. All Franchifes are granted on Condition, that they fhall ht duly
Executed according to the Grant, and if they ncgleft to perform the Terms,
the Patents niay be repealed by Scire facias. 12 Mod. 271. Hill. 11 W. 3:
in Cafe.of the City ot London v, Vanacre.
(F) Difpute
Franc liifcs. 5 1 c^
(F) Dlfputcs between them and the Sheriff.
I. 'TF Bill lijf' of Fee, or BaililY cf a FranchtTe returns a riMincl to the
J[_ She-n'lj\ and be returns otter l-'diiiie! of bunfelf^ this lliull noc be oullcd
at tiic I'raytr of the Bailiff, but thc_\- Ihall have their Aciion againlt the
Shcriif; Br. A£lion fur le Cafe, pi. 83. cites 30 Alf 5.
2. If the Sheriff' Makes Eseaition in tie Fra/iehife this is good ; For he
is ()fii^-er imuicdiate to the Banks 3 but if Bailiff' of the Fnwchife docs Jo in
the (jttilddUe, this is Error, and tills by Hill and Norton, quod non con-
tradicitur. Br. Office Sc Off pi. 35. cites 1 1 H. 4. 9.
3. Shcnfj' enters into liich Libert)-, and the Grant is lliewn to him j if he Arg Hard.
m.'kes E>^eciiticn 'tis good, but Lord oi the Franchife Ihall have Adion on [^ admincJ,
the Cafe againll him. Arg. Pv.oll. R. 119. Hill. 12 Jac. E. R. Derby Courtuf-L-s
(Vill) V. Foxk'}-. no NotlL-eof
Fi-anchifcs,
and the Sliciirt' is the Officer to the Court, notwithftanding the Franchife and the Lord of the Franchife
is '-"ut a lubordiiiate .Miniller to the Siieriti" Mich. 1655. in the iixehequer in the Cafe of Newman v.
Phillips.
• ' (G) Pleadings, &c.
'HERE Procefs is re-funmjoned out of the Franchife to the Bank,
there the Tenant need not tofave the Default which was made
in the Franchile, per Cur. For there nothing lliall be of Record in the
Bank but rhe Onginui only, and noc the mefne A6ts which were done in
the Franchise. ' Br. Francliifes, pi. 2S. cites 2 H. 4. 8.
2. T'refpal's of tahng Bcajfs in the County of NonhumherLmd, and Chafing Br. Brief, pi.
to N. where N. was in the Bijboprick of Durham, and this pleaded, and i^cit&iS.C.
yec the Licfendant was compelled to AnAver, and the Realbn feems to be
inaiinui h as Communis Lex efi magis digna. Br. Jurildiftion, pi. 22. cites
2 H. 4. 25.
3 L'pon Ifi'ue joined, one came for the Mayor and Bailiffs of Oxford,
and f hew' d a Charter that they of Oxford fs all not be impannelled with Fo-
reigners, and prayed Allowance j per Cur. the Mayor and Bailiffs cannot
plead it, but the Men impannelled fhall fi\' it upon their Appearance ; by
■which the Juror who appeared pleaded it, but the Juror may relinquilh
the Advantage of it if he will, and i^o he did. Br Franchifes, pi. 30.
cites 4 H. 6. 6.
4. Tho' the Charter, or Letters Patents are lofl, yet xhe Exemplification,
or Conilat of tlie Roll may be iht-Mved forth, by the Statutes of 3 E. 6. and
13 Eliz. And when any claimed before thejuftices in Eyre, any Franchifes
by an Ancient Charter, tho' it had exprefs Words tor the Franchifes
claimed, or if the Words were general, and a continual PoJJeJion pleaded
of the Franchifes claimed, or if the Claim was by old and obfcure Words,
and theParty in pleading expounding them totheCourt and averring con-
tinual Polleliion according to the old Expolition, the Entry was always
Ifiquiraturfuper Poffe/^onem ^Ufum, ^c. 2 Inlt. 282. where Ld Coke fa\'s,
he had obferved as above in divers Records of Eyres according to that
old Rule.
5. The Difference between an Avowry and a .<^(!o Warranto is, that in
an Avowry the Avou-ant is not compelled to peiv his Title to his Fran-
chile, but only to fay generally, that he hath fuch a Franchife j but in a
Quo Warranto he mult fhew it particularly. 9 Rep. 29. b. in a Note of
the Reporter there, in the Cafe of the Abbot of Strata Marcella.
cites 8 Ed. 3. 10. b. 11.
6. If the Party has continued Pollelfion tortioufly, the Judgment is
th.it he fhall beo-'/ed ; but if he had once a Tide and loll it, the "jfudg-
6 ? merit
5'4
liient lliail be that the Liberty lliall hcfeiftd. Yelv. 192. cites 15 E. 4. 7,
Mich. 8. J:ic. B. R. in Caic of the King v. Staverton.
7. When any Thing is li^vved to be done within a Liberty, or a
Franchife, 'tis not neceliary to Jhew within what County, that Liberty, or
Franchifc doth lie ; For the Franchile hath no Relation to the County.
L. P. R. 635. cites Trin. 23 Car. i. B. R.
8. Cafe by Bai/iff'ot' a Liberty, that has the Execution and Return of
\\'rits, againlt one forentring his Liberty, and executing a Fi. fa. is good
without pew ing by what Right he claimed the Liberty. Show. 17. Palch.
I VV^. & M. B. R. Gary v. Bacchus, als. Matthews.
9. In fome Cafes you cannot fet up a Franchife, tho' you have Letters
Patents tor it; as iff have a Ferry, I will bring an Aftion againll you for
fetting up another; becaufe I mult keep up mine for the Good of the Pub-
lick, which, would be hard upon me if' you get all the Profit. But other-
wife it is where the Piib/ick is not concerned; per Holt Ch. J. and Judg-
ment ace. Holt's Rep. 20. Hill. 5 Annse in Cafe of Keeble v. Hickeringil.
Sfran^I ^Frankalnioignc.
moign. 95. b.
to 100. b.
(A)
I. YJ^Rankalmoigne is not any Service. Br. Aid del Roy. pi. 13. cites
X; 35 H. 6. 56.
2, 12 Car. 2 24. §. 7. Enafts, that this A£t pall not take away 7f-
fitlres in Frankalmoigne^ nor fubjett them to greater Services.
Fraternity.
(A)
I. •^ Uild or Fraternity fi«»»or he made, mlefs by [fecial Incorporation.
yjj^ Per Littleton, Juftice. Br. Corporations, pi. 60. cites 20 E. 4. 2.
2. Fraternity is fome People of a Place united together in refpe£t ol
aMiftery andBufinefs into a Company, and their Laws and Ordinances
cannot bind Stranger^, for they have not a local Power or Government.
I Salk. 193. Hill. 2 AnocC. B. R. Cuddon v. Eaftwick.
3. Corporarioh may make a Fraternity, per Cur. i Salk. 193. Hill. 2
Anns. B. R. Cuddon v. Eaftwick.
Fraud
515
Fraud.
(A) Fraud. \To prez^eat ForfdtNre to the Kiz/jr, c;r Lor^ Scecapi.i.
for Lnmes. ccfoot v.
•^ ^ BIUUT.
I. TJF
llic
J, a 03an malte Feolfment of f)iS ILnntJ to the Vih oi' his Son,
^ji_ llCinrC 'in Intiiiit, an0notuponCommunicacioiiol'l\I:irriage,iin'Otf)CU
tljnt iO to'faP ten Days after commits Treafon, Of VJljlClj \)Z \<a aftrr
inarns nttasntcn, Cijtei ILanti fljall be forftiten to tlic l^ina ; tor tijc
ir fuiTnicnt, (IjaU be nujungci! frauoulcnt, anO ijoiD againft toe
l^mg»l:), 8 Jac* in tbe (Stcbequcr, pet Cur.
But it'tb!0 jfCOftnieilt tUaS made in Performance of an Agreement macle
a Year bcrnrc, bp lufjici) It luajs araccD, tljat tljc JFtoifoc fljouiif itinke
ftic!) ConVici'ance, $c* ann tJje Ifcuic of tfjc jFcofTor bciniT SuDcHtnr,
fljouID mane fuc'o ConUcpancc of tlje laim, tuljicO uinsi alfo none
ncccrQtniTlp, in iW Cafe tIjiS iFeofFment fijall not be aBiuBsea
faaimulent aixanuT tIjc l^ins* l;). 8 i\^u In tijc e^rcbeciutc* m Cur*
2. 3f a {^an alien LanU, to the Intent that it ihall not be forfeited,
and after does Felony, tljlS laUti HjaU bC fOtfClteQ* P* 4S C* 3- 'B.
H* Hot* I.
(A 2.) Fraud. What is in general.
I. /'^ UO D alias hotitim £5" Jiijium efl, ft per 'vhu vel frnitdcm petatur,
\J malum S injtiftitui efficitur. 3 Kep. 78. Hill. 44 Eliz. in Chan-
eery in Farmor's Cafe.
2. Fraud ought to be Fraud at the beginning ; For fiibfeqiient Fraud, , .
will not make a Conveyance to be fraudulent, s Buls. 226. Pafch. 12 Mmi\^\^~
Jac. .Stone v. Grubham. Common
Scnfc, that a
prcfent Af;;reement, not then fraudulent, ITiouId be varied, and heccme fraudulent by future ^4cci<ie>its ; per
Raymond and Gilbert, Comminioners, and they faid, it muft be confidered as it is in itfelf, without
Rcfjard to any thing Extrinfick. Sel. Ch. Cafes, in Ld King's Tin-.e. 6. Pafch. ii Geo. i in Ca<c cf
Dews V. Brand.— See (A. 3) pi. 4.
3. Where Reco-very is upon legal Caufe, it cannot be faid Covinous,
tho' it was on Coiifcnt, and to the Intent to prevent another of his Debt.
Jo. 92. Hill. I Car. B. R. in Caie of Veale v. GatelHon.
4. A Merchant impcrts 9 Tofis and a half of Wine, he fliall pay Prifage
notwithllanding; tor it is Fraud apparent. Hard. 56. Pafch. 1656. in the
Exchequer. Att. Gen. v. Shirt.
5. A. on his A'larriage luitb B. a Dutchifcvian in Holland, agrees to leave
a ccmpkat Maintenance lor her and her Children, but not cxpreffing ixhat. —
A. att;er\vards alhgns Bonds to Truftees, and gives a Letter of Attorney
to receive the Money. By zheCuJlcm in HoiL-nd, fuch Agreement between
Baron and Ferae, and fuch AUignment of Bonds are good, and therefore
are to be allowed here. Per Ld K. Finch. Trin. 26 Car. i:. i Chan. Cafes,
232. Alhcomb's Cale.
6. A. indebted to B. ajjigns Land hyWay of T'rtifi, to pay 'S>.']$ol. A
coniefles Judgment to C. B. receives, and pays to A. the Profits, to the
Amount ot 800 /. — B. had no notice of the Judgment, nor v%'as there any
Extent on the Judgment. Ld K. decreed an Accoupt, and the Soo/. noc
CO
tj 1 6 Fraud.
to be aliovvx'd ochcrwife than us to go in Satisiaclion of B's Debt. Mich.
21 Car. 2. 2 Ciian. Cal'e. 207. Miller v. Stephens.
). A. and B. make Crofs-Sdtkmnts of their EJintcs ; A's Ellate was of
molt Value, and he conveyed it by Bargain and Sale inrolled. B. fettled
his by Covenant to itand iciled. Ali:erwards A. propofed to I'ell Part oi his
Ellate, and B. negotiated the Sale. A. by Will, deviled his Eitate to a
Relation, and d\''d. The Court held the iiicqiialirics of Val/ie, and alio
of yJlJiirc/ict'y and B's negotiating the Sale as Berrfj^cs of Fraud, and de-
creed A's Eltate to the Devifee. 33 Car. 2. 2 Ch. R. 221. King v. Hele.
(A. 3) Fraudulent Conveyance.
Sir Ed Nor ^- A ^"^ 'i'-J^^lut^"^ Conveyance, and a. Contif/ii^fice in Pof/c/f/on ailcrwards;^
they faid, it a\. i^^^^ be adjudged in Law fraudulent, per Coke, Ch. J. 2 Buls.
h:id been 226. Pafch. 12 Jac. Stone V. Grubhani. 2 Vern. R. 262. S. P. P. 1692.
naled forty inCafcof Hungerford v. Earle.— 5Rep. 60. b. Mich. 32 & 33Eliz. B.R.
ExpeHcncer ^^^'^^'^ ^^^^- ^^°- ^3^" P^^*-'^- 44 ^^'^- '" "^'^^ ^^'^^ Chanjber. Cham-
at Guild- ' berlain V. Twyne.
Hall, that if
n Man fc/lj Gcci'.s, and continues in PofTeflion as vifiblc Owner, 'tis fraudulent, and void as to the Cre-
ditors, and that it has always been fo held. Hill. i-o^;. Ch. Prcc. 287. in Catc of Bucknal v. Royfton.
— Mich. 2S Car. 2. Fin. R. 27 1 . Oakover v. Pettus.
2. If A. afligns a Leafe to B. and the Leafe continues in the Ciijlody of
A. 'tio fraudulent i otherwife not. 2 Bulf 226. Pafch. 12 Jac. Stone v.
Grubham.
3. A Conveyanpe cannot be fraudulent againjl Articles^ unlefs another
Conveyance be executed in a legal Courle. Arg. Hill. 23 and 24 Car. Chan.
Cales. 217. Holford V. Holford.
See (A 2) 4- ^ Deed not at lirll fraudulent, may aftevsiards become fo^ by being
pl. a. coiiceakd, or not ptirfiied ; by which Means Creditors are drawn in to lend
the Money. Per HutchinsCommilfioner. Pafch. 1692. 2 Vern. R. 262.
in Cale oi' Hungerford v. Earle.
♦Voucher
('>;.b)pl.i,2.
(B) Fraudulent Conveyances of * La?ids fet alide.
Savil i2rt. S. I. "TN Formedon, Tenant pleads Kon Tenure, and it was found by
C. by Name J^ Verdi£t, that bejore the Hht, the Tenant cnfccff'd fevcrnl Perfons,
of W hue V. yj[^^ Intent to defraud fuch as had Cauie of Aftion for the fame Lands j
and yet he took the Vvofits. This Verdi£l was adjudged for the Demand-
ant; for the Feoffirient was void againll him by the 13 Eliz. 5. Cro. E.
£33. Pafch. 33 Eliz. C. B. Leonard v. Bacon.
Te"!' z5i ^- A't-'offment on Condition to be void on Payment of 100/ in a
Year to the Heirs, Executors, &;c. of B. within a Year al'cer the
Death of B. — B. dies Intellate. — C. takes Adminilhation, and grants
Letter of Attorney trcevccdUe to D. (to whom B. had alfigned the Eltate)
to receive the ico /. to his own Ufe if it Ihall be paid. (Note, C. was
' Heir as well as Adminiitrator.) — Afterwards by Agreement, between the
Feoffor and C. Feoffor was to pay the U hole Money in Shew, but to be re-
fund a third Part tnfantvr. This was not a fufficient Performance of the
Condition, becaule of the Covin. Mo. 708. Hill. 37 Eliz. B. R. Good-
all V. W iatt.
3. Fine by Covin fliall not bind. Hill. 44 Elii. in Chancery. 3 Rep. 7'^.
b. Farmer's Cule. al. Fermor's Cale.
A. 'I'he.
Fraud. 517
4. The Eiirle of L. furcbafed a iManor in his Danghteys Name, and at- I-.^ne^S^cites
terwards kept the Courts, and made Leafes in his own Name, and al- i^'j,^|^„^^'.''^'^
ways took the Profits, and then Ibid it to Sir S. Mountague ; tho' the C:i({.'°^^
Daughter never qucltioncd it in the Liie of her Father, yet 'twas held^
in B. R. that unlels there be fome Fraud difcovered, 'tis not within the
27 Eliz. tho' there be many Badges of Fraud, cited Cro. Car. 530. 10
Car. Lady Gorge's Cafes.
5. Fi-M pajcri by Qmmr.'efition., MUs decreed not to extinguifh a Rent
Charge, but Relief againft the Circumventer. Hill. 27 and 28 Car. 2.
I Chan. Cafes 273 v. Hawkes.
6. If a Contingent Remainder be deflroyed by a legal Conveyance,
and that Com-eyance is ohtamed by Fraud, Equity will relieve againft it.
Hill. 1686. Vern. 443. Englefeld v. Englefield.
(C) Fraudulent Conveyances of Goods fet afide.
1. 3 H. 7. cap. 4. Ena£ts that, yf// Deeds of Gijt, of Goods and Chat- „
tels, made in I'riijt to the Ufe of the Grantor, to defraud Creditors, pall ^isccloi'ke-^
be void. cufuncy, for
not c.miing to
Dhine Service. Upon this he makes a Gift of all his Le.ifes and Goocis, Coloured under feigned Confider.^-
iicns, and flies beyond Sea, in Order to defraud the ^^een thereby, ot what might accrue to her by his
Recu'ancy, or/.';i Flight. Afterwards he was outlawed on the lame Indictment. This Cafe Teemed to
fome within this Statute, becaufe tho' the Pre/imhre fpeaks only of Crediters, yet the Body of the Aft
is general, that all Gifts of Goods and Chattels, made in Truft to the tile ot Grantor, are void.
This is only with Regard to Str.i7igers wbo would be -prejudiced by fuch Gift : But is ftill good to hind the
Parties therafelves. But adjudged, that 15 £/;::. 5. extends to this Cafe. 5 Rep. 82. cited in Twine's
Cafe, as Mich. 55 and 96 Elii. in the Exchequer Chamber, the Canfe of P-iunccfoot v. Blunt,
A Feme has a 'fa-ni, as Jdminijlratrix to A. her firit Baron, and marries B. who, being indebted by
Contradt toC. granted the Term to C'. to the Ufe of B. arid his If Ife for their Lives, and after to the LfeofC —
C i'ues and gets Judgment. Per Cur' tjiis Grant is not to avoid Creditors ; For the Term being in Right ot
the Feme, as Adminiftratrix, if it had fo continued in the Hands of B. and had never been granted, it
was not extendible for the Debt of B. and Fraud Ihall not be intended, unlefs it be exprefsly found,
and this Grant is out of this Statute, and all die Statutes of Frauds. Cro. E. 291. Ridler v. Punter.
Leffee for Years, after Judgment againft him, aliens his Term. After the Year, the Plaintiff fues
out a Scire facias, and has Execution. The Term is not liable, if the Affignment was made Bona Ftdt.
Godb. 161 Pafch. S Jac. C. B. Wilfon v. Wormal.
2. A General Deed of Gift of all his Goods is fufpicious to be done upon , -^ gj
Fraud to deceive Creditors. Bacon's Ufe of the Law. 62. Twine's
C^ale — Mo
(558. Pafch. 44 £liz. Chamberlain v. Twyne
3. If a Man that is Dehor make a Deed of Gift of all his Goods to Cro E. 445^
prorraft the taking of them in Execution for his Debts ; this Deed of
Gift is void againll thole to whom he was indebted ; but againft himielfj
his own Executors, or Adminiftrators, or any Man to whom he Ihall
after fell cr convey them it is good. Bacon's Ufe of the Law. 62.
4. By Sale, any Man may convey his Goods to another; and though stat. 29 Cari
he tear Execution for Debts, yet he may fell them out-right tor Money 2, v
at any Time before the Execution fervcd, fo that there he no Refrva-
ticn of 7'ruji between them, [as that] paying the Money, he Ihall have the
Goods again ; for that Truft proves a Fraud to pre\ ent the Execution.
Bacon's UJe of the Law. 62.
5. A. makes a Deed of Gift of all his valuable Goods to B. (who was The Gtf": is
his fuond iVife, thejirjl then living) and makes B. Executrix, and dies. r^m^^Law
B. refufes the Probat, by whicli. the Ordinary granted Adminiftration ^^j ,,]jy Lr '
to C. C. has no Allets, and if ASion be brought againft B. ihe will 19 Eli/,, y.
plead, that there is an Adminiftrator. — Per 3 J — B. is chargeable as and ib the
Executrix de fon Tort. Dal. 94. pi. 16. 15 Eliz. bnt'l J
pgainft B as E>:e:utor, de Son Tort, and that fuch Gift i'; void by the Common Law. Per Dyer, C'l.
]. z Le. 229. Stamford's Cafe. S. C. 5 Le. 5-. S. P — ^fJfownl. U2. * Hawes v. Leader. S. P. >
So if C gra'its the Goods to n. 3 Le ^-. Mich i <; Eli:.. C. B Anon. ♦ Vid, ^I)
6 (^ 6. Sale
^i8 Fraud.
S. p. tliatit 6. t!>'^/e of Inceltates Gooil> l^y firfi Adinnufi rater ^ whole Adniiniftra-
fliall void xxoa. is repealed upon Citation, and granted ro next of Kin by Averment
byijEhx. of Covin, may be avoided. Mo. 396. Hill. 37 Eiiz. Willbn v. Pate-
Alt or s, but man.
fecond JdmimJIratoK 6 Rep. 58. b. Packman's Cafe.
Ci-o. E. 405. 7. Wife was made Executrix, and made Gift of the Goods before
Wilcox V. Marriasje, and yet reteifis them in her Polielfion, and tcTkes to Baron the
Wation. S. j)ejg;,la-,j^ . The Wile dies ; Earon has in his Hands io much Goods
uow, as willfuffice to pay the Creditors their Debts. Judgment pro Quer.
For the Defendant has confefled himlelf Executor, by the Plea of fully
adminiltred, and fo is chargeable 3 Becaufe the Property of ti:ie Goods
does not pals out of the Wife by the Grant, being made by Fraud, as
aforefiiid, by the Statute 13 Eliz. 5. Mo. 396. Hill. 37 Eliz. Wation 's
Cafe.
Ow. I'z. S. 8. Goods made over by A. to his Daughter, after Judgment had againll:
C. — Cro. him, Revocable on Tender of five Shillings ; A. died j The Daughter being
E. 810. S. C. j5 Years old, by Deed authorizes B. to take the Goods to her Uie,
B Tnter-''^'^ and difpofe of them accordingly j and after willeth one C. to be Al-
meddled af- filtant to the fiiid B. in difpofal of the Goods to her Ule. C. af:erwards
tertheFa- by Appointment of the Daughter and B. fells tlie Goods for 250 1.
ther's Death, which is paid to B. B. takes Letters of Adminiftration. Agreed,
Goodf md ^^^^ ^- ^'^^ AfTets ; And that i:he Grant of the faid Goods was
afterwards '^oid, by the Statute of 13 El. 5. 2 And. 172. Trin. 43 Eliz. Bithel v.
the Dangh- Stanhop.
ter, by this
Gift, took the Gcods, and then Jdmimjlration was granted io B. Adjudged, that tTiis Gift is in itfelf frau-
dulent, as appears by the Condition, and the Covin expresjly found ly the Jury, a:id tlien // ;/ utterly
i;oid ngainft the Creditors, hy l^ Eliz.. and the Intejiate died pffeffed of them ; and when the Donee after-
wards took them, it was a Irefpnfs agaigfi the JdmwUlrator, for which he has his Remedy ; and they
are always JJJets in his Hands, and he is chargeable for them as Executor de Ton Tort, by his inter-
meddling before Adminiftration granted ; and hyLavj they remained al'ivays in lis PojfeJJion.
5 Rep. So. 9. A_ indebted to three Perlbns, has Goods to latisfy but one of
tii Nam"^ f ^^^^i ^""^ ^^^^ ^^^^ Commenced by one, or after Notice of Suit to be
Twyne's Commenced, or Arreft made, makes G/^? of all his Goods to another Cre-
Cafe. ditor, in Satisfaction of his Debt.^ — This is fraudulent againft him who
fb has commenced his Suit, or made the Arrell for his Debt^ per Pop-
ham, Ch. J. and And. Cli. J. Mo. 639. Pafch. 44 Eliz. in the Star
Chamber. Chamberlaine v. Twyne, & al.
10. If A. gives Goods to B. with Intent to defraud C. though B. kfwifs
fiot cfthe Fraud, yet the Gift, as to him, is void; per Altham, J. Lane
102. cites 34E. I tit. Warranty ace. — And 6 Rep. 72. [Pafch. 5 Jac.
C B.J BurrelPs Cafe.
11. A. is indebted to B. and makes C. his Executor, and dies. — C.
promifes B. upon good Conlideration, that if he can difcover any Goods,
parcel of the Eflate of the Teftator, at the Time of his Death, then B.
fhall have the Goods in Satisfaftion : The Queflion was, whether a
Leafe for /"ears, conveyed to a Stranger by the Tejlator in bis Lije, to the
Intent to defraud his Creditors, lliould be in Law laid to be Parcel oi
his Eftate at the time of his Death ? and the wliole Court refolvcd that
it was ; For though the Sale bound himfelf, yet it was void againit
the Creditors. I'rin. 18. Jac. B. R. 2 Roll. R. 173. Anon.
Hill. 8. Jac. 12. An Kxecutor ov Adminiftrator Ihall not avoid a fraudulent B:li
P.. R. Cro. J. of Sale as Executor or Adminiltrator, but when he is a principal Cre-
v'LadeT' ^^^°^- ^^^^- 3-^^- P^rHolt. Mich. 7. W. 3. B. R. Oriabar v. Harwarr.
s.'p.
(D) Where
Fraud.
5^9
(D) Where Conveyances fhall be * Good m Part and t r^ .^
iraudulent in rait. v'ois,
I. \ In Confidenition that his Son Ihall marry the Daughter of B*
__£\« co\enants to Hand icifed to the Ufe of his Son tor Life, and
aitct to the Ufe of ether his Sons in Rc-jerjion or Rcnminder ; Thefe Uies,
thus limited in Remainder, are fraudulent againll a Purchafor, though
the firll be upon good Conlideratioui viz. upon Marriage. Lane. 22.
Anon. Sti. 42S.
2. A Deed may be fraudulent as to A. and good as to B. Chan. Gales o"°r,,'77~'
244. Mich. 26 and 27 Car. 2. Bellingham v. Lowther. pci-'Rams-
^ ^ ford, J,
(E) Fraud at Common Law.
I. TXTHere no former I/itereJl- of the. Party is '■jjrong'd, there no fraudu-
\ Y lent Conveyance was void at Common Law. Arg. Lane. 105.
2. Hole, Ch. J. faid, that there was a Fraud at Common Law, as in
Cafe where a Perfon in Prifon, and afterwards executed for Robbery , made
a Bill of Sale of fcveral Goods., with Intent to make Provijion for his Son ;
and that no Countenance ought to be given to fuch a Contrivance as
this, where a Man has gained a confiderable Ellate by Robbery, and
when he is detefted, that he Ihouid give it to his Son'j And the Plain-
tiff was nonfuited accordingly. Skin. 357. Trin. 5 W. & M. at Guild-
hall. Jones v. Alhurfl,
(F) Frauds as to Creditors. Cafes in Law and Equity
upon the feveral Statutes.
50 Ed. \^Ratidtiknt AJfurance of Lands or Goods ^ to deceive Creditors, JImU This Aft
3. 6. JP be void, and the Creditors Jhall have Execution thereof, as if no f^ R^elLfo/'
fuch Gift had been rmde. Creditors,
and to fuch
Debtors only, as ihake to SanEiuarks, or other -privileged Places, cited 5 Rep. 8;. in Twyne's Cafe, aa
Jilich. 5 5 8c 56 Elii. ill the Exchequer Chamber, Pauncefoot v. Blunt,
2. A Man made a Gift of his Goods with Intent to defraud his Credi- Br. Con-
tors, and yet continued the Poffeffton of them, and took SanCfuary, and died '^'^""j. "''^•
there ; now his Executors, having the Goods, were charged towards the \[(^'
Creditors. Gary's Rep. 25. cites 16 E. 4. 9.
g. 13 Eliz. cap. 5. S. 2. Enafts, that all fraudulent Conveyances of
Lands, tenements. Hereditaments, Goods or Chattels, and all fuch Bonds,
Suits, Judgments-, andKxecutions, made to avoid the Debt or Duty of others,
jhall (as againfl the Party only "ushofe Debt or Duty is f) endeavoured to be
avoided, their Heirs, Succejfors, Executors, or Ajfigns') be utte;-ly void, any
Pretence, feigned Conjideratwn, cr &c. nciwitkflanduig.
By S. 4. Common Recoveries had againji tenants of the Freehold fJjall
he good, notwithjianding this Aci ; and fo (foall all EJlates ?nade for the prc-
Liirnig ('/ a Voucher in Formedon ; neither fhall this Ad extend to Grants
made bona fide, and upon good Conjideration to Perfon s not privy to fuch
Ccllufion-.
4. h. feifod of Land, as Heir to his Fatler, covenants for natural
j^ff'effion to Jland fcifed to the IJfe of himCelf lor Life, Remainder to his
ff! Sen in Ta;', <?;c, Remainder to himflf m Fee, v.ith a Power to make
r;2o Fraud.
Lca[cs^ and to revoke the Ujes, he having Notice at the lame Time, of a
Bond entered into by his Father to B. Akervvards B. brings Debt upon this
Bond againll A. ae Heir j 'twas held that this Conveyance by the Heir Ihall
be fraudulent ao;ainll B. as a Conveyance by the Father who is the Prin-
cipal Debtor. Cro. E. 350. Mich. 36 and 37 Eliz. C. B. Apharry v. Bo-
dingham.
5. If a Debtor will fo////^e with fome of his Friends in Fraud of his
Creditors^ and the Frieud break Truji with him, this Court will not punifh
the Breach ; Yet <55?een and COttCtell'lS Cafe to the contrary. (Fraus
non eft fallere tallentem) But two Dotlors and I took Order in fuch a
Cafe, between I^OOHfOCH and C^UltOU. Mich. 42 & 43 Eliz. by our
Report that the Goods, fo conveyed in Fraud, fliould be transferred to the
Bmefitof the Creditors. Cary's Rep. 18.
6. Good Conlideration is not lufficient, unlefs it be made bona fide
too; and no Deed Ihali be deemed to be made Bona fide within the Pro-
vifo of 13 Eliz. 5. which is accompanied with any Truft; asifA.be
indebted to B. C. D. E. and F. in 20 1. each, and has Goods worth
20 1. and makes a Gift of his Goods to one of his Creditors, in Satisfac-
tion of his Debt, but in Truft, that the Donee fhall favour him, or per-
mit him, or any other to pollefs them, and to pay the Debt when he is
able ; this is not Bona fide. 3 Rep. 81. Pafch. 44 Eliz. in the Star Cham-
ber, in Twyne's Cafe.
7. It is the Advice of Lord Coke, that when any Gift ihall be made
iit Satisfailion of a Debt, by one who is indebted to others alfo ; i. That
it be done publ/ckly, and before the Neiglibours, and not privately ; For
Secrecy is a Badge of Fraud. 2. That the Goods and Chattels be
iippraifed by honell People, to the true Value, andtake a Giix in parti-
cular in Satisfiftion of the Debt. 3. Immediately after the Gift, to take
the PoJfeJ/ion of them; For Continuance in Pollelfion of the Donor, is a
Mark of Truft. 3 Rep. 81. Pafch. 44 Eliz. In the Star Chamber, in
Twyne's Cafe.
Cro. J. i-o, 8. Ai In Coi^fideration of 2.0 J. makes a Bill of Sale to B. of all his
fa'iL^titr^^°°^"' -""^"tiotied in a ScJoeduk, and gives Pofielfion by a Platter, and
S.C. Brownl. ^- covenants that the Goods /ball remain in his Houfe as before, but to he
112. S.C. taken away by B. on Demand, and that A. and his Executors, &c. fhall
keep them fafely, and quietly deliver them, &c. A. 4 Years after dies
Inteftate, and his Adminiftrator refufes to deliver the Goods. It was
adjudged, that if this Deed was fraudulent, yet it was void only a-
* "s*"^ ^^V g^'*^^^ Creditors, and not void againft the * Party, his Executors or
of Carter V Adminiiirators ; and where the Executor pretended, that it would be
Claypole. a Devaftavit in him to deliver the Goods to A. this is not fo ; for if
the Deed was fraudulent, they are liable in B's Hands, as Executor de
fon Tort ; But if any ot' the Creditors had recovered, and had taken the
Goods in Execution for the Value, and the Adminiftrator had pleaded
this, it might be a good Plea by him. Yelv. 196. Hill. 8. Jac. B. R.
Hawcs V. Loader.
9. If A. make a Deed of Gift, and the Conftderation be future, the Do-
nor's Continname in Poffeffton is not fraudulent, unlels it be expresflv
proved, that it was made upon Fraud, to deceive the Creditors ; and (o
Coke, Ch. J. direfted the Jury. Roll. R. 3. Pafch. 12. Jac. B. R.
Scone V. Grubham.
10. Leafe for Tears, conveyed to a Stranger by Teftator in his Life
fraudulently, viz. to the Intent ro c/c/K?//^ his Creditors, is parcel of Tf/-
tators Eftate at the time of his Death, fo as to be anfvver.tble to Cre-
ditors. 2 Roll R. i73.Trin. 18 Jac. B. R. Anon.
2 Roll. R. "• ^" 1'refp.^.fs for Goods taken againft a Bailiff'; Defendan'^ juftifis
4(;5.Hill. as Officer of a Court Baron, &c. and pleads, that the Plaintiff chime.j
z2- V.ic.1. S. iifider Colour ot' a fraudulent Gift ; and held a good Plea, bvtwoj. tho'
bvSName ^^ '^ "°^ ^ Creditor ; For if a Bailiff Hull not be aided by 13 E!:z. $■
tyfTurber- becaufc he is not u Creditor^ 710 viefiu Procefs could be execuced ; and
vil V Tipper, when
I
Fraud. 521
when a Statute g'lxts the Prunipj/j it givco ull the ^dccidoits. Liit. 222.
SirAmbrofe "rurviJl, v. Tipper. j\j,j ul-.cie
12. A. and E. were joint Obligors ; A. as Principal, and B. ^Surety. fu.Ji Goods
A. (to fiive B. harinlcfs) upon his Death-Bed in.ide B. a Dtid of Gift^ or'aic omitted
all his Goods, but thev were fici romvcd but remained in A's Poliellion, Jl^p''^'"' ^'m']""
fo long as A. li\ed, which was but a very little Time ^ and tho' 'twas j,"^^^ ^'"1"^^,
gi;od Confcience to Iree his Surety, and A's continuance in Pofleffioii E\ecutoi-, a
alter the Death was verv Ihorr, yet 'twas ruled a fraudulent Deed and Lcrr-uttma/
GiJi: ; For Debts upon Specialty are to be pret'erred to this Equity, and i-'''Pfy '.'"^ ('•""
n was his VoUv not to take Coun:er-Security. Llayt. 3S Auguit. 11 Gar. 5i„i,.it-,jj|
Per Berkley J. Lcgard v. Linley. Court, but a
Creditor
cannot. S Mod. irtS. Hinton v. P.irk;:r. It ferns a Creditor may L\i'\\'^ too, by t'.ic Civil Law.
Dom. 622. cited in M.u-g.
13. Fraudulent De:d to derche Creditors was fet afidc. 15 Car. i. Chan. Jenk. 49. pi.
Rep. 132. Navlor V. Baldwin. 94.cit>.>
A. lias Gccds ii:rth 50 /, and ov/es 20 1. to B. and lo 1. to C. and a£t,qns lis GcyU tc C. to thclntent,
that for rhc RcfidiK- above the Debt of 10 1. he fhall be fcisiirjble tu hiin. Per Coke, Ch. J. it i< al-
tof^ethcr void, becaufeitis fraudulent in Part ; But )"er Poller, ]. it i<; void only for the Surplulagc.
Godb. idLPalch. 3 Jac. C. B. in _Caie of VVilfoa v. iVormal. cited. 5 Rep. Si. Twine'j Cifc.
14. Tenant lor Life, being /// Debt, to defraud his Creditors ccm-
jiiits a Forfeiture, to the iind that he in Reverlion ma} enter, who is
made privy to the Contrivance ; Per Hale, the Creditors Ihal! avoid this,
as well as any fraudulent Conveyance. \ ent. 257. Palch. 26 Car. 2. B. R.
Anon.
15. A voluntary Set;leinent r///l'/'/(7j a Dcvifc of the fame, though it be Such Con-
for payment ot his JJcbts ; For, per Jeiteries C. it is not revocable. '^f<;'f"."'l^('^''
Vern. 464. Trin. 1687. B.iic v. Newton. frSniA, M-
a fev/ MontliS before his Death, he deviled all his L.xvJ. for Payment of Us Dehts. On a Bill by Oedi-
tors to fubjedt the'e Lands, it w. as objei^ted, that at bed this was but in Nature of a Cbofe en Actio 1,
and not allignable ; but Lord Wright, and Mailer of the Rolls held, it was in Nature of an Ei-,iiity
of K^demption, and affignable, and ashe mi^ht have been relieved, lb may his Dcvilees. Ch. Prec.
142. Hill. 1700. Blake v. Johnfon.
16. 3 y 4 IV.^M.cap. 14. ^'. 2. Enafts, that all ll'ills concerning ^^'^^i-^-^^i'^'^s
Lands, or any Rents, Profits, Term, or Charge out oj the fame, -x hereof the ''"''-'i^f .'"''^
Devi for spall be feifed ui Fee Simple in PoiJeJ/ion, Re-vcrjion or Remainder, ^^,^^^^^'^.^'''
Jhall be deemed to he fraudulent and "joid againft Creditors upon Bunds, or other k.iihigarcxl
Specialties, their Executors, Adminijlratvrs, ^c. Ejl.ne to de-
S. 3. jind every fuch Creditor 7Hay maintain an jiBicn of Debt upon the ^^^^°Y^
faid Bond and Specialties againji the Heir at Law, and fuch Devi feu * joint- -Jlf fiuort-
ly, and fuch Devifee jhall be liable, and char ;:^eabh for a jalfe Plea, as an (race i'm-
Heir at Lazvfhould have been jor any falj'e Plea pleaded, or for not confef- Years ; the
Jing the Lands and Tenements to him defcended. ^"''' '^J'^'^c
ute before
a Bill brought, and if the Obligee was relievable here, againrt: the Heir ard Purchafor, on the Statute
for prevcntirg fraudulent Dcvilcs, or if he was to be feiit to Law to get Judgment firft, was the Qiie-
ftion ? The Lord Kecj'er thought, that Statute being hitrodi-.cihe of it 7ie-zu Lc.iv, tiie Kciief on it niuil
be at Law ; and he'd like\vi(c, that a Bond Creditor could not redeem a Mortgage for Years, without
firft having Judgment at Law againlt the Heir, though it miglit liavc bee.i otlierwi'c in C^.ile of a
Mortgage in Fee. Tr. 1702, Ch. Prec. 198. Batcman v. Bateman. Note, Chancery at tliis Dav,
gives Reucf upon the faid Statute in fuchCaie. Ch. Prec. 19S. in a Nota there.
A. Ictwd hinf-lj avd Its Hetrs in?i Bond, ttvd de'-^ifed till his Lar.ds to J.S. a Bill was brought upon
this Statute, to afl'ett the real Affets in the Hards of the Dcvi'ee ; hut the Heir rot bei'ig made a
Party, it was objected to ; But it was antwered, that nothing bei ig delcended to him, it would ha in
vain to make him a Pjirty ; for it would only oblige the Plaintid to pay Colts. .\nd though in an Ac-
tion at Law it wa;; necellary to make him Defendant, it uas bccau'e the Debt was in the 1 'ebet 6c De-
tinet, and the Heir at Law privy to the Anceltor, and the Deviiee not ; at^ \'o for Coif )rmitvt the
Statute in .\dion at Law direrted thq Heir to be a Ci)-D;fcndant ; yet that it was othcrwi'i; in a C.)Ui-t
of Jtruity ; But Lord C. Cciwpcr faid, that it is the Ait of Parliament makes this All'ets i.i tnc Dcvifee's
Hands, and that requiring the Heir to be made Defendant, \oumuft follow the Remedy therein pre-
lcnb;d, and tUs UiU •■:• Eji.iij, is as j?j Jdii-ii at L w ; Othiru^tfe ij tLere il-sti 1:3 H::.- , .-i.v.f t:rhAl^s it
6 R n-u iit
:^22 Fraud.
might be ovlierv. ii'e too, ij'the Bill had cki/ged, ih-it the Plaintiff I ad made Inquiry, and aald Jr,-:d or
di/cover 1:0 Heir. WnKS Rcf. ()!), izo. Inich. l-c- . Gawler v. VN'ade.
Tliough by the faid Statute.a Man is prcventtd from defeating his Credirors by hi? Will; yet any
Settlcmei.t or Dilpofition he (hall niakc iri his L>ts-nmc of hii Lands, whether vohintai-y or not, wilJ Br
cccd iiqr.inj} Bead Creditors ; For that was not provided ac;.iinll: by the Statute, which only took Care to
fccuvc fuch Creditors againft any Impofition, wiiich might be fuppoled in a Man's lat!: Sicknefs; but
if he gave away hisi'.ftateinliis Life-time, this preveiued the Defccnt of To much to his Heir, and
confequently took away their Remedy againft him, who was only liable in Rcipeft of the Lands de-
fcendcd ; And as a Bc?id is vo JJeti ^vllat;oevcr 01 Lands in the Hands of tieOLIi7:r, much lefs can it be
ib, when they arc given away to a Stranger. Decreed. Trin. 1718. Abr. £0 Cales. 149. Parflow v
Weedon. ■ S. C. cited per Mr. Vernon. Chan. Prec. 521. though he faid, that till that Relblu-
tion, Ii£ ihould have been of another Opinion, and that fuch a Difpofition lud been held fraudulent
againft Creditors by Lord Ch. J Holt, in the Cafe of Templeman v. Beke.
iS". 4. Devifcs Jor payiiicat of Del'tSy or Children's Partiofis^ purfuafit tea
M^irriage yjgreciucnt except id.
17. A Man Iteuls a young Woman, who had a confiderable Portion In
'Triifiees Hands , After the Marriage, her Friends refttfcd to part ivith ihc
Portion without Security Irom the Husband, that it (tould be fettled on
the Wife, who gave a judgment, that it fhould be laid out in Land, to
be fettled to them, and the Heirs of their Bodies ^ A Creditor of the
Husband brouglit a Bill for his Debt, and to be let in , tor that it was
after Marriage, and voluntary, and lb ought not to prevent a Creditor of
his Debt J But the Court dilinilled the Bill, though without Colls. Ch.
Prec. 22. Pafch. 1691. Moor v. Rvcaulr.
18. Gccds 'xcre taken in Ksectition in thePoffeffion of S. who had them by
Virtue of a Sale from G. Upon which S. brought an A6lbn, and the De-
fendant infifiedj that the6'.-?i^ to S. was fraudulent againlt him, he being
a Creditor by Judgment; Holt, Ch. J. fxid, that if the Judgment luas
upon a Point tried, m fuch Cafe he need not to prove the Conjideratiem^ but it
Ihall be intended good; hut if it be a Judgment /;)'Cc;;/£^c;;, he ought
to prove it to be for ajuft Debt., othervviiehe ihall not overthrow the Sale,
though it be fraudulent ; For it is good againlt all but Creditors lor a
juit Debt bona Fide due. Skin, $'^6. Trin. 7 W. 3. B. R. Sanders, r
19. A. being inDebt tofeveralPerfbns, and apprehenlive ofa\'^erdi6l, and
great Damages to be given againlt him, in an Action brought againlt him
by B. lor Criminal Converfati'ni ivith E's B'lfc, (onveys his Kftatc to Trulhes,
fir payment of Del ts mentioned in a Schedule, and fuch other Debts as
he ihould mention in 10 Days afterwards. A Verdict is given againlt
him, and j'ccjo /. Damages. B. by Bill endeavours to let alide this Settle-
ment as fraudulent to defeat his Recovery. But the Court held it not frau-.
dulont, either in Law or Equity, lor fuch Debts as are named in the
Deed, thofe being real Debts, and his only ex Makficio. But he mav
have an Interelt in the Surplus, and ordered him to declare, if he would
controvert any of the Debts, and come in upon the Surplus after the
Debts mentioned in the Schedule, or liich other, as were appointed within
10 Days purfuant to the Deed, are fatisfied. Mich. 1699. Ch. Prec. 105-
Levvkner v. Freeman.
20. It was held by the Court of Chancery, that if there be /wo Deal-
ers, and one ot them is very iniich indebted to the other, and, in Order to
get an Abatement from him, he makes him believe he is infolvent, by ah-
fconding, skulking, or fliutting up Shop, whereby the other h^s Jufi Caufe
to fear the Lofs of his Debt, and thereby procures a Releafe or an jibate'
vicni, I'chen in l\'-ur!i, the Man luas really fclvent, this Court would
relieve againlt luch Releafe, &c. and this was agreed to have been olten
done, and the Cafe of ISOltnCP and QgOtmCI) quoted for an inftance ,
lecus if the Party had not )ult Caufe to tear the Lois of his Debt. 12
Mod. 558. Mich. 13 W. 3. cites the Cafe of Monger v. Kctt.
21. A. ■purchafes a Le.ifj of a Houfe in Ks. Name, and cakes a Decla-
ration of Trult to permit A. to enjoy jor Life, and then in 'Trtift for C.
'■jdho livd With yj. as his IVfe, and was ^o reputed. Wright K. inctin'd,
that this Leale is not Allets of A. nor liable after his Death to his Credi-
tors ; lor when a Mun purchafes, he may Icttle as he pleafe, and thought
that
Fraud, c;2 3
th;ic Iraudulen!: Conveyances are made lb only by the leveral Statutes
jnade for that Purpole. Hill. 1704. 2 Vcrn. j.90. Fletcher & al. v. Ludy
Sidlcy&al.
22. A. conveys his Ellate to the U/i of himfclf jo;- Life, zvjtb Poivcr to
mortgage flic b P,rrt as bcjhali think fit. Remainder to the Trultees to (ell
and pay all his Debts, but contiums Foffcffiun, avA keeps the Deed. — A. be- "
comes indebted ati:er\vards by Judgments, 3>onds, and Simple Contracts.
l"hc Deed ot" Tjult is traudulcnt as againlt Creditors by Bond ui^d
Judgment, who, having ;/o iVo//6e of the Settlement, Hiail not com.e in in
Average only with the other Creditors. Trin. 1705. sVern. jio. Tur-
back V. Marbury.
23. If A. makes a Bill of Sale to B. a Creditor, and aftenvards tO'C. ano'
tker Creditor, and delrcers Foflefjion at the Time of tlie Sale to neither, and
after C. gets Pojfeffion of the Goods, and B. takes than cut of his Pofjcflun ; C.
can't maintain 'frelpafs, becaule th'ijirjt Bill of Sale is fraudulent again/t
Creditors, and fo is the Second, yet they both bind A. and B's. is the Elder
Title J and the naked Polieliiun of" C. ought not to prevail againit the
Title Qit' B. that is prior, where both are equally Creditors ; and Polief-
•iion at the Time of the Bill of Sale is delivered o\ er to neither. Per
Holt, Ch. J. 2 New Abr. 606. cites Trin. 1706. Baker, v. Lloyd.
24. A. made a Bill of Sals of Goods On Ship-board, (which -ivere In-
voyced particularly) and of the Produce and Ad-vantage that Jhotdd be
made of them to B. and this was in Nature of a Security for Monev lent
on a Bottomree Bond. Thefe Goods were afterwards invcjicd in other
Goods, and thole again bartered for others. A. dies, and was mdcbtsd by
Judgment to J^. S. Ld Cowper thought, that this was no fniudulent Bill
of Sale ; For the 'frujl appeared on the -jcry Face of the Rill of Safe, and
here B. was intitled prelently to the Truit of thole Goods on the Sale,
and to all the Adv antages confequential to that Trull, and mdvjclks the
Goods for that Purpofe, and if that could be diltinguilljed from other
Goods, then B. was to be paid Prior to J. S. but othervvife, J. S. mult
be preferred, and B. paid only in a Courfeof Adminiltration. Hill. 1709.
Ch. Prcc. 28^. Bucknal v. Royfi;on.
25. A. going beyond Sea, conveys an Eftate to Truftees to raife 5000/, G. Equ. ,
for a Daughters Portion, to be paid 3 Adonths after jI Jar ri age. About a ^'' '"
Alonth after, A. being on Ship-board, 'xrote a Letter to the Trujhes, to
correct the Abfolutenels of the Trull. While A. was beyond Sea, the
Daughter marries and dies. The Husband had an Eltare of about 800 /.
per Ann. Ld Cowper was againfi: reading the Letter, and faid it could
be no controul of the Deed, eipecially being a Month after, and that
fuch a Method would break through all Settlements, and cited the Caie
of CUllienno; ll* Cla^JCnng- He faid, that as to Creditors, this Deed
would be voluntary j but there being no fuch, he decreed the 5000/. to
be railed for the Husband, Aviih Intcrell from three Months after the
Marriage, but being againll the Heirs at Law, would allow no Cofts.
Ch. Prec. 306. Mich. 17 10. Clavel v. Littleton.
26. A. conveyed Lands in T'riifi to raife Portions for his Children, and a. o-oin^ be-
5 s. only, or fuch a trifling Sum, was paid by the Feoiiee for Land worth yond Sea, in
1000/. A. died, and B. was his Heir. It 'was held, that this Land theSer vice of
is not extendible on a judgment had againit B. ^o that the Conveyance jj^QqI^' g^J
was not fraudulent. Clayt. 7. March. 8 Car. per Davenport Ch. B. Sir ^,.^f^ ^J^ ^^
Francis Ireland's Cafe. ihe Cornf.ir.y_
of zoool. for
his FiMily, and a few Days after conveyed Land in Truft to raift 5000 /. for his D,v<e,hte>'s Portion,
payable ^ Mcrths after Mnrrinfe. B. marri(Xi t',ic Dauj^htcr ; and afterwards A. embezelled 26000 / s/ Ihe
Comtar.fs Efecis. Decreed the 5000 1. to B. after PayiiKnt of iocol. only to the (Jomp»ny. .Ch. Prci.
57-. Pafch. 1-14. E. Ind. Comp. V. Clavel.
.... '.i
27. A Man being much indebted gave 600 I. for the Benefit of hisTounger
Children 6 Hours before his Deceafe. This is not fraudulent, as againtl
Creditors, though it would have boon (o of a real Eltatc or Chattel Reel ^
yet
R.
£^2 A Fraud.
yet the Court would net have taken it Pro ConfeCbj to I e fo, but
would have direttcn an IJfue to try it ^ as the lame was done in Ld Sonimers's
Time, and, on Iliue directed, determined Iraudulent beiore Holt Ch.
J. Sel. Ch. Ca. in Ld King's Time. 77. 14. July, 1729. Duifin v.
Furnels.
28. 5 Geo. 2. cap. 30. §. 11. Enacts that. Every Bond, BiU^ A'cte, Con-
traB^ yigreemoit, cr ether Security.^ whatfce'ver to be made cr ■jrceti^ by any
Bankrupt or other Per/on unto, or to the Uj'e of, or in Trn/ijcr any Creditor
or Creditors, or for the Security of the Payment of any Debt cr 'Sum of Mo-,
fiey due from fiich Bankrupt, at the Time of his becoming Bar:kntpt, or any
Part thereof, letis)een the Time of his becoming E -nkrupt, and fuch Bank-
rupt's Difcharge, as a Conftderation, or to the Intent to perfw.ide hitn, her^
or them to con fen t to, cr Sign any fuch AUoiicance or Certificate, Jball be -x holly
void, and of no EjfeB ^ and the Monies thereby feciired, or agreed to be paid,
ihall not be reco'vered or recoverable.
(G) By orte Creditor, Proteftlng or Screening againft
another.
1. A Devifed Lands to B. charged with 600 /. and in default of Pay-
Jf\^» ment, devifcd them to C. atterwards B. and C, Joined in a Afort-
gagc to D. and D. fullered B. to continue in Pollellion, and to lell Timber,
lo that the Ellate would not anfwer the Legacy and Mortgage. Euc de-
creed the Legacy to be paid firlt, D. having Notice ot'the \\ ill. Trin. 27
Car. 2. Fin. R. 225. Green v. Gardiner.
2. Mortgagee recovers Judgment in FjeCJwent, but, In Combin rtion with
^Imaelr ^^^^ TenaniTin Pollellion, nfufes to take out Execution. North K. thought
heccmes a it rcafonable, that if he would not receive the Profits, the Rent ihould
£«Kilc«;)*,& be brought into Court, and ordered, that unlcfs he took out Execution
Mortgagee before tlie End of the Term, he 1. ould he anfwerable for the Profits, as
ImJr^'md in Cafe of wilful Deftult. Mich. 16S4. Vern. 258. D. of Bucks v. Sir
tjcrmits the Rob. Gayer.
Bankrupt to
continue hi Pcffcficti, and to Fence aguinfl: the F.jeHmmt, brou_!^!it by the Afrignee<;, with this Mortgaj^e.
Mortgagee fliall be charged with the Profits from the Time ot the Ejectment delivered. Mi.ii.
16S4. Vern. 26". Cliapmuti v. Tanner. So where Mortgagee enter;!, and thereby prevents lubfe-
quent Incumbrancers from entring, -iDd ye-t termils AUrtfaPot- to receiije the Prcfih, he ITiall be charged
with all the Profits he had, or might have received lincc his Entry. iSlich. 16S4. Vern. Z'o. Coppring
V. Cook.
3. A. has Judgment againll B. lor a juft Debt. A. takes out a Fi.
Fa. and gets the Sherift to feize, but would not let him proceed further,
and lets the Goods nmain in B'sHands. — C. who had alio a Judgment for
a jull: Debt againlt B. takes out a Fi. Fa. C. may feife the Goods ; For
the former was a fraudulent Elxecution, and the Sheriff might very well
return Nulla Bona, en the firlt Execution. Farr 37. Trin. i Annx. B. R.
Rice v. Serjeant.
4. There being Accounts current, between A. and B. a Goldfmith, B.
gives out his Cajh Note to C. for 5000 /. and A. mortgages his E.Jiate as a
Collateral Security tor the Money. B. gives C. 100 I. jor his Favour An the
Matter, who keeps the Cap Note by hun. Some time after, the Mortgage
forfeited B. beromcs a Bankrupt. A. prays Relief, becaufe C. neglefted to
turn his Calli Note into Money, when he might have done it. It was
directed, that an Accouut be taken, how Matters itood been A. and B.
MS. Rep. fuid to beLd Harcourt's. tit. Fraud; cites 10 Feb. 1717. Ma-
l«n V, Lake.
(H) By
Fraud. 525
(H) By Conveyance or Gift, to Pcrfons not Creditors, to
Icreen.
'^Fjiaat in -Taif, by Fraud, grnfits to the K/m^, and after bargains to
^ another. This Conveyance is void to the King ; becaufe 'tis
by rraud ; per Coke, and cites it to be fo held by Popham. Roll. R.
167. Palch. 13 Jac. B. R. Anon.
2. A. made a Leafc ibr Years to B. and others for Payment of his
Debts, and dy'd. The Rc'^.^erjioti dcfcended to C. The Triiftees and C. ojjigii
the Term to D. by way of Trull, to fay D. 750 /. C. confelies JadguKnt to
R. — X). rcceh-es the Pro/its and pays them to C. to the Value of 800 /. but
D. had no Notice of the Judgment, nor was there any Extent on the
Judgment. Decreed by Ld Keeper, that he Account, and the 800/. not
to be allowed otherwife than as to go in Satisfi£Vion oi' his Debt,
viz. D's Debt. Mich. 27 Car. 2. 2 Chan. Cafes. 207. Miller v. Stephens.
3. A. makes zn abfohtte Conveyance to B. for 1500/. B. executes a De- There is ad-
feazance upon Payment of 1500/. within 6 Tears, and after on A^arririge '^,f'^w^,?^^''^
fettles it as an abfolutc Ellate, oit his Wtfe and Ipe. There being Proof^ 'be Wifc'r'
that A- made the Conveyance, to enable B. to get a Fortune, though that was Father had
another Lady, and not theWiie B. really married, it was decreed, that A. Noticeofthe
was bound as Particcps Crnuinis, and this Decree was no\v affirmed by Defcifance,
Eight Lords as:ainll Seven. Cowpcr and Harcourr, a^ainfl the Decree. c'"\?,'^^ ^^J
1-. 1 i- • ^ « < ,1 1-. I- • 1 I T 1 1 r » " 1^ 1 T oettlemenc
Parker tor it. MS. Rep. iaid to be Ld Harcourts tit. brand. 21 Jan. made. Ibid.
I'^iS. Webber v. Farmer.
(I) As to Parchafors. Cafes in Law and Equity, upon
the ieveral Statutes.
I. A Has thefc four Feoffees to his Ufe B. C. D. and E.—iK.fl/s this
jC\^» Land to F. and requires B. and C. to pafs the Efiate of' it to F.
and A. alio requefts B. and C. to require D. and E. in the Name of A
that they alfo Ihall pais the Eltate to F. and they and B. and C. do all
this and pafs the Eltate accordingly toF. but A. did not fpeak with D. and
E. to this Purpoie ; A. afterwards fc//s the fame Land to G. and requires D.
and E. to make an EJiate to him of it, and they do fo. Upon a Suit in
Chancery by F. againlt D. and E. they were difcharged by the Advice
of the Juftices ; For A. did not perfonally require them to make an Es-
tate to F. F. may fue A. and alfo G. if G. had notice of thefirll:
Sale J and G. may alio fue A. for this Difceit. Jcnk. 107. pi. 5. cites
39 H. 6. 36. and 7 E. 4. 14.
2. Lcffee for 60 Tears, if he fo long lived, fcrgcd a Lea fe for 90 Tears abfo-
lutely, and then by Indenture, reciting the forgd Leafe, fold the fatne, and all
his biterefi in the Efiate to R. G. for valuable Conji deration. It Icem'd to
Coke, that R. G. was no Purchafor within the Statute 27 Eliz. for he
contraftcd not for the true and lawful Intereft, (for that was not known
ro him, or otherwife perhaps he would not have dealt for it, and the vi-
lible and known Term was forg'd), and tho' [it was] by general Words,
[yet that] the true Interelt pall, notwithltanding fie gave no valuable
Confideration, nor contracfed lor it. And all the Judges of Serjeant's-
Inn in Fleet-Street, were of this Opinion. Co. Litt. 3. b.
3. If a Lef!i:e for 7'ears demifeth Parcel of the Term to another, and co-
yenowfis' forfeits b'is Whole Leafe for any Condition broken, and takes tlie
Land back in Leafe again, his Lelfee Ihall find Help in Chancery. Gary's
Rep. 25. cites Crompton 64.
6 S - ■4' "^ '^^
526
Fraud.
4. The Pluintitr bought Land of the Detendant, which the Defendant
hMi cdjveycii bdorc to the Ujl of bimfclj\ hts Wije and Son. It was de-
creed, tliHt the Pi lintirt" Ihould have the Land againft sill. Toth. 125.
cites 13 and 14 KJiz. Frankland v. Gray.
5. The Bill icrs ibi th, that G'. one of the Defendants, /;/ Conftderation
'of c86/. did Bargain and Sell unto the Plaintift' certain Lands in the
.Bill nientioned ; and made unto him a Deed oi Feoff i/tcnt^y and a Letter of
Attorney, to jnake Livery and Scilin ; and Ocjarc Lrjiry i.iadc a Lejfe to
C. zvho kiici'J of ths Bargahj, and he leafed to B. who knew alfo ot* the
Bargain, and this appearing to this Court to be true, an Injunftion is
granted to the Plaintitlj until the Caule fljould be heard and determined.
Gary's Kep. 117, ii§. cites 21 and 22 Eliz. Ireby v. Gibone, & al.
Vid. Reco- 6. By tne Statute 27 Kliz. 4. where a Sale was alleged to be fraudu-
very.(C.a.2) jgj^^. within that Statute, againft a Grant of Kent made by a Remainder
Man, to lime out of the lame Land, it was held not to be fraudulent.
Becaufe the Grant and Sale jhotild he ruade by the fame Pcrfon, and here
Tenant in Tail made the Sale, and the Remainder Man granted the Rent.
Mo. 158. Pafch. 23 Eliz. Hunt v. Gately. al. Capel's Cafe.
This Statute 7. z'] Eliz. cap. 4. §. 2. Enafts that. Every Conveyance.^ Grant, Charge,
''^^"'f\ f^y Incardrance, and Lnnitat'ion of Ufe or Ufes of in or out of any Latids^ or
of Lands other Hereditaments., made to defraud any Parchafor of the fame in Fee, in
and 7wt to Cre- "Tail for Life or J cars : Shall (as againft fiich Parchafor s only, and every
diton. I Lut. other Perfon lai<vfiilly claiming from, by or under him) be utterly void, the fat d
•'^^d - T ^ Ptirchafor having obtained the fame for * Money, or fome other good Con-
Johnlbn.
Tenant in Tail, Remainder over ; if he in Rcmainiier perceiving Tenant in Tail about to alien and
bar him of liis Rcm.iinder, ffranl his Kemairdcr to the ^leen, ty Deed im-oUcd, -with Intent to fieceii;e the
Piinhtifir, ar.d Tenant in Tail die:> without IlTuc, the Parchafor fhall enjoy the Land as,ainft the ^een,
by this Statute; for the Statute makes void, not only fraudulent Conv(Svance<;, made by the I'eridor him-
f'lf, but every fuch -Conveyanec, made with intent to deceive Ptirchafors, and even Grtints to the Kinq,
the Statute Liei'nj^ general, and made in Suppreffion of Fraud, per Coke Ch. J. Pafch, i^Jac. 11. Rep.
74. in Magdalen College Cafe. — -And lays Popham Ch. J. was of the fame Opinion.
* One Covenanted to ccnvey to the Uje of himfelf and his Feme, and the Heirs oi his Body, with Re-
mainders fjver, before fuch a Day ; but in the mtiVi 7wte tnakes a Leaj'e of his Ellate to othei-s for fevcral
Years, and after mak.-s a 1 Aifurance according to the Covenant, and held a good Leafe, and out of
this Statute ; For this Act is only in Favour of Pufch.7fors, who give Jljuey, or other Conjidsr.ttion for
the Land, per 3 Julh And. i;^. Trin. 32 £1. Beaumont v. Neednam. S. C. cited 9 Rep. S3, b.
In the Preamble it is faid, for A/oney or otJ.er ^oi'dCoiifidcratioyi, and fo it is in the Body of the Act,
yet thofe Words are to be intended only of V.iluable Conjideration, as appears by the Claufe about Revo-
cation, in which it is (aid, (Money, or other good Conlideration) and the Word (paid) is to be re-
ferred to the Money, and (given) to the Confideration, and thofe Words exclude all Q/iJld.erat/jrii of
Nature or Blood, &c. 5 Rcp^ S;. a in Twine's, cites it as adjudged. 3- Eliz. in C. B. in Cafe of Up-
ton v. BafTet.
A. tmde a Feoffment to the Cfe of l-imfi/f for Life, Remainder /i) /.>;/ .y^,-; in Tail, Remainder over, with
Poivcr of Reiccati.'t:, by IVriling tinder lis Hand and Seal, and puhlijbed in Pyefincc of three Hltnejj'es. After-
wards m Coniidcrat ion of 430!. bic entetyd iirto n Recopjiizarice ot Soj 1. and died, and held that this
Recognizance v;ns extendible againfi tlje Son, by this Statute, becaule the Statute aids, not only Purcha-
(ors of Lands, but thofe who, tor '.iliiabk Coiijideration, have any Charge oat of, or :ipon it. And tho' It
does not exprefsly fpcak of Connf.:s, yet it fhall be expounded to extend to them. In Cane. Vid. Bndg.
22. Garth and ErcsHeld.
A. becomes 'Fevavt for Life, Remainder to lis Son B. and his Jf'tfe for their f^o Lives, Remaind.er to
them in Special Tail, Remaiyukr to Jl. in Tail general, with a /'ijiffc relerved to A. by ary Jf'riting, to
iharge the Lands luith 2000/. A. and H. after Aiortgage Part of the Land to C. in Fee, with Condition
of Re-entry, on Payment of the 2.000I. in 10 Fe.irs ; A. dies. B"s Wife dies without lifue. B. mavriss
again, and has Iflue a Son, and dies ;' the 10 Years expire. Held tliat the Ellate limited to the Heirs
general of B. is not fraudulent, nor within the I'Fords, or the Equity of this Statute, and fo good againft
the Mcrtgagee, tho" perhaps he may have Relief ;>; Eqtiitv for the 2000 1. Per Hale, Ch B. Hardr. 59;.
Pafch. 17 Car. 2. Jenkins v. Ke.nifh, A Bill v/as ifterwardi brought in Chancery, and there decreed
that the Coniideratmn of the firi^ Scttlenrcnt, (viz. Marriage and M.irri.ige Portion) may extend to the
Iflue of f.ich fccond Marriage, and that the Power being cx'ecuted by Lea'e and Reieaie, was not a
};ood Execution, and the Bill v. as diUniifcd Lev. 237. S. C- Cii. R. 2:4. t>, C. Chan. Cafes 104,
S. C. Pafch. 2'D Car. 2.
A. Bar-rains .rn.i fills a T'erm to B. in Conf der.itiun that B. was Surety for him, for 3000 1. to J S. and
covenants, that iie I'.ad Power to gr.mt it, \> i;creas he had before fettled it, in ConfiJer.ition of a Marriage
Portion, m Trufi t? the Ufe of h://fe!f and his II Ife for Li+c, and then of his Iffue Male. All agreed,
tb.it this Leafe fliall not avoid the Eftate of the Feme and IjJ'ue in Tail. Ley Ch. J. fiid, that i\\ Cale
A'i H-'ifi had died, avd the C.ildren by her, the Le.^fe 'ii,oiild Jujgood aS^infi A's Ri^ht Heirs. But whether
As
Fraud. ^27
A's Eftate flial! be void by this Statute, as fraudulent ag^tinft B. at Icafl: during A's Life, Quii-e 2
Koll. R. 505. Pafch. 21 Jac. B. R. Bc/erly v. Gatacre. [A tSut it leems upon the lalVCafe, a Sureli
to whom a ."^ccirity is made of Lands for his IndemniHcation, by the Perfon for whom he is Surety
is a Purchalbr withiu tliis Sututc]
§. 4 Conveyances made ttpon good Qmjidefatlon^ £? bona fide, pjall Is
gcodj ncvjj'.thfianding this Acf.
8. Frat^dulent Conveyance within the 27 Eliz.4. is void againllaPurcha- 5 Rep. iSo b.
for, nocwithltanding, during the Treaty, the Pnrchafor had Nvttcc of the --"itcs Paich
Fraud. For the Notice can't make that good which an Aft of Parliament 1 1,^'^- ^- ^
has made void, tis to him. pei" VV'ray Ch. J. 5 Rep. 60. b. Mich. 32 & 33 y Bullock*^'^
Jtliz.. B. R. in Gooch's Cale. — M0.615.
S. C — cited
Bridgm 25. 2 Lev. io<»
9. At CotnmoH Law, there was not any Fraud remedied, which ihould
defeat an ajTer-fiinhase, but that only which was committed to defraud
•a tbrmer Interelt. Cro. E. 444. Mich. 37 and sSEliz. C. B. in Cale of
Upton V. Ballet.
10. If a Perlbn, that has not good Government of himfelf, by Advice of S. P. Per
Friends conveys his Lands in Triijt, and without any Cunjidcration, and Andcrfbn,
afterwards one procures him to fell him Land of 500/, per Ann. for 500/. ?i^' •[■ ^ ?^^^"
or other pettv Conlideration. — Tho' this Lift Purchafor pays Monev, : 'T„,iJ'„\
yet he fhall not avoid the hrft Conveyance ; tor the Statute was made to Cafe.
help thofe that came to Land on good Conlideration lawfully, and not
without Conlideration, or b)' any indirect Means ; cited by Andcrfbn Ch.
J. to have been lb adjudged. Cro. E. 445. Mich. 37 and 38 Eliz. C. B. in
Cafe of Upton v. Ballet.
11. A. a Woman living feperate from her Husband had fived Monev,
and ptirchafed in iVs Name in I'riift. B. Ijing ill, made a Leafe ft the Re-
qiteji of A. for 200 T'ears to C. on Condition that C. lliould pay the Profits
to A. and alfo upon Condition, th.it if B. furvived the firft Day oi June,
and then pay'd 1 Shilling to C. the Leafe lliould be void. B. furviv'd
the Day but paid not the Shilling. But after £. /oj- 100/. made a l^afe
to J. 6. ^\ ith Covenants for quiec Knjoimenr, and againlt Incumbrances
made by him. B. died. C. having Notice given him now, and not be-
Ibre, ot the Leafe made to him, enters upon J. S. The Queftion was,
A\-liether the Leafe made by B. at A's Requell, in Part of Performance
of the Truft, be fraudulent and void by the Statute 27 Eliz. 4. againlt
\. S. as Purchafor, cr by Virtue cf the Revocation left to B. who made
the Leafe to C. and alfo the after Leafe to J. S. As to the Intent, it was
laid againit the Fraud, that the Intent was the Performance of the Truft,
and could not be to deceive a Purchafor, becaufe in good Confcience it
was to perform the Trull to One, who did not direct any fecond Sale.
As to the fecond Branch, it was iiiid, that at the Time of the fecond Leafe,
the fewer to revoke was laps'd and void, and fo the firll Leafe became Ab-
joiute ard Irrevocable. Mo. 757. I'rin. 2 Jac. Sheldon v. Hanbury.
12. In an Information on the Statute, it was adjudged, that if one, Upon EvI-
after Marriage, vohcitarily affigns a Leafe in Jointure to his Wile, without dence to th»
fn\ Coiijideration cf the >\'i"te'5 Portion, or anj' other Reconipcnce by her ^"7 ''^■s
Friends, and takes the Profits himfell', and afterwards fells it to one who ^-^^^^ ^^^
had not any Notice of thisAifignment j 'tis within the Statute, becaufe vo- Tanfield J.
iuntary, which fhall be intended fraudulent^ but if it had been in Con- to have been
lideration of a Portion, and lor a Pio\ilion for the Wife, and had taken f" adjudged
the Profits, and then fold the Term, it had been otherwife. Nelf. Abr. die'^"cafe°'^
S90. pi. 9. cites Cro. J. 158. Colvil v ParJcer. Via Cro J.
5 Jac. B. P.. in Cafe of Coivif v. Paiken
18. A. the Grandfather, B. the Father, and C. the Son j A. on the Mar-
riage cf E. made the Feme of B. a Jointure of S. and at the fame Tim*?,
covenanted
s^2'6
Fraud.
lovcn.iiitui l-j (1cMi;e V. Jo B. — J. dtmifcd one iMoiery accordingly, to
cojuiiiaiu after Jfs JJeath,Jor loco Teays, and the other Moiety to com-
mence from A Day' to come, Provifo if B. die zvithoiit IJfhe, cr make any
Leafc, icitlciit rej'trvi;/g the yiticient Rent, the Leafs to ie -void ■, B. afffgued
over the Leafes to the Vj'evf C. an Infant to pre-vent a Merger hy Dejeent of
the Inheritame^ and w ith this colourable Pretence, that C. f'culdpay his
JJilts. The Aliignment was to feveral Perfons of Credit, but delivered
in a lecret Manner to one of a meaner Quality j A. died jB.lbr a greatSum
oi" Monev, by Indenture inroiled, bargained, and !old D. to \V. R. It was
Relblved, that tho' at the Time of the Aliignment, the Inheritance was
in A. vet after A's Death the V endee ihall avoi.d the Term, the faid Aliign-
ment "upon the Evidence being taken to be fraudulent. 6 Rep. 72. Palch.
5 Jac. C. B. Burrel's Cafe.
Cro. J. 15?. 14. The Words of 27 Eliz. 4. are general, and there's no need that
Colvil V. }^g jijjij f^.iis the Land Ihould be the Afaker oj the Fraudulent Elbue^ or
■ Incumbrance j but if the Ellate be fraudulent the Purchafor lliall avoid
it, be "who "-JOiU the Seller^ nor lliall any colourable Pretence of Payment of
Debts, &c. or his making privately a Jointure on his \\ife lecure it, if
the Fraud be proved in Evidence, or conieiied in pleading. Pafcb. 5 Jac.
C. B. 6 Rep. 72. in Burrel's Cale.
15. If the Father make a Leaf to a Stranger for 40 Years and continues
iofjcjfion^ and alter conveys to a younger Sen, who fells it for a valuable Con-
lideration, it was doubted if the Purckafcr Ihould avoid this Leafe. But
it was laid, that if in that Cale the Father, alter the making fuch Leafe,
had fullered the Land to defcend to his eldell Son, w ho had been privy
to this Truft, then the Purchafor from the eldefi Sou lliould avoid this
Leale. , Lane 113. Palch. 9 Jac. in the Exchequer, in Cafe of Clerk v.
Rutland.
Pf^H If ^1 ^^" ■^^^''^' voluntary Conveyance is not Fraudulent^ but prima ficie it is
v^Holford'^'^ /)re,^w,W to be lb againft Purchafcrs, unlefs the contrary be made appear.
8 P. where Chan. Cafes 100. Hill 19 & 20 Car. 2. Douglafs v. Ward.
there is a
Conveyance for a Confideration So ■where Perfons of Honour are Tiuftccs, per Finch. C. Chan.
Caies 291. Mich. 2S Car. 2. Biico v. E. of Banbury.
17. A Conveyance cannot be fraudulent again ft Jrticles, unlefs another
Conveyance he executed in a legal Courle. Flill. 23 & 24 Car. 2. i Ch.
Cafes 217. Holtcrd v. Holford.
AfcrtPiitcpr ' 1 8. A. made a Leafe jor 09 lears in 'Trufi to raife Portions for his Children-^
marriej^aud fome Years alter A. mortgages the fame to B. tor 500 Years, but w ith
atter AJarrt- j^T^jjcg of the SettlcHient ; the lalt Leafe was let alide fb as not to hinder
Wmje'rhl t^'e railing the Portions. Fin. R. 439. Micb. 31 Car. 2. Aldridge and al.
mortgaged V. Duke and al.
Lands v\i hich
■was recited to be in Confideraticn of a Portion paid, and then he mortgages a zd time /i' arctler Pevf.n
who had Notice of tie Jointure at the time oi the Mortgage ; there were no Articles p-eiict^s to the Jointure,
iicr any AJorev proved to Le f(dd after the Marriage ; the hwband died ; on a Bill by the V^'ife to be let in-
to her Jointure, on Payment of one third due on the firll hkirtgage, without being obliged to redeem
ihe fecond, a.s havinp; Notice of the Jointure, it was decreed at the Rolls, that flie mull redeem Both ;
and on Appeal Ld C King faid, it can never be a Queftion, whether a voluntary Settlement, be good
afainft Purchafors, and affirmed the Decree. Sel. Ch. Ca. in Ld King's time. 65. Mich. 12. Geo. i.
1-2.6. Gardiner V. Painter. A Purchafor for valuable Confideration J);*}// /^oW, or take Place a-
gainft a Prior voluntary Settlement, tho' le hr.d E.xprfs Nctiie thereof; at the Time of his Purchafe
luch voluntary Settlement bv 2- Ehz. bflng made void againft a Purchaibr with or without Notice.
Mich. i:^-. per Cur. Abr. Equ. Cafes 354. Tonkin;, v. Ellis,
iCh. R. 74. 19. A voluntary Conveyance is a fraudulent Conveyance as to a Pur-
24 Car. 2. chaior, and therelore A'c/zi:?, or no Notice is not material in luch Cafe.
T^?'l'i I \V. <& M. N. Ch. R. 161. >Vatkins v. Stevens.
20. A. enters into Parlnerjhip with B. C. and D. for 21 Years, for dig-
ging Ahncs m A's Lands, and A. to have liich a Share in Conlideration of
his Ownerfliip of the Land^ A. diesj his Widow lets up a voluntary Set-
'ikment, after i/urrri age fir a jfomture ; it ^\^as infilled th-at the Plaintiils B.
C. and
^e^vvman.
Fraud, ^29
C. and D. were in nature of Purchalbrs, and that by 27 El. all voluntary-
Conveyances arc void as againlt Purohafers; and there was a Difference be-
t-xten Purchafors and Creditors; for the 13 £1. makes not every voluntary
Conveyance, but only fraudulent Conveyances, void as againll Creditors,
fo that as to Creditors 'tis not iutficientto fay the Conveyance is voluntary
but mult Ihew they were Creditors at the Time of the Conveyance made,
or b\' fome other Circumltances, llievv 'twas made -with intent to deceive^ or
deiraud a Creditor. But ;xs to Purchafors all voluntary Conveyances are
void without more. The Court inclined that Plaintiffs were as Purchafors
and to Decree an Execution of the Agreement againll the voluntary Set-
tlement. Mich. 1695. 2 Vern. 3i26. Shaw and al. v. Standith.
21. Reverfioner in Fee of a Co/y^o/iV Eftate furrenders it to his Heir
Apparent in Tail, Remainder to his own Right Heirs, and this was in
Order that his Sou, coming in as a Purchafor, and not as Heir, after his
T)esiih.Jho!iId pay a lefs Fine ; afterwards the Father on a 7'reaty of Alarriage
of his Son with B. tells B's Friends that this Copyhold was Jo fettled, and
propoled therefore a Settlement ofochcr Lands on B. Whereupon a Settle-
ment was made, the Marriage was had, and a Portion paid of2ooo/. Alter-
Wards the Father fettles the Copyhold on a fecond Wife. Ld Cowper Decreed
the Surrender good to the Son, and tho' 'voluntary at Jirjl, yet upon his
Treaty of Marriage, it being regarded as a principal Inducement to it, it
jio'SJ became 'jaluable, and ought to be conlidered as if it had been then
furrendcred to the Son, anddilrnilled the Bill of the Father's fecond Wife
and her Trultees with Colls. Ch. Prec. 275. Hill. 1708. Kirk v. Clark.
22. A Settlement may be 7nade after Marriage [without Articles or A-
grcement precedent] and not be lr.iudulent againll Purchafors ; as if a
Marriage be had and in Conftderation of a Sum of Money paid after the Aiar-
riage [and which the Husband was not intided to before] it will be good,
as was laid by Counfel ; to which Ld C. King faid, that that would be
as a new Agreement for a valuable Conftderation, and for a Sum of Money
to which he had not been intitled, unlefs he had conlented to the making
fuch Jointure, and would be good againft Purchafors j but if he make a
Jointure in Conlideration of Money which he was then intitled to, it is
voluntary. Sel. Ch. Ca. in Ld King's time. 65. Mich. 12 Geo. i. 1726.
in die of Gardiner v. Painter.
(K) Relating to Landlords and Tenants, and other Perions
claiming Right in the Lands.
I. A Held Lands oifeveral Lords, and in order ro Defraud 'em of their 2 Le. S. s.C
jf\« Heriots mdAn ^ fraudulent Gift of all his Horfes to B. who, to P" Dyer and
prevent the Lord from foiling, infilled on his fraudulent Gilt; upon which tiig*'^°°jf ^'
the Lord brings Debt on the Statute 13 Eliz. 5. for the Value of all the did not lie •
Horfes fo given away, tho' he claimed but one Heriot ; and whether or no but per
the Plaintiff could recover the Value but of one or of all was the Quellion ? Mounfon J.
and per Dyer and Harper J. the Aftion well lies ; but Manwood e contra. Eiij'^c r '
D. 351. b. pi. 23. Crefwellv.
Coke. .
S C. cited Arg. ; Lev. 5 54. out of D. 5 5 1 •
2. If A. makes a Leafe for Tears by Fraud i.nd.C.o\''\n, and after makes an- Cro.E.444.
other Leafe bona fide, but without Fine or Rent reforved ; the fecond Leilee Mich. 5 7 8c
fhall not avoid the Hrll Le.ifo ; For it was agreed, firlt. That by the sSEliz.C. B.
Common Law, Ellate made by Fraud fliall be avoided by him only who ^-C. report-
had former Right, Title, Interell, Debt, or Demand, but that he vvho j^at „„ r'^j
has a later Rigftt, (Sec. could not avoid Gift or Ellate precedent by Fraud was referved
at the Common Law. Secondly, that no Purchafor ihould avoid precedent tho' Hughes
Conveyance made by Fraud and Covin, but he who is Purchafor for j^ ""^"J-
Money, or other valuable Conlideration. 3 Rep. S3, cites it adjudged pi. i-^ismlt-
Trin. 37 Eiiz.. C. B. Upton v. Bailee. printed by
6 T Rent (avin<? that
530
Fraud.
Rent was referved, and Nelfon's Abr. tit Fraud, pi. 4. by copy in;; from Hughe's is Co too, and as
Hughes cites no Book, fo neither dues Wr hielfon, and botii |;ivc it as u Reafon, why the fecond
LeaCe fhould not avoid the hrlt, vii. "_ becaufe an Eliatc by Fraud, /hall be avoided only by him who
" has a former Right;" without takin? Natice that it was fo by the Common Law. -Lejfee at a
Rack Rent has been adjudged at Law, tho he paid no Fine, to bea Piarhrfor within the Statute. 2 Vern.
3i-. Arg. in the Cale ot Sliaw & al. v itandifli • 6 Rep. 72. b. Burrel's Cafe.- — 'Cro J. iSi.
cites is as adjudged 29 Elii. in Cafe of Hind v. Collins.
Sec Fairs (S) 3. 0»e^tbat cciild read, mwiitain Agreement for a Leafe for zi J'ears the
Lt:[ftr himfelf dft-jj the Leafe hut for one I'enr, and read n for 2.1 Years and
atler the Expiration of a Year eje£ted the Lcliee, and he brouo-ht a Bill
in Chancery, to be relieved upon all this A- itter which was in Proof-
but it was difnufed -with Cofls ; For it was within the Statute of Frauds
and Perjuries i and being abl'- to read it was his own folly ; otherwife if
he had been unlettered. Hill. 35 & 36 Car. 2. Skin. 159. Anon, in
Chancery.
4 n (Seo. 2. cap. 19. §. 12. E^jery 'Tenant , to whom any Declaration in
EjeiimeHt fhall be deltvercd, fhall forthwith grje Notice thereof to his or her
Landlord or Landlords, or his, her, or their Bathff, or Receiver, under
Penalty of forfeiting the Value of 3 7evs improved or Rack Rent of the
Premifes fo deniifed or holden in the Pojfeffwn of fuch Tenant, to the Perfon of
whom he or fbe holds, to be recovered by Afiion of Debt, wherein no EJjoi<rn
Protection, or Wager of Lawjhall be allowed, nor any more than one Impar-
lance.
(K. 2) Voluntary Conveyances. In what Cafes the)' fhall
be faid to be Fraudulent.
I. TFone makes a voluntary Conveyance in Conlideration of Natural
.A Affeftion, and is not at that Time indebted to any, nor in Treaty
witn any /or the Sale of the Lands, fuch Conveyance has no Badge of
Fraud, but otherwife it isif he be indebted, or in Treaty for the Sale of
the Lands. Sti. 446. Palch. 1655. Anon.
2. A. fcifed in Fee-Tail, in purfuance of feveral Promifes to M. his
Coulin, fuliered a Common Recovery, and declared the Ufes to M. and
her Heirs after his Death, and alter he fold the Land to J. S w ho was
alfo his Coulin for a 1000/. the ^AA firfi Conveyance not being difcovered
till after his Death ^ the Court held the Deed of Ufes of the Common Re-
covery to be fraudulent within the Statute. Sid. 133. Pafch. 15 Car. 2. B.
R. Fitz:james v. Moys.
3. In a I'rial at Bar, the Son and Daughter pf A. were Defendants ; the
A£tion was an Ejectment ^ the Defendants admitted the Point of A.'s
Banb-uptcy, but iet up a Conveyance made by A. to them for the Payment
of 1500 1. apiece, bang Money given them by their Grandfather B. to \vhom
A. took out Adminiltration. Per Hale Ch. J. it is a voluntary Conveyance
unlefs you can prove chat A. had Goods in his Hands of B.'s at the Time of
the Executing it ; lb they proved that he had, and there v\-as a \'erdi6t foe
the Defendants. Mod. 76. Mich. 22 Car. 2. Sir Anthony Batcman's Cafe.
4. It the Son be DiJJblute, and the Father with Advice of Friends dotii
fettle Things fo that he jhall not fpend all, tho' here be not a Conlideration
of Money, yet it is no fraudulent Deed j and a Deed may be voluntary,
and yet not Fraudulent, otherwife moll: of the Settlements in EnoLitid
would be avoided ; per Hale Ch. J. and Twifdcn Jultice. Mod.^\i9.
Palch. 26 Car. 2. Lord Tenbam v. Mullins.
2yern,2;i. 5. Voluntary Settlement made /)' r/^^ Father, is fraudulent as to anv
.Sanders v "' ^^^^^r^gage made by himfeJf, otherwife as to a M(-rtgage mads hy the Stn.
Dchew. Vcrn. 46. Palch. 1682. Jones v. Purefov.
6. E\erv
Fraud. 531
6. Every voluntary Conveyance is not therefore Iraudulcnr ; but hUaFeme
there Wds a. reafonabU Caiife for making it, may be good and \-aIid, even a- j?'/"? "^,-^-
gainll a Creditor ^ per Jeliries C. 2 Vern. 44. Pafch. 1688. in Cafe of Sa- f^J^^Jf'^Md
gittary v. Hide. thefame Div
a New one is
made, aini of ,irreatct- Value, and w itliout Articles, oi* Agi-esment, 'tis not fraudulent againll Purch.ifors.
3 Lev. ■ ,. ^^icll. 14 Car. 2. B. R. Scot v. Bell. A Tempoi-.iry Conveyance made bv a Husband in
Place of a Jointure before Marriage agreed to be made on the Wife, and of a like Value, the" by a
Difo-cnt way of Grant, a.s by a Leafe to Truftces for loo Years, and tho' it was Indorfed ihat ivhen a
fciiiti'.re jhcittid he fettled upon her of loool. per .4vn. accordinl^ to the fir ft Agreement, then the I^.-rfe jlioiilJ
be zoid ; vet it was held i.frer the Baron'.s Death, he having made no otlier Jointure, that this Convey-
ance was good ajjainil: a Purchalor. C'ro J. 454. Mich, i 5 Jac. B. R. Griffin v. Staniioo. Vent.
194. Pafch. 24 Car. 2. Sir Ralph Bovey's Cafe. — Clayt. 59. Lent AlTife 1 1 Car. i, coram Vernon. Anon.
7. In Debt upon a Recognizance fc>rieited by Reafon of an Efc:;pe, a
voluntary Settlement tnade 30 }'ears before the Efcape was adjudged to be
fraudulent. Arg. Pafch. 1688. 2 Vern. 44. cites it as adjudged in B. R.
in Lenthall's Cale.
8. A. purchales a Copyhold, and takes a Surrender to himfe!f, his iVije
and bis Daughter, and their Heirs j A. as vilible Owner of the Ellate
takes on him to make a Conditional furrenderby yv3.y oi Mortgage to the
Plaintillj and dies ; Plaintiff brings a Bill againft the Mother and Daugh-
ter to difco\er their Title, and to iet alide their Eltate as fraudulent a-
gainlt liim,who was a Purchafor; but Bill difinilied, tho' without Cofts;
For per LdsCommiinoners,the Husband and Wife take one Moiety by En-
tierties, fo that the Husband can't alien, nor difpofe of it, ib as to bind
the ^\'ile, and the other Moiety is well veiled in the Daughter. 2 Vern.
120. Hill. 1690. Back V. Andrewes.
9. Father makes a voluntary Settlement on T'ruftees to rcife Money jo
pay his Debts and Portions for younger Children, relerving 50/. per Ann.
to himfelf lor Lite, Remamder to his Son tor Life, Remainder, &c.
Father continues in Pollelfion, and 12 Tears after contra^ s neiv Debts by
Bond. Per Hutchins Commilfioner, 'tis a fraudulent Settlement and not
purfued; For the Trullees did not enter according to the Deed, but let
the Father live in the Houle, but, the other 2 Commiffioners doubting, it
was lent to Law. 2 Vern. 261. Pafch. 1692. Hungcrf^rd v. Earle.
(L) In Rc(p26l: of Power of Revocation.
' 1. 13? "27 El. cap. 4. §. 5. If Lands be firfr conveyed "with Ciaufe, Pro- AConvej^-
J3 'Vifion, or Condition of Revocation, Determination^ or Jlteraticn, and ^."l^^^^./^^ ""
afterwards fold, cr changed Jur Money, or other good Conjiderntion before the ftarJfeifedin
firjl Conveyance "was revoked, altered, or made void, according to the Power Confiderati-
' given thereby ; in this Cafe fiich Jirft Conveyances pall be void againji the ^'^ f^'^ ff.ear-
Vendte, and all others la.'wjufy clain/tngjroin, by, or tinder hini. Hcz:l eit, no jlf^^of 3 Con_
lawful Mortgage made bonahde without fraud (hall be impeached by this ALT. veyance up-
on valuable
ConCiieratkriy within this Statute, to make void a former Conveyance with Pc^cr of Rczocitiou. Mo. 6oz.
Trin. 42 Eliz in Chancery, Burgh's Cale. als. Burg!i(Lady) v. W'iLiiam.s.
If A. LntgaJris and frils his Land to B. with intent to mahe B I'cnavt to the Precipe, and B. fuffers a
Keccziery, de<. firing by Indenture the ('Yes to J. fcr Life, Remainder over with Pozier to A. cf Revccali^r,
A. fhall be (aid to be the Perfon nvho makes tlis Ca.vcyaKce, and therefore if A. fells the fame Land after-
wards to C. lor vahii-,hle CorJ;deraticn, the hrit Conveyance is void as to C. by this Statute, and if A. had
made a £f^/e of the Land, after the fiift Convcv.i'-.ce, this fhall not be faid an l'.'Mi>:oi!f'i:'»ieKt of the
Piiver of Rt-zccat!0)i, fo as to uiake void the Sale to C. Per C'.ir. Mo. 615. Pafch. 41 Elii. C. B. Bullock
V. Thorne.
A.fe.fedof Land in 7ruf} for B. makes a Lc^ft for yc.-.rs at B.'s rcqueft to C. on Cordition that C. p:y
the Profts. tc B and that ij .-^.furtive ffch a Day the Leak <'v le %oid en Payment cf 12d. to C — A. lur-
vives the Day, but does not pay tiie Alonoy ; apd after, in Cotf deration of lool. J. m;il<es a Lct^fc to D.
ardthen dies, after which C. on Notice ot the Lea'e to him, enters, and D. brought Ejecl'ment. It was
faid, that the ^i;/? I^afe is rot fraudulent, nor within thii Statute, and tl'.at, V.n: Fozeer of Hematics
being exlivnmhed at the Tim.e of making rh& fsior.d Liafe, the firft becair.e jbjoliJc ,:?:J irrciocahle. M.a,
: 5-. Trin. 2. Jac. Sheldon v. HaniJbury.
2. If
532
Fraud.
2. If A. refervcs a Power to himfclf to revoke hy Affent of B. and after
A. bitrgaiiis and fills the Land to C. this is a good Bargain and Sale, and
within the Remedy of the 27 Eliz. 4. 3 Rep. 82. b. in 'iV/ine's Cale
3. If a iMan has Power ot' Revocation, and after, to the Intent to de-
fraud a Purchafor, he levies a Ftue^ or niakcs Feoffment^ or other Convey-
ance to a Stranger^ and thereby extingtiipes his Pozver, and then bargains
and fells the Land to a third Pcrfou fur a valuable Confideration^ the Bar-
gainee Ihall enjoy the Land ; For as to him the Fine, &c. by which the
the Condition was extinct, was void by tlie Statute, and fo the Jirfi
Claiife, which makes all fraiidtilent and Covenous Conveyances void as to a
P/irchafor, extends to the lafl Claitfe oi the Aft, viz. ivhen he 'who makes the
Bargain and Sale had Poiaer of Revccatiou. 3 Rep. 83. a. in Twine's Cafe
cites 38 Eliz. C. B. Lee v. Colfliill.
4. Voluntary EJlatcs made with Power of Revocation are, by the Statute
of 27 Eliz. as to purchalbrs, put upon the fame Foot with Conveyances
made by Fraud to deceive Purchalors. 3 Rep. 83. reports that it was io
fiid.
5. A Man had conveyed his Land to the Ufe of hiuifelf for Life, and
then to the Ule of diverfe others of his Blood, with future Power- of Revo-
cation, as after fiich a Feajl, or after the Death of ftich a one, and after,
and befoe the Power of Revocation commenced, he (lor a valuable Con-
llderation) did bargain and fell the Land to anotner and his Heirs j this
Bargain and Sale is within the Remedy of the Statute; for altho' the
Statute laith, {the faid Jirfi Conveyance not by him revoked according to the
Pozvcr by him rej'erved) which feems, by the literal Senfe, to be intended of
a prefent Power of Revocation,) for no Revocation may be made by
Force of a future Power until it comes in elfe ;) yet it was holden that the
Intention of the Aft was, that fuch a voluntary Conveyance which was
Originally fubjeft to the Power of Revocation, be it in prefint, or in
future, fliall not be good againft a Purchafor bona Fide upon a v.duable
Conllderation, and if other Conitruftion be made, the Aft '>vill llgnify
very little, and it will be eafy to evade fuch an Aft. Bridgm. 23. in Cale
of Garth v. Eresfield, cites it as Mich. 42 & 43 Eliz.. 3 Rep. 8c. b. Stan-
den V. Bullock.
.Vo, where A. 6. A. Covenants to Jland feifed inConiidevnuon o[ hove &c. to himfelf
had made for Lile, Remainder to his eldeft Son, &c. with Power to Lea fe for 21
fuchConvey- j^'g^^rs, and referving a Power to revoke the Ufes^ A. for 30/. made a Leafe
mzAe^Le^e ^^ ^- ^°^ ^i Ycars; Tho' the Power was ill, being on Covenant to ftand
refevvhig fcilcd, yet, having Power of Revocation, the Law conllrues it as revok-
ile??/, without ed and void quoad the Leafe, and that A. was a Tenant in Fee when he
other Con- made the Leaiej and 'tis exprefsly within the 27 El. 4. being in Confidera-
.vSTto" t^'on of a Fine paid. Cro. J. 180. Trin. 5 Jac. B. R. Crofs v. Fauftenditch
be refolvcd als. Shoreditch.
that it was
lufficient, and a Revocation of the former Eftate quoad that Leafe. Cro. J. iSo. cites 29 Eliz. B. R.
Hinde v. Collins.
Godb. 2S9. 7- The King's Debtor is (eifed of Lands in Fee; and being fo indebted
pi. 4.16. s. C and leifed makes a Feoffinent to a Stranger, with Power ot Revocation,
— iRoll.R. and dies without Revocation. This Land is liable to the King's Debt;
s'p d iT ^^^ '*■ ^^^ '" '■^^ Power of the Debtor to revoke this FeoHinent, and then
lolvcd that without doubt the Land had been liable to this Debt ; and his not revok-
it was fo ing it was with an Intent to defraud the King as the Law will prefume ; and
v/ithout therefore it was adjudged by the two Chief Jultices and ChiefBaron, that
averment of ^.j^j^ Land is liable to the King's Debt by the Common Law. Jenk. 285.
the Innuiilti- P^- ^9- Marg. cites Pafch. 21 Jac. in the Couit of VV^ards^ Sir Edward
tion Quas Coke's Cale.
terras & te-
nementa hibuit. S. C cited Hob. ^59. in Cafe of Lord Sheffield v. Ratcliff
8. A.
Fraud. 5 q c^
Ufe ^
t'lefe was an Indorlemenc to make void the Deed upon the nuking a join- the iVovifo.'
ture ot' looo/. a year according to the nrll Agreement, and in the Leale
there v.-as a Prnvifo to deter mine at the WiU of A. This' was held a goodLeafe
being made in purfuance of the firll Agreement, tho' no mention then was
of any Lcafe to be made, but it is founded on a good Conlideration and
net fraudulent. Cro. J. 454. Mich. 15 Jac. B. R. Griffin v. Stanhope.
9. A. fctled a "Jointure on his Wife, "doith Pcx'er of Revocation^ and af-
terwards A. on the Marriage of B. his Nephew with M. agreed to fettle
en B. Lands cf 700/. per Ann. Tho' the Lands fall fl:ort oj that Value, ic
ihill not be lupply'd out of the Jointure; For tho' the Jointure, beino-
with Power of Revocation, was fraudulent as to Purchafbrs, yet 'twas
not lb to the Nephew or his Wile, being made long beibre the Marriage.
Mich. 26 Car. 2. Fin. R. 146. Parker v. Serjeant.
10. Baron and Feme leiied in Right of Feme, of a Reffory, in Confide-
ration of Marriage of their Son, and of a Portion to be paid him, le\y a
Fine to four others, to the Ufe of Baron for Life, and then of Feme for
Lite, Rema nder to the Son and hts Heirs, with a Power to Baron and his
Feme, with Confent of the faid four Perfons, or the Survivor of thevi to re~
voke the Ufes. Baron dies. Feme enters and fells the Reffory for 1400/. to
J. S. (\\-ho had Notice cf the Fine and Ufes) and without Confent of the
Snrvivor of thcfe four, there being only one then living; and refblved
per Cur. that this firfl Conveyance is not within the 27 Eliz. nor fraudu-'
lent againlt J. S. the Ptirchafor Jones, 94. Mich. 29 Car. 2. B. R. BuUer
V. Wacerhoule.
11. A. makes a voluntary Settlement referving a Power to Mort^age^ But if no
and charge the Eitate with what Sums he thought Jit ; lb that he may charge Fraud be
it to the tull V-Am. This, in Eiieft, amounts to a Power of Revocationi ^°:^^'''^''°'
and therelbre fraudulent, as againlt Creditors, by Statute and Judgment. cham° with
2Vern. 511. Trin. 1705. Tarback v. Marbury. 2ooo/.(being
a particular
Sar.-i) is not within the Statute, per Cur. Lev. 1 52. Mich. 16 Car. 2 B. R. Jenkins v. Keymis.
(M) Forfeitures or Penalties infli£l:ed for fraudulent
Conveyances and abetting the fame.
I. ^ i^Eliz. cap. s §• 3- Enafts that Every cf the Parties to fuch a fran- j^Kvin^ _
dulent Conveyance, Bond, Suit, Judgment orExecution, who, being privy there' fraudulent
ut. ■' " ■ ' ■ " ■ ■ - • • • - • ■ " - ^
vt
Conmcn or ether Profit cut of the fame, and the wfoole Value of the Goods, and cefs by' 'jt~
2.S and 29 E-
liz. C. B. Pendleton v Gunltoo.
2. A. owes B. 20/ and he makes a fraudulent Gift of his Goods worth
?-oco/.^ rho" .\. is defrauded but of 20/. yet B. fhall torteit the whole Va-
lue of the Goods fo contraded ; per Mounfon J. becaufe the Peribn of the
Debtor is chargeable. 2 Le. 8. 19. Eliz. C. B. Crefwell v. Coke,
6 \J 3-27 Eliz,
^^^ Fraud.
Ecfolvedjift, 3. 2'] E/iz. c. ^. §.3. Enacisthaz Every of the Paith's to fiich fraud u-
that V. i-.ei-c j^-^i Conveyances^ or being prr^y thereunto^ who Jball jnjhfy the fame to he
ee\f-r '" ^'^-^^^ how^ lide, and on good Crnlideration^ to the Dtjlurbancs and Hindrance
loocl'pniniy of the Purchafor, or of any other lavifiiHy chmmng^ {rein by cr under him, /had
one T. to r.j- forfeit one 7 ear's Value of the Lands, or other Hereditaments fo piirchafed or
Jure ^ool. per^-^if^gf/^ {q jjg divided betwixt the ^iieeu and the Party grieved, and beinr
dmiu^ hh" f^^^^rf convitled, Jhallfufjer half 2 ear's Impnfontnent without Bail.
own r^ifeatid r ■ . ■
his Wife's and for Aflurancc of which, a Mortpai^e was made, tho' W. did jwtpAy the Monev, yet is lie
a Pxrchafir ivii'"" 2.' EliZ- becaufe named as Party in Truji for Beneft ofj'. idly. That the Eftate on
the Moi-tp-3fe \\?is9.fi,-ffiiie/it Punhafe, within the Statute. qdly. That owe etithr Tear's Pi-.-ft fhall be
forfeited without Jffirtiomnevt, on a Mortgage, as well as on an alfolute Sale; fo oiia Leafe or a petty .-in-
nuity made by Fraud 4.ihly. That every Defendant found guilty fliall pay a Year's Value of the
Land ciery dm hy }:in>fe.'f, and not jointly amongft them all. S^hly- That a Defendant being i6 fejvi
of Jve and privy to the Conveyance, and having jitfUjy'c! it to be made bona fide, fhall be punifhed as
of lull Age.-' 6thly. The Bill being preferred only on this Statute, the Court of Star-Cl aniltr could not in-
creafe or diminip the Penalty of the Statute, nor impofe a Fine for the King. Noy. 105. Poulton v.
Wifeman. .
Upon Evidence in an Adlion on this Statute, Defendant on his Examination in Chancery deposed, that
he thought it a Pood Deed, and on yocd Confideration, and refolved ift. That a Purchafor, after fuch A-
icuin^, fhall not have an JHion. zdly. That {'fhought) or ( Beliet'ing) is not a direct Affirn:ation.
^dly. That it is not a voluntary Avowing, but/«A Pitna, and fo not within the Statute.- ^thly. Thit
Jie that had the future Interejl for J'ears might have an Adtion on the Statute, as he in Remainder might
have an Adtion for forging Deeds, &c. Noy: 1 1 5 Covil. v. Barton.
(N) Adiions and Pleadings on the feveral Statutes of
Frauds.
I. f I ""HE Aftion on the 13 Eliz. 5. is uot a popular AH ion, but extends-
\ only to the Party grieved, per Dyer and Manwood J. 19 EJi/.
C. B. z Le. 9. in the Cafe of Crefweli v. Cook.
2. ThtFather aliens to his Son and Heir for Money (and Money is really
paid) yet it fhall be intended fraudulent, unlefs the contrary be Ihewed
and averred ^ per Harris Serjeant. 3 Le. 254. Mich. 32 Eliz. C. B. in the
^CnCvint'lEi Cafe, lays 'twas lately ib adjudg'd in the Court of Wards.
3. A. brought Debt on a Bond againll; B.as Heir to his Father, who en-
tered into the Bond. B. ple^ided Riens per Defcent. He having, long be-
tbrt the Aftion brought, made a Feojftnent of the Lands by l)tfcciit to
one W. But this was proved to be by Fraud, to bar A. of his Action, and
{o avoid Feoffment by the 1 3 Eliz. 5. and this was allowed to be given in
Evidence without pleading it, becaufe the Statute was made in Sitppref/ioH
cf Fraiid-j and therefore mufl hare a favourable Interpretation ^ and ic
would be very unreafonable to oblige the Party to plead a Feofiinent to
which he is an entire Stranger, s R^P- 60. Mich. 32 and 33 Eliz. B. K.
Gooch's Cafe.
4. If the Party be charged with a Special Fraud, he may plead that the
Conveyance was made Bona Fide, and it will be a good Plea without any
2rav«rfe. Arg. Goldsb. 119. Hill. 43 Eliz. in Cafe of Price v. Sands.
5. If the IJfne is General, Seifd or AcZ'Seifed by the Feoffment, the Covin
may be given in Evidence, when the Feofiinent is given in Evidence; bnf
if the Iliiie be taken direilly, Infeof/ed cr Not inteoiled, the Feottment
mufl be avoided by pleading che Covin fpecially ; For it is a FeoiTment
Tiel quel. Hob. 72. Trin. 12 Jac. Humberton v. Howgill. AV /«-
^f (5//^ ;)/?j, can't be pleaded. Hob. 166.
6. An hformatton upon the Stat. 27 Eliz of fraudulent Conveyances by
the Party geiev'd, tho' brought after the Tear, is good, and not within the
Stat. 31 FA'xz. 5. For that i? to be intended of Common Informers.Noy. 71.
Anon, cites it to have been fb agreed in one Holden's Ca!c.
7. A Conveyance made to avoid a Wardpip was decreed not to be given
in Evidence. Toth, 105. cites Mich. 6 Car. Eiliiop of Hereford v. Bright
and Bark ley.
H. If
Fraud. 50^
8. If the Stat, of 29 Car. 2, 3. be not i'lifijicd upon, the Court will com- And the (am;:
pell thii I'crformance of an Agreement, tho' not in \\ ricing. Arg. lo. ^^^''""^,'"-'"
Aiod. 404. cites it as held in Cafe of Kingfnian v. Kiiigliu.in. Pa'ch 4 Geo.
1. 10 Mod,
405. in Cafe of Nab v. Kub And G. E(|u. K- 145. Jones v. Kab. S. C
(O) By Perfons intrufted. See (U),
1. A gave toB. feveral Sums of Money to pit out at Interefl for his
ji\» Uie. B. pretended he had put it out, and that he had the Se-
curicies in his Cullody, when in Truth he had puycbafcd Copyhold Lands
in his orjon Name with the Money, and was admitted, and furrendcred the
fame to himlelf tor Lile, and alter to a Nephew. This being found out,
B. entered into a Statute to furiender to A. the Copyhold, and B. furren-
dcred accordingly, but before that A. was admitted B. died. The Ne-
phew being preiented as next Heir of B. the Lord would not admit A.
On a Bill brought by A. and the Ellate of B. appearing not fufficient to
fatisfy A. and B, having promifed, that his Nephew, when of Age, Ihould
furrender, it was decreed that A. Ihould hold the Lands till the Infant
come of Age, and then he Ihould furrender i Per Ld K. Coventry. Nell^
Ch. R. 33 Coiin v. Young and Fuller.
(P) By Conftruaion.
I. \ Was 'Tenant for Life, Remainder in Tail to B. his Son. J. S Sj where .4.
Jf\j» thinking that A. had Fee, apply" d to B. to procure a Leaf for three Y'"'"^'j. ^ ^
Lii't's of A. for 400/ Fine, and a fmall yearly Rent. B. told L S. that A. rears ■mA\\\%
hadpo'xcr to grant fuch LeaTe, and intermedled in the procuring it, and part Son,knowing
(^i'the Money was apply'd to B's ule. Decreed that A. and B. both join ^^hat the Fa-
at their own Coils to confirm the Leafe to J. S. the Plaintiff during the „ ^'' '^f'^ "°
Elbte thereby granted. Anno 1649. N. Ch. R. 46. Hunt v. Carew. p°ant Vuch
Leafe, ac-
quainted tlie Father of it ; but D./nffered ile Lejfee to lay cut 2S00/, /V; Tmfroz'eme>!fs,tvithc!it aceuaintinq hint
thtit A. h.td tio Ri^l t to grant fuch Le.ife, but encouraged him to proceed. It was decreed that the Leflce
fhould hold during the Refidue of the Term againft B. his Fatlier being dead. Hill. 9 Anns G. Equ.
R. Sj. Huning v. Ferrers Abr. Equ. Cafes, 357. S. C. Haning v. Ferrers.
z. A. having Title to an Eftate j/?oo^ by, and fuffering a Pttrchafor to go * Vern. 151J.
on without dilcioljng his Title was pollponcd. 2 Vern. 151. cited by the p''^- 1''^^^-
Ccuit in the Cafe of Hunfdcn v. Cheyney. As the Cafe of Dr. Amias.
The Cafe was Mortgagee or Conufee of a Statute was inquired
oi by one treating lor the Purchafe of the Land, if it was free from In-
cumbrances, who laid it was, on which he purchafed, and was relieved.
Cited Mich. 34 Car. 2. in the Cafe of * Hobbsv. Norton. 2 Chan. Cafes 12S.
3. A Gentleman of 3000/. per Ann. being trick'd into a Recognizance, Thiswasfirft
(by a Scri-vener, who wormed himfelf in as a Co-Security) for 1000/. '^I'^'^'j^.^'i ^ p
of which 300/. only was paid to himielf ; andtheRelidue, after feveral De- thcRoUsand
Jays, being made up in Money and Goods ^'c. to the Scrivener (inConfe- upon Appeal
deracy with the Lender), was relieved on theCircumflancts of Fraud, and ':> the Lord
decreed to repay only the 300/. and Interell, and a perpetual Injunftion ^^^q^!''°^'
againlt the Stature, as to the Plaintiff; per Somers C. Hill. 1697. 2 Vern. ^^.^^ aSr'med-
346. Smith v. Burroughs and Loader. Kill. 169-.
Ch. Prcc.So,
Si. Smith V. Loader and Barrougiis.
4 A. deviltd 30c/. to B. but if B. married -jcitlout Ccnfnt of C. — C. to
kuze
53^
Fraud,
have the 300/. — C married D. — C. knew oi the CoL\rtliiip and the J/t-
riafre h^td ivnh the Privity of C. but he never coi.leiued or centred icied.
Cowper K. thought it a tacit Ccfifhit and a Fraiid^ -.md decreed the 30c/. to
B. Hill. 1706." 2 Vern. 580. Mellrrer and Ux v. Akfgret.
•Ti<! not ne- ^ ^^ h^d two Daughters B. and C. — A. was Tenant lor Life of Lands,
cetTary that ■p_^,„-jpi(jf;y fg 2. a Feme Covert in 'Tail; On a Treaty of Marriage between
Covevto^In- ]■ S. and C. J. S. infilled on 1000/. which A. could not give. i>,. and her
fant be .iffitc Husband encouraged the Marriajre^ and fo/i:c!ted .4. to convey the tntaikd
in proniciing, l,ands to f.S. and C. which A. did; 'twas decreed after A's. Death, that B.
thcPurchafe, ^^^^\^ v,e bound h\ the Conveyance, and levy a Fine on Penalty oi Pay-
tha"they" """^"t^ of Colls ^ and a perpetual Injunction granted to J. S. and C. lor
v.'ere/»7i^ to quiet Poifeliion. Tr. 9 Geo. 9 Mod. 35. Savage v. Fofter.
it, and that it
could not be done without their Knowledge, and they gave no Notice. 9 Mod. 37.
6. ^li facet confentire videtur. See Maxims.
(Q^) By Conftruition, as to Mortgagees.
y; "^^ f. I. A Prior Incumbrancer witnejfes afuhfeqiient Mortgage^ and told the
uTtj^/Ko^L jLjL Money lent at his Mailer's Chambers, being his Clerk, and for
lecondiMort- that alone had his own Security pollponed. Tr. 1690. 2 Vern. xjr.
gage, tho' it jn the Cafe of Hunlden v. Cheyney, cited as the Cafe of Clare v. Earl of
that'heaftu- ^^^^^^'^- Tho' he was an Ii^ant. Tr. 9 Geo. 9 Mod. 3S. SaUagC
ally knew the ^' iTOftCt* cites the Cafe above, but adds that the Inianc was Clerk to an
Contents, -yet Attorney, and ingro[fed the fublequent Mortgage.
fince it did
not appear but that he might know them, it would be prefum'd, that if he could write or read, that he
knew the Subllance of the Deed, which he, having attelted it, undertook to luppoit by iiis Evidence,
and he not acquainting the fecond Mortgagee with his former Mortgage, the fecond Mortgagee iliall be
preferr'd, per Cowper C. Wms's Rep. 394. Hill. 1717. Mocatto v. iSlurgatroyd. but in .'j Note,
there it is faid, that King Ch. in Mich. 1732 thought that a bare Atteltation, without other Circum-
Itinces of prcfumptive Kotice, was not fufficient.
2. A Coiinfelkr has a Statute from A. and is advifcd with about lending
1000/. on a Mortgage by B. to A. and draws the Mortgage, in which was
a Covenant that the Ellate was free from Incumbrances, and conceals his
own Statute, Per Cur. If he, who only conceals his Incumbrance, fhall be
pojipned, much more ought a Counfeilor afling thus, and decreed accord-
ingly. Mich. 1699. 2 Vern. 370. Draper v. Hill. & al.
3. A. mortgaged his Land to B. and propoling to borrow Money of C.
on the fame Land, C. fends D. to B. to ask B. if he had any Mortgage on
A's Land. — B.faid he had not. — but D. never told B. that C. was about to
lend Money on the Security to A. and the Quellion D. ask'd was in a
publick Market, and 'twas, what A. ow'd him.? Decreed at the Rolls, that
the Ellate fhould Hand changed with B's Debt flrll. But Lord King di-
reftcd a Trial at Law, whether D. told B. that C. was about to lend
Money on A's Ellate when D. enquired what B's Debt was, and direfted
B's Anfwer to be read as Evidence. Pafch. 1706. 2 Vern. 554. Ibotfon v.
Rhodes.
Mich. 2 Geo. 4- A. having Leafe-hold Ellate mortgaged it to B. and afterwards, on
G. Equ R. a plaulible Pretence, borrows of B, the original Lcafe, andjhcws it to C. of
i22.S.C.and 'jchom he then borrowed 250/. on it, but returned the Leale to B. — Decreed
A'^bo/row^l '-^^ ^^^ ^°^^^ ^° pollpone B. to C. as guilty of a Fraud on C. But Cow-
the Leafe of P'^'' C. reverfed the Decree j For that B. had ailed innocently in what he
B. a jnoTid had done. Mich. 17 16. 2 Vern. 726. Peter v. Ruliel.
^ime, (r>?d
then C. lent more Afoney, but the Leafe was returned to B. in an Hour's Time; and B. in his Anftt'er de-
nied, and no Proof was made of B's know ing the Occafion of the borrowing it. Bat ot.'ierwife a Com-
iinatkr. Icizi-een afrfl Mortgi.\r,ee avd .]Jortg.wor to draw in a fecond .Mortgage will poitpoue the hri^. r<ut
here C. trufted A. r'norc than ii did.
5. J. s.
'raud. 537
gaa,c only, without any Indorfcmejit or Notice of the Morgage on ths
' Sale, as is ufaal ^ Aftervsards (at theRequell of J. S.) A. lets J. S.
5. J. S. an Owner of a Ship vioytgages bis Ship to A. "[i^ith whom he
leaves r/f original ii/7/e/' Sale, and this Mortgage was by Deed of Mort-
gage onl
Hill cf Sc. _
have the cnginal Bill of Sale ; and thereupon J. S. made fcvcral fabfequent
Mortgages of feveral Parts, of the Ship, which were indorfed upon the
original Eill of Sale, and fome time ati:er J. S. dehvcr'd the Bill of Sale
to A. ivho made no (JhjeRion as to the Indorlemcnts. Cow per C. decreed
that this, together with the long Acquiefcence akerwards, amounted to an
imply d Coiifeiit in A. to the fubfequent Mortgages indorled, and Ihould
gwtihems. Prefe-rence. Wnis's Rep. 392, 393. Hill. 17 17. Mocatto &
al. V. Murgatroyd.
6. And in this Cafe, A. was ordered to pay Cofis to the hidorfees of the
fubfequent Mortgages on the Bill of Sale, who were the Plaintills ; but
not to have his Cojls over agarnfi J. S. in Regard, as Ld Chancellor faid,
it was not reafonable that A. Ihould onerate his Pledge with Colts occa-
ftoncd by his tinjujl Defence. Ibid 395.
7. Tenant tor Lile borrow'd Money, and his Son, who was next in Re- S.C. cited P.
matiider and an Infant, was a IVitnefs to the Deed of Mortgage. TheMort- '°_^^"- ^''S-
gagee was relieved on the Foot of Fraud, becaufe the Intiint did not g'\'e^'^^°'{,'"^[[g
him Notice of his Title, cited as the Cafe of* W^m v. ^arCcBCH. Tr. Counlel of
9 Geo. I. 9 Mod. 38- in the Cafe o'i Savage v. Folter. the other
Side, 'twas
fiid, t!iat the Son fclicifcii the lending the Money, and carried the Deed to Cotirfel, and witncffed the Mort-
gage. 9 Mod. 96. by the Name of Watts v. Trefwick. A Leflee for 21 Years was a Witnefs to
a Oonvevance in Fee, ard Ibmc Years after, when his Leafc was expired, and not bitore, he claimed
by a prior Releafe from tlie fame Perlbn that c^rccuted tlie Conveyance he was Witnefs to ; but decreed
againll him by the Ld Keeper Covcitry. NelfGh. IL zS. Gwin v. Edmonds.
T
(Q. 2) By Conftmdion. as to * Purchafors, *vid(i)
Here is a great Difference between a Mortgagee's not giving Notice Sowhc^rc Re-
JL to a Perlon whom he knows to be in Treaty lor the Sale, or any "'^"■'^"'"■■^"
Settlement of the Land in his Mortgage, and where the Mortgagee him- t"nto'n^Eftatc
felt helps carry on fueh aTreaty.Pafch. icGeo. i. 9 Mod. 96. Osbornv. Lea. for Life, <>«-
ccura,S.ed Lel^
fee of Tenant for Life to expend Money on Repairs ; the Leafe, tlio' for 50 Years, was eftablifhed againft
the Remainderman, per Ld Harcourf. Hill. 9 Annae. G. Equ. R. 85 Huning v. Ferrers. Abr. Equ.
Cafes 55-. S. C. Concealment only will not make a Grant ill, which at rtrft was good. j\nd all Acts
ought to have Refort to their firft Original, per Montague Ch J. on a Trial at Bar of an lil'us out of
Chancery. Cro. J. 455. Mich, i 5 Juc. B R. Griffin v. Stanhope.
(R) By Conftrudion, relating to Marriage.
I r I ^HO' the Conhdcration of Marriage be a good Conlideration, yet
J_ if Power of Revocation be annexed to it, it is void as to Stran-
gers. Lane 22. Mich. 4. Jac. in the Exchequer. Anon.
2. A IVidozv makes a Deed of her former Husband's h'fiate, and marries,
the iecond Husband not privy to it^ decreed the lecond Husband to en-
joy the Eltate notwithftanding. 2 Car. 2. 2 Chan. Rep. 81 Howard v.
Hooker.
3. Plaintiffs were the Defendant's Siller's Children, and on a Bill
againll Defendant (being an Infant) to difcovcr a Deed, the Quellion
Has, If Defendant's Father had letcled Lands on Plaintiffs Mother.^ The
Proof was, that about two Years belbre her Marri:ige, he had put her
in Poffijjion of thcle Lands, and had art:clcd, on her laid Marriage, to
[it tie than on her and ivjr Heirs, and the Defendant, (then an Injant)
6 X • was
c.c>(S Fraud.
to'..
IS a ^■i'towis to tne Articles. But tho' tiaere w.us no other Fioot" of fuch
Deed of Settlement, yet the Court decreed lor the PlaiatifT But it
was reckoned a hard Cafe to decree an Equity on a Deed which had no
other Proof N. Ch. R. 94. Kingllon v. Manwaring.
4. A Recoguizd/ue entered into by the Wife^ the Day bejcre Marriage,
was lee afide, and a perpetual Injunt^ion granted, tiio' oneVVitnefs depoled,
the Husband's Confent to the Drawing it, but that NVitnefs had an
Alfignnient oi it to himfelf 24 Car. 2. 2 Chan. R. 79. Lance v. Norman.
5. A Widow intitkd te Dois^er rekafcd the fame, upon a falfe Stiggefiion,
viz. that her Husband by his V^'ill had given her 3500 1. in lieu thereof;
and this Releafe having been produced to Al. and her Relations, en the
Son's Alarriage with Af. and a Settlement made, and Portion paid, the
Mother the Widow, Ihall be bound by it, and even tho' her Son, who
furpriz.'d her into fuch Releafe, had defrauded her o'i all the Money left
her by her Husband's Will, and which was the like Sum of 3500 1. which
was given her abfolutely, and not intended to be in lieu of Dower. Hill.
1690. 2 Vern. 133. Eeverley v. Beverley.
6. On a Treaty of Marriage, the Afother hears her Son declare, that
fuch a Term was to come to him after his Mother's Death, and witneffes
a Deed of Settlement of the Revcrlion thereof on the Ilfue of that Alar-
riage, after the Mother's Death ; the Term was in Truth entailed on the
Mother. Yet Jlie is decreed to make good this Settlement, and to fettle
the Reverfion accordingly after her Death ; per Commilfioners. Trin,
1690. 2 Vern. 150. Hunfaen v. Cheyney.
And if the 7- ^' '■'•'^ Father, denied to confent to his Son's Marriage with B's Daugh-
Fatlier in ter, iinkfs he wculd give Bond to pay 100 1, to him, which he pretended he
Law alor.c wanted for a Proviiion for younger Children, upon which the Son, rather
^h '^ r'^?"^'^'^ than the Match Ihould go off, complied. But upon a Bill b'-ought by the
vould be re- ^^" ^"'^ '^'^ Father in Law, he was reliev'd. Arg. 10. Mod. 448. cites in
lieved. per as the Cafe of Sloan v. Fowler.
J^Iafterofthe
Roll.':. Mich. 1718. Wms'.s Rep 49-. in Cafe of Turtnn v. Benfon. 'S. P. Ibid. 498. by Parker
C. for he is as a Purchafor, by giving a Portion or fettling Lands.
(S) By Conftru6i:ion. As to Settlements or Portions.
See 2 Vern. 1. T^OAfD to fettle a Jointure. — The Bond is given before Marriage,
2.ZO. Pafch. £j and after a Settlement is made, which fettles the Ellate on the
1691. Cottle \Y]je^ and the Iliue of the Marriage. This Settlement is good, as to
"^^' the jointure, but fraudulent as to the Children, in refpecl of a Purcha-
Ibr. Hill. 1684. Vern. 286. in the Cafe of Jafon v. Jervis.
2. Widow before her Marriage with her fecond Husband, afJJgns over
the greatelt Part of her Eltate to Trultees, /;/ I'riiji for her Children by her
former Husband, tho' this was without the Confent of her fecond Hus-
band, vet per Jeileries C. it being done for a Provifion for her Children
by a former Husband, 'tis good, and decreed that the Husband, he hav-
ing fupprefs'd the Deed, pay the Sum mentioned in the Deed to be the
Value of the Goods. Mich. 1686. Vern 408. Hunt v. Matthews.
Mich. i(S9i. 3. A. on his Marriage with M. iettled on her the Lands in Quellion,for
s'c^^s 7^^ her -Joint are. B. the lecond Brother oi A. was privy to an Enta:l, and to
citedTiich ^^'^ treaty of Marriage, and engrojfed the Jointure Deed. A. dying with-
2 Geo. G. out IHue, devifed the Inheritance to J S. B. having the Deed of Entail,
Eou.R. 125. brought Ejeftment and recovered. J. S. marries M. the V\'idow. ]>.■-
in Ca'e of ^-j-eed for M's Jointure againll B and all claiming by, or under hi.ii, but
^^^{Xi\- ^s to J. S. who claimed the Inheritance by a voluntary Devife, the Hill
K.C. citedP. was difiniffed. Mich. 1691. 2 Vern. 239. * Raw v. Pool, ullirsned in
10 Geo. by Dom. Proc 240. ut ante,
the Name of
Fraud. 539
il'r.lXC i'' ^Scttfi, bv!t lavs, tlinr the Brother B. v.ho was the Rcm.uvdcyman, jiimH in the jfiii.lure on
M. wui dcciccd to conrirm it. y Mod. 96. Pafch. 10 Geo. in Cmc. in Calc of Osborn v. Lea.
4. B. on Marriage with Af. finks a 7oii/t!/re en her, with the Jpproha- ^^^ ^^ jj^^
ticn of J. his Father, and who wttnejed the Deed. The Son died, aker- Settlement,
wards yi. di [covered , that B. was only Tenant for Life, and that the Fee was tlie Husband
in hrmfe/f and recovered atLaw,upon aBill by theWite ^ Ld. C. King faid, ^^^'^^^j""^*
he Ihould make no diiference, whether A. knew of hi.s Title or not, at for Life, and
the time, conlldering the near Relation ol' Father and Son, that it was t!ie Wi^e,
plain, it was thought the Son had the Vet, and had it been known it Tenant iii
had been in the Father, his joining would have been inlifted upon, elle "j^''- which
the Marriage would not have been had, snd as he knew of the Settle- ^^0^;^ not
ment, he fliall not take Advantage againlt it. And tho' there was a Co- dec;-je, but
venant in the Deed, and the Son icjt aj/ets fufficient, his Lordlhip fliid, he ordered an
would compleat her Jointure, and would not oblige her to have Re- "''^^' J°'"~
courfe to the Covenant. Sel. Ch. Ca. inLd King's Time. 59. Mii^h. 1726. made on her
Teafdale \'. Teafdale. vij. an Ef- '
tate for Life,
impeachable of Wafte. Ibid. 60. in a Note there.
(T) By Conftru6iion, as to Settlements, or Portions, mseecR)?!;.
Refpc61: of Fromifcs, &c. lor Refunding, &c.
Ather promilos 100 1. in Marriage with his Daughter to A. The Roll. si. pJ.
Dauphter in Conlideration ol'this prcniifcs to pay 10/. to the Father. i6-Collins's
"^ ^ •'. X-^. . .^. ,. Cafe.— Cro.
Per Fopham, pleading the Covin v/ill dellroy the Father's Aftion. Mo. ]g^.'f ^ 8*0 —
46S. Mich. 39 and 40 Eliz. Collins v. VVilles. Ow'.6-'.S.C.
2. On a Treaty of Marriage between A. and the Daughter of B. —
B. would not content to the Match, becaufe A. owed 200 A to D. — To cyf'"-f'H°°'
remo\e this Obllru6tion, C. (A's Brother) takes up his Brother's Bond, p,,fch. i^oc.
and oi\es B. his own. A. privately gives C. a Cotinterbond, and Bs intheCafeof
/)i7/(t;/r6r /J /;/7i;)' to all this Matter, and encouraged it. A. dies, — his Lamlee v.
NVidow takes Adminiftration. The Widow lliall avoid this Counterbond, ^^r*"-~7
tho Party to the Fraud. — And if C. himlelf had been Plaintiff, he Ihould Mich. 1-19
have been relieved. — And if this Bond Ihould be fuitered to lie on A's Ch. Prec.
Kltate, it might fwaliow the Afiets, and defraud the Creditors, as it alfo 5-5- in Cafe
injured the Plaintiiij in the Right ihe had by the Cuftom ot London, to ^^ 1 urton v.
the Perlbnal Elhite of her Husband. Mich. 1685. Vcrn. 348. Redman v. Ven"'4~
Redman. Mich. i6S-.
Gale V. Lin-
do. S. P. — cited 2 Vera. 500.- cited Ch. Prec, 512.
3. A. on the Treaty of Marriage of his Siller with B. lends herprivite-
ly 160/. to make up the Fortune B. inlilted upon, and Ihe gives Bond to
A. ibr Re-payment. — A. and B. and the Sifter all die. — The Executor ot
A. fues the Bond againlt the Sifter's Executor. Jefferies C. decreed the
Bond to be deliver'd up as fraudulent. For once a Fraud and always a
Fraud. Mich. 1687. Vcrn. 475. Gale v. Lindo. The Reporter makes a
(.Quaere, it the Condition had been that in Cafe ihe had furvived the Has-
band, then ihe Ihould repaj', whether Ihe could have been relieved ? and
lavs, Note, it was opened in tliis Cafe, that the Wife after the Husband's
Death, agreed to repay the Money, and aftually paid part. Sed Non alloca-
tur ; ibid. 476.
4. A V\ idow agrees on Marriage q^ her Son to releafe and fktle her ^^^- cir-d
jointure ; tlie Son privately agrees to convey to her a Leafehold. 'Tis an jj^/^^ '°„
'underhand /igreemcnt to deleat the Agreement made on the Mairiage, and _!_; ■\'l„,
ict alide as iiaudulcnt. Mich. 1704. 2 Vern. 466. Landee v. Haman. 499. J^. C.
a.id P —
Vern. 143. P.in;h. i6?4. Peyton v. BladwsU S. C. cited 2 Vern. 5*0.
S. ^\'here
i^/^o Fraud.
S C cited S- VV'here the Sou without the Pn-Jity of the Father or Parent, treating
Arg. I'o. the Match, gives a Bond to return, or rcfitini any Part of the Portion^
Mod. 4^-. 'tis void. -Mii.h. Vac. 6AL!iie. i Salk. 156. Kemp v. Coleman. — But where
K~".\r"k he delivered up and rf/e^y^^ <^ iS"/-'fc:'-/cW lor loc/. as he promiied, and
I- lo'^^TuT- S''^'^'^ ^ Releafe tor the real Portion ; on the Payment to tlie Trultees, tl^u;
ton V. Ben- tjon could have no Relief Mich. 17 17. 2 Vern. 752. W illianis v. C.iilow.
Ion. S. P.
and adds, that mi after Prcmife by the Son to pay it, is but Nudum Peclum. Wms's Rep. 496. 499.
S.C. andP.
And the Jffi^nment over of fuch Bond to Creaitcrs, docs not make the Bond Obligatory. Ch. Prec. 522.
Tin-ton V. Bc:!!bn- S. P. 2 Vern -64. S. C. Wms's Rep 49^). 499-"t>C. and P.
Where the Son covenanted in Confideration of 5500/. that hi.s Father fliould fettle 500/. per Ann.
which the Father did, and the Son o^er and aboi/e the Settlement^ l-jrlutitariiyj gave a Bovd to leave lit
Wife I coo/, if fhe furvived him ; The Son died, and on a Bill by the Father, to fet afidc this Bond,
as in Fraud of the Marriage Agreement, decreed againft him. Mich. 1699. Abr. Equ. Cafes. Sii. Gif-
ford V. Gifiord.
yind the Court took a Difference, where the Father was Party to the Jrticles, and the Son privately
agreed to Releafe fo much a Year to the Fatlier ; fo as the Wife's Father, who was Party, was de-
ceived. Whereas in this Ca(e, Son only is Party to the Articles, <t«W iv.is to have the Portion, a.rd might give
it as he pleafcd. Ibid. S. C. cites the other Point, as the Cafe of Butler v. Chancey. S. P. cited
Wm/s Rep. 121. by Ld Ch. in Cafe of D. Hamilton v. Ld Mohun.
See (O) (U) By Confiruclion. In Breach or Prejudice of a Truft.
I. QTOCK was invelted in Truftees, by \\11I. The T^ri/fees ordered
j3 ^^^"' -^gent.^ the Teltator's Brother, to fell the Stock, fo that he
did not fell for lefs than 2500 /. and whatever he fold for 7nore Jhoiild be for
his own Trouble. The Agent agrees lor the Sale of this Stock jor 3400 /.
and after purchafes the Stock from the Trujlees for 2800/. who allow hi?n
lool. for his Trouble m Buying^ fo that he got 600/. by the Stock, be-
lides what was allowed tor his Trouble. Upon a Bill brought tor the
Overplus, the fame was decreed ; the Court declaring, that no Truf-
tee, or any Perfon afting under a Truftee, can ever be a Purchafor in this
Court, on Account of the great Inlet to Fraud. Sel. Ch. Cafes, in Ld
King's Time. 13. Pafch. 11 Geo. i. 1725. Whitaker v. Whitaker.
2. An advantageous Leafe raade of 9 Houfes, much under the real
Value, by a Charity to the Nephew of their Clerk^ and which the N'ephezv
afterwards ajjigned over to the Clerk^ in Coniideration of 100/. proved to
be paid, and of which Leafe, the Clerk made great Advantages after-
wards, was decreed to be let alide. And the Court look'd upon the Pay-
ment of the 100/. to be only colourable, and the granting the Leaie,
an Impolition on the Truftees, who are not fuppofed to know the Value
fb well as the Clerk. But he having made an under Leafe of five oi the
Houies to one, who paid the Clerk a Fine of 20 /. and covenanted to re-
build the fame^ that was decreed to continue, and the Rent to be paid to
the Truftees. But it appearing, that the Clerk had rebuilt one of the
four remaining Houies, the Court by Confent, fet the 20/. received, and
the Proiits he had made againft his Fxpences ; otherwife would have
ordered an Account of his Receipts and Expences, and the Eftate to
Itand a Security for what he had laid out. .Sel. Ch. Cales in Ld King's
Time. 40. 5 July. 1725. Pugh v. Ryall.
m Faits. (W) By fuppreffing, &c. Wills, &c.
I. A The Plaintiff, claimed as Devifee under B. the Defendant's
__^^» Father's Will. It appeared by Proofs that there was fuch a
J-Vill, but no exatf Proof was given of the Contents thereof But becaufethe
Court >vas fitisfied th.it the Defendant had llipprefi'd the Will, and be-
caule
-^Vaud. ^41
caufe, (tho' no exatt Proof was made of die Conconcs) the Deteiidant
might clear this, by producing the Will. It was decreed^ that the J'/aiu-
ttjf jhould hold and enjoy ^ tait'tl the Defendant produced the Wiil^ and farther
Order ; cited, per Jekyl, Mailer of the Rolls, who laid it was decreed,
firlt bv the late Mailer, and alter affirmed by the Ld Chancellor on Ap-
peal, and afterwards by the Houfe of Lords. 2 Wms's Rep. 733. cites
it as 1708. the Cafe of Hampden v. Hampden.
2. But in a like Cafe, where it was proved, that there was fuch W\\\
as Plaintilf fuggelled, and that Delendant had deltroyed it, Parker C.
decreed the Defendant to convey the Premilles to the Plaintiff in Fee, and
to deliver up the PcfTeJion^ cited per JeKyl, Mailer of the Rolls, and which
he laid, feem'd to him to be the molt elFeftual and reafonable Decree, and
Hiid it was fo decreed in Feb. 17 19. W'oodrolf" v. Burton.
(X) Fraud, to avoid Executions, &c.
I. r H iRefpafs of Cattle taken J 'twas found by VerdiS: at large, that
X J- N- recovered Damages againjl W.N. and that ihe. Defendant, as •? ^'^ '^
Officer, by Precept took thefe Bea/ls in Execution, but that W.N. had given the Pkindffmay
lieafls to thePkintijJ, by Covin, Mefne befjijeen the Judgment and the Ese- iiave Ex-ecu-
cution, to defraud the Execution. And the PlaintiH, by Reafbn of the "°" thereof.
Gift, brought the Afction, and was barr'd by Judgment ^ For the Fraud ^'■- ^.°"^- P'-
[Giltj was awarded void. Quod Nota. Br. Trefpals, pi. 240. cites22 All.'72. K'X^-T~
Br. Execu-
tions, pi. 80. cites S. C.
2. If a Man recovers Damages, and the Defendant aliens his Goods by
Fraud, there If'ue may be taken upon it; and if it be found, the Plaintiff
ihali ha, e Execution of the Goods alicn'd by Fraud ; per Belknap. Quod
non Negatur Br. Collulion, &c. pi. 9.
3. Judgment v/as againlt A. for Debt and Damages, and after, by Covin
to defraud the Execution, ht fells his Goods and leceives the Money. Per
Cur. il the Buyer had Knowledge of the Judgment, the Sale is void, and
within the Purview of 13 Eliz. 5. Dal. 79. 14 Eliz. pi. 14. Anon.
4. In Information on the 13 Eliz. cap. 5. for that the Plaintiff had -^»rf Periam
brought a Plaint of Debt againfi J. S. ^c. whereupon an Attachment if- ^'"^ Rhodes
filed, and the Sheriff being ready "to attach him by his Goods, the De- •(■ '^°""'^"'*
I'endant, in diflurbance of the Execution of the faid Procels, did publifh, mfr fuch"^"
zw^fhc'-jj to the Sheriff, c. Conveyance, by which he claimed the faid Goods, Conveyance,
and averred the Fraud. It was objected, that this is not within the Sta- *^"''' '■<>Suit,rs
fute, bccaule the avowing the Conveyance, goes not in delay of Execu- ^'^?"'''"-.?> '*
tion, no Judgment being given,_ but'o«/y m delay of Procefs. But the fald" Stature,
Court held Coptra, by realon of the \Vord3, viz. delay, hinder or de- but. An-
flaud Creditors of their juft and lawful A6tions, Suits, &c. here beino- '^er'""
Delay ; becaufe tor want of ferving the Attachment, the Appearance of '^^"''^^'^; ^e.
J. S. to the Plaintiff's Suit is delay 'd, which Mifchief is within theReme- '*'' ^ '
dy oi' the Statute. Le. 47. Mich. 2S and 29 Eliz. C. B. Pendleton v..
Gunlton.
his Cattle, and he makes Replevin of the Bealls; he is a Trelpallor to Kdw 2;^.'
00.
fues a Replevin to the Sheriff to Replevy the Cattle, and J. S. 5 ■ p, ^
Jhews the Sheriff the Bcafs of a Stranger, and faith they are an ^^n-f /?. °
the Stranger, and the Sherill may have Trefpals againft J. S. for his 1 i9-b.pl. 64-
lilfe InforYnation ; For the Sheriff mull, at his own Peril, ta.ke Notice ~'-^-'S'^-'^-
\\ hofeCattle they are. 3 11. 7. . . . 14 H. 4. . . . But if'there be any Fraud in
the Matter, he may aver that. Brovvni. 210. Mich, v J^vj. Buckwood v.
llcA.
6Y 6. Or.e
54-2 Fraud.
1
Roll. R. 6. One knowing that Execution would be mude on his Goods, p-ocur'.s
?95. S. C. ^_ ij to put Ivs Cart tn his I'ard, to the Intent tliat the Baililf Ihail take
It in Execution, and l"o have Tielpafs againlt him. The Bailitr" takes
it, and att:er he knew the Matter, releafcs the Cart. Yet J. H. brought
Trefpafs. Per Lea Ch. J. the BaililF may plead the Fraud in E>icufc. Palm.
395. Mich. 21 Jac. B. K. Grome v. Grome.
7. One Defendant in Ejetimcnt^ where the Plaintiff was nonfuit,
and where that Defendant did not appear, and contefs Leafe, Entry and
Oufter, rekafedCofts. The Court lijppofed, it'there fliould appear to be Covin
between the Leiibr ot the PLiintifl', and that Delendant, as to the Releafe,
that they might correft fuch Practice, when it Ihould be made appear.
2 Vent. 195. Trin. 2 W. & M. C. B. Faggv. Roberts.
m" h '^ Fl ^' ^'^'^^^ M^ '" ^^^ PqffeJJion of a Perfon, againll: whom Judgment is
In'dieSur- '^^"^j '^^^ his difpollng of Ibme of them, is a Itrong Evidence and Badge
Chamber of Fraud. Per Holt, Cumb. 348. Mich. 7 W. 3. B. R. Orlabar v.
Chamberlain Harwar.
V. Twyne.
(Y) To a\"oid Decrees.
I. 'T^Endhig a. Suit lor Land againft the Father, he makes a C.n-veyance
y^ of it to his Son ; this Conveyance, tho' Prior to the Decree,
ihall not defeat the Decree, cited Trin. 1687. Vern. 459. in the Cafe of
@Clf !)♦ ^ti30,r, lis fo decreed in 1680. in Cafe of Goldfon v. Gardiner.
2. A. being decreed to deliver Polleffion of an Houfe, or pay a Sum
of Money to B. by a certain time, after the Day voluntarily conveys the
Houfe to" a Creditor, in SatisfaClion of a real Debt by Bond ; this fhall not
defeat B. of the Benefit of the Decree. Trin. 1687. Vern. 460. Self v.
iMadox.
(Z) Purged. How.
S. p. Arg. I. TF Leflee for Years, againft whom Judgment is had,<^4'/7j his T'erm
Goldsb. 118. ^ over by Fraud, to avoid Execution^ and the Affignee ajigns to ano-
PricevSands. ^j^^., ^Qfiajide. 'tis not liable to the Execution in the Hands of the fccond
cKcs 56 H. 6. ^,j5gj^g^ pgj. coi-e Ch, j_ Godb. 161. Pafch. 8 Jac. C. B. in Cafe of Wil-
fon v. Wormal.
And the Ef- 2. Lcafe for 500 Years, voluntary at ftrjt is made Good by Money
rate is Icgin- -^ after, on an Affignment of it, before the Purchafe of the Inheri-
WltdslZ tance. 3 Lev. 388. Pafch. 6. W. & M. C. B. Smartle v. Williams.
EuL per Holt Ch. J. Comb. 249. S. C. Comb. 222. Mich. 5 W. & Isl. B. R. S. P. per Holt Ch.
J. in Ca(e of Porter v. Clinton.
3. Where Fraud is, no length of titne can bar. Arg. Sel. Ch. Cafes
in Ld. King's time. 35. faid, it was fo refolved in the Houle of Lords,
in Cafe ot 15* i^dmngtOn iJ» OBOOtf). And it was, by the Counfel
of the other Side, admitted to be certainly true, that no Time v/ill
bar where there is Fraud, but faid, that that is to be undcrllood where
the Fraud is concealed ; For if it be known it certainly may. Ibid.
And of this Opinion Ld. C. King feemed to be. Ibid. 36. Trin. 11, Geo.
1. Wertern, Executor of Weltern v. Cartwright, Executor of Cart-
wright.
( ^. a)
Fraud.
543
(A. a) Dlicountenanced, and fet aiide ; In what Caf^s.
I. Y^R JUS S Dolus mnim Patrocinari dihait. 3 Rep. 78. b. in Fcrnior's jJ^J; l'^^^^
J^ Cale. voui- Frauds.
Godb. 39.
Cropp's Cafe. — Fin. Law. i;.— So tUngh ihc P.irty has Rii^h ; for if lie, that has Right, is of Qzhi
tiiti: lXC to I'.ijfeife him that i.s in Poflcftion, liilh Intent lo recczer iignhiji !:i;ij ; Now thi.-> Recovcrv, tho'
lie hath Kiglit, will do him nop;ood, per. I'opharn, Goldsb. i -9 in Gate of Goodale v.VViatt. — Sec Re-
mitter (C.)' A Kccovery upon a good 'I itlc bv CoWniww, jhal I tiot r.Lite the IVrit i; Kep. z:^.
Trin.44Elii.B.R. in Crtle ofSpratv.Heale.citcs 35 H. 6. 5. — Sec tulfifyirg Recoveries. (F) (F. 2)
2. The J It ft ices rcfpted Judgment^ where the 'Tenant confeffcd the ARioiiy
for Fear of Covin between the Demandant and the Tenant, to make a
third Pcrfon to kfc his hterejL Er. Judges, pi. 14. cites 39 E. 3. 35.
3. Ufurpation was of aPreJlntation by Fraud between the Ufurper and liiin
that had the Grant of next Prefentation ^ but upon iiling a Bill it was de-
creed, that no Benefit Ihould be had by this L-i'urpation, fo as to deteat
the Plaintiff's Title; neither Ihould it be given iu Evidence againfl him,
at a Trial at Law. 3 Car. i. N. Ch. R. 4. Market v. Hyde.
4. Debt is brought by a Feme Adminilhatrix, Ihe obtains Judgment, SC.c'tcdpcr
but before Execution, the Adminiji ration is revoked by Covin^ and com- Gawdy J.
mitted to the Woman and her Son ; The Son releafcs the Debt ; the W^o- ^'^^''t!- ^'^^
man lues Execution ; The Debtor brings an Audita Querela, but it does Goodtle v.
not lie, becaufeof the Covin. Jcnl<. 285. pi. 17. Wyatt.
$. That cannot be called a good Ciijiom^ which is grounded on Ytx\:A.
Mich. 15. Car. 2. Chan. Cales. 30. Borr. v. Vandal.
6. A 'Tritji decreed for a Perfon, who, in his Anfwer on Oath in ano-
ther Caule, had denied the Trult, becaufc drawn in to anfwer fo by
Fraud. Mich. 21 Car. 2. Chan. Cafes. 134. Smith v. Palmer.
7. A Tinner Articles to deli\er Tin to the Merchant Citjlom-Pree ; Af-
ter Delivery to the Merchant, it is leifed for Cultom, and the Merchant
fues to be relieved^ but denied; becaufe it is in fraudem Regis. Hill. 26,
27. Car. 2. I Ch.'.n. Cafes. 256. Papilion v. Hix.
8. A Bill of Exchange kr 50 1. was made for Value received^ but being
gained by Fraud, and for a fiftitious Conlideration was fet afide. Hill.
1690. 2 Vern. 123. Dyer V. Tymewell.
9. Equity has fo great an Abhorrence of Fraud, that it will foe afide -^'J'' in Cafe-
its own Decrees^ if founded thereupon ; £, ""1,"
10. As Decree on a Commitfion tor charitable Ufes, fraudulently taken rfhl'-I a-" '
out, was fet alide, though confirmed by the Chancellor, and a new eainji the ce-
Commiliion was fued out, and the Lands charged with the Charity, tho' ^y ^^'"'■'^irff
exempted on the former Commilfion. Arg. Show. 206. cites Moore •^'*"""' ^* 'f
,-,1 *• ^ one .'ireement
Char. 75. wir,ifh,F,
_ _ fliould be
countc's) V. Sir Geo. Maxwell.
11. Adoney paid upon a Bubble in the Tear 1720, and which was called
the I^and Security, and Oil Patent, being/cr <rxr/-rft?/>/^ OiloiitofRadiJheSy
was ordered to be re-paid with Intercjl and Ccfis ; and the Maiter ot' the
Rolls laid, that the gaining a Patent could be no San£lion to the Cheat.
2 W'ms's Rep. 154 to 157. Trin. 1723. Colt v. Wooilallon and Arnold.
And a like Decree at the fime time for Spackman v. Woollaiton.
12. A Fine and Non-claim ought not zo skreen a fraudulent Piirchafc,
but the Conuice Ihail be deemed a Truitee for the equitable Title. So
decreed; But the Cafo was compounded in the Houle of Lords. M.S.
Rep.
544 Fraud.
Rep. liiid to be Ld. Harcourt's, tit. Fr.uid. 6. March. 1724. Martin v.
Martin
13. Equity will never conr\ttnanc& Denjands of an t>n\air Nature -^ In
this Gife it was to have an Allo--j:ante jor attending at AiUttoiis^ to enhance
the Price of Goods -^ Nor will Equity fuller them to be let againfttair
and jull Demands in an Account j And a crols Bill for that Purpoie
was dilinillcd with Colts. M.S. Rep. faid to be Ld. Harcourt's. tit.
Fraud. 6 March 1726. Walker v. Galcoigne.
(B. a) Fraud fet afide. By what Court.
* 2 Wms's
Kcp Z20 ^- X'^ '^ "° Objcftion, that the Parties to a Fraud have their Remedy
I'aich. 1-24. JL ^^ Law, and may bring Aftions tor Monies had, and recei\ed to
by t'le Maf- their Ufe ; For in Cafes of Fraud, the Court oi^ Equity has a * concurrent
ter of the JanfduJion ivith the Conmion' L^jJj Matter of Praud being the great
CiiLoVsKnt '^ub/cHt of Relief there ; And fo' Aloney paid by the Plaintitls to the
V. Baylis. Detendants, as Managers and Projeftors ot a Bubble^ (in the Year 1720)
called the Land Security, and Oil Patent, (which was to extract Oil out
of Englilh Radilhes) was decreed to be paid back, with Intereft and
Coftsi per the Maiter of the Rolls. 2 VVms's Rep. 154 to 157. Trin.
1723. Celt V. V\'oollafl:on and Arnold.
(C. a) By Circumvention.
I. ^^Reditor was j or Wares of which the Debtor could not make half the
\__j Money. — The Court not fivouring Contracts of that Kind, or-
dered the Maftcr to make jilloivance ushtixw Oxu^q. Chan. 15 Car. i. 1.
Rep. 132. Naylor v. Baldwin.
2. A. as Principal, and B. as Surety, were bound in a Bond to C.
The. Obligee's Name was tifed only in 'triiji for A. one of the Obligors, and
if any Money was paid, it was A's Money, but it did not appear that any
Money was lent ; B. being fued, brought his Bill, and the Court decreed
the Bond to be delivered up and cancelled, and SatisfiCtion acknow-
ledged, with Colls to the Plaintiff See Mich. 26. Car. 2. Fin. R. 127.
' , ^ Launce v. Marden & al.
difmiiTcd the 3- Tenant in fail of 30 or 40/. per Annum in Remainder, of old
Bill. Ycrn. Houles, after the Death of his Father, who would allow him no Maiii-
167. Pafch. tenance, for 30 1. in Money paid , and 20 1. per Annum Annuity, dur-
i6S5.'Nottv. jpig j.[-^g p\^x. Lives o'i himfelf and his Father, conveyed the old Houies
virn~TT.S. ^'^ ^- '^" f*^^- — '^^^ Annuity was paid 5 Years. — And though it was
C. and Ld. Urged, that being Tenant in Tail, if he had died, the whole Money
Guildford's had been loft; yet by Ld. Chan, the Bargain was fet ahde^ and he
^rj^'^r i*^ faid, By the civil Law, a Bargain of double the Value ihould be avoid-
dirdiara-°d ^"^5 '^"'-^ vviihed it were io in England. Trin. 34. Car, 2. 2 Chan. Cafes,
and Lo°d ' 120. Nottv. Hill.
Notti li^-
ham's Decree confirmed by JetFries C. Trin. 1687.
4. One intitlcd to an Eftate after the Death of two old Li\'es takes
300/. to pay 600 I, when the LiiKs fall, and mortgages the Elhite as a
Security. The Lives die within twoYears, yet no Reliet againll this
Bargain, nor was any thing ill in it. Per North R.Hill. 1682. Vern.
141. Batty v. Lloyd.
This Cafe ^ ^^_ ^,fj ^/^ Man, being altiiofl in his Dotage, and f-iicd of an Eilatc,
the^Ld'^ ^ was w/.'.'^f fo believe by W". S. and J.N. (who had an Intention to pur-
Chancellor ch:ife his Ellate at an Undervalue, us it" it was for another Pcrfon, and
in
Fraud. 5^15
in whole Name Letters were lent to A. preliing the Completion, and ^'H- '.^Sj-
that it would not admit or' any longer Delay) that they could k:!p him ^','"'"''rV,
to a great Match^ and told kirn, that to qtiakjy htmfeif for tke Lady^ ^'^ CnKnai'u'l^,
r/itift con-vert his Land into Mone)\ whereupon he entered into Articley un- Kthafe, l'r~
der Hand and Seal, and alter eonveved the Lands purlbant to the Ar- tides, and fi-
ticlcs, and the Purchale Money was all paid, or fecured ; but what was ^''''( '"^^',
paid, was all borrowed, and what A/o/;?^ ^'.7jr fecurtd^^ was to be paid by „t a ccnUc.--
injh'.hnchts ; and the Money agreed for, if really paid, was lb much un- Me DiffaKce
der the real Value, that the ^Profits in a little time '■jcoidd pay the Pur- oiTm:e,onc
chafe Money. Ai'terwards, A. levied a Fine Itkevvife to the Purchalbr, j '^l' ^j;°7
made his Tenants attorn, and his Son (who Iheweda Diicontent at what au fetalldc.
was done) releal'e ali his Right to the Lands, with Intent to eltablilh Vein. 590.
the Purchale. On a Bill by the Son of A. (alter A's Death) to let alide
this Purpole, as gotten by Circumvention, it was proved^ that J. was a
fcnjible Man, and capable of managing his own Eujinefs^ and had not any
apparent Wcaknefs upon him ; and that be had ablblute Power over the
Litate, and after the Conveyance declared, that if it were then to do, he
would do it again; Notwithltanding all which, becaufe there appeared
Ibme Art ufed, the Ld. Keeper decreed the Purchale to be let alide.
Mich. 1683. Vcrn. 205. Cokby v. Smith.
6. A. articles for the Purchafe of B's FJlate, pretending he bought it
for one whom B. was delirous to oblige, but in Truth bought it for
another, and by that Means got the Eltate at an Undervalue. Equity
will not decree an Execution of thcfe ?\rticles. Hill. 1683. Vern. 227.
Phillips V. D. of Bucks.
7. An over-reaching Bargain, upon Con tingencv^ was relieved ; But the ''"Givntofa
principal Money and legal Lntereji decreed ro the Bargainee. 35 Car. 2. in'^ee'^ ot"^''
2 Chan. Rep. 266 E. Arglafs v. Mufchamp. gco 1, pe;-
Annum, for
:;oo 1. to"commence rt'/7ci- theGrantcc's dyinp; vj'nlcutJJftie. The Grantor, byDebauchc.y, was difublcd to get
llTue.— This per Nonli K. was fct afide for Fraud, Pafch. 1684. Verr. 157. S. C. — S. P.deci'ced, by Jet-
fries C. tho' the Grantee anfwcrcd, that he was wholly a 5-ti-anger to the Grantor, and the Matter was
tranfadcd by a third Perfon ; Fraus eft celare fraudem. 1685, or 1686. Vern. 239. Earl Ardglafs v. Pitt.
8. A Man makes his W/7/, and his Wife Executrix ; The Son after 9 ^^od_. 6;.
prevails on his Mother to get the Father to make a new Will, and to ^rf'^vof"
name him Executor, promijing to be a Trultee only for his Mother. _Lc"i'o2^.'^"
I'rujt decreed, notw\t\i^-A.nd\ngihQiitatitte of Frauds, &CC. Hill. 1684. Vern. Rockwood
296. Thyn. v. Thyn. v. Rockwood
9. Money was lent at very great Advantage on Contingency of Deaths
&c. by A. to B. — A. fometime after brings a Bill to be re-paid,or tofore-
clofe B. ofanyRclief againjl the Bargain. — B. anfwers, that the Bargain was
iairly made, and intends to abide by it, and that he zvoiild feeknoRehej agaifijl
it. — The Contingencies happened. — B. brings a Bill againil A's Executor,
(A. being dead) and is relieved upon Payment of principal and Interell,
without Colts. Hill. 1690. Per Commillioners, 2 Vern. 121. Hill. 1690.
^Viil■man v. Beake.
10. Policy of In fiirance, for infuring a Life, was gained by Fraud, as by Q^n Pi-cc.
falfe Pretences of Health, and a Jhani Infurance, by a near Neighbour ot 20. s.C. — •
"the Infured, fet alide after a Verditl at Law^ with Cofts, both at Law and ■y^ where a
in Equity ; and the Money received on the Polic)' to go in part of the ^,^|'^""|'^''l^^'
'■[lolls. Hill. 1690. 2 Vern. 206. Whittingham v. Thornbury &c al. Shlpat'sea,
IvjLii nr> Wircioit tf a Ship's being tah77, uhich avfivereii the DefcripiicDi of his cti'ti Ship, infured her, without
acquainting the Infui-crs of any thing he had heard ; Upon a Bill by the Infijrcrs, to be relieved, Ld.
Macclc-.ficld thought the Concealment to be a Fraud, and relieved the Plaintiff againft the Policy, and
with Cods. 2 VVmi's Rep. 170. Trin. 1713. Dccofta v. Scandret.
II. A. borrows Monev of B. and gives a Aforfgage of a future dijlant This goes
'term of liars, defeafanc'd to be void on payment of 40 /. per Annum "^pTfn
Jcr eight 7'ears, by J^iarterly Payments, the Sum borrowed being but ^^'J^f ^^^
2C0 1. Redemption was decreed on Payment ot 200 1. with hmplelnterelt. "
Mich. 17C0. 2 Vern. 402. Tames v. O'ades.
6 Z 12. J.S.
546 Fraud.
12. J.S. who was to have had a confidciable Advanrage by a Will,
was drci-ivfi in by Fraud, and talle Suggeltions, to make a Conipolidon for
his Interell:, and to j^ive a Rc/cafe j Afterwards J. S. being fenlible of the
Fraud, makes his \V ill, and thereby (after other Legacies) he deviies
•all the rell ot his Goods and Chattels whatlbever to his Wife, upon
Condition that ihe paid all his Debts ; and made her lole Executrix.
And it was held, that his Rif^H io fct afide the Relcafe, was de^ifable,
and the Words proper for that Purpofe. Decreed Trin. 1701. Abr. Equ.
Cafes. 176. Drew V. Merry.
13. A. agreed for the Ptirchafc of I'iviher; and jI. and B. both enter
into a Road, that J. his Executors and Adnnmftrators pall not cut doixin
under ftich a Size ; It comes out, that J's Name tuas only made life of for
£. in the Agreement ; Ji. aits down Tind'cr under Size ; I'here can be no
Remedy at Law againft P. upon this Bond ; But it is a Fraud on the
Seller, and relievablc in Equity. MS. Rep. faid to be Lord Harcourt's.
tit. Fraud, iz March. 1720. Butler v. Pendergrafs.
(D. a) By Circumvention, in Refpeti: toyoiwg Heirs, ^c.
and relieved, On ^vhat Terms,
SC. cited 3. I. ya An Infmt, (newly come of Age) by Bill fought to be reliev-
Chan. R. 75- j^^^,« cd againft leveraljudgments in Debt, which were got by P/-^;;-
inCa'cof ticc tetivecH the Injnnfs Guardian, and Attorney, and others i and drew
Williams V. into Examination the Reality of the Debt, lor which tlie Judgments
Smicli — N. were, and how the lame arole, and decreed to be referred accordingly ^
Ch. R. 84.S. and thereupon further Order to be taken. 15 Car. 2. 3 Ch. Rep. 10. Godl-
^ call V. Walker and Wall.
The Seciiri- 2. A Quadruple Security given by young Heirs, to be paid on Contin-
ty was' Bond ^e/;^-^ of their father's Death, or their own Marriage. — Equity will not
and Jiid_!^- j^gjp ^^^,]^ Security (which was a Judgment) to anyThing to attach upon,
ment, and j-j^^g Conlideration not beino; equitable, and fotheBill was difmilied. 167 1.
Defendant 3 Ch. R. 74. Rich v. Sydenham.
■»V3S drunk.
Ch. Cafes 202. S. C. Pafch. 23 Car. 2.
Fin. R. 295. 3. A young Gentleman employ'd A. to borrow 500/. A. employs B. —
S. C. The B. goes to a Silkman, and Z'«j'j(5'//>(;.f /or 500/. of him.— Plaintift gaveBond
Plaintift b;/ ^.^^ judgment tor the Money. — B. fold the Silks for 250/. kept 50/. tor
fe'r'd to paV himlelf, and paid 200I. to the' Plaintiff. — Defendant never treated with the
Interell. Plaintift", and denied on Oath that he ever treated about the Loan of Mo-
Pafch.2QCar. ney, and depofed the Silks to be of 500/. Value or there abouts ; but Proof
2-— 2^V-'"- was to the contrary. Decreed only 200/. andLiterelt(C>ucerefbr thelntereit)
^^pJ'J'^p and Relief againli the Defendant, quoad the Relidue. Pafch. 28 Car. 2.
—So 500/. 's I Chan. Cafes 276. Waller v. Dak.
worth of r n r 7—
Silk-Stockinp-s. Decreed the Principal, but no Interelc, and Bond, Judgment, and Extent fct alide. Fin
R 214. Mich. 29 Car. 2. Fairfax v. Trigg.
4. A Sale of Goods to a young Gentleman, in the Life Time of his Fa-
ther, at an Extravagant Price, Ibme of which Goods were Horfes, &c.
was reliev'dat the Suit of an hcnejf Mortgagee, againfl whom the Vendor of
the Goods had fet up a Statute of 5000/. given in Conjideration of the
Goods, as a prior Incumbrance on the Ellate mortgag'd. Mich. 31 Car.
2. Fin. R. 439. Dr.iper v. Dean and Jafon. Decreed that the Conu-
lee be allowd according to the real Value at the Time of Delivery, with
Interelt from that Time, but the Plaintiff's Ccjls to be deducted thireouc.
J bid.
5. Goods v,ere f )ld to a young Gentleman Heir apparent to a good Eftate,
at
Fraud. 54-7
•dt a ^/ii\'l'k Vdhie on dContifigcacv of his furvivin£^ his Father, otherwife the ^ Vent. 559.
whole Debt to be lunk. Relief decreed aganilt the Vendor; that Dc- ify',^7j,.7c[,
cree was afterwards reverfed, and after the Jail Decree was reverfed by o{Ca,. ;^._
Jeffries. C. Hiil. 34 and 35 Car. 2. 2 Chan Caies 136. Karny v. Eeak. Skin. Sti-
ftead V. Bar-
ney. 1 07. fays tliemainReafon of the Decree wa.sthat the. Father iijs pck and like to die. zVeni. 14. S. C.
6. A. lent B. a Remainderman in
of his Father, 1000/. to recei'je 2500/.
lole the 1000/. if B. died in his Father's Lite Time, and fecur'd the Cowper
lame by Judgment The Father died, A. fued, and B. brought his Bill accordingly,
in Chancery," which was difmiiied by Ld Finch. 9 Feb 33 Car. 2. But o'^'y he adds
upon reheaiino; the Caufe bv Teffries C. the Plaintiff havine before, by f''^^ °j ^''^^
Order ol the Court, paid the Money, his Lordlhip declared that theie eft for the
Bargains were corrupt and fraudulent, and tended to the Dellruction ot fame, iaCa'.e
Heirs lent hither for Education, and to the utter Ruin of Fam.ilies ; and he fliould
that as there were new Contrivances for the carrying them on, fo the p^Th'^^r'sLife*
Relief of the Court ought to be extended to meet with, and correct fuch And faid that
corrupt Bargains, and unconfcionable Pra6tices, and decreed the Ibriner the Reafon
Order to be difcharged, and the Plaintijf' to be rejlord to ivhat he had paid inducing the
over and lejides the ^friiiapal Money and Interefi. 2 Ch. Rep. 396. 2 Jac. ^ec'l-^e'^wZs *
2. Berny \. Pitt. (probably)'to
difcourage a
growing Prafticc of devouring an Heir, on a Confidence in Ld Nottingham's Decree; but Ld fef-
tcrcy's Decree (landing fhews that every one tliought the fame was jurt, and that there was therefore
no Attempt in Parliament to reverfe it. Wms's Rep. 3IZ. Pafch. i;i6. in Cafe of Twiflcton v. Gri.'Sth.
7. So where B. Remainder-man in Tail, having incurr'd his Father's
Dilpleafure, was adviled bv one that had been an Attorney, and who pre^
tended great Friendjbip for B. and afterwards B's Father being reconcil'd
to him, and oticnng B. looo/. lor his Reverlion, he was diflwaded by the
Attorney from accepting it, as not a valuable Conlideration, but about ;t
Year alter, the lame Attorney, ct'Z-'f/i the Father ''juas in a ixry declining
State, loiigbt it cf B. for 1050/. (the Eltate being 150/. per Ann.) and B,
was then about 34 Years of Age, and liad a Child 10 V'ears old inheritable
to the Intail, and B. levied a Fine to him of this Reverlion. In about two
Years after B's Father died ; B. brought a Bill to fee alide this Convey-
ance, and to get an Injunction ; he, by Direftion of the Court, fuffered a
Common Recover}', and declared the Ufes to the two fenior Six-Clerks,
fubjeti: to the Order of the Court. It was obje£led, among other Things,
that at this Rate, it would be almoil impraclicable for an Heir ever to
lell a Reverfion; but Ld Cowper fiid, that he txw no Inconvenience
in that Objefilion ; For it might force an Heir to go Home and fubmit to
his Father, or to bite on the Bridle, and endure Ibme Hardfliips, and in
the mean Time he might grow ;\'iler and be reclaim'd ; fo directed that
the Plaintiff be rclicvd en Payment of Principal Intereji and Cojls, but faid
he meant liberal Co/Is. Wms's Rep. 310. to 313. Pafch. i7i6Twine-
ton V. Griffith.
8. A. draws in B. a young Gentleman, and pttrchafes an EJtate at a ^"' wlierc^
great under Value of him, and B. covenants for A's quiet Enjoyment, wlfe^bein
A. is eviffed^ and brings Aftion on the Covenant. Per North K. 'Tis un- wypoo>-,vicre
reafonable that A. who was a Lawyer, Jhould make Advantage of this drawn in to
catching Bargain ; and fo decreed A. his purchafe Money with Interell, ^"-"'^ ^!? p*^"'"
only dilcounting the Mefne Profits. Pafch. 1685. Vern. 320. 2ouch. v. dem°ptiOTitta
owaine. great under-
value, yet as
no fuch Fraud appear 'tl as to fct it afide, Ld Wright difmiflfed the Bill. Ch. Prec. zo6. V\'ood v.
Fenwick.
9. A Contraft to pay 450/. and Sol. per Ann. till the ^^o I. and every
Part of it be paid, being made with a young Man on a lecond Agree-
ment, after a firil: Agreement made with his Friends, and the fecond being
made witho'at their Privity, and by taking Advantage of the Plaintirt"'s
Neccffity, was fet ^fde per Jeffries C. but no Reliet for v/hat was over-
paid. Mich. 1685. Vern. ^52. Cddv v. Torlas* lo. The
548
Fraud.
■Tr. i(SS8. 2 lo. The Dclendunt Ibid Goods to the PLiintilf and two others ut ck-
\cni. R. ". ti-iiviigant Prices, and to he paid Jive for one or more on the Death ofthtir
Smith S^ p' yathtrs^ and lo obtained from the Plaintiff and two other young Gentle-
— aVern -S. men that were Heirs to good Ellatcs, Teveral Securities, wherein thev
Trin i6fS vverc bound leverally and jointly in 4000/. lor Payment of great Sums of
Whitley. V. jvjoney. The Court decreed tiiePlaintirt's Security to be delivered up, on
''"■ ■ ' Payment of what the Delendant really & bona tide paid to him alone,
and for his own proper Ufe. Tr. 1687. Vern. 467. Bill v. Price.
Ch.Prcc. Sc. II. A voung Gentleman oi 3000/. per Ann. in Polieffion o^ Truftees,
S. C. propofed to a Scriviner to /orro-o; 1000/. on Mortgage^ but he trickilhly
drew him into the giving a Statute inltead o^ a Mortgage, and was him-
felf bound with him, and fo let t\iQ yotiiig Gentleman recei-ve only 300/.
of the iVIoney, and he received all the reji hunfelf in Goods of one Kind or
other, and difcounting a Debt of his own due to the Lender j decreed
Payment only of the 300/. and Intereft, and a perpetual Injun6lion againft
the Statute as to the young Gentleman. Hill. 1697. 2 Vern. 346. Smith
V. Burroughs and Loader.
12. An unreafbnable Bargain bought of a young Heir, was reliev'd by
opening an Jcco/int, and the youngGentleman allowing only what was jullly
due. Tr. 9 Geo. 9 Mod. 31. Spencer v. Chafe. But where the Security
■was deficient, 'twas ordered that the young Gentleman make it good at
the others Expence, fo as to fecure the Money due. Ibid.
P;// had the 13. A. was Tenant lor Lile, Remainder to B. his Son in 7'ail, Remain-
S'^'-g'^'j^een ^jgj. fg j^ j^j p^^ ^f ^^ E^ate computed worth 7000/. — B. at 30 2 ears of
Voo//e'Lw ^.i^5 ''' ^^^^ ^'f" "f ^- ^^^i<^^^'^ ^^ f^^^ ^^^ EJiate for 3300/. ivhen hejhould
he jhoiilH come come into Poffejjton of it, and lo have Interefi for the fame from the Time of
hjo Pojfejfwti, the jirticlcs to the Time of his being in Pojfcjjion. A. died ^vit bin tzvo Tears,
this would fo that the Intereft amounted to little. B. on his coming into Polfelfion,
ally been^a compleated his Agreement, and brings a Bill to be relic\ed. It was in-
Purchafe of lilted tbr tlie Purchafor, that there was a great Difference between defeat-
the Revcrfi- ing an Agreement, and carrying it into Execution; and Raymond and
°"' ^^^ "p'""? Gilbert Commifiioners were of the fame Opinion, and laid, that had the
feTion as the Bargain been to pay fo much down in ready Money, it would undoubtedlv
Payment and have been good, otherwife there is an End of all Sales oi Reverlions.
Po'flefTion And that this is the fime as buying theRe\'erfion tor prelcnt Money, and
•would be at ^yj]j j^g conlidered as fo much Money put out at Interelt by himfelf, and
Thne-'andin ^^^e fame as if he had receiv'd it, and immediately lent it to the Vendor
that Cafe, on at Intereft ; that the Intereft might have run to the \'alue oi the Eftate,
Account of tho' it has happcn'd otlierwile, which was a Chance on both Sides, and that
the Great O- j^ is not conliftcnt with common Senfe, that a prefent ,-^rm'WOT.' ihould
Chancery' ^^ 'Varied by fit lire Accidents ■, that it muft be conlidered as it is in itlelf
-would re- witbout any Thing Extrinlick; that Bargains for Sales of rever/icuary E-
lieve; Per ^atei by Heirs are never fet cfide but on Account of Prodigality ; that nothing
'^dV^h'^ of that appear'd in the prefent Cafe, but the reverie ^ For it appe.ir'd thai:
CommWio- tioth the Father and he were in bad Circumftances. Sel. Ch. Cales in Ld
ners. Sel,t:h. King's Time. 7. 8. Pafch. n Geo. i. Dews v. Brandt.
C/afes, in Ld
King's Time- ;■ 8. P.irch. 1 1 Geo. i. Dews v. Brandt.
(E. a) By Circumvention, in Reipe^t of a prefent Want,
or General Weakneis 0/ U/zckijlandhig.
See Fines I- A the Plaintifl' being fimple, the Defendant got a. Conveyance of
[,o.h) pi. 5. • y~V* Lajids from him, but tho' the Defendant had fold the fame to
Wright v^ Purchalors, and a Dcfcent was call, vu A. had the Lands rcailLired to him.
Booth. S. P. ^T^ 1 - ■ ; T r -XT 1
Toth. 104, 105. cites 4 |ac. Lewis v. Vaughan.
2. M-xScrivaner hy \]n\.iiciMe3.as makes himftlf a Trit^^lce, helhallhaveno
Benefit
Fraud. 5^1.9
iietic by tlie Conveyances, and making hinifelt" Executor (the TelLitor
being ot" weak Underllanding) was oracied not to n»eddle in perlormiiig
the V\'ill without his Co-Executors. 3 Car. i. i Chan. R. 22 Herbert v.
Lounds.
3. A. on Loan of 90/. got a Bead from B. of 1600/. for Payment of Soo/.
A. by Bill fued to fubjeft certain Lands B. was intitlcd to in Right ofhis
\Vite, the Eltate in Law being in I'rullces ; but the Security being got
jvhen B. was dnink^ Bridgnian K. would not relie.e A. in Equity even
for the Principal which he had reaJly lent, but diliniired the Bill. Pafch.
23 Car. 2. I Chan. Cales 202. Rich v. Sydenham. Sec 2 Vem.
4. KWoWlV^ of 'isjeakLhuhrflanding^ tho' not a Lunatick, made a co- 1S9. Mich.
luntaryCo/rocyancc; it was let alide as Iraudulent by Ld Chancellor. Palch. i.'^9''- ^''^'ll
34 Car. 2. 2 Chan. Caibs 103. White \. Small. ' ^ fiSJn.
5. One ot" 72 Tears uf Agc^ coirjeyd Lands of t^ol. a Tear for an jinnuity r^^-^ 'hccr e
for his Life of 20/. aTinr^ who liv'd two Years alter, but was fetalideupon ^^^ affirmed
a Bill brought by the Heir at Law, it appearing that the old Man was on Appeal to
weak and eallly to be impos'd upon. 2 \V ins'sRep. 203. Mich. 1723. Ld Miiccle!"-
Clarkfon v. Hanway & al. ^f^; ^^'^■■
(F. a) Ignorance of Title or Value, &c.
I. TT Ands being originally charged with rhe Payment of Portions,
J J A Rcleafc upon a Covenant in Trutt to pay does not dilchargc the
fame, the Releiibr being ignorant oi her real Right, and impos'd upon
bv the Releliee. 31 Car. 2. 2 Chan. R. 173. Tucker v. Searlc.
2. Mortgage Money was rcfer-vd, payalk to hiuifef or Heirs ^ Alcrrgagee
d\-'d,-An^\\\s Executors con feuted tot he Heir s rece'roing it, who gotaDecree a-
gainlt the Mortgagor, and received the Money. Yet what the Executor
did, being upon a Miltake, as thinking the Heir was intitled by Reafon
of the Reler\ ation. It was decreed that tne Heir iliould repay all the Money
receiv'd by him to the Executor. 31 Car^ 2. 2 Ch. R. 154. Turner v.
Turner.
3. ^Tenant hy the Citrtefy of Gavelkind Land, not knowing his Title as
fuch,but being otherwile in Pollellion, attorned 'Tenant, tho' he had a Right
to a Moiety, and lometime afterwards brought Ejeftraent, and had a \ cr-
dia before Ld Ch. J. Hale. 32 Car. 2. Fin. R. 473. Vaulx v. Shelly.
4. Agreement being to quit Poffif/ion of Lands, Chancery will not decree a
Conveyance. But, per North K. If the Agreement had been to have
conveyed thofe Lands, he would ha\e decreed the Agreement, tho' he was
ViOt apprized what Tftate he had in them. Hill. 1682. Vem. 121. Gerard
v. Yaux.
.. 5. A Suit ■was to avoid a Con\eyance by Fine and Deed to lead the
Uies of the Fine 23 Tears Jtnce on Suppohtion of Fraud by purchaling
the Fee of the Land for 1 1 /. worth 60/. per Ann. and the Plaintirt' being
tgncrant of the Value, but the Delcndant well apprized thereotj and the
Plaini iff being ignorant alfo of his Title, which he came to the Notice of
after the Fine. I'hcBill was dilinilied. Hill 35 and 36 Car. 2. 2 Chan.
Cales 159. Hobert v. Hobert.
6. The Cafe was thus, (viz.) A. having Title, and B. Pollellion, B. con-
ivj'j- the Land to A. in Trnji' for B. and then gets A. to convey back to B. as
in Execution of the Triift, whereby A. extinguilhes his Title, yet Chancery
will relieve. See Hill. 35 and 36 Car. 2. 2 Chan. Cales. 160. in Caie of
Hobert v. Hobert.
7. Qpyho/d Lands were devi fed to]. S. Some v\ere furrendered to the Ufe
of the V\ ill, and lome were not. The Heir at Law was a Feme Covert,
and J. S. (ot a fniallConlideration, drew them into Articles to confirm his
Title without their being well apprifed of their Interefl: when they arti-
cled. The Mailer of the Rolls would not decree a Ipccifick Execution
7 A of
55o Fraud. __^
of the .•\iticle.-> ol' a Feme Covert for conveying her Inheritance, but dif-
niilied the Bill. On Appeal to Ld Summers, he confirmed the recree^
but went upon the Fraud, and leem'd not to take Notice ot" its being the
Inheritance ofa Feme Co\^ert. Tr. 1697. Ch. Free. 76. Prellon v. Wafey.
J?Hmhcreby §• Devi/l'c oj Linds^ by a Will not duely executed^ by its not being attefted
a Will Aueiy in Prelence ot the Teltator, prevailed upon the Heir ^jor 100 Guineas, to exc-
execKted A. (;[({e a Rekafe, reciting that the IVtll was duly executed. And alterwards,
gave all his ^^^p^j^ ^ Pretence of more ipeedy Payments of the Devifor's Debts. /«• 50
hiryounreft Guineas more^ ^ets him to join in a Leafe and Rckafc to a pretended Pnrchafor
Son in Pee, for 4000/. which was done in Form. But by Ld Harcourt * Siipprejio
chai-gedwith jx"^;-/, or Siiggcjiio Falft, is either oi them good Reafon to fet afide any
an Annuity j^gieafe or Conveyance, and both of them concur in this Cafe. And tho'
%^Son for" one Witnels fwcre, that the Heir declar'd to him before the executing
Lifc.onCon- the Releafe, that the Will was not worth any Thing, yet his Lordlhip
dition B. thought it not to be believ'd ; and reliev'd againtl the Keleafe, and alio
ftould re- ^^iq Leafe and Releafe, but the Heir to pay back the 100 Guineas, and 50
R'gl/to e-' Guineas with_ Intereli. Wms's Rep. 239. to 241. Mich. 1713. Erode-
very other rick y. Broderick.
Part of A's .
Etete, but B. oppos'd the eftablifliing the Will in Chancery, infifting on a Will being made fubfequent,
■which' was denycd by C. and not proved by B. and after a DirmilFion of a Bill brought by B. an Agree-
ment was made between B. and C. by which C. reciting the WUl, agreed to convey to B. fuch Part of
the Eftfite. B. rehaftd to C. all the reji of the Efiate drjijed, cr tr.emioned to ie devifed, and afterwards
brought a new Bill, upon Pretence of having made new Difcoveries ; and he dying, the fame was re-
vived by his Heir. Ld H. Macclesfield faid, that where two Parties are contending in this Court, and
one releafcs his Pretenfions to the other, there can be no Colour to fet this Releafe afide, on Account
of the Maker's havin"^ a Right ; For then there can never be any Compmrnife made, but every Releafe
may be avoided ; and "that this Releafe was very particular, in rcfpeft of the Words cf All Lands de-
vifed or menihned to he devifed; that indeed, if the Party releafing, is igiioi-.ttit of his Right, or if his Right
ii' concealed from him bv the Pcrfon to whom the Releafe is made, thefe will be good Reafons for the
fettin'c afide of the Releafe ; but it not being fo in this Cafe, and his Lordfhip, takin<; Notice that the
Court' oui'ht to be very cautious ofgiving Relief in a Cafe fo circumllanced, an 1 that the Plaintiff being
asked at the Hearino- of the Caufe, whether he would reconvey the Part of the filiate convey "d by C. to
B his' Father, decfined the doing it, dilfmiiTed the iiill of Revivor vixhCoJli. Trin. 1721. Wms's
Re". "2; to • iS. Sir William Caiui v. Cann.
9. A Statute was made in Ireland, that all LeaCeswhioh Ihould not be re'
gificrd hy fuch a Day Ihould be 'void. The Refpondent, who lived tn the re-
moteft Part of Ireland, not having Notice of the Adc. of Parliament, did
not rcifler within the Time ; whereupon another Leaje was made, and re-
gifter'd, to one who had Notice of the frfl Leafe; and an Ejeftment was
brought upon it ^ but the Refpondent was relieved j Becaiife tiie Statute
which was made to prevent Fraud Ihall never be ufed as a Means to cover
it. Note, This Mt was appointed to be read at every Quarter Selfions
and Affife. MS. Rep. faid to be Ld Harcourt's, tit. Fraud 23. Feb. 1722.
Ld Forbes v. Denilton.
(G. a) M'ifapprehe?i/ion reliev'd in Equity.
Enant for Life of a Copyhold, with a contingent Remainder to his
flrlt Son in Tail, having no Son born, and thinking to veft the
whole Fee in himfelf, buys in the Reverlion in Fee of the Copyhold at
$50 1, but finding this would not by Merger (the Freehold being in the
Lord) dedroy the contingent Remainder, brought his Bill to be reliev'd
agamit the Security, he had given tor the Purchai'e Money, being deceived
as to theF.jfeii of his Purchaj'e. Per Cur. pay principal Intereft and Colb,
or be diflnilled with Colb. Mich. 1691. 2 Vern. 243, Mildmay v. Hun-
gerford.
2. KConveyance by Deed and Fine was ^i7/«fiy/,'/,-/;)Tif?/)'byImpofitIon, and
without Coniideration, the Grantor intending it only in Trult lor her
felL Decreed the Conufee to convey the Eltate to the Devifee o( the
Grantor aad his Heirs. Mich. 1693. Vern. so". Wilkinfon v. Brayfield.
3- An
T
Fraud. 551
3. An Eltate was deviled to the eldell Son, pro-vicial he or his Heirs pay
100/. a Puce 10 his three Siltcrs, at their Age ot 21 or Marriage; one of
the Daughters dies belbrt 21 unmarried ; alter T. S. buys the tltate, and
thinking it fubject to the dead Daughter's Portion, (a Bill being brought tor
it in Cane.) gave Bond to her Executrix to pay it; but being atter wards
adviled, that the Lands would not be liable, he brings his Bill to be re-
lieved againrtit; and 'twas held by my Ld Keeper, that tho' by the
Law now ufed in Cane, the "Land would not be liable to the Portion,
yet perhaps when the Bond was given, it might have been otherwife
taken ; and there being no Fraud in getting the Bond, he would not relieve
againlt it. Mich. 1702. Abr. Equ. Cales 269. pi. 9. Smith v. Avery.
4. Where a deliberate Jtl is done, tho' it attains not the End deJign'd
and ftould in Conlequence prove quite contrary, 'tis not relievable in E-
quity. Mich. 1708. 2 Vern. 615. Hodges v. Hodges.
5. A. on a Marriage withM. entred into Articles to purchafe Lands, and
makes a Settlement on himfelf and M. and the Iffue Male of the Marriage,
and lor Default of fuch llfue, the fame was to be to A.'s next younger
JJrother, and for Default of ifllie Male of him, then to go to the next
Brother, ckc. The Marriage took Eflect;; A. died without iflue Male, or
making any Settlement, but made M. Executrix, leaving Allets ; after A's
Death, the Brothers immediately applied toM. who promifed by Letters
to purchafe and fettle agreeable to the Articles ; but Ld C. King held
that thofe Letters ought not to bind her, unlets llie was before bound by
the Articles, (which he held Ihe was) For that flie might be well under
an Apprehenllon of being liable by them, and therefore wrote fuch Let-
ters ; but that would be no Reafon to conclude her by her Mifipprehen-
lion. 2 Wms's Kep. (594) 599. Trin. [1730] 173 r. \ ernon v. Vernon.
(H. a) By M'tJinfor77iat'ion, and what Ihall be laid fiich.
I. A N Jgreement by an Heir at La\v upon a Miftake and Mifinfor-
_/\ mation, as to iiis Right to Land devifed from him to his younger
Brother, was decreed. iChan. Cafes 84. Pafoh. 19 Car. 2 Frank v. Frank.
2. A. had an Jnnnity iffuing out of Lands of B. C. purchafes Part of
the Lands charged and diverle other Lands of B. and Notice is taken of
the Annuity by way of Exception in the Deed of Purchafe ; C. fells to D.
the Lands not charged^ and Part of the Lands charged by general Ji ords,
and deilred A. to join in a Fine to D. he ailuring A. that it would not
prejudice him in the Lands fettled on him ; but this was proved by one
Witnefs only, and his Depolitions uncertain as to the Particulars. Finch
C. faid that Here was no Conlideration for the Rent, and no yigrecnient to
extingtii/Jj it, and when the Land was fold, it was fold for 800/. of which
700/. was paid to C. and that A, was circumvented, and Decreed relief
againft C. Hi!!. 27 & 28 Car. 2. i Chan. Cafes 273 v. Hawkes.
3. A Man going to difturb a Conventicle, asked a Conventicler there 2 Jo. kJj. S.
what his Name was, he anfwered James (who was a known Conventicler) C.
whereas in truth James was not there, and the Fellow that anfwered
knew it, but Defendant did not; Defendant made Oath according to the
fa/fc Name told hivi^ and was convi£ltd of P'erjitry^ but the Verdift was
fet alide, it not being williil and corrupt Perjury, but a plain Miftake,
and a new Trial granted. 2. Show, 165. Mich. 33 Car. 2. B. R. the King
V. Smith.
4. A. Articles with B. for purchalmg B's Eftate, pretending he IcHght
for one •xhun Ji. defired to dl:ge^ but really for one whom B. would by
no means content to fell it to, and fo got an Agreement at a low Price.
Equity will not dea-ee an Execution of theie Articles ; Per North K. Hill.
1683. Yern. R. 227. Philips v. D. of Bucks.
5- A
5^2 Fraud.
zChan.Caies 5. A Mafi being about to p/rrchtife a Ratt-charge makes inquiry of the
12S. per Title ot" one thiit h:id a Fv^ight to the Land, and to liold it difcharged,
tinchC. but at the Tiir.e Icncvv nothing; ot" his Title, and told the Purchafor as
Car. 2. Hobs much, yet this will not prejudice hnn who was hnbrant of his ozv;; Tttk.
V. Noiton. Trin. 34 Car. 2. 2 Chim. Gaies 108. Dyer v. Dyer.
^i.Ch.R.46. , ■
contra 1649. Uunt v. Carcw. Vern. 15(5. Hobs v. Norton, decreed Hill. 16S2. per North K. to con-
firm the Annuity.
Raym. 1S6. 6. A Fine fl't 2 or 3 Terms lince wlisfd afide^ becaufe offomc furrepti-
Frcre'jCafe. tious Praftife and Milmfbrmation to xht Judge. Vent. 69. Pafch. 22 Car. 2.
7. Mortgagee^ to whom 200/. Interelt Money was due for 500/. being
inquired oi^ as to how mtich was due, by one that was going to be mar-
ried to the Heir of the Mortgagor, and /dying the Intcreji av7j all clear
to that time, fo that a Settlement was taken of the Lands, and the 200/.
being fecured by Bond, decreed tliat the jointured Land Ihould be charg-
ed only with 500/. and Interell from the Time of the Inquiry. Mich.
1700. Ch. Prec. 131. Barret v. Wells.
8. A. charged a'll his Lands by his JVill, for Payment of 500 1. a J'ear to
Af. his Wife for Life, a fid made her Executrix and Re/idaary Legatee, and
fubjeft to this Annuity lit gave his Real Eft ate to R. L. afterwards R. L.
and M articled that AL ihould Renounce the Executrixiliip, and deliver
iiptbe Perfonal EJlate to R. L. and that R. L. fhould indemnity M. Irom A.'s
Deb;3j -xnd potdd fay M. a jitrther Jnnnity of 40I. a Jlar, and the 540/.
a Year was to be f cured on Part of the EJlate only. R. L. prayed Relief
againft thefe Articles, pretending that the Value of the Perlonal Eftate
was mifreprefented to him, and that in Reality it proved to be 4000/.
lefo than the Teflator's Debts amounted to. But it appearing that there
was fiofalfe Inventory , or Particular made of A.'s perfonal FJtate, nor any
Efiimatc given cf it, ivhereby to induce R. L. to come into thofe Articles on
Account of the Value, and there being another Motive 0 iz..) M.'s accepting
the Rent-charge of 540 / a Year out of Part of the ¥Ji:'.te only, Ld Cowper
difmilled the Bill with Colts j but as to M.'s Crofs Bill ordered a Pertor-
mance of the Articles. Wms's Rep. 541. Trin. 1719. Litton v. Litton.
9. A Releafe^ of an E.quity of Redemption obtained by Mifreprefentation
was fet alide for that Realon. MS. Rep. laid to be Lord Harcourt's, tit.
Fraud. 23 May 1721. Kirwan v. Blake.
10. Kn Affignmcnt of a Leafe got by Milinformations of the Value of
the Land, and o'l the Fine for Renewal was let alide, and the Defendant
the Executor of the Affignee ordered to Account for the Moiety of the Pro-
fits, during his Teltator's Life, and lince his Death, and to pay Colls ot
Suit. Hill. 10 Geo. i. 9 Mod. 83. Evans v. Hoskins and Gloucefler City.
11. Obligor for 200/. and 100/. by Note, on Payment of 20/. to Obligee,
who was a Man of weak Parts and Memory, procured the Bond and
Note to be delivered up upon pretence that he was poor, and nearly related to
the Obligee, but that not being proved, he was ordered to Account for the
Bond and Notes to the Executor of Obligee. Mich. 11. Geo. i. 9 Mod.
118. Lucas V. Adam.s.
(I. a) //7jo fjhall be Bomid by it, and how Punifhable.
I. rTpHE Heir is bound to Warranty, and aliens the Affets by Covin 3 the
X Feoffee IS iv'pieaded ixA^OMchci, the Vi^w; in this Cafe, upon the
Matter found, he lliall recover in Value againlt the Heir Land purchafcd
by the Heir, but not the Land aliened by nim. Br. Collulionj pi. 49. cites
31 E. 3. ....
2. Formedon was brought by Covin of the Tenant againft himfelt, be-
caule he was Feojfee upon Condition, and had broken the Condition, and would
have the Land to be lojl againfi the Feofcr, and this Matter was alleged by
Feollbr who was a Stranger to the Aftion; Fur the Defendant cunleilcd
the
Traud. 55^^
the A6tion, and thereupon Proc] unation was made, it' any one could lay
any Thing why the Demandant Ihouid not ha\c Judgment and Execution ?
whereupon the' Feoflbr came in as above, and lliewcd as above; and the
Matter was examined and contelled, and the T'enant put to give Bail to at-
tend bis Funijhnciitfor the DcfceU. Br. Coilulion, &c. pi. 15. cites 7. H.
3. A Deed of Gift of Goods fliall bind the Maker, his Executors and s.'°: "!fdv°
Adiuinifirators, notwithitaading the 13 Eliz. 5. Brownl. in. Hill, b Jac. 196. s.c.
Hawes v. Leader.
4. ABion will lie againft a Defendant for confejftnga Judgment by Fraud
in order to prevent Plaintitis having benelit ot a Judgment he had obtain-
ed againft him. Trin. 3 Jac. 2. B. R. Garth. 3. Smith v. Tonltall.
5. In Gale of a Gwfs Fraud the Gourt will give Cojis, to be afcertain'd
by the Party's own Oath; Per Gommilhoners. Hill. 1690.2 Yern. 123.
Dyer v. Tymeuell.
(K. a) Pleadings. Averred in what Cafe.
I. XN a Formedon, Defendant ^/fi^rt'j' Non-tenure ; Jury find that Defen"
\_ dantmade Feoffment of theTenements to di\ers Pcrfons to their own
Ule before the W^rit purchafed, and that the Feoffees never took the Profits,
but the FeolT-ir, till the D.iy of the Writ purchafed, which Feortinent
was made by Govin and Fraud, to the Intent that the Plaintiit Ihouid not
know againil whom to bring his Aftion ; adjudged that the Defendant
was Tenant ot" the Tenements to this A6tion, and that, in refpeft oi' the
bringing this Aftion, the Feo.Tment Ihall be void againlt the Plaintiff and
that he is fu.nlicient Tenant to anfwer. Savil. 126. HilL 32 Eliz. White
V. Bacon.
2. Upon the Statute 13 Eliz. cap.S. againft Ufury, and27 Eliz. 4. agcinjl f.^^' '''^y
Fraud, tho' Fines are Levied wheie there is Ulury, Fraud or Govin, thole in'chtncerv'
are averrab.'e to be fo againlt any Deed. Jenk. 254. pi. 45. Farmer'sCafe.
3 . A. /';/ Confideration 0/20 1. paid by B. granted all his Goods in a Schedule „
cnnexed, and gave Polleifion by a Platter, but there was a Cow;/;?^? that s'c and'°'
tkcyftjouldriniain in A.'s Huufe, and to be carried azvry by B. on Demand, fecms to be a
and A. to keep them fafely in the mean time. A. died ; B. demanded the Tranfci-iptof
Goods of J. S. the Adm'iniltrator of A. but he not delivering them B. Ydvcrton's
brought hi;. Atfion; J. S. pleaded the Statute of 13 Eliz. of fraudulent AndibdoTs
Deeds of Gift, and that A. was indebted to feveral Perfbns amounting to jjiownl. m
lool. in level al Sums, and, being fo indebted, made the Grant, beihg at S.C.
fuch time polfelfed oi thofeand of other Goods, not amounting to more
than 80/ and that this was by Govin to Defraud his Gredirors, and that
A. dying Adm.iniitration was granted to him; VlxxnniY replied that the
Defendant had A/Jets to fatisfy the Debts demanded, and that the Grant was
upon good Confideration ; and upon Demurrer adjudged lor the Plainrif!!
Firll, becaufe the Defendant had not averred in his bar, that the Debts re-
mained yet unpaid to the Greditors named, there being 4 Years between
the Deed of Gift and A.'s Death, in vvhic.i time the Debts may well be
prefumed to be futislied. Secondly, the Defendant did not Jbe'-ju that the
DJ'ts due to the fippofed Creditors were by fpecialty, and then the Matt.r of
his Plea is not good ; For he cannot plead this but in excufe to tree him
from a Devaftavit, which cannot be here, he as Adminiitrator not being
charo-able, unlefs the Debts are by fpecialty. Thirdly, where Defen-
dant fuggefts, that his Delivering 'the Goods would be a Devaftavit, this
cannot IjC; For as to the Greditors, they are liable in the Hands of the
PlaintitTas Executor de fon Tore, if the Deed of'Gitt befraudulent. 4thly,
it may be the Greditors named will never fue for their Debts, and lb the
Defendant v.iil detain the Goods tor ever ; but had he pleaded a Recovery
by viy 0^' the Creditors, and tho'e Goods to the Value taken ifi Execution., ic
^ '^ ' 7 B had
554 Fraud.
li.id been a good Plea. Fifthly, the Defendant is uot a Perfon enabled by
the Stat. 13 Eliz. to plead this Plea ; For the' the Deed is void againlt all
Creditors, yet it is not fo againll the Party himi'elt^ his Executors and
Adminillrators, and againlt them it remains a good Deed; per tot. Cur.
Yelverton a Counlei with the Defendant. Yelv. 196. Hill. 8 Jac. B. R.
Hanes v. Loader.
4. Covin ihall not be intended unlefs it be averred.^ per Jones J. Jo.
20. cites 10 Rep. 56. a. Trin. 11 Jac. Chancellor of Oxlord's Gale.
5. A Leafefor 7'ears was conveyed by A. luith an intent to defraud his
Creditors, and died, making B. his Executor ; C. was a Creditor of A.
B. proniiled C upon good Conlideration, that if he could diiu)\ er any
Goods, Parcel of the Ejiate of deflator at the Time of his Death, then he
fhould have the Goods in Satistaftion ; the Court held the Leafe ib con-
veyed to be Parcel of his Eftare at the Time of his Death ^ For tho' the
Sale bound himfelf, yet it was void as to Creditors ; and they agreed
that the Plaintiff in his Replication, pewing this fpecial Conveyance of the
'Term by Fraud in maintenance of his Count is good and purfuant, and no
Departure from it. 2 Roll. R. 175. Trin. 18 Jac. B. R. Anon.
6. An Execiitor confeffes a Judgment, as he may lawfully do, yet this
may be averred to be entred, or kept on foot by Fraud, and that by the
Common Law, which hates all Frauds. Vent, 329. Trin. 30 Car. 2. B. R.
in Cafe of Knight v. Peachy & Freeman.
Vent. 329, 7. In Debt for Rent againjl Jj/tgnee of the Executor of Lcffee for Tears,
Vn-^'% D^f^ndant pleaded an Jffigfiment by him to J. S. fuch a Day, ^/Vi/that he
Kni'^htT ° S'^^^ Notice of it to the Leffor before any Rent due ; the Lcllor, Plaintiff,
Pcacliy & replied that the Affignment vv^as to defraud him of his Aftion by Fraud and
Freeman. — Covin; Defendant demurred and 'twas urged that Fraud is not to be averred
Raym^^oq. j^ this Cafe ; For the Affignment is a lawtul Aft ; but it was anfvvered,
2. S."c in the '•^^'- Fraud and Covin make legal A8:s illegal and void ; and Judgment
Exchequer was given for the PlaintitF, Dillentiente Scrogs Ch. J. 2 Jo. 109. Trm. 30
on Error Car. 2. B. R. Anon.
brought
there, but no Judgment; for the Parties agreed. But a Diftindion was t.iken by the Counfel for the
Defend.Tiit, that in Cafe of a ReciTvery by Default^ Fraud may generally be alleged, as in PI. C.4-. in Cafe
of Wimbifh v.Talbois. but if after a Verdict, there it miijl bef^eciafl) ^ikgeii, and for this cited
9 Rep. 1 1 o. a. Treihham's Cafe.
(L. a) In what Cafes, and where the Fraud iliall be tried,
and whether by Jury, or by the Court.
1. T 7^ THERE Land if recovered by Jury, the fame Jury may enquire of
y Y ^^^ Right and CoUiifion, and "-johere \\?,by Default without Jur\-,
as in a Praecipe quod Reddat, it Ihall be enquired by quale jus oj Office,
and fo 16 Alf p. i. and there 'tis determined, that this Inquiry is only an
Inqtieft of Office, fo that if they find therein Matter of Abatement of the
Writ, yet the Writ lliall not abate, lor 'tis only an Inquelt oi OiFice. Br.
CoUulion, &c. pi. 25. cites 14 Alf 13.
2. In an AiSlion of Waft by an Abbot, the Sheriff^ returned the Writ of
Enquiry of the Waft for the Abbot, and Judgment was given lor the Abbot,
but Execution was Jtayed till the Colliijion was enquired into ; but otherwile,
it lliaJl be //' the Inqueft had been before Jujlices ; for then the fame Inqiicfl,
after the Iliue tried, fhould enquire of the Colliijion prefently, but now this
iLall be by quale jus. Br. Collulion, &c. pi. 18. cites 38 £. 3. 12.
i Ar'^.Brid"-. 3- J^^^y found a Deed, but left it to the Court, if by the 27 Eliz. it be
112.S. C. ° Fraudulent againlt the Defendant, and lb void; 'Twas argued that the
cited S. Court can judge of Fraud without the Jury^s finding it fo, but infiited on by
6b°Trin the Other fide, that the Court might judge of the Provifo in the Statute
II Jac.B. R. 27 Eliz. and if this Settlement were void within that hZt; adjornatur.
in the Chan- 2 Show. 46. Butler v. \\aterhcule. — The * Court will not adjudge it
Fraud
c
Fraud. 555
Fraud, where the Jury do not exprefsly find the Fraud ^ For the Judges cellor, &c.
hii\ e nothing to do with Matter of Fact, and fo per toe. Cur. no Fraud. °f |?''£°''d"s
Brovvnl. 36':!: Crier V. Littleton. Pe/Yelver-
ton Serjeant,
Csiin rpp.7rent need rot be proved 5LC. 2^6. — contra, per Beaumont Serjeant 3 Le. :?5. Mich. 52 £Iiz.
C. B. in tlic Serjeant's Cafe. * Fraud is a pure Matter of Fatb whicii is to be found by the Jury,
and cviKol in any Ciii'c Lc frefumed by the Cciirt, ^ev LiMriifoid J. Vent. 129. Pafch. 23 Car.' 2, B. R.
Smith V. Wheeler.
4. ^^'here Fraud is apparent Chancery will Decree againft it without
ordering a '/naf. 32 & 33. Car. 2. 2 Chan. Caks46. Coliton v. Gardner.
5. A. convej'ed Lands to B. and C. tor 99 \ ears in Trultto raife a Sum
of Money, the Rcvcrlion to J. S. Afterwards J. S. fettled the Re\-erlion
on C. and his Heirs in 2l7//r for A. ibr Lile, and to the Heirs oi the
Survivor; 10 Years afterwards J5. kfj^s Money to f. S. and takes a Mortgage
of the 'JLrufi Lauds fnhjeif to the 'Triifi^ and ivithout Notice of the Conveyance
to C. in Tri'fipor A. J. S. dies, living A. On a Bill by B. againft A. and C.
the lall Con\ eyance was iet allde as fraudulent, tho' A. iWore that J. S.
agreed at firll to make fuch Re-conveyance bona Fide, and that fhe knew
not of B.'s lending Aloney tn J. S. and decreed that it was not necellary to
fend it to be tried at Law^ ivhether a 'voluntary Conveyance be fraudulent or
Not, but the Court may decree it to be fo meerly for being Voluntary.
Trin. 1691. Ch. Prcc. 13. White v. Huiley.
6. Fraud, as to the Settlement of a poor Perfon, is to be judged of by the
fiijfu'cs cj Peace and not by B. R. Per Pratt J. 10 Mod. 393. Trin. 3 Geo.
:b. R. .
7. In Cafe oi' great Fraud, Equity will not direct an Iffue. MS. Rep.
fa id to be Lord Harcourt's. tit. Fraud, j Feb. 1722. White v. Light-
burn.
(M. a) Evidence. In what Cafes Fraud may be given in
Evidence.
I. TN Debt againji the Heir, the Defendant pleaded Riens per Defccnt,
j^ and the Plaintiff reply'd, that Aliets in the County of S. It ap-
peared upon the Trial, that Lands defcended, but before A'tfion brought.
Defendant had enfeoffed J. S. ivhich was proved to be by Fraud. Upon a
ipecial Verdi£t found, it was refolved, that this Matter might well be
given in Evidence. 5 Rep. 60. Mich. 32 3c 33 Eliz. B. R. Gooch's
Cafe.
(N. a) Badges of Fraud. What are.
i-T^Elendant in Debt, after Judgment, aliens his Goods, and he ^/'?;/-
_ X^ f'f takes the Profits ; yec the Plaintiff ihall have them in Execu-
tion. Arg. Lane. 105. cites 22 Alf 72. 43 £. 3. 2.
2. A G:U of Goods was held fraudulent on divers Circumftances. i. * p;r, |^_
It was General, without any Exception. 2. It was antedated, and Di- 2-0. Mich,
rection gi\en to the Attorney, to ule his Skill to prevent the Plaintiff ^sCar. 2.
3. The making and Icaliilg it was in the Donee's Abfence. 4. It was p"",'^"^^"" ^^
agreed to be kept fccrct. 5. The * Donee never had Poffcffion cf the Deed,
but it was kept by the Brother of the Donor. 6. The Donor himfelf
had all the Ule if the Goods, and dwelt in the Houfe, and bought and
fold, and killed the Cattle into his Houfe, and altered them, and fpent
ihc Corn in his P'amily all the time att:er ; And they cokurcdihis by Ac-
count made anntiaily between Donor, and Donee, for'ilxnv only; but no
Money
Pettus.
556 Fraud.
Money paid to the Donee. 7. The Donor after the Deed, being Affef-
for, a[Jc[lid hinifclf to the Siibfidy fci'ii! Fcunds ; whereas, if the Deed was
good, he hiid nothing. 8. The Donee tcck cut an Extent upon a Statute
afterwards againft ttie Goods o( the Donor, for a Debt owing to him j
And for thefe Reafons, tho' the Deed was made upon good and valuable
Conlideration, to lave harmleis the Donee from a jull and true Debt,
lor which the Donee was bound as Security for the Donor, the Deed
was adjudged fraudulent. Mo. 638. Pafch. 44 Eliz. in the Star Ch.imber.
Chamberlayne v. Twyne.
3. 'Tenant in Cipite made a Leaje for 1000 }7ays to B. and further co-
venanted with B. and his Heirs, that tipon Payment of 5 j. he and his
Heirs rjoonhl R and feifed to the Ufe of B. and his Heirs, and in tlie Deed
were all the ordinary Claufes of a Conveyance bona fide. B. died, and
the Qiieltion was, if the Heir Ihould be in Ward? It was held, that the
Heir had Power of the Inheritance on Payment of 5 s. and that the
Leafe carries with it the Badges of Fraud. Godb. 191. Tria 10. Jac.
in the Court of Wards. Cotton's Cale.
4. If a Man has any Intention to evade the Statute 13 Eliz. 5. whatlb-
ever he lliallfay afterwards, will not any ways fahe and amend the Mat-
ter, but the "fame is Fraud, and within the Statute, and Secrecy is
a Badge of Fraud, but no concluding Proof j per tot. Cur. 2 Buls. 226.
Pafch. 12 Jac. Stone v. Grubham.
5. Itwasfaid, that if one make a voluntary Conveyance upon Confide-
ration of natural Afte6lion, and is not at that Time indebted to any Per-
ibn, twr in Treaty with any one yor the Sale oi the Lands, fuch Conv-e}'-
ance has no Badge of Fraud ; but otherwife it is, if he be indebted, or
in Treaty tor Sale of thofe Lands. Sty. 445, 446. Pafch. 1655. B.R.
Anon.
6. In Evidence to a Jury, it was held by the Court, that a 'voluntary
Conveyance executed is not Iraudulent, beca-ufe voluntary ; but it is great
Evidence of Fraud rt^it/////' an after Conveyance made Lena J:de:, becaule the
Statute avoids {nch Deeds as are bonajide, and on Conlideration, if made
ea Intentione, to defraud Pnrchafors ■, And therefore this Fraud mult be
Ibund by the Jury. 1 Keb. 486. Palch. 15 Car. 2. B. R. Garth v. Alois.
'^. Executor pleads a Judgment — Per fraudemwasreply'd, and Iliue thereup-
on; and by Evidence it appeared, the Dcttee '■joas zvtHing to take Icfs than
was recovered, it is Evidence of Fraud; but if it be Ihewn, that Admini-
llrator had not Aliets to pav that Sum, it is no Fraud, iSalk. 312.
Trin. 13 W. 3. B. R. Parker v.'Atfield.
8. An j^greement jor a Purchafe was with an oldlJcinan, 90 Tears of Jge,
by an Attorney, but no Money paid, and pretended he bought it lor an-
other, of the Name of the Tenant in Poireifion, to whom ihe was Heir,
ifhe died without Illue, and feveral other fufpicious Circumltances ap-
pearing, the Court would neither decree it to be carried into Execution
ao-ainft the Heir at Law, nor to be delivered up. Hill. 170S. 2 Vern. 632.
Green v. Wood.
9. A. and B. married two Sillers, prefumptive Heirs of J. S. and ar-
ticled to divide equally hetiveen them, ivhatfoever JJsould be given by the Will
of J. S. to either of them. J S. by his Will, gave a great real and perlbn-
al'Eltate to A. and only a fmall real Eftate to B. who bronght a Bill againil
the Executors of A. for an Account of the real and peifonal Eltate which
came to A. by the Will ot J. S. and infifted, that after the Articles,
yj. prevailed on J. S. to dcvife the greatefi Part of his Lands to the Sens of J.
and that as fcon as hi f Sons came f/ Jge, Ji. get his Sons to convey the
Lands to hira'elf and his Wife for Life, Remainder to Trujleesfor 500 Tears,
t') rcife icoo I. a-piece fcr fxo younger Sons, not provided for by the Will of
J. S.' fo"' that in efle£t A. had the fame Power over the Eftate, as if it
had been devifed to himfclf in Fee. Ld. C. Macclesfield declared, that
if the Ellate had continued in the Sons of A. he would not have compel-
led the Conveyance of a Moiety to B. the Plaintift^ according to the
Articles,
Fraud. 5CJ7
Articles, there beingno Writing to ni.ini tell the Trurt, as the Statute of
Frauds requires ; but that il" the Sons lliould -itithont an\ Conlideratioti^
convey to A. their Father the Eltate ielc them by |. S. then he thought
he might juftly Decree, that A. lliould convey a Moietvoi'the Prcmilles
to B. agreeable to the Articles. 2 Wnis's. Rep. 1S2 to 1S5. Trin. 1723.
Beckley v. Newland.
10. Land oFaoI. a Year was conveyed by one of 72 Years of Age,
for an Annuity ot 20 1. a Year tor Lite, and there being no Evidence oj
any InJiruBvm given by the Grantor to the Draiver of the Deed for pre-
Turing it, tho' the Draiccr hirs been examined, but the Iijftruftions were gi-
ven by the Grantee only j and it not appearing thattheDecd ivas read to the
Grantor -dz the time of execuciilg the fime j and the Annuity being feciircd by
Covenant only, inltead of a Mortgage of the iam.e Eltate, and he not having
the Deed i'tfclf in his Hands," t\\^ Mailer of the Rolls faid, that all
this is Fraud apparent, and that judging upon the Face ot a Deed, is
judging upon E\;dence, which cannot err, whereas the Teltimonv of
VV^itnelies may be talfe. 2 Wms's Rep. 203 to £06. Mich. 1723. Cliirk-
fon V. Han way, & al.
(O. a) As to Creditor's relieved in Equity.
i.T^EEDof Gift of all his Goods, Chattels, and houthold Stuffy by
JLy Baron, in Trult tor his Jy'jfe, the Baron continued in Pojjejfion
durmg his Lite, and alter liis Death, the Widow admitted it to be a
Truil, by exhibiting an Inventory of them inro the Spiritual Court j De-
creed, to be a Fraud againll Creditors, there not being Allots fufficient,
without thofe Goods to pay the Debts ; and ordered, alter Debts paid
with them, that the Surplus be accounted tor to the Adminillrator,
when an Adminillrator Ihall appear. Mich. 28 Cur. 2. Fin. R. 270. Oak-
over V. Pettus, Haughton, & al.
2. Sale by Co;«;«/^/o«f;-.f of Bankrupts is good againfl fraudulent Debt
or judgment, and ihall be {o takes in any Action brought for the Goods,
if Fraud he proved upon the Trial. 2 Jo. 41. Mich. 27 Car. 2. C. B. Smith
y. Harvvard.
3. A. got Judgment againfl B. for 1400 1. on Bond conditioned for
Payment of 700 1. and Intereil, and brings a Bill, charging that B. had
conveyed his Ejtate to Trufecs, and had lent 1200 1. to C. in the Name
of |. S. and prays that this may be made liable to the PlaintiiPs Debt.
Defendant demurs, tor that he in his Lile-time wasnot bound to difcover
his peribnal Ellate, and Demurrer o\ er-ruled. per Jeffries C. Pafch.
1686. Vern. 398. Smither v. Lewis.
4. A. got Judgment C-gainfl B. for 100 1. C. on Pretence of a
Debt duett) him, andto pievent A's having the Benefit of his Judgment,
had got Goods of B's, of great Value, into his Hands, fufficient to latisfy
his Debt with a great Overplus, and pra}-ed an Account and Dtfcovery of
thele Goods. C. demurred, bccaule A. had not alleged, that he had
fued out Execution, and afluallv taken out a Fi. Fa j tor till he had fo
done, the Goods were not bound by the Judgment, nor A. intitled to a
Difcovery or Jccount thereof Per Jeffries C.the Plaintiff ought ac-
tually to have/?/tv/ out Esecution lejore he had brought his Bill, and allowed
theDemurrer. Pafch. 16S6. Vern. 399. An gel I v. Draper.
5. At Law, where a Conveyance is found to be fraudulent, theCrcditor
comes in and avoids all, ivithout Re-payment of any Confideration Mo-
ney. Per Cur. Trin. 1687. Vern. 466. in the Cafe of Hern v. Meers.
6. A. in order to dravv' in his Creditors, to compound his Debts at an Rut wlirre
eafy K .'te, made an tinderhand Agreement with fome of them, to pay them A •wa'^ in-
the ■shcle, in Cafe they would feemingly come in; The Creditors came tnirtedby B.
in, but A. failed in Payment at the Time agreed, and now fom.e of the J°^'|f4'(|J'^^^e
7 C Creditors
£;::;>) Fraud.
uponTallie.s, Cfc'ditors rei'ufe to ihind to the Agree.iienc, v/hich being under Hand and
a-;! !ic i^e- Se.il, A. brought ii Bill toco.JiDel a Perlbrmancc; But the Fraud appe.ir-
'T-!;?'^, ;.'?;< ir.o- Ld. lertnes dilaiiUed the Bill. Trin. 1688.2 Vern. 71. Child v.
asl-.tereft, Dandiidge.
und com-
poLirdin<' with his other Creditor';, made fuch an underliand Ap;resment with B. and brought a Bill
to he relieved, Lord Cowper diliiiilVcd his Bill, h..\\-xv\-^<^bt!:;: ^-.tilt^ oj as prent Breach of Tnijl and
Fraud as ci.uld be and not be criininal, and h.ivinsj agreed to make lome kiatishiCtion, he himtlr ou;'ht
rot to be relieved againll luch Promilc or Security for Performance. Hill. 1707. 2, Vern. 6oi. Small v.
Bra.-klcy.
7. h.piirchdfcs LiTnd hiName of B.h.\s olde^ Son, and puts B. in Pof-
ftjp.uii \ Afterwards B. lalling//V;4, A. takes a Declaration cf'TriiJi I'roin B.
B. recovers, continues Poilelfion, and marries, and dies j A. gets a
Conveyance from the younger Son, B. dying without lifucj By Agree-
ment on the A^arriage B. was bound to leave the W^iie 4000 1. But no-
thing of Dower mentioned. Widow brought her Writ of -Ooaw. A. fued
in Equity for Relief, and decreed him by Mailer of Rolls. On Appeal,
W'rigbt K. difmilled the Plaintilf's Bill, declaring it to be a fecret and
fraudulent Deed oi Trull, to deceive Purchafers and Creditors. Palch.
1702. 2 Vern. 436. Batemanv. Bateman.
8. A. makes a Bill of Sale of his Goods to a 'frnjlee for o;/?that lived
with him as his Wife, and was reputed as a Wife. Bill of Sale fet alide
as fraudulent, as to Creditors. Hill. 1704. Vern. 490. Fletcher & al. v.
Lady Sidley, &al.
9. A. indebted toB. 100 1. on Bond, and to C. 200 1. on fimple Con-
trail, makes his Will, and D. Executor ; C. pmxbafcs a Leafehold of D.
the Executor j or 900 /. and difcoiints his ownDtbtof 2.r,o I. and 550 /. due from
D.to C. and pays 150 l.inAfoney. On aBill by A. 'twas decreed at thcRoUs,
and alter, on Appeal, per Cow per C. that this Sale is not good to
bind A. an unfxtished Cnv/z/o?-. Mich. 1708. 2 Vern. 616. Crane v. Drake
& al.
10. A. being about to marry M. the Daughter of J. S. gave a Bond for
500 /. payable to the Father of A. at a Day certain^ but defcafanced not
to he put in Sultry but for Security of the Daughter^ in Cafe any Misfort'rue
Jhould happen to the Husband^ to he paid before other Creditors. Ld. Ch.
King held, that this is a fraudulent Bond on the Face of it, to dilappoinr
Creditors. Sel Ch. Cafes in Ld. King's time. 46. Trin. 11. Geo. 1.
1725, Wife's Cafe.
(P. a) As to obtaining Wills, relieved in Equity.
::.A:
Will, whereby the Heir was dilinherited, and the Eilate gi^ en
_ _ to two Infants, Strangers, though obtained by great Fraud and
Circuin\'ention of the Father ot one of the Inlants", was denied to be let aiide,
tor -jcant of a Precedent^ though the Lord Chancellor declared his Refo-
lution to do all that he could ; and though he had diretlions Irom the
Houfe of Lords, to decree according to Jullice and Equity though no
Precedent could be found. 13 Car. 2. Ch. R. 236. Roberts v. \\'ynne.
2. Jekyl, Ld. Commiflioner, took a Difference bet-ween a ^7//, and a
Deed gained upon a weak Man^ and upon a Adtfreprcfcntation or Fr.iud i
For if a Will be gained from fuch, bv lalfe Mifreprelentation, this is not
Rcafon fufficient to fet it alide in Equity, as was determined in the late
Duke of Newcallle's Will, betwixt Ld'. 'SDljtluet ;ind Ld. Ci^lC, and in
J J Cafe of * 'jSOTiltlland HollC^t(]i ; But where a Deed, which is not revo-
JXobtrt'siK Cii^^^^ ^s a^v'ill is, isfo gained from fuch a Perfon, and without any \alu-
^Ipr.nf, S. able Conlideration, the lame ought to be {tt alide in Equity. 2 W'ms's
^- Rep . 270. Paich. 1725, in Cale of James v. Greaves.
3- A
*,s
Fraud. 559
3. A J^ill was brought to let alide a Will of a pafondl Rflate^ and to
fl-ay the Probate, upon a Suggeftion ot'it's being obtained by Fraud, and
the Defendant demurred to the Jurifdiclion ot the Chancer)', whereup-
on an Injunftion was moved tor, inlilting that the Demurrer confelled
the Fraud, and that Fraud was cognizable in Equity, as well as in the
Spiritual Court. But per Cur, the Spiritual Court has Jurifdiction of
Fraud, relating to a V\''ill of a perfonal Elbite, and can examine the
Parties, by way of Allegation, touching the fame, and if the Will
was fd/fe/y read to tbe Tcfiatnx^ then it was not her Will, and denied the
Injunction. Trin. 1725. 2 Wms's Rep. 2S6. Stephenton v. Gardiner.
(Q^ a) What Afts are to be faid fraudulent, in regard to
After-Creditors or Purchalors.
I. r I IHE Plaintiff had brought his Affion againil M. for lying with
J_ his Wife ; and 13 January, 1689. M. made a Conveyance of his
Lands to Trultees, in Irtifi', to pay his Debts mentioned in a Schedule an-
nexed to the Deed, and fiich other Debts as hepould appoint within ten
Days in Hillary 7'erm following; The Plaintiff' recovered $000 I. Dama-
ges againft M. and brought this Bill to be relieved againlt the Deed as
traudulenc againft him, and made to defeat him of his Debt. Per Cur.
this Deed is not fraudulent, either in Law or Epuity, for fuch Debts as
are named in the Deed ; for the Plaintiff was no Creditor at the making
of the Deed ; and though it were made with an Intent to prefer his real
Creditors before this Debt, yet, when it became afterwards to be a Debt,
it was a Debt founded in Malejicio^ and therefore it was confcientious in
him to prefer the other Debts before it ; but the Plaintiff may come in upon
the Surplus, after the Debts mentioned in the Schedule, or appointed
v/ithin ten Days, purfuant to it are fatisfied. Midi. 1699. Abr. Equ.
Cafes. 149. Lewkner v. Freeman.
2. A iMan indebted to his Daughter-in-law for Money of hers received
by himj purchafed a Leafe for Tears, and had the fame originally conveyed to
her. She had no Bond, or any other Security for her Money, at
the time of the Conveyance, nor till feveral Years after, when he gave
her a Bond, and died without Aflets. A Creditor for a Debt contratted
after the Conveyance brought his Bill, to fubjetl this Leafe to his Debt ;
But Ld. C. King fiid, bethought it would be very extraordinary to do fo
for Debts not then contracted ; and that he did not know that it had ever
been determined, that a Man indebted, minding toprovide for his Children,
has an FJhite originally conveyed to them, it Ihould be fubjeft to Debts ;
whereas, here the Father-in-law was indebted to her, and fo denied to
fubjeSt it to the Plaintiff's Debt. Sel. Ch. Ca. in Ld. King's time. 78
Mich. 1729. Proflior v. Warren.
Freih
56o
Frelli Suit.
(A) At what Place.
S. p. agreed
by Pigot. I. TJT 3! tai?e pout Beads as a Diftrefs, which come back tO POU of their
Br Frcfli j^ own Accord, ji ciitnot xttixU tl}em bj) fcafoit of tljc fitft OP
ckcssc i^^^i toitijout frcfl) g)iut» 9 €* 4* 2* b* pet DnnOD*
2» Dp. 8 ei 246. 70. Eeplcuin fa^ougftt fot taking of 'Bttufl^ in
£)ale* DcfCnDant fatll, tijat IJC took them in another Place lor Da-
mage feafant, and ftjetteO tijat tljC 'Bcaftgi efcaped to Dale, as thev
were driving to th6 Pound, flUD UpOH fiCflj S)Ult, IJE tCtOOU tljCllI UX tljt
131acc calico Dale, ann aumittco a goon luttiftcation.
3. SDIU il^atlUa QB^CbiUm, 53- after fuch Diltrefs, Elcape, and Frefli
Suit, if tljC Party uho diftreined prays Deliverance, and he will not
[HtlfOZX tljCm] l©f it of Refcous lies.
4- it 3 Hifttam foe Damage ftafant, ot fot Hent, ann in chafing
them to the Pound, they efcape into the Soile ot another, pct UpOtl
sPBr.Ffefh jftcfl) Siut 3! uta? f c=tafec tfjcm. 33 $)♦ 6. ss-
Suit. pi. 5. j;. g)0 if (jj0 Tenant refcues, and drives them out of the Land. 33 !!)♦
VrV'b ^- ^3- agfccti*
6. 3;f a Minilter of the Court, by the Cuftom, attaches a Man by a
Horfe, pet Upon JFf ell) S)Uit l)C map tCtafee in other County. 33 l)^
6. 52. b. 55- aC)UtiQ;eO*
7 Note, that it was touched, if a Man makes an Jff^ray^ and the Jtif-
tices of the Peace^ or Cenftable feeing it, come to it, atid ivoiild arreft him,
and he flies into another County, and the other freflily purfues him, he may
arreft him in the other County ; and for Affray, Frelh Suit is Material,
hut it it was /or Felony, it is not material ; For he may take him in any
County. Br. Frefh Suit. pi. 3. cites 13 E. 4. 8.
(B) What lliall be faid, FreOi Suit.
I. TTCTHERE Felony is done, and theFelon is not taken, zvithin aTecJr
\ \J after the P'elony done ; yet if he, who was robbed, decs his En-
deavour to take the Felon, and to eipy him, and he is taken, thu' it be not
at his Suit ^ it fhall be adjudged treih enough, per tot. Cur. and therefore the
Party Ihall be rellored to his Goods. Br. Frelh Suit. pi. i. cites 7 H.
4. 44.
2. If Ecafis efcape in View of the Owner, by dcfatih of Inclofiire, as out
of an Highway, &c. and Freih Suit be Ihewn in Jultification, but it ap-
pears not, that they were in View of the Owner, Frelh Suit ihall not be
pleaded in Bar, except the Plaintiff' alleges N^otice. F. N. B. 128. (298)
in the Notes there, cites 15 H. 7. 17. 21 E. 4. 8. 49. 10 E. 4. 8.
(C) Neceflary In what Cales, to prcferve Property.
Br. FrcfK I . T Ti?, -xho takes Goods from the Enemies of the King, ivhich ivere taken
Suit. pi. 5, JTA before from anEnglifi-rn.vi, ihall have it as a I'htng gained tn Battel,
•ites J3H.6. ^^^ ^^^ ^Yi^ King, the Admiral, nor the Party to nhom the Property viXi
beiore
Fugitives. 561
before, becaufe the Party came not freflily, the fame Day that it was
taken from him, and before Sun fet, and claim'd it. Br. Forfeiture de
terres. pi. 57. cites 7 E. 4. 14.
2* It Gcods are Stole, and they come into a Franchife, the Lord of the Br. Frefh
Franchifey??;?// have them, if Ireili Suit be not made, and if it be no Fran- Suit. pi. 4.
chifc, the King pall have them, if the Party does not make Frejb Suit. *^"" ^- ^
But this feems to be of fuch Franchife as has a Waite, or Bona &
Catalla Felonqm & fugitivorum. Br. Forfeiture de terres. pi. no. cites
2 1 E. 4. 16.
3. Jnd 'twas granted, per tot. Cur. that if a Man Jteals Goods, and -Qt. Frefli
waives them, he who was robbed, may feife them 20 Tears after, if the Suit. pi. 4.
King, nor the Lord of the Franchife have not feifed them ; but if they «"" ^-^
are feifed, then he who was robbed ought to fue Appeal, and fhall have
them, if he makes Frefh Suit. Quod nota. Br. Forfeiture de terres. pi.
no. cites 21 E. 4. 16.
(D) In Treipals, In ^vhat Cafes it is a good Plea in
Trefpals.
I. rTpRefpafs in the County of E. of a Horfe taken, the Defendant
Jl fnid, that the City of E. is an ancient City, and a Corporation of
Mayor and Sheriff, and have had a Court before the Mayor every Day, and
that one f. affirmed a Plaint againfl the Plaintiff^ and fhew'd Procefs in
certain, 'till an Attachment, and how he attached him by the Horfe, as Of-
ficer in the City of E. and the Plaintiff refcued it, and -went into the County
of E. and the Defendant frelhly purfued and re-took, which is the famtf"
taking, &c. Judgment, &c. and a good Plea; for by the Frejh Suit, the
Horfe "was always in his Poffejjion in the Law, and therefore the re-taking
good, in the Foreign County, and out of the Jurifdiiiion of the City of E.
Quod nota. Br. Trefpafs, pi. 32. cites 33 H. 6. 52.
2. Trefpafs of Cattle talcen in A. in D. the Defendant faid, that he
was feifed of four jicres, called C. in D. and found the Cattle there Damage
Feafant, andchas'd them towards the Pound, and they efcaped from him,
and went into A. and he frefhly re-took, them^ which is the fame Trefpafs,
and admitted for a good Plea. Quaere, it he ought not to fay, that they
efcaped into A. agamji his Will? Br. Trefpafs. pi. 355. cites 21 E. 4. 64.
(A) Fugitives. g,^-f
pi- 1-
I. \ Went beyond Sea, without Licence of the King, with Robert * § c cited
jf\_« de Mortimer, and the King certified the fame into Chancery, re- byManwood
citing, that he had fent his Privy Seal, &c. but that the faid A. (Spretis Ch. B. inde-
Mandatis nojiris redire recufavit) and thereupon ifllied a Commilfion to I'vering the
fcife, (Sec. Le. 10. fays, that fuch a Precedent of Seizure was fhewn as ^j^^^ ^"^^"^ °
of 1 8 E. 2. * Edmond de VVoodllock's Cafe. Mo. 1 1 1 . in
S.C Knowlcs
V. Luce, by the Narr.€ of Mortimer's Cafe S. P. and upon a Bill fof Intrufion againft the
Grantee of the Queen, and Judgment thereupon for him, it was affigned for Error, that it was net al-
leged in the Replication of mhat Date the Prizj Sea! was, tmr that any Notice of tlie Privy Seal a-.it
fiven /o -V. But it wasanfwered, that the Privy Seal needs not any Date, efpecially in thisCafe. For
the Matters which are under the Privy Seal, are not ifluable and cites * D. 177. nor can any Traverfc
he taken to it ; And this Piiiy i'eal is >wt as other Writs ard Precipes are, relurnabk in any Court, tnt
the ^jft/j I.erfelJ, from whom it origirally came, jJ.i.'/ receive it, and alfe the Mejfaee upon it, and JJjf
: D herftif
56^
Fugitives.
herfelf in fuch Qjje, is Jadl^e L'f tre Cmtempt and ro Record ot that Pnvy Seal, rcnuiins in ,'>,y tairt, but
Ihe herl'elf fhall keep it, and then when ihe is informed of the Contempt, jke nmkes a Ifnrmnf, fome-
times to the Ld Chancellor, Ibmetimes to the Ld Treafurer and Barons of the Exchequer, to the fame
Purpofe to feifc the Lands, and that Warrant hft^ned •uith tic Seal M:ii:tiul of the Qiieen, and ilie may
certify and fet down fuch CauTc of Seifure in 1uch Wan-ant, and no other Certificate is made by her,
and fhe may ceftify tP.e fame Cotnmijion ty hfcrd of Aicuih, and the Party fliall be concluded by the Com-
miffion ander the Great bcal to fay that fiie hath not certified it. And of this, divers Precedents were
flicwn, and the lame was all agreed to by the Chancellor, Treafurer, and Juftices.f And alfo, that the
^iisen may feije and ajjifn her Intercft over, and that fuch .^Jfipiecs way grant Copyholds , being Parcel of a
Alanor afligned, and that they fl-.all bind any, that come in, after the Queen's Hands are amoved. And
alfo, that the Statutes of i? a>:d\^ Eliz do not amend the Eftate of the Queen, but u continues as
before, and fo do all tiie Elfetes under it. Le. 9 Mich. 2,5 and z6 Elii- in the Excliequer Chamber.
Cater's Cafe.- * D. 176. b. I", a. pi. 50, 51. Baitues Cafe. F. N. B. [S5J (A) in the
I<Iotes there (a) cites D. i;(?. 189'. 575. and fays Note, that the Kmg has only the Profits of the
L.,ipJs_ ■]■ In fuch Qife, the K» has only yefiuraw tcrr^y as in Cafe of Outlawry, and cannot
o-rant Copyholds. D. 176. b. Marg. pi. ;c. cites it as held in Lady Ballet's Cife.
It was alio held, that whereas the ^ueen fajed Ly Force of the common La'ur, and granted a Cofyl. old out
of it ; now whert the Statutes of 19 atul 14 LUt- [5 ] was made, Ihe had not any Effate thereby ; For
fhe had fuch Interelf before ; and this new Seifure after the Statute, works nothing, and nothing ac-
crues to her thereby, w hereof fhe can make a Seifure ; For fhe had departed with the Whole before.
And Note, that the Gra ••"■--
ment v as affimied in On
pi. 21. S. C. ^And. ^^ _ ^ '" \
The Statutes of 1 3 and 1 4 Eiiz- were made in Affirmance of the common Law, and gave to the Queen,
■nothing new, but cxflained that ivhich Jl:e had before ; fo that fhe having upon the Seifure of the Manor'
prior to thole Afts, granted the Manor to B. and C. Quamdiu in Manibus noftris fore contigerit Ra-
wliereor me can make a seiuire ; ror ine naa aepartea witn tne vvnoie Detore.
jiant In the Cafe at Bar, was Quamdiu in Manibus fore contigerit. And Judg-
Dinnibus. Le. 10 C.iter'i Cafe. S P, Pafch. 23 Eliz.. in Scacc. D. 575. b.
id. 95. S. C. and P by Name uf Knollis v. Carter. S. C. cited. Mo. 779.
tione Contemptus, the fame is not by thole Afts veffed again in the Qiicen, and file cannot ouft the
Patentees, by Reafoti of thofe Atts, in favour of any after Patentees. Mo. 109 S.C. by Name of Knowles
V. Luce.
JTWswasthe 2. 57.?f ieWtri under the Great Seal or Privy Seal, tore-call any from
if^'^°n -r tieyond Sea, ought to be fervsd by fome Mejfengcr^ "wlo upon his Oat h^ is to
b pT^o I-- '"^'^ '^ Cert ijic ate thereof in Ckaricer)\ and thence a Mitt 1711 its to be fent into
».'pL 5 I.Hill ^»?'« Exchequer J and thereupon a CommilTion to be granted to leize the
2 Eliz. in Lands and Goods of the Delinquent. 3 Inft. iSo.
Banue's g. A /Merchant of London departing the Realm, to the Intent to live
^^' freely trom the Penalty of the Law, and out of his due Obedience to the
D. 296.pl. 19. Queen, and net fvr any Merchandize^ was refolved by all the Jultices ex--
Mich. 12 & cept two, to be no Contempt to theQueen; For Merchants were excepted
13 Eliz.S. C. out of the Statute oi 5 R. 2. cap. 2 and by the Common Law, Mer-
Anon. chants might pafs the Sea without Licence, tho' it were not to Mer-
chandize. 3 Ihit. I So.
4. The King cannot re-call one that is beyond Sea, but by the Great
Seal, or Privy Seal, and not by the Privy Signet. 3 Infl. 180.
D. irg.b. pi. J A_ Privy Seal, •w:\s\i\'\iciizo re-ca!l a Fugitive^ but the Servants of
iuzTheQ '■'■'^ Fugitive hindered the Service of it, of which the Melienger made
v.Eartue.and Affidavit j This Affidavit is not traverfable, and the Matter being out of
Dutchefs of the Realm cannot be try'd by n Jury, and this Matter being tranfmittcd
SuHblk. by Mittimus into the Exchequer, and the Fugitive not returning, his v
Lands and Goods were feifed. Jenk. £,20. pL 69.
D. 37 5.b. pi. 6. The King mny Fell feafonabk JFoods. Jenk. 246. pi. 35.
^i- 7. Per Tanfield, Ch. B. upon the Reiiiru of a Fugitive he fliall re-have
Mo. III. hjg Eft-^te again in Right, and not of fpecial Grace onlv, but the Lord
KnowUsv. Treafurer iaid, he faw no P.eafon, for that. Lane. 48. Sir Robert Dud-
ly's als. Ld Nottingham's Cafe.
8. 5 Geo. I. cap. 27. §. 3. Enafts that if any Artifcer in Tfool, Iron, Steel,
any of the King's Sitbje^s.^ in any fuch Foreign Country., Esercijing any of
the faid "trades^ jhall 'not return in this Realm, "xiihin 6 Mottths afterUarn-
ing given ly the Jlmba [fader., Mmijfer, or Confal cf Great Britain, in the
Ciuntry where fuch Artificers fha'l be, or by any Ferfcn atithcrifed by fuch
jimhajfadio; (Jc. or ly any cf the Secretaries of State, and frcni tbenceforth
inhabit
Funeral Charges. 56'^
inhabit 'within this Realm j fiich Perfon pall be incapable of taking any Le-
gacy^ or cf being an Executor or jichuniijlrator, and of taking any Lands^
&c. within this Kingdom, by Dejcent, Devife, or Purchafe^ and pall be
deemed alien., and out of his Majejly's Proteffion.
(A) Funeral Charges.
I. A Perfbn died in Debt, and 600/. was laid out in his Funeral, De-
X\_ creed the fame Ihould he a i3ebt, payable out oi" a Trull Ellate,
charged with Payment of Debts, he being a Man of a great Kftate and
Reputation in his Country, and buried there, but had he been buried elle-
where, it Teemed his Funeral might have been more private, and the
Court would not have allowed lo much. Trin. 1691. Ch. Free. 27. Offley
V. Offley.
2. Where a Citizen of London deviled 700/. jor Mourning, the Quel^
tion was, if it Ihould come out of the \V hole Ellate, or out of the Le-
gatory Part only ; it was inlilted, if there had been no Direftion by the
Will, or if the VV^ill had directed, that the Expencces of the Funeral
Ihould not exceed fuch a Sum, there the Dedu£tion mull have been
out of the Whole Ellate. Per Cur. Mourning deviled by the Will, mult
come out of the Legatory Part, and not to lelfen the Orphanage and Cul-
tomary Part. JVJich. 169 1. 2 Yern. 240. Deakins v. Buckley.
3. Executor is not liable to pay for Funeral Expences, unlefs he contrails
for It. Per Holt Ch. J. 12. Mod. 256. Mich. 10 W. 3. Anon.
4. Settlements for Jiperate Maintenance of the Wife Ihall never extend
to Funeral Charges, and tho' Ihe made a Will, (according to a Power
given her) and an Executor, and gave feveral Legacies, but there
was no Refiduum for the Executor, the Husband's Ellate in the Hands
of a Devifee fubje£led to the Payment of Debts was made liable to
the Funeral Charges of the Wife. 9 Mod. 31. Trin. 9 Geo. at the Rolls.
Bertie v. Ld Chelterfield.
In llriftnefs no Funeral Expences are allowable againft a Creditor, ex-
cept tor the Coffin, Ringing the Bell, Parfon, Clerk, and Bearer's Fees ;
But not for Pall or Ornaments. Per Holt, i Salk. 296. Tnn. 5 W. &
M. B. R. Shelley's Cafe. 10/. is enough to be allowed for the Fune-
ral of one in Debt. Per Holt. Baron Powell in his Circuit would allow
but II .J. 6d. as all the necelfary Charge. Cumb. 042. Trin. 7 W. B. R.
Anon.
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