65. [71 a] 357. a. Co. L. Post. 255. accord. a remitter; whereunto the tenant rejoins that she held her claiming her estate by the feoffment in jointure, and demands judgment, whether against that claim she could. be remitted; upon which plea the demandants demurred. And Nichols, Winch, and myself held the tenant's plea insufficient; but Warberton was of the contrary opinion. And first was held, that the remitter to the woman could not work till her husband was dead without issue, because till then the possession and right did not meet together in her. (1) Also we held, that because both the Post 255. Sid. estates were made unto her during coverture, that therefore regularly upon the death of her husband she might claim which estate she would, according to the books of Mich. 2. and 3 Eliz. Dyer 191. and 18 Eliz. Dyer 351. But I, speaking last, added this distinction, that though this were true, where the election did concern nobody but herself, (and so are those two cases there, without prejudice to a third person,) yet here Hendly was in remainder by the first conveyance, and not so by the second; and therefore it should be a prejudice to him in his remainder, (which rose together with the first estate, and that they two together make but (as it were) one estate to some purposes; for perhaps upon a grant of reversion it might be otherwise,) if the law should not judge her in her remitter at the first, volens nolens. And so is the judgment expressly 41 E. 3. 17. in John Sayes' case, and never judgment to the contrary since. And so I hold, with Littleton, if a tenant in tail enfeoff his son for benefit of a within age, and die, the issue in tail shall be remitted, being a kind of third person, by the intent of the statute of Westm. the 2.; though temps E. 1. Fitz. Remitter 13. the reporter be of a contrary opinion. Now according to my opinion, a plea of claim by force of the jointure is utterly avoided by the necessity of the remitter wrought by act in law. But if the election be allowed free, yet the claim by force of the jointure was pleaded out of time, Remitter, volens nolens, third person. (1) For the law of Remitter, see Co. Lit. Lib. 3. ch. 12. Sec. 659, et seq. [71 b] and not travers and so is idle, and requires no traverse; (2) whereof the reason is plain, for the statute of uses hath a general purview, that jointures made for wives, without distin- 2 Cr. 490. guishing before or after coverture, shall bar dower, and then comes with a proviso, that, if it be made during coverture, she may refuse it and take her dower, which is a kind of remedy provided for her out of the generality of the law, and therefore must be pleaded by her. And in this case there appeared nothing to the court, until the tenant first pleaded, of any other estate that the demandant had, but only the title of dower, and therefore it was in vain to plead that she claimed by her jointure, because pleas out of a there appeared no other estate to claim by; like unto the time are idle, point in the latter end of Walsingham's case, where the able. averment, that Sir Thomas Wyat had issue alive, was holden void. And so there, if a man bring an action upon an obligation by J. S. and aver that he was then of full age, or plead a feoffment absolute and without condition, these averments are out of their place, and therefore void, and so the other party shall plead nonage or condition, and shall not traverse, but be traversed. And this was the main point; wherefore judgment was given for the demandant, because the remitter and the claim by force of that amounted to a refusal of the jointure, and therefore that should have been traversed. Lastly, the exception I held to be void; for there could Exception that be no lands at the time devised, because Bowyer was crosseth the alive, and the exception of such lands, as he should after devise was repugnant, because the covenant was to take effect from the making of the indenture. As if a man should bargain and sell all his land (except such as he should after devise.) And besides, such an exception undoeth the whole grant, or pretended to put it in his power to revoke all, and therefore is void; as 18 Eliz. lib. Post. 170. (2) It is not necessary, in pleading, to state matter which would come more properly from the other side; or in other words, to negative the anticipated answer of the adversary; which, according to Hale, C. J. is 'like leaping before one comes to the stile.' See Com. Dig. Pleader (C. 81.) post 78, St John v. St John. 1 T. R. 638, Hotham v. E. I. Company. [72] 1 Cr. 490. grant is void. [72 a] A. If J. S. make a lease of all his land in Dale, except the manor of Dale, and he hath no lands there but the manor, the exception is void, and all will pass. (3) But here this point of the case was cleared, because it was averred that this manor was not devised. So judgment was given for the demandants, Warberton being to the contrary, and a writ of error was brought in the king's bench. (3) See Shep. Touch. vol. i. p. 78, et seq. 2 Bar. & Cres. 197, Cardigan v. Armitage. An exception shall be taken most favorably for the grantee, and if it is ambiguous, he shall have the benefit which may arise from such defect. 3 Johns. 375, Jackson v. Hudson. 8 Johns. 406, Jackson v. Gardner. If a grant of land be made, excepting and reserving all streams of water and the land under them and the right of erecting mills and milldams, and also such part of the said land as may be overflowed by means of such dams; the latter reservation is inoperative until the grantor has exercised his right to erect mills, &c. Considered merely as an exception in a deed, it is void for uncertainty, but it will operate as a reservation of a right to use the land for a specific purpose, which is an incorporeal hereditament and can pass only by grant. 4 Johns. 82, Thompson v. Gregory. An exception, in a deed of partition, of all places which may be found convenient for erecting mills on a certain creek, applies only to natural mill seats. 11 Johns. 191, Jackson v. Lawrence. A covenant or reservation to a stranger to the deed is void. 9 Johns. 73, Hornbeck v. Westbrook. 12 Johns. 199, Hornbeck v. Sleght. If tenant in fee and his wife convey lands, by indenture, in fee for valuable consideration, reserving to themselves the premises during their natural lives, this reservation cannot operate as an exception or reservation to the wife who survived; 20 Johns. 85, Jackson v. Swart. 3 Barn. & Ald. 66, Moore v. Plymouth; but it will operate as a covenant to stand seized to the use of the grantor for life, and after his death to the use of his wife for life. Jackson v. Swart, ub. sup. 4 Mass. 135, Wallis v. Wallis. 7 Mass. 384, Pray v. Peirce. A deed for a valuable consideration to be paid whenever the deed should take effect, with a proviso that the deed should not take effect but upon a remote contingency, is void. 12 Mass. 93, Welch v. Foster. A deed containing a reservation of a highway laid out across the land conveyed, 'to be kept open forever,' is not an exception of any part of the land, but amounts only to a declaration that a way is to continue, notwithstanding the grant. 13 Mass. 256, Alden v. Murdock. Jenk. Cent. 293. 1 Rolls. 754, 755. 1 Ro. R. 29. 1 Rolls FOREST US. SANDLAND. Principal and bail cannot join in a writ of error upon the several judgments against them. FRANCIS FOREST, a Frenchman, brought an assumpsit against Sir James Sandland, and one Doctor Tenant was 1 Cro. 286, 300, his bail, and judgment was given in the king's bench Rep. 294. m. 464. 2 Cro. 171. Yelv. 157. 1 Cro. 403, 300, Cr. Car. 286, against the principal, and after, by scire fac., against the [72 b] bail; and now the principal and bail joined in one writ of error in the exchequer, and it was abated by judgment, Jones 325. because they could not join; and it was desired that the 574. Godb. 440. bail might have a new writ of error by himself, quod 408, 464, 574. coram vobis residet; but it was denied him, both because Cr. Jac. 171. the scire fac. is none of the action, wherein the writ of 1 Cro. 620. error is given in the exchequer chamber, and also because the record doth not abide before these judges, but in the king's bench; yet it was otherwise ruled heretofore, in the case of one Matthews, but it passed sub silentio. Jones 325. 4. 142, 300. 3 Cr. 730. Error. 2 Cro. writ lieth not Checq. chamb. 384. m. One upon the several judgments against principal and bail. Error out of the King's Bench, quod coram vobis residet. HUMBERTON vs. HowGIL. A covenous conveyance is void as to creditors. Fraud may be shown to defeat a conveyance in an issue on seizure in fee, but not in an issue on the feoffment. 'HUMBERTON recovered a debt against Thomas Howgil by judgment, who died, and upon a scire fae. against the terretenants, the sheriff returned John Howgil tenant of a house that was his, at the time of judgment, in Yarmouth. John Howgil came in and pleaded that Thomas enfeoffed him, long before the judgment, in fee, absque hoc, that he was seized at the time of the judgment or any time after; whereupon issue was taken, and the jury found the feoffment, but further said, that it was made by covin to defraud the plaintiff and other creditors.' And it was judged for the plaintiff'; for Thomas remained still seized, as to the creditors, notwithstanding the feoffment. But if the issue had been taken directly enfeoffed, or not enfeoffed, it had been found against the plaintiff'; for in that case he must avoid the feoffment by covin especially pleaded, for it is a feoffment tiel quel. As you cannot plead non est factum generally upon the statute of usury, or the statute of sheriffs; but here the issue is general seized, or not seized by the feoffment, like Gooches' case, Co. lib. 5. fo. 60. And therefore the covin may be given 8 Co. 119. b. Plo. 66. b. 3 Co. 59. b. Post, 166. Co. 119. a. accord. Jenk. Cent. 295. in evidence, when the feoffment is given in evidence. (1) 1 Leon. 226. Det. 80. 3 Cro. 233. [72 c] (1) This mode of pleading was adopted, and the same principle recognized in Leonard v. Bacon, Cro. Eliz. 234. This was formedon, and the tenant pleaded non tenure, upon which issue was taken. The jury found, that before the writ purchased, the tenant enfeoffed divers persons, with intent to defraud, &c. and notwithstanding, continued to take the profits. This verdict was adjudged for the demandant. See also Rob. Fraud. Con. 597. So in an action of formedon, where a warranty with assets descended, was pleaded in bar, and the demandant replied riens per descent, upon which issue was joined and the jury found a fraudulent feoffment to prevent the descent, the assets were considered to have descended, notwithstanding the feoffment. Dyer. 295. b. pl. (16.) 1 Brnl. 177. POPE VS. SKINNER. To an avowry in replevin, that the defendant took the cattle damage feasant, the plaintiff pleads in bar a lease from W. to him dated 30th March, to hold from the feast of the Annunciation then last past; and the jury find that W. made a lease to the plaintiff of a different date, and for a different term, and the court gave judgment for the plaintiff. Misrecital of an immaterial part of a lease in pleading does not vitiate. POPE brings a replevin against Skinner, who avows the taking as a commoner, because the plaintiff's beasts misrecited, and were in the common damage feasant in April, 11 Jac. The low. Lease yet well. Latch. 93. [73] Hutt. 121. Co. plaintiff in bar says, that one Williams was seized of a house and land, &c. whereunto he had common, &c. and demised the same unto him, the 30th day of March, in the same 11th year, to hold from the feast of the Annunciation next before, for a year. The avowant traversed the lease modo et forma; whereupon issue was taken, and the jury said, that Williams made a lease to the plaintiff, on the 25th day of March for one year, from thence next ensuing. And though this be not the same lease that the plaintiff pleaded, (for this begins on the day, and the other not so soon,) nor was to take his limitation, but from the day excluded, yet the court gave judgment for the plaintiff; for the substance of issue is whether the plaintiff have such a lease or no from Williams, as by force Yel. 148. Jenk. thereof he might common at the time, which appeared for him in this case, and the modo et forma in the rest is Post. 209. Ant. not material; yet it must not depart altogether from the Ante 53.9 Co. 112. a. Post. 249. 2 Cro. 136. 1 Cro. 272, 282. Jones 314. 12. Dy. 116. b. 2 Ro, 182. Co. L. 281. 55. Post. 82, 89. 2 Ro. 704, 708, form of this issue; for if it had been found that he had 55, 56. 1 And. 13. right of common, by a lease from another, or as an owner, |