Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others.

1. IN an Ejectione firmae by Edward Gravenor Plaintiff, against Richard Brook and others Defendants, the case appeared to be this; Henry Hall was seised in his Demesne as of Fee, according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers, &c. In the third year of Henry the 8th. (before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple, or for life or years, but never in Fee-tail but then) the said Henry Hall surrendred his said Copy-hold Land, to the use of Joane his eldest Daughter for her life, the remainder to John Gravenor the eldest Son of the said Joane, and to the Heirs of his body, the Remainder to Henry Gravenor her other Son, and the Heirs of his body, the Remainder to the right Heirs of the said Henry Hall for ever; wherupon in 3 H. 8. at the Court then there holden, a grant was made by Copy of Court Roll accord∣ingly, and Seisin given to the said Joane by the Lord accordingly.

Henry Hall died, having Issue the said Joane and one Elizabeth, and at the Court holden within the said Mannor, 4 H. 8. the death of the said Henry Hall was presented by the Homage, and that the said Daughters were his Heirs, and that the Surrender made as before was void, because it was not used within the said Mannor to make Surrenders of Estates tails, and ther∣upon the said Homage made division of the said Land, and limited Fairchilds for the purparty of the said Joane, and Preachers for the purparty of the said Elizabeth, and Seisin was granted to them accordingly.

Elizabeth died seised of her said part, after which 33 H. 8. Marga∣ret her Daughter was found Heir to her, and admitted Tenant to this part; after which Joane dyed seised of the said Tenements as the Law will.

And after the said Margaret takes to Husband one John Adye, who with his said wife surrendred his said part to the use of the said John Adye and of his said wife, and of their Heirs; and afterwards the said Margaret died without Issue, and the said John Adye held the part of his said wife, and surrendred it to the use of the said Richard Brook, and of one John North, and their Heirs who were admitted accordingly, after which, the said John Gra∣venor died without Issue, and now the said Henry Gravenor was sole Heirs to him, and also to the said Henry Hall who had Issue Edward Gravenor, and dyed, the said Edward entred into the said Lands called Preachers, and did let it to the Plaintiff, upon whom the said Richard Brook and the other Defen∣dants did re-enter and eject him. And all this appeareth upon a speciall Verdict.

And by Clench and Gawdy, an Estate tail cannot be of Copyhold Land, unlesse it be in case where it hath been used, for the Statute of Donis con∣ditionalibus shall not enure to such customary Lands, but to Lands which are at common Law, and therfore an Estate tail cannot be of these customary Lands, but in case where it hath been used time out of mind, and they said, that so it hath been lately taken in the Common Bench; But they said, that the first remainder limited to the said John Gravenor here upon the death of the said John, was a good Fee-simple conditional, which is well warrantes by the custom to demise in Fee, for that which by custom may be demised of an Estate in Fee absolute, may also be demised of a Fee-simple conditio∣nall, or upon any other limitation, as if I. S. hath so long Issue of his body, and the like, but in such a case no Remainder can be limited over, for one Fee cannot remain over upon another, and therfore the Remainder to the said Henry was void: But they said, that for all the life of the said John Gra∣venor, nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter, or that might be surrendred by the said Marga∣ret and her Husband, and therfore the said Margaret dying without Issue, in the life time of the said John Gravenor who had the Fee-simple conditio∣nall, nothing was done which might hinder the said Edward, Son to the said Henry Gravenor of his Entry, and therfore the said Plaintiff ought to have his Iudgment to recover, for they took no regard to that which the Ho∣mage did, 4th. year of Hen. 8.

But Fennor and Popham held, that an Estate tail is wrought out of Copy∣hold Land by the equity of the Statute of Donis conditionalibus, for other∣wise it cannot be that there can be any Estate tail of Copyhold Land, for by usage it cannot be maintained, because that no Estate tail was known in Law before this Statute, but all were Fee-simple, and after this Statute it cannot be by usage, because this is within the time of limitation, after which an usage cannot make a prescription, as appeareth 22 & 23 Eliz. in Dyer: And by 8 Eliz. a Custom cannot be made after Westm. 2. And what E∣states are of Copyhold land, appeareth expresly by Littleton, in his Chapter of Tenant by Copyhold, &c. And in Brook Title, Tenant by Copyhold, &c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law, and this could not be before the Statute of Donis conditionalibus for such Land, because that before that Statute there was not any Formedon in the Descender at common Law, and therfore the Statute helps them for their remedy for in∣tailed Land which is customary by equity: Add if the Action shall be given by equity for this Land, why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land? We see no reason to the contrary; and if a man will well mark the words of the Statute of Westm. 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute, which wills that in a new case a new remedy may be given, and therupon sets the form of a Formedon in Descender: But as to

the Formedon in the Reverter, it is then said, that it is used enough in Chan∣cery, and by Fitzherbert in his Natura brevium, the Formedon in the Des∣cender is founded upon this Statute, and was not at Common Law before; And the reason is, because these Copyholds are now become by usage to be such Estates that the Law allows them to be good against the Lords them∣selves, they performing their Customs and Services, and therfore are more commonly guided by the guides and rules of the common Law, and therfore as appeareth in Dyer, Tr. 12. Eliz. Possessio fratris, of such an Estate, facit so∣rorem esse haeredem. And to say that Estates of Copyhold Land are not war∣ranted but by custom, and every Custom lies in Vsage; and without Vsage a Custom cannot be, is true, but in the Vsage of the greater the lesser is al∣waies implyed: As by Vsage, three lives have been alwaies granted by Copy of Court Roll, but never within memory, two, or one alone, yet the grant of one or two lives only is warranted by this Custom, for the use of the greater number warrants the lesser number of lives, but not è converso: And so Fee-simples upon a Limitation. or Estates in tail are warranted by the equity of the Statute, because they are lesser Estates then are warran∣ted by the Custom, and these lesser are implyed as before in the greater, and none will doubt but that in this case the Lord may make a Demise for life, the Remainder over in Fee, and it is well warranted by the Custom, and therfore it seems to them that it is a good Estate tail to John Gravenor, and a good Remainder over to Henry his Brother, and if so, it follows that the Plaintiff hath a good Title to the Land, and that Iudgment ought to be gi∣ven for him. And for the dying seised of Elizabeth, they did not regard it, for she cannot dye seised of it as a Copyholder, for she had no right to be Co∣pyholder of it: And by the dying seised of a Copyholder at common Law, it shall be no prejudice to him who hath right, for he may enter; But here in as much as she cometh in by admittance of the Lord at the Court, her Occu∣pation cannot be fortious to him, and therfore no descent at common Law by her dying seised, for it was but as an Occupation at Will. But if it shall not be an Estate tail in John Gravenor, as they conceive strongly it is, yet for the other causes alledged by Gawdy and Clench, Iudgment ought to be gi∣ven for the Plaintiff, and the Remainder which is not good shall not preju∣dice the Fee-simple conditionall granted to John, which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs, the Re∣mainder over, because that we as Iudges see that this cannot be good by Law, and therfore not to be compared to the case where the Custom war∣rants but one life, and the Lord grants two joyntly or successively, there both the one and the other is void: And this is true, because the custom is the cause that it was void, and not the Law, and also it is a larger Estate then the Custom warrants, which is not here, and upon this Iudgment was gi∣ven that the Plaintiff shall recover.

And by Popham, it hath been used, and that upon good advice in some Ma••∣nors, to bar such Estates tails by a common Recovery prosecuted in the Lords Court, upon a Plaint in nature of a Writ of Entry in the Post.

2. JUlius Cesar Iudge of the Admiralty Court, brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger, for say∣ing, that the said Cesar had given a corrupt Sentence; And upon not guilty pleaded, and 200. marks Damages given, it was alledged in arrest of Iudg∣ment, where it was tryed, by Nisi prius at the Guildhall by a partiall Inquest, because that upon the default of strangers, one being challenged and tryed out, a Tales was awarded De circumstantibus by the Iustice of Nisi prius; wheras (as was alledged) a Tale could not have been granted in this case, for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English, for the Statute speaks at the beginning but of such

Iuries, which by the Law eught to have 40 s. of Free-hold, and wills that in such cases the Venire facias ought to have this clause, Quorum quilibet ha∣beat 40 s. in terris, &c. which cannot be intended of Aliens which cannot have Free-hold: And it goes further that upon default of Iurors, the Iustices have authority at the Prayer of the Plaintiff or Defendant, to command the She∣riff or other Minister to whom it appertaineth to make a return of such other able persons of the said County, then present at the same Assises or Nisi prius which shall make a full Iury, &c. which cannot be intended of Aliens but of Subjects, and therfore shall be of tryals which are onely of English, and not of this Inquest which was part of Aliens.

And further the Tales was awarded only of Aliens, as was alledged on the Defendants part, but in this point it was a mistake, for the Tales was a∣warded generally de circumstantibus, which ought alwaies to be of such as the principall Pannell was. But Per Curiam the exceptions were disallow∣ed, for albeit the Statute is, as hath been said, yet when the Statute comes to this clause, which gives that a Tales may be granted by the Iustices of Nisi prius, and is generally referred to the former part of the Act, for it is ad∣ded; Furthermore be it enacted, that upon every first Writ of Habeas Cor∣pora, or Distringas with a Nisi prius, &c. the Sheriff, &c. shall return upon every Juror 5 s. Issues at the least, &c, which is generall of all: And then it goes further, And wills, that in every such Writ o•• Habeas Corpora, or Di∣stringas with a Nisi prius where a full Jury doth not appear before the Ju∣stices of Assise, or Nisi prius, that they have power to command the Sheriff, or other Minister to whom it appertains, to nominate such other persons as before, which is generall in all places where a Nisi prius is granted, and ther∣fore this is not excepted neither by the Letter nor intent of the Law. And where it is said (such persons) by it, is to be intended such as the first, which shall be of Aliens, as well as English, where the case requires it, for expe∣dition was as requisite in cases for, or against them, as if it were between other persons. And Aliens may well be of the County or place where the Nisi prius is to be taken, and may be there: for although an Alien cannot purch••se Land of an Estate of Free-hold within the Realm, yet he may have a house for habitation within it, for the time that he is there, albeit he be no Denison, but be to remain there for Merchandise, or the like: And by Gawdy, where the default was only of strangers, the Tales might have been awarded only of Aliens, as where a thing is to be tryed by Inquest within two Counties, and those of the one County appear, but not those of the other, the Tales might be of the other County only.