case kellow against rowden Trinity term will mary roll where the reversion in  fee be expectant upon a estate tail and that be spend it descend upon a  collateral heir he must be sue as heir to he who be last actual seize of the  fee without name the intermediate remainder S c lev S c Carth S c salk S c  show S c holt ante cro car bendl dyer salk Com dig pleader e vern vern Peer  wms Powel on contract Bac Abr term Rep debt by Walter kellow executor of  Edward kellow against Richard row den the case be thus John rowden have issue  two son John and Richard John the father be seize in fee of land c make a  settlement to the use of himself for life the remainder to John his old son in  tail male the remainder to his own right heir the father die the reversion  descend to John the son who also die leave issue John his son who die without  issue so that the estate tail be spend modern Richard the second son of John  the elder enter and a action of debt be bring against he as son and heir of  John the father upon a bind of one hundred and twenty pound enter into by his  father and this action be bring against he without name the intermediate heir  videlicet his brother and nephew the defendant pIeaded quod ipse de debt is  owed pillage ut thread et haeres pillage John rowden father Himself army  scribe obligatorii pillage of burden non debet because protestand quod scribe  obligatorium pillage non be factum pillage John rowden pro plea idem Richard  to say quod ipse non to have once land seu tenement per discensum  haereditarium de pillage John rowden patre his in fee simple nec to have die  display billae pillage walteri pillage nec unquan postea et hoc a preparation  be verify unde petit judgment si ipse ut thread et haeredes pillage John  rowden father Himself army scribe pillage of burden to withhold c the  plaintiff reply that the defendant die display billae pillage to have to visit  land et tenement per discensum haereditarium pillage John rowden patre his in  fee simple c modern er p upon this plead they be at issue at the assize in  Wiltshire the jury find a special verdict videlicet that John rowden the  father of Richard now the defendant be seize in fee of a message and twenty  acre of land in Bramshaw in the say county and be so seize have issue John  rowden his old son and the defendant Richard that on the d of January car John  the elder do settle the premise upon himself for life remainder ut above c  that after the death of the father John his old son enter and be possess in  fee tail and be likewise entitle to the reversion in fee and die in the that  year of king Charles the second that the land do descend to another John his  only son who die that car without issue whereupon the land descend to the  defendant as heir of the last mention John who enter before this action bring  and be seize in fee c but whether upon the whole matter the defendant have any  land by descent from John rowden in feesimple the jury do not know c the  counsel on both side agree that this land be Chargeable with the debt post lev  show Carth roll Abr hob   light salk stram will and will mary c a but the  question be whether the issue be find for the defendant ill regard the  plaintiff do not name the intermediate heir it be argue that the defendant  ought to be sue as immediate heir to his father and not to his nephew for  whoever claim by descent must claim from he who be last actual seize of the  freehold and inheritance this be the express doctrine of my Lord modern coke  in his first institute   light I a and if so the defendant must be charge as  he claim seize be a material thing in our law for if I be to make a title in a  real action I must lie a actual seize in every man it be so in formedons in  descender and remainder in both which you be to run through the whole pedigree  yearbook Edward pl brook Abr assize Fitzherbert nat short catalog f b but none  can be thread et haeres but to he who be last actual seize of the feesimple a  post lev show Carth roll Abr hob   light salk stram will and will mary c    light b c and therefore the brother be tenant in tail and his son the issue in  tail in this case they be never seize of the fee for that be expectant upon  the estate tail which be spend then John the father be last seize thereof and  so his son be just and right sue as son and heir in some case the person be to  be name not by way of a title but as a pedigree as where there be tenant for  life the reversion in fee to a idiot and a uncle who be right heir to the  idiot levy a fine and die live the idiot leave issue a son name John who have  issue William who enter the question be whether the issue of the uncle shall  be bar by this fine it be the opinion of two judge in the case of Edward v  Roger cro car march see also cruise on fine d that they be not bar because the  uncle die in the lifetime of the idiot and nothing attach in he and because  the issue claim in a collateral line and do not name the father by way of  title but by way of pedigree but Jones justice who have true report the case  Jones e be of opinion that the issue of the uncle be bar because the son must  make his conveyance from the father by way of title the jury have find that  the reversion do descend to the defendant as heir to the last John it be true  it descend as a reversion but that shall not charge he as heir to the nephew  Jenks case cro car see also bull n p black Rep f for the other be seize of the  estate tail which be now spend and the last who be seize of the fee be the  father and so the defendant must be charge as his heir it be likewise true  that where there be a actual seize you must charge all but in this case there  be nothing but a reversion Tremaine sergeant for the defendant in this case  the plaintiff shall have make a special declaration for the estate tail and  the reversion in fee be distinct and separate estate modern John the nephew  may have sell the reversion and keep the estate tail if he have acknowledge a  statute or judgement it may have be extend and if so then he have such a seize  that he ought to have be name if a man modern er p become bind in a bind and  die and debt be bring against the heir it be not common to say that he have  nothing by descent but only a reversion expectant upon a estate tail Bac Abr a  in the case of chapel v lee covenant be bring in the common plea against  Judith daughter and heir of Robert Rudge she plead riens per descent issue be  try before sir Francis north chief justice and it appear upon evidence that  Robert have a son name Robert who die without issue a case be make of it and  judgement be give for the defendant the plaintiff take out a new original and  then the land be sell so the plaintiff lose his debt Adjournatur afterward in  Hilary term the second of William and mary judgement be give for the plaintiff  by the opinion of three justice against Eyre justice who argue that the  defendant can be charge as immediate heir to his father it be true the land be  asset in his hand and he may be charge by a special declaration dyer pl c in  this case the intermediate heir bad a reversion in fee which they may have  charge either by statute judgement or recognizance they be so seize that if a  writ of right have be bring against they they may have join the mouse upon the  mere right which prove they have a fee and though it be expectant on a estate  tail yet the defendant claim the reversion as heir ought to make himself so to  he who make the gift ratcliffe case   d the person who bring a formedon in  descender must name every one to who any right do descend otherwise the writ  will abate   Fitzherbert n b Rastals Ent e a man who be sue as heir or who  entitle himself as such must show how heir the case of duke v spring roll Abr  see also champernon v Godolphin cro James f be much strong than this for there  debt be bring against the daughter as heir of b she plead riens per descent  and the jury find that b die seize in fee leave issue the defendant and his  wife then with child who be afterward deliver of a son who die within a hour  and it be adjudge against the plaintiff because be declare against the  defendant as daughter and heir of the father modern when she be sister and  heir of the brother who be last seize but the other three judge be of a  contrary opinion the question be not whether the defendant be liable to this  debt but whether he be proper charge as heir to his father or whether he shall  have be charge as heir to his nephew who be last seize it must be admit that  if the land bad descend to the brother and nephew of the defendant in fee that  then they ought to have be name but they have only a reversion in fee  expectant upon a estate tail which be uncertain and therefore of little value  now though John the father and son have this reversion in they yet the estate  tail be know only to those who be party to the settlement it be not the  reversion in fee but the possession which make the party inheritable and  therefore where land be give to husband and wife in tail the remainder to the  right heir of the husband then they bad a son and the wife die and the husband  have a son by a second venture and die the old son enter and die without issue  and his uncle claim the land against the second son but be bar because he have  not the remainder in fee in possession and yet he may have sell or forfeit it  bro Abr descent pl assize pl a but here the reversion in fee be now come into  possession and the defendant have the land as heir to his father it be asset  only in he Prec Chan vern vern Mod Mod Mod Peer wms Peer wms Peer wms stram  stram b and be not so either in his brother or nephew who be neither of they  Chargeable because a reversion expectant upon a estate tail be not asset  judgement be give for the plaintiff modern er p michaelmas term the first of  William and mary in the king and queen bench sir John holt Knt chief justice  sir William dolben Knt sir William Gregory Knt sir Giles Eyre Knt justice sir  George Treby Knt attorneygeneral John summer Esq solicitor general