Brooks Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1682 |
| Date | 01 January 1682 |
| Court | Court of the King's Bench |
English Reports Citation: 79 E.R. 1228
IN THE KING'S BENCH.
[125] AN ADDITION OF CERTAIN SELECT CASES IN THE TIME OF KING JAMES, AND KING CHARLES THE FIRST. trin. 15 jac. in the king's bench, enteed, Hit. jac. eot. 194, brooks case. Where upon surrender of copy-hold land no use is limited, to whose use it shall be. In an ejectione firmw brought by one Brook against Brook, the case was thus. John Wright a copy-holder in fee, 10 Eliz. surrendred his land into the hands of the lord by the hands of tenants, according to the custom, &c. without saying, to whose use the surrender should be; and at the next Court the said John Wright was admitted habendum to him and his wife in tail, the remainder the right heirs of POPHAM.128. LAURKING V. WILDE 1229 John Wright, and the wife of John Wright now defendant was seised from the time of the admittance until this day: and it wag objected by the council of the plaintiff, that the surrender was void, because no use was limited, and therefore by constitution of law ought to be to the use of the surrender, as if a feoffment be made and no use limited, it shall be to the use of the feoffor, or as it is in Sir Edward deer's case, Coke, lib. 6. 18. If a feoffment be made by one to the use of his last will, he hath the use in the mean time. 2. That the admittance was not available to pass an estate to the wife, for she was not named in the premisses, but only in the habendum, arid the office of an habendum is to limit the estate and not the person, and therefore it is said in Ttirogmorton and Trade's case in Plowd. Com. that if one be named to take an estate in the habendum, where he was not named at all in the premisses, this is not good. But it was resolved by the whole Court for the first point, that the subsequent act shall explain the surrender, for, quando abest provisio partis, adest provisio legis : and when the...
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