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![handle is hein.slavery/ssactsengr0938 and id is 1 raw text is: BIL. 19 AND 20 CAR. II. B. R.
of April, ann. 32, habendum from the end, expiration, and of the estate-term and
interest of the estate granted to Monday by the said Queen by her letters patents
aforesaid, which shall begin from the time of the making, and not after the lease for
30 years, made ann. 42 Eliz. for albeit reference to a certainty make a lease good,
yet here is no reference made, but onely to the letters patents, which never were in
32 Eliz. and the date is material to be exprest or imply'd, for razme makes non est
factum pleadable; also without date livery must be averr'd which supplieth it, and
here is no certain estate recited to be in Monday, therefore the law shall construe
that he had no estate ; so the lease shall begin pre-[324]-sently: also had the
habendum been to begin after the estate of Monday, the verdict might have supplied
the certainty , but here it is from the expiration of the estate granted by the letters
patents, which cannot be supplied, being faux recited ; so this is but an estate at will
in Monday, which determin'd by the death of Queen Elizabeth ; also the grant is of
the manor, reversion and services, so there is a present estate passeth if there were
any attornment, if Monday had any lease; and if he had none the thing is in
possession, L. Co. 46 b. which cites Com. 148, and Leases, Br. 62. 4 Co. Palmer's
case, that misrecital shall avoid leases, 2 Cr. 52, Bellingham against Alsop, Mich. 1 & 2
Ph. & Mar. Rot. 648, St. Leger's case, which was the same with Mount against
Ilodskinson, and Brown and Archer were of this opinion in C. B. whereupon the
judgment was given, but Tirell e contra. Keeling Ch. Just. said, Had the date onely
been misrecited, and the beginning to be after the estate of Monday generally, it
had not been material, which the Court agreed for utile per inutile non vitiatur, but
here it's to begin after the estate in the said recited letters patents mention'd, which
is none at all, that patent being misrecited, and so no utile at first; also had the
letters patents been misrecited, had Monday's own estate been mentioned, truly yet
that would not help, for to begin after the estate in the said recited patents
mention'd, doth tie it to this patent. Adjornatur.
45. MARTIN against HOLMES.
Legacy. In Devise, Br. 10.
Raymond prayed a prohibition, the suit being against the administrator of an
executor for a legacy devised on sale of land ; but the executor being also residuary
legatee, the administrator is the onely person liable, and so per Keeling it was
resolved at Oxon, so as to this no prohibition was allow'd. 2. The devise, as appear'd
by the libel, was to H. and his heirs, to pay his debts, and perform his will; and by
Keeling Ch. Just. this land descending is no assets, H. the devisee being heir; but if
lands were devised to executors to sell its assets in them, if they sell, and if they do.
not sell, they are compellable in Chancery, so by Twisden of the heir, if there be no
other assets ; and it appearing to be sold, per Curiam it's assets, and no prohibition,
per Curiam especially it being said the administrator had intermedled, and possest her.
self of the goods of the first testator.
[325] 46. PEMBLE against STERN. Wednesday, Feb. 5. Ante.
Leases.
In ejectment on demise of Atkison of Norwood Park in Nottingham, special
verdict there find, that as to the herbage, pannage, and a fourth part of a meadow,
parcel of the demand, it was parcel of the Archbishoprick of York, and anciently
demised, and Hutton on surrender of lease made to Sir Gervas Lee, did demise to.
Nevill for the lives of three children of Sir Gervas 1604, which was for valuable
consideration and he the 1st of Oct. 1630, surrendred to Archbishop Harsnet, ea
intentione to be annext to his see, and he enter'd and died, and Neal was the 19th of
May, 1631, made bishop; and on the 4th of December, 1641, Williams was made
archbishop; and 1642, the ordinance of sequestration was found; and 1643, a bill
without the King's assent for abolition of bishops; 1646, Williams died; and 1660,
Fruen was made archbishop; and made a lease of the premisses to the lessor of the,
2 KEBLE, $24.](ViewImageLocal?handle=hein.slavery/ssactsengr0938&div=1&collection=&method=preview&ext=.png&size=3)