Defendant did demur in Law it was holden by the whole Court that the Replication was good for the Award as to the second point was meerly void as if no such Award at all had been because A. was a stranger to the Award and the submission 1 Cro. 4. but as to the point of the 100 l. the same is good and shall bind the parties and the Plaintiff had Iudgment to recover vide 21 E. 475. 18 E. 4. 22 23. CCCCXXV Fabian and Windsors Case Mich. 31 and 32. Eliz. Rot. 814. In the Common Pleas. IN Trespass for entring into his house or Inn at Uxbridge Leases 1 Cro. 209. it was found by special verdict That the Plaintiff leased to the Defendant the said house for seven years rendring Rent at the Feasts of the Annunciation of our Lady and Saint Michael c. with condition that if the said Rent shall be behind by the space of ten days c. that it shall be lawful to the Lessor to re-enter And afterward at the Feast of the Annunciation 31 Eliz. the Rent was behind and the tenth day after the Lessor came to the said House a quarter of an hour before the sun setting and demanded the rent in these words I demand three pound ten shillings for a half years rent of this House now due and there continued till the Sun was set but no Rent was paid But note that the Issue was If he came to the House half an hour before Sun set and there continued demanding the half years Rent of the Premises due at the Feast of the Annunciation of our Lady then last past It was moved by Fenner That upon this Verdict the Issue is not found for the Plaintiff i. the Issue was upon the half hour and the quarter part of the hour was found 2. the Issue was If the demand were of the Rent due at the Feast of the Annunciation passed and the Verdict is for Rent due at the time of the demand c. And it was the opinion of Anderson Periam and Walmesley Demand of Rent That as to the first point the Verdict was good enough for the Plaintiff Windham contrary But it was agreed by them all That if in demand of Rent ut supra the Lessor or any on his part doth demand one penny more or less than is due or in his demand doth not shew the certainty of the Rent and the day of payment of it and when it was due the demand is not good Conditions taken strictly for a condition which goes in defeazance of an estate is odious in Law and no re-entry in such Case shall be given unless the demand be precisely and strictly followed CCCCXXV Elmes and Meldcalfes Case Mich. 32. Eliz. In the Common Pleas. IT was holden for Law by the whole Court 1 Cro. 189. That if one of the witnesses after the Iury are departed from the Bar doth repeat unto the Iury the same Evidence which he gave before and no more That that doth make the Verdict to be void CCCCXXVII Carter and Claycoles Case Mich. 32 33 Eliz. In the Common Pleas. Leases More 593. 4 Co 76. IN Ejectione firmae by Carter against Claycole the Plaintiff declared upon a Lease made by the Wardens and Fellows of All-souls Colledge 1. July 10 Eliz. And it was found by special Verdict That Overden Warden of the said Colledge and the Fellows c. leased unto the Plaintiff To have and to hold from the Feast of the Annunciation next following to the end of twenty years and made a letter of Attorney to one to enter into the said Manor and to seal and deliver the Deed of the said Lease in their names to the Plaintiff who by force thereof entred into part of the demised Premises and there did seal and deliver the same c. But it was not found that any rent was reserved thereupon And if this Lease were gooâ— Then the Iury found for the Plaintiff but if not then for the Defendant Cooper Serjeant It hath been objected That this Lease being but for twenty years is not warranted by the Statute of 13 Eliz. Cap. 10. For the words of the Statute are Other than for the term of 21 years 5 Cr. 6. as to that It was not the intent of the Statute but only to abridge the great and long Leases heretofore made by Colledges and to limit such Leases to a certain measure of time ut supra for twenty one years or three lives non ultra but on this side as much as they would which was granted by the whole Court Another matter was because it is not found That the due rent was reserved upon the said Lease accustomed yearly rent or more and yet the same is good enough 1 Cro. 707. 708. Post 333. for if the other party will take advantage of such defect he ought to shew the same otherwise it shall be intended because it is found that such Lease was made that it was made according to the Statute For if a man is to make title to himself by a conditional Lease he is not to plead the condition but only the Lease and if the other party will defeat the Lease by the Condition he shall shew the same And in this Case The Defendant also ought to have shewed the Statute by which such defective Leases are made void Also it hath been objected That by the Statute of 18 Eliz. the third part of the Rent ought to be reserved in Corn and here is not found any Corn as to that It is to be considered that the said Statute is not a general Law Special Statutes ought to be pleaded whereof the Iudges are bounden to take notice but it ought to be pleaded for it extends but to four places viz. Cambridge Oxford Winchester and Eaton and therefore such a Statute ought to be pleaded or given in Evidence and found by Verdict As where a man pleads a general pardon in which divers persons are excepted he ought to plead it specially and shew that he is not any of the persons excepted 8 E. 4. 7. 28 H. 7. So special customs ought to be pleaded Gavelkind Borough-English 21 E. 4. 55. 36. The King grants to the Citizens of Norwich c. And afterwards by Act of Parliament all their Liberties c. are confirmed by a general confirmation to all Cities and Boroughs this is a special Act and ought to be pleaded by Brian 59 13 E. 4. 8. The Lord Saies case an Act of Parliament That all Corporations made by the King H. 6. shall be void is a special Act and ought to be pleaded And see 28 H. 8. 27. 28. Dyer If the Statute of 21 H. 8. cap. 13. Of Lands taken to Form by Ecclesiastical persons be a special Law Yelverton contrary The Statute of 13 Eliz. is a special Law and ought to be pleaded but the Statute of 13 Eliz. is now a general Law which see Hollands
that one Butty was seised of the Land where c. and also of a Messuage with which Messuage the said Land had been usually occupied time out of mind c. and being seised and lying sick commanded a Scridener to be brought to him and the said Scrivener being brought to him he gave him Instructions to make his Will and amongst other things declared unto him that his meaning was that the said Messuage and all his Lands in Westerfield should be sold by his Executors and the Scrivener in making of the Will penned the matter in this manner I will that my house with all the appurtenances shall be sold by my Executors Butty died the Executors sell forty acres of the said Land to the Def. and all this matter was found by special verdict and it was moved by the Plaintiffs Counsel that the sale of this Land by the Executors is not warranted by the Will Another matter was moved scil admitting that the Executors have authority by the Will to sell the Land if the sale of parcel of the Land be good and warrantable As if I make a Charter of Feoffment of ten acres and a Letter of Attorney to make livery of them to the Feoffee if the Attorney makes several liveries of the several acres the same is void But by Cook the Cases are not like for in the Case put he hath a special Commission in which the party to whom and all the other circumstances are set down certainly contrary in the Case at the Bar there the Commission is general c. and peradventure the Executors shall never find a Chapman who will contract with them for the whole More Rep. 222. Co. Inst 113. a. And afterwards upon conference amongst the Iudges Clench Gawdy and Wray it was resolved that by this devise the Lands do pass by the sale of the Executors to the Defendant which sale also by process is warranted by the Will for by Wray these words with all the appurtenances are effectual and emphatical words to enforce the devise and that doth extend to all the Lands especially because it is found that the Testator gave to the Scrivener his Instructions accordingly And afterwards Iudgment was given against the Plaintiff See 3 Eliz. Plowd 210. Betwixt Sanders and Freeman there the Devise is pleaded in this manner Messuagium cum pertinentiis ad illud spectantibus in perpetuum in villa de Arthingworth XLIII Watkins and Astwicks Case Trin. 28 Eliz. In the Kings Bench. 1 Cro. 132. IN an Ejectione firmae it was found by special verdict that one Maynard was seised and made a Feoffment in Fee upon condition of payment of mony on the part of the Feoffor by way of Mortgage at a certain day before which day the said Maynard dyed his Son and Heir being within age Tender to redeem a Mortgage afterwards at the day of payment limited by the Mortgage a stranger at the instance and request of the Mother of the Heir tendred the money to the Mortgagee in the name of the Heir being within age who refused it And it was resolved by the whole Court that the same is not a sufficient tender to redeem the Land according to the Mortgage for it is found by the Iury that the Heir at the time of the tender was within age 2 Len. 213. generally not particularly of six or ten years c. then it might well stand with the verdict that the Heir at such time was of the age of 18 or 19 years at which age he is by the Law out of the Ward of his Mother or any other prochein amy in which Case it is presumed in Law that he hath discretion to govern his own affairs and in this Case the Mother is but a stranger for the Law hath estranged the Mother from the government of the Heir but if the Iury had found that the Heir at the time of the tender was of tender age viz. within the age of fourteen years in which Case by Law he ought to be in Ward in such Case the tender had been good XLIV Leput and Wroths Case Trin. 28. Eliz. In the Kings Bench. A Replevin by Lepur against Wroth 6 Co. 33. Replevin 3 Len. 132. and declared upon a tortious taking in Burnham in the County of Essex the Case upon the pleading was that Robert Earl of Sussex was seised of the Manor of Burnham in Fee and leased the same to the King for one and twenty years and afterwards the said Earl died by which the said Manor descended to Thomas late Earl of Sussex and he being seised 4 and 5 Phil. and Mary it was Enacted by Parliament That the Lady Frances Wife of the said Earl by virtue of the said Act of Parliament should have hold and enjoy c. during the widowhood of the said Frances for and in consideration of the Ioynture of the said Frances the said Manor Provided always and it is further enacted Construction of Statutes That it should be lawful for the said Earl by his writing indented dimissionem vel dimissiones facere pro termino 21. annorum vel infra de eodem Manerio pro aliquo redditu annuali ita quod super omnes singulos hujusmodi dimissionem dimissiones antiquus redditus consuetus vel eo major amplior reservaretur and that every such demise should be of force and effectual in Law against the said Frances for term of her life if the said term should so long continue And further the said Act gave to the said Frances Distress Avowry Covenant c. against such Lessee and for the said Lessee against the said Dame And afterwards the said Thomas the said former Lease not expired leased the said Manor to Wroth the Defendant for one and twenty years to begin at the Feast of Saint Michael next following and note the Lease was made the third of April before rendring three hundred and forty pounds per annum which was redditus amplior antiquo usuali Popham Attorney general argued that the said Lease did not bind the said Lady Frances and that for two Causes 1. because it is to begin at a day to come 2. because it was made a former Lease being in esse and he argued much upon construction of Statutes to be made not according to the letter but according to the meaning of them And he cited a Case upon the Statute of 2 H 5. 3. by which it is Enacted that in no Action in which the damages do amount to forty marks any person should be admitted to pass in trayl of it who had not Lands or Tenements of the clear yearly value of forty shillings yet the said Statute shall not be by construction extended where in an Action between an English-man and an Alien the Alien prayeth medietatem linguae and yet the Statute is general So in our Case although this private Act doth not seem to provide expresly but for two
upon the grant of the said Rent ought to attorn to the Grant for the Ter-tenant ought to attorn and one of them is not Ter-tenant And in case of a Rent-charge the Avowry is upon the Lands but Attornment differs from our case for Attornment is but a bare assent without any interest in him who attorns for an Abator may do it but here is matter of Interest and in Attornment Attornment for one acre is effectual for all 18 E. 3. Fitz. variance 63. but otherwise it is in case of Confirmation for one acre the same doth not extend to the rest for in such case an Interest passeth So here the one of them is not Patron therefore all of them ought to concur 31 E. 3. Grants 61. That such act of the Patron shall not bind but according to the Estate of the Patron which see Lit. 112. 528. as if Tenant in Tail confirm the same shall not bind the Presentee of the issue See Fitz. Grants 104 In R. 2. The case was that the Bishop of Covent and Lichfeild had two Chapters one of Coventry the other of Lichfeild and he made a conveyance but one Chapter only did confirm it the same doth not bind the Successor for both are but one Chapter in respect of the Bishop and see the case abridged by Statham Title Assize for if the Bishop is chosen by both Chapters there a confirmation must be of them both The case in Dyer 11 Eliz. 282. Thark Archbishop of Dublin hath two Deans and Chapters the one surrendreth without the assent of the Bishop and afterwards the other Dean and Chapter confirmeth a Lease made by the Bishop the same is good I confess that for the Surrender was by Act of Parliament and so one sole Chapter remained And in our case the Lease cannot be good in part and void for the residue for all are but one Patron as 22 H. 6. 47. Two Coparcenes are they make composition to present by Turns a Writ of Annuity is brought against the Incumbent he shall have aid of both And see the Case betwixt Gore and Dawbney in the Exchequer Chamber upon a Writ of Error where two are accountable an Account made by the one is not good for both the Accountants shall make but one account and therefore the Account of the one cannot be good And the Lord Anderson put this Case two Ioynt-tenants of a Manor the one of them doth grant a Copy the same is void for he is not Dominus pro tempore And see as to the assent of them all c. 3 Eliz. 190. Dyer But it hath been objected That now the Incumbent comes in by the Ordinary and not by the Presentment of the Patron and the Ordinary is bound by the confirmation of his Predecessor so that the collation of the Bishop by Lapse is in the right and sted of the Patron and as the Presentee of the Heir of the Patron shall avoid c. so also of the Ordinary and 20 E. 3. Br. Presentment 12. The Patron shall have a Writ of Darrein-presentment upon the present of the Bishop for Lapse and 22 H. 6. If a man can recover an Advowson and after the Bishop collate for Lapse the same is an Execution of the Iudgment and will make a possessio fratris as Moyle saith And in our case this confirmation is void in all because Non sunt concurrentes ii qui in hac parte concurrere debuerant And it is an entire Act and cannot be avoided in part and stand for the residue and the Presentee comes in in the right of the Heir for which he may avoid it c. Popham contrary it is to be here considered if the Ordinary hath Interest in the Church by this Lapse or only an authority for if he hath an Interest then it will follow that every one of his Successors shall be bound by his Confirmation and also their Presentees It hath been objected that there ought to be a full and entire Patron who makes such a Lease otherwise it is void But that is not so as if the Patron be Tenant for life his Lease or Confirmation shall not be void in all but shall be good during his life which see 31 E. 3. Grants 61. and 19 Eliz. 356. A Parson makes a Lease for forty years the Bishop being Patron and Ordinary confirms it the Patron dyeth the Bishop presents and afterwards is translated this Lease shall stand during the life of the Bishop and of the new Incumbent who found the Church charged and then such Lease may be good for part and void for part See for the same 2 E 3. 8. If the Advowson of a Church be appropriated unto a Prior and his Successors if afterwards the wife of the Grantor be endowed of it and present her Clerk the Church is become dis-appropriated during the life of the Wife but afterwards shall stand See the case cited to the contrary 29 Eliz. in the case of the Earl of Bedford 7 Co. 8. At the beginning the Patron was not restrained to any time to present his Clerk but the six months was appointed at the instance and suit of the Ordinaries by a Canon confirmed in the councel of Lateran before which time the Ordinaries had not any Lapses but after the said Canon they had an Interest in the Church and this appeareth in the Register And see F.N.B. 37. f. that after the Ordinary is entituled to Lapses The Plaintiff in a Quare Impedit cannot have a Ne admittas for now the Ordinary hath an Interest And if the Bishop hath Title to present by Lapse and before Presentment he dyeth so as his temporalties come to the King the King shall present which proves that it is an Interest and the Civilians call it Interesse caducum conditionale And in our case the confirmation of the Coparcener shall bind the other Coparceners in a Nativo habendo shall bind them all and the villain shall be free for ever And it was moved also if an usurper or the Clerk who is in by him shall avoid this clause and by the words of the Statute of West 2. Si tempus semestre transierit per impedimentum alicujus ita quod Episcopus Ecclesiam conferat verus Patronus ea vice praesentationem suam amittat adjudicentur damna ad valorem Ecclesiae pro duobus annis Wherefore what the Patron loseth the Ordinary hath the same therefore it is an Interest and in lieu of that loss the Statute gives damages to the Patron c. And the case was adjorned to be further argued at another day c. CCCXVIII Pet and Baldens Case Pasch 33. Eliz. Rot. 392. In the Kings Bench. IN a prohibition the Plaintiff declared Prohibition 1 Cro. 274. that whereas Michael Pett was seised of divers Lands and made his Will by which he made the Plaintiff his Son his Executor and thereby devised unto A. his Wife one hundred pounds in consideration and recompence
things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remittâ— the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same
not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the
all Lands which are ancient Demesn are holden in Socage so as they were all Husbandmen who manured their Lands for the sustentation of the Kings Subjects to which they had such such priviledges to be the better able to follow their Husbandry and therefore to disable such profitable Subjects and to prescribe against these Liberties and Priviledges is to take away the name of ancient Demesn and to make their Lands at the common Law. Hobart contrary To shew the authority to demand is not necessary for our Prescription is not upon demand to distrain For the common Officer hath authority to demand for they ought to demand it who ought to take the thing demanded and those are the Bailiffs and Burgesses and then when their Water-bayly doth it it is as much as if it had been done by the corporation which see 48 E. 3. 17. The Mayor and comminalty of Lincoln brought an action of covenant against the Mayor and comminalty of Derby and declared that the Mayor and comminalty of Derby had covenanted with the Mayor and comminalty of Lin. that they should be quit of Murage Pontage Custom and Toll within the Town of Derby of all Merchandises of those of the Town of Lin. and further declared That I.W. and H.M. two Burgesses of the Town of Derby had taken certain Toll of certain Burgesses of the Town of Lin. c. Exception was taken to this Declaration because they had alleadged the taking of such Toll not by the corporation of Derby but by I. and H. two of the Burgesses of it in which case the Plaintiffs might have an action of Trespass against the Burgesses for the act of any of the corporation is not the breaking of the covenant made by the comminalty but it was not allowed for if the common Officer of the Town doth any thing for their common use as it is intended such thing was done by the Officer it is reason all the Town be answerable for it and the whole comminalty by intendment cannot come at one time to take c. and so in our case for as much as the corporation ought to make the demand and their common Officer doth it to their use the same is the act of the whole corporation As to the matter in Law we have pleaded specially That we took Toll only of those things which are brought by Sea by Merchants and not otherwise and I conceive that Tenants in ancient Demesn are not discharged of Toll for all things but only for such which arise out of their Tenements or are bought for their Tenements or Families there and their sustentations according to the quantity of their Tenements 9 H. 6. 25. 19 H. 6. 66. They shall be quit of Toll of all things sold and bought coming of their Lands or for the manurance of their Lands And 7 H. 4. 111. Tenants of ancient Demesn ought to be quit of Toll for Oxen or Beasts bought and sold for tillage and manurance of their Lands and for their sustenance and maintenance of their Families and for putting them to Pasture to make them fat and more vendable and so to sell them c. And see accordingly F.N.B. 224. D. See Crook 138. 139. 28 Eliz. A Iudgment was given for the said parties for the Plaintiffs but there the Plaintiff declared generally and the Defendant did demur in Law generally wherefore by common intendment the Cattel were bought for the tillage and manurance of their Lands For there it was not shewed as it is here that it was to Merchandize Also we have justified not only for Toll but also for Trouage and that they have not shewed and therefore as to the Trouage our justification is good enough for their priviledge shall not be construed to extend beyond the words of it As the priviledge of the Law is That if I leave my horse at a Smiths Forge to be shod there my horse cannot be distrained but if I or my Servant take the Saddle from the Horses back and lay it in the Smiths Forge the Saddle may be distrained Then here are two customs meeting together and to begin together and the one was not before the other then the particular custom shall stand And I conceive that by the Writ de exoneratione sect Fitz. N. B. 161. b. The Tenants in ancient Demesn have not always such priviledges for the Writ saith quod si ita sit then c. and nisi ipsi eorum antecessores tenentes de eodem manerio venire consueverunt temporibus retroactis and see the same matter in the Register 181. And afterwards Iudgment was given quod querens nihil capiat par billam for the Iustices were of opinion that the Tenants in ancient Demesn should pay Toll for their Merchandizes CCCXVI. Lancaster and Lucas Case Mich. 32 33 Eliz. in the Kings Bench. TRespass was brought for entring into the Parsonage-house of Ringhall and divers Lands appertaining to it Leasâ—â— The Defendant being Farmor of the Parsonage pleaded Not guilty and the Iury found that one Tybbin was Parson of the said Church and that one Ash and Dorothy his Wife Wivell and Drausfield were Patrons of the said Church scil Ash and his Wife in the Right of his Wife Wivell as Tenant by the Curtesie the Reversion to his Son and Drausfield also as Tenant by the Curtesie but without Issue by his Wife c. so as the Inheritance of the said Parsonage was in Wivell and Ash and afterwards the Bishop of Chester being Ordinary the Parson and Patron 4 E. 6. joyned in a Lease of the Rectory which Lease was void as to the Wife of Ash to S. who assigned it to the Defendant All the Lessors dyed and further found that Ash and Wivell were Heirs of the Patronage and that the Church being void the Presentment came to the Bishop by reason of Lapse and that the Successor of the Bishop had Collated his Clark. Cook argued And he conceived that the same now Incumbent should avoid the Lease in toto and the case is but this Three Coparceners Patrons of an Advowson or Tenants in Common the Parson three Patrons and the Ordinary joyn in a Lease where the one of them is a Feme-covert and so her Act void If the Successor of the Incumbent being presented by Lapse shall avoid it in all And he conceived that he should for all three have interest in the Parsonage and all three ought to agree but the agreement of the one is worth nothing But it hath been said that that is but matter of assent and that the assent of the one is as strong as the assent of them all Attoâ—nment As if many Ioynt-tenants hold by certain Services and the Lord granteth the Services to a stranger and one of the Ioynt-tenants attorneth to the Grant the same is as sufficient as if they had all attorned Lit. 128. 566. Otherwise it is of a Rent-charge for there all the Ioynt-tenants of the Lands charged
ipse nor any other by his procurement or consent had taken or riotously spent the Goods of the Plaintiff for Plea saith That the Plaintiff before the Writ brought had not sufficiently proved that the said John Hallywel took or riotously spent any of the Plaintiffs Goods Vpon which the Plaintiff did demur in Law. It was argued by Daniel That the proof is sufficient and good for the time if it be tried in the Action upon this Obligation and the proof intended is proof by twelve men for it is not set down before what person it shall be proved nor any manner of proof appointed and therefore it shall be tried according the Law of the Land which see 10 E. 4. 11. 7 R. 2. Bar. 241. Godfrey contrary This case is not like to the cases before for here is a further matter First warning and a month after Notice pay c. And if the proof shall be made in this Action the Defendant shall lose the benefit of the Condition which gives time to pay it within a month after for in all such cases the precedent Act of the Obligee is traversable as 10 H. 7. 13. I am bound by Obligation to enfeoff such a person of such Lands as the Obligee shall appoint In an Action brought against me I shall say-that the Plaintiff hath not appointed c. And here ought to be Notice first and proof ought to precede the Notice by the meaning of the Condition and so this differs from the other cases put for here proof is not the substance of the whole Owen Serjeant It is the folly of the Defendant to put himself to such an inconvenience for now he ought to pay the mony without delay of any month And here the Defendant ought to plead That he hath not imbezelled any goods of the Plaintiff and the Plaintiff Replicando shall say and shew the Special matter that he hath given Notice to him thereof See 15 E. 4. 25. CCCXLV. Manning and Andrews Case 18 Eliz. In the Kings Bench. Devise 4 Len. 2. IN Ejectione firmae the Iury found by special Verdict That Richard Hart and Katharine his Wife and divers other persons 1 H. 8. were seised of the Lands in question to the use of Richard and his Heirs ad per implend ultimam volunt dict Rich. who the first of August 8 H. 8. by his Will in writing devised That his Feoffees should be from thenceforth seised to the use of his said Wife for her life and after to the use of W. H. his Son for his life without impeachment of Wast and after the death of the said Katharine his Wife William his Son and Joan Wife of the said William his Feoffees should be seised to the use of the next Heir of the Body of the said William and Joan lawfully begotten for the term of the life of the same Heir and after the decease of the same Heir to the use of the next heir of the same heir lawfully begotten and for default of such issue to the use of the heirs of the body of the said William and Joan lawfully begotten for the term of life or lives of every such heir or heirs More Rep. 368. and for default of such heirs to the use of the heirs of the body of the said William and for default c. to the right heirs of William And further he willed That if any of the said heirs shall set alien say to mortgage the right title and interest which they or any of them shall have in or out of the same Lands or by their consent or assent suffer any Recovery to be had against them c. or do any other Act whereby they or their heirs or any of them may or ought to be disinherited that then the use limited to such heir so doing shall be void and of no effect during his life And that his said Feoffees shall be thenceforth seised to the use of the heir apparent of such Offender as though he were dead Richard Hart died William had issue by the said Joan his wife a Son named Thomas and died and afterwards 31 H. 8. Joan died Katharine died Thomas entred and had issue Francis and Percival Thomas by Deed indented 1 August 4 Eliz. bargained and sold to Andrews and levied a Fine to him with warranty And afterwards 6 Eliz. Francis levied a Fine to the said Andrews Sur conusans de droit come ceo And further by the said Fine released to him with warranty at the time of which Fine levied Percival was heir apparent to the said Francis Francis after had issue I. and F. who are now living The heir of the Survivor of the Feoffees within five years after the age of Percival and seven years after the Fine levied enter to revive the use limited to Percival who entred and leased to the Plaintiff This case was argued by the Iustices of the Kings Bench c. First It was agreed by the whole Court That Richard Hart being seised with seven others unto the use of himself and his heirs might well devise all the use Use suspended yet the Land devised although his use was in part suspended because he was joyntly seised with seven others to his own use and so the use for the eighth part suspended for when this Devise is to take effect i. e. at the time of his death all the possession of the Land by the Survivor passeth from the use and then the use being withdrawn from the possession shall well pass And by Wray A use suspended may be devised As if Feoffees to use before the Statute of 27 H. 8. be disseised by which disseisin the use is suspended and afterwards during the disseisin Cestuy que use by his Will deviseth That his Feoffees shall re-enter and then make an estate to I. S. in Fee the same is a good devise for by that disseisin the trust and confidence reposed by Cestuy que use in the Feoffees is not suspended Secondly It was holden that here a use implied was limited to Joan the wife of William although there be not any express devise of it according to the Book of 13 H. 7. 17. Thirdly when a use is limited to the Heir of the body of William and Joan lawfully begotten for life and afterwards to the Heir of the body of the same heir for life c. Geofry Iustice was of opinion That here is in effect an estate tail for the estates limited are directed to go in course of an estate tail for he wills That every heir of the body of his Son shall have the Land and the special words shall not make another estate to pass but that which the Law wills As if Lands be given to one for life the Remainder after his death to the Heirs of his body lawfully begotten notwithstanding that the words of the limitation imply two several estates yet because the Law so wills it is but one estate Gawdy Iustice said That
word Children a good name of purchase But the whole Court was against that conceit for these words in the case At the Assignment of Friendship are not void but shew what person should take if the intent of the party should take effect i. he who the Father by Assignment should enable for no Child shall take but he who the Father shall assign that is part of the contract and although by such Assignment no title accrues to the Child assigned yet without Assignment no Child is capable for by the Lease the Father hath such Liberty that he may assign what Child he will And by Wray If the words of the Lease had been at the assignment of the Father within one month and the Father surcease his month Antea 275. the Interest should not vest in any of the Children And by Ayliff Iustice If the words of the Lease had been to the Husband and wife and their Son John where his name is William nothing should vest And peradventure in this case at the Bar if the Father had assigned his Son then born and had assigned him before or at the time of the Lease i. the delivery of the Lease it had been well enough Note that this Action was brought by Cole Lessee of the Son of the Husband and VVife born at the time of the Lease made And afterwards Wray with the assent of all the rest of the Iustices gave Iudgment that the Plaintiff Nihil capiat per Billam CCCXCII Pasch 26 Eliz. In the Kings Bench. Execution where joynt where several NOte It was agreed by the whole Court and affirmed by the Clerks That if Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath judgment to recover that a joynt Execution ought to be sued against them both But if the suit were by one Original and several Praecipes execution might be sued against any of them CCCXCIII Trin. 26 Eliz. In the Kings Bench. Replevin IN a Replevin The Defendant doth avow for Damage Feasant and shewed that the Lady Jermingham was seised of such a Mannor whereof c. and leased the same to the Defendant for years c. The Plaintiff said That long befor King H. 8. was seised of the said Manor and that the place where is parcel of the said Manor demised and demisable by copy c. and the said King by his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is by copy in fee c. upon which it was demurred because by this Bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in the Bar to the Avowry ought to have concluded and so was seised by the custom until the Avowant praetextu of the said Term for years entred And so it was adjudged CCCXCIV The Lord Dacres Case Trin. 26. Eliz. In the Kings Bench. Ante 227. Stewardship of a Manor Office of Trust Grants per Copy Deputy Steward IN Ejectione firmae the case was That the Lord Dacres was seised of the Manor of Eversham and that I.S. held the place where of the said Manor by copy for term of his life and the said Lord granted the Stewardship of the said Manor to the now Marquess of Winchester who appointed one Chedle to be his Deputy to keep a court ad traden dum the said Lands I.S. being now dead to one Wilkins by copy for life afterwards the said Chedle commanded one Hardy his Servant to keep the said court and grant the said Land by copy ut supra which was done accordingly the copy was entred and the Lord Dacres subsigned it confirmed it It was further found That Hardy had many times kept the said court both before and after and that the custom of the Manor was that the Steward of the said Manor for the time being or his Deputy might take Surrenders 1 Co. 48. 49. and grant estates by copy And if this estate so granted by Hardy were good or not was the question because by the Servant of the Deputy whereas the custom found did not extend further than the Deputy It was argued that the estate granted ut supra was void for a Deputy cannot transfer his authority over for it is an office of trust See 39 H. 6. 33 34. 14 E. 4. 1. and 6 Eliz. it was adjudged That the Duke of Somerset had divers Stewards of his Lands and they in the name of the said Duke made diverse Leases of the Lands of the said Duke rendring Rent and the Duke afterwards assented to the said Leases and received the Rents reserved upon them and yet after the death of the said Duke the Earl of Hertford his Son and Heir avoided them So here the assent and the subsignment of the copy by the Lord Dacres doth not give any strength to the copy which was void at the beginning against which it was said That to take a Surrender and to grant an Estate by copy is not any judicial Act but meerly an Act of service and no matter of trust is transferred to Hardy for trust is reposed in him who may deceive which can't be in our Case for here is an express commandment which if Hardy transgress it is absolute void for nothing is left to his discretion And the admitting of a Copy-holder is not any judicial Act for there need not be any of the Suitors there who are the Iudges And such a Court may be holden out of the Precinct of the Manor for no Pleas are holden which was concessum per totam Curiam And by Ayliff Iustice If the Lord of such a Manor makes a Feoffment of a parcel of his Manor which is holden by copy for life and afterwards the Copy-holder dyeth although now the Lord hath not any Court yet the Feoffee may grant over the Land by copy again And the whole Court was clear of opinion That the grant for the manner of it was good especially because the Lord Dacres agreed to it And Iudgment was given accordingly CCCXCV Burgesse and Fosters Case Trin. 26. Eliz. In the Kings Bench. IN Ejectione firmae the case was 1 Cro. 48 49. That the Dean and Chapter of Ely were seised of the Manor of Sutton whereof the place where c. is parcel demised and demisable by copy according to the custom and by their Deed granted the Stewardship of the said Manor to one Adams to execute the said office per se vel legitimum suum Deputatum eis acceptabilem Surrenders Afterwards Adams made a Letter of Deputation to one Mariot ad capiendum unum sursum redditionem of one I. W. and I. his Wife and to examine the said I. aforesaid ea intentione that the said I.W. and A. might take back an estate for their lives the Remainder over to one John Buck in Fee Note the Surrender ought be de duobus Messuagiis Mariot took two several
case 39 Eliz. and Damports case 45 Eliz. And this Act of 13 Eliz. is general in respect of time for it extendeth to all time after from henceforth and to all persons to whom such Leases shall be made the words the Statute are scil To any person or persons in respect of persons who shall lease all spiritual persons General in respect of the end which is the maintenance of learning which extends to the common profit c. Drew Serjeant That this act of 13 Eliz is general in respect of restraint only and extends only to spiritual persons and therefore ought to be pleaded for otherwise the Court shall not take notice of it As the Statute of 23 H. 6. of Sheriffs ought to be pleaded which see in the Case of Dive and Manningham Plowden 64 65. Co. 1 Inst 45. And although the Statute ought to be pleaded Yet this Lease is not void against the Warden who made it but against his Successor although no rent be reserved upon it notwithstanding that the perclose of the Statute be utterly void and of none effect to all intents constructions and purposes So upon the Statute of 1 Eliz. concerning Leases made by Bishops the Law had been so taken in the case of the Bishop of Coventry and Lichfeild upon a Grant of the next Avoidance That although it doth not bind the Successors yet it shall bind the Grantor himself So here this Lease being made by the present Warden and Fellows of the Colledge aforesaid although it be not sufficient to bind the Successor yet it shall bind the Warden who made the Lease Puckering contrary And as to the case of 13 E. 4. 8. the reason there is because there is an Exception in the said Statute of divers Grants made by King H. 6. and therefore the said Act ought to be specially pleaded And see 34 H. 6. 34. by Prisoit But in this Act of 13 Eliz. there is not any Exception and although it be a general Act with a Restraint yet such an Act ought not to be pleaded and therefore 27 H. 8. 23. in an Action upon the Statute of 21 H. 8. for taking of Lands to Ferm by spiritual persons he need not make mention of the Statute And afterwards the Iustices did advise upon this point whether the Lease be so void that it be void against a stranger So as the Defendant who doth not claim under the Colledge and who hath no title to the Land may avoid it And Periam Iustice denied the Case put by Puckering A. morgages Lands to B. upon a usurious contract for one hundred pounds and before the day of payment B. is ousted by C. against whom B. brings an Action C. cannot plead the Statute of Vsury for he hath no title For the estate is void against the Mortgagor Another Exception was taken to the Declaration because the Plaintiff had declared upon a Lease by the Warden and Fellows without naming any name of the Warden 13 E. 4. 8. 18 E. 4. 8. In Trespass the Defendant doth justifie because that the Free-hold was in the Dean and Chapter and he as Servant and by their commandment entred And Exception was taken to that Plea because he hath not shewed the name of the Dean scil the proper name So if a Lease be made by Dean and Chapter in these words Nos Decan Capituli the same Lease is void which was granted by the Court and 12 H. 4251. A Provost granted an Annuity by the name of Provost of such a Colledge without any name of Baptism and afterwards the Grantee brought a Writ of Annuity against the Successor of the said Provost and by Hull The Writ is well enough but the Christian name ought to be set down in the Writ So here because that the name of Baptism of the Warden is not in the Declaration the same is not good But the opinion of the whole Court was That the Declaration is good enough and they did rely especially upon the Book of 21 E 4. 15 16. Where Debt is brought by the Dean and Chapter without any Christian name and the Writ holden good Anderson It stands with reason That for as much as the Colledge was incorporated by the name of Warden and Fellows and not by any Christian name that they may purchase and lease by such name without any Christian name and may be impleaded and implead others by such name and as the Fellows in such case need not to be named by their Christian names no more ought the Warden But of a Parson Vicar Chauntry Priest it is otherwise for in such case the name of Baptism ought to be added It was also objected That because the Letter of Attorney was to enter in the Manor and all the Lands and Tenements of the Colledge in such a Town and to seal the Indenture of Lease in the name of the Lessors and to deliver it to the Plaintiff as their Deed now the Attorney in executing of this Warrant hath not pursued it for he hath only entred into the Lands but it is not found that he entred into the Manor and so the Lease is void And it was said by Puckering That if I lease two Acres in two several Counties rendring for the one Acre 10 s. and for the other Acre 10 s. and make a Letter of Attorney to make Livery in both if the Attorney entreth into one Acre and makes Livery the same is void for the Attorney hath not pursued his authority for peradventure I would not have leased the Acre whereof Livery is made for such rent of 10 s. being perhaps of greater value but with the other Acre which was of lesser value and so the mis-executing of my warrant shall prejudice me Windham Perhaps if one entire Rent had been reserved out of both Acres it may be that by the Livery in one Acre all is void But by Puckering one entire Rent cannot be reserved upon such a Lease of two Acres in several Counties Walmesley denied the Case put by Puckering for the authority is executed well enough for it doth not appear upon the Verdict but that the Colledge was in possession at the time of the Lease made and then there needed not any such Entry but the bare sealing and delivery of the Attorney is good enough And also it doth not appear by Verdict That the Colledge hath any Manor and therefore it shall be so intended and then the Case is no other but that A man leaseth a Manor and certain Lands in D. and makes a Letter of Attorney to make Livery of them where he hath nothing in the Manor and the Attorney makes Livery of the Land without medling with the Manor the same is a good Livery and the authority duly executed But if it had been expresly found that the Colledge had such a Manor there then the Entry in the Land only without medling with the Manor and the Livery made accordingly should not be good But
yet afterwards he seemed to be of other opinion And as to that which hath been objected That the Lease is void to all intents and purposes according to the words of the Statute for by some it cannot be resembled to the case cited before of the Bishop of Coventry and Lichfeild that such a Grant should bind him and not his Successors for if this Grant in our Case shall not be void presently it shall never be void for the Colledge never dieth no more than Dean and Chapter Mayor and Commonalty To that it was answered by Drew That although there be some difference betwixt such Corporations and that the words of the Statute are general void to all intents constructions and purposes yet they shall construed according to the meaning of the makers of the Act whose scope was to provide for the Successors and not for the present Incumbent and to the utter impoverishing of all Successors without any respect to the party himself as it appeareth by the preamble of the said Statute where it is observed That by long and unreasonable Leases the decay of Spiritual Livings is procured for the remedying and preventing of which long Leases this Act was made and that the Successors should not be bound thereby And these Leases are not void simpliciter sed secundum quid i. e. as to the Successors As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women c. shall be void and of none effect yet such a Discontinuance made is good against the Woman her self So upon the Statute of 1 Eliz. concerning Bishops See now Coke Lincoln Colledge Case 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute shall not be void untill after the death of the Dean who was party to the Lease So upon the Statute of 13 Eliz. of fraudulent Conveyances such fraudulent Conveyance is not void against the Grantor but against those who are provided for by the said Statute and that the Lease in the principal case is not void but voidable all the Iustices agreed to be avoided by the Colledge or any other who claim by it and by Anderson If such a Lease should be void then great mischief would fall to the Colledge for whose benefit this Statute was made for if such Lease be made rendring a small Rent then if before the defect be found or espied the Rent was arrear the Colledge could not have remedy for the said Rent Also by Periam Such a Lessee might have an Action of Trespass against a stranger who entreth upon the Land which proves that the Lease is not void but voidable and afterwards notwithstanding all the Objections Iudgment was given for the Plaintiff and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants and thereupon an Action was brought and the Plaintiff therein had Iudgment and recovered which could not have been if the Lease were utterly void against the Lessor and Lessee as the very words of the Statute are and although it is not alledged in the Book that that was any cause of the Iudgment yet in his opinion it was the greatest cause of the Iudgment in that case CCCCXXVIII Bighton and Sawles Case Pasch 35 Eliz. In the Common Pleas. IN an Action upon the case it ws agreed by the whole Court 1 Cro. 235. That where Iudgment is given that the Plaintiff shall recover and because it is not known what damages therefore a Writ issueth to enquire of the damages That the same is not a perfect Iudgment before the damages returned and adjudged and therefore they also agreed that after such award and before the damages adjudged that any matter might be shewed in Court in arrest of the Iudgment and by Periam Iustice the difference is where damages are the principal thing to be recovered and where not for if damages be the principal then the full Iudgment is not given until they be returned but in Debt where a certain sum is demanded it is otherwise CCCCXXIX Maidwell and Andrews Case Pasch 33 Eliz. In the Common Pleas. MAidwell brought an Action of Covenant against Andrews Covenant and the Case was this That R. was seised of Lands and leased the same for life rendring Rent and afterwards devised the Reversion to his wife for life and died Andrews the Defendant took to wife the wife of the Devisor the Devisee of the Reversion afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life and afterwards granted the Rent to the Plaintiff and covenanted that the Plaintiff should enjoy the said Rent during his Term absque aliquo legitimo impedimento of the said Andrews his Heirs or Assigns or any other person claiming from the said Marland Marland died seised and the same descended to B. his heir and the breach of the Covenant was assigned in this i. in the heir of Marland who hath the Rent by reason of the Grant of the Reversion to Marland ut supra the Defendant pleaded the Grant of the Reversion to Marland per scriptum without saying Sigillo suo sigillat hic in Curia prolat absque hoc that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law and the causes of the Demurrer was assigned by Yelverton Serjeant 1. The Grant of the Reversion is pleaded per sciptum and he doth not say sigillat for a Reversion cannot pass without Deed although it be granted but for years and a bare writing is not a Deed without sealing of it and therefore the pleading ought to be per scriptum suum sigillat or per factum suum for factum suum implies the ensealing and delivery 2. It ought to be pleaded hic in Cur. prolat for the Court is to see such Deed to the end they may know if it be a lawful Deed Traverse 1 Cro. 278. without razure interlining or other defects 3. The Defendant hath traversed the descent where he ought to have traversed the dying seised for of every thing descendable the dying seised is the substance and the descent is but the effect And although the Grant of the Reversion was but for the life of the Grantor yet the estate granted is descendable as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs the Grantor dieth his Heir entreth and a good Bar against him in the Reversion and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life the Grantor dieth living Cestuy que vie the Heir of the Grantor brings a writ of Annuity and it was holden maintainable and he said that were the dying seised is confessed and avoided by
appeareth upon his own shewing as it was holden in a Hampshire Case betwixt Sutton and Dowze Sutton and Dowzes Case 2 Len. 55. 3 Len. 155 164. which see Mich. 25 26 Eliz. and in that case the Lease is void for it was made within a year after the Statute of 31 H. 8. the January before and the Statute in April after for he hath not averred that the usual Rent is reserved nor that the Land was usually let to farm for which Leases otherwise made within the year are absolutely void by the said Statute But it will be objected Ante 306. 1 Cro. 707 708. Heydons Case That this matter shall come in of our part and it is sufficient for them to plead the Case but it is not so as it was lately agreed in Heydons Case in the Exchequer where the Case was That the Warden and Canons of the Colledge of Otery leased certain Lands to Heydon for years and he in pleading of his Lease did not shew that the ancient Rent was reserved and therefore naught and so was the opinion of the Iustices of the Common Pleas Lord Cromwel and All-Souls Case in the Case betwixt the Lord Cromwel and All-Souls Colledge upon the Statute of 18 Eliz. cap. 6. upon a branch of it by which it was provided that the third part of the Rent reserved upon any Lease should be paid in Corn c. and the Leases made to the contrary should be void and in an Ejectione firmae brought upon such Lease because it was not shewed in the Declaration that the Corn was reserved according to the Statute Iudgment was arrested and we need not to plead the Statute for although the Statute be particular yet because the King hath interest in it it shall be holden in Law a general Act and the Iudges shall take notice of it although it be not alledged by the party as it was ruled in the Lord Barcklays Case 4 Eliz. Plow 231. but if such Rent was reserved yet the Lease cannot be good for the King cannot have his Rent because it is not incident to the Reversion nor passeth by the Grant of the Reversion for it is not a Rent but rather a sum due by reason of contract which see 30 Ass 6. A man leaseth a Hundred rendring Rent or grants a Rent out of a Hundred the same is not a good Rent but meerly void for a Hundred is not Manorable nor can be put in view nor any Assize lieth of such Rent See 9 Ass 24. and in 20 Eliz. in the Case betwixt Corbet and Cleer 7 Co. 5. Corbet and Cleers Case the Dean and Chapter of Norwich leased a Parsonage and common of Pasture rendring Rent 1 E. 6. they surrendred their possessions to the King and afterwards the King granted the Parsonage without speaking of the common of Pasture It was holden that the Patentee of the Parsonage should have all the Rent and no apportionment should be in respect of the Common for all the Rent issueth out of the Parsonage and nothing out of the Common So here 2 Co. 48. for Tithes are not an Hereditament which cannot support a Rent within this Statute for which cause the Lease is void Also he said that the traverse of the Defendant was not well taken for the Plaintiff hath said That time out of mind c. the Abbot and his Predecessors were seised of the Rectory and Manor aforesaid simul semel and ratione inde was discharged c. at the time of the dissolution the Defendant traverseth absque hoc that the Abbot and his Predecessors held discharged of Tithes time out of mind c. which is not good for he hath traversed our conclusion for our plea is an argument wheresoever is unity time out of mind c. there is a discharge of Tithes but in the Abbot was such an Vnity ergo he held discharged of Tithes as 21 E. 3. 22. In a Praecipe quod reddat the Tenant saith that the Land in demand is parcel of the Manor of D. which is ancient Demesn and c. to which the Plaintiff saith That it is Frank-fee and the same was not good for he denies the conclusion but he ought to plead to the nature of the Manor that it is not ancient Demesn or that the Land in demand is not parcel of it Another matter was because it is pleaded fuit in tenura occupatione of Goodman and others but he did not shew by what Title Disseisin or Lease or other Title c. Buckley contrary And he said This unity of possession is not any discharge of Tithes by the said Statute and as to the Case cited before of 3 H. 7. 12. where Tenant in tail of a Rent entreth upon the Tenant of the Land now is the Rent suspended and then after when he makes a Feoffment in fee by that Feoffment the Rent is extinguished which was but suspended at the time of the Feoffment and therefore some have holden that if after such Entry he makes a Lease for life of the Land that his Rent or Seigniory is utterly gone in perpetuum for by the Livery all passeth out of him which he said cannot be Law and so it seemed to Gawdy Iustice Then upon such Feoffment with warranty he could not vouch as of Land discharged of the Rent generally but as of Land discharged at the time of the Feoffment which proves that the suspension is not a discharge for it was suspended before the Feoffment and discharged by the Feoffment and so suspension is not a discharge à fortiori in the Case of Tithes for in the case of Common and Rent although they are suspended so as they cannot be actually taken yet they are to some intent in esse As where Lands holden of other Lords are in the hands of the King for Primer seisin by reason of Prerogative and during such seisin of the King the Lord gets seisin the same is a good seisin notwithstanding that it was suspended so as he could not distrain And also in Assize of Land damages as to the Rent out of the Land shall be recouped therefore the rent in some sort is in esse and à multo fortiori this Tithe which is a thing of common Right shall be in esse but goes with the Land A Rent in esse to some purposes and suspended to other and therefore by unity of possession shall not be suspended 35 H. 6. He who hath liberty of Warren in the Lands of another entreth into the Land the Warren is not suspended nor by Feoffment of the Land is extinct and in this Case upon the matter during the unity of possession the Tithes were paid although not in specie Also the Abbot had the Tithes as Parson of B. and the Land as Abbot and therefore no suspension for the Tithes were always in esse although not taken in the manner as Tithes commonly are but by way of Retainer 22
commonly called Le Savoy without any addition of Hospital for as it was called Savoy before it was erected into an Hospital so it is also called after the Erection and true it is that the misnaming of a Corporation in any small thing shall abate a Writ for there is only delay yet it is not of force in a Conveyance unless the misnaming be in a point material Coke to the contrary The variance from the true Name of a Corporation which shall prejudice a Conveyance ought to be in matter of substance for variance in matter of form and circumstance will not hurt it sed parum differunt quae re concordant And first it is to be confessed That the Name of a Corporation is as the Name of Baptism which admits of no variance and therefore it is said 38 E. 3. 15. by Knivet when a Man founds a Chantry or a house c. it ought to bear such a Name as his Founder hath given to it for that is its proper name And so it hath been Reported by Bendloes Serjeant 4 and 5 Phi. and Mar. That it was holden for a positive Law by all the Iudges of England That the mistaking of the Name of a Corporation in any matter of Substance makes the Conveyance utterly void for a name is given to a Corporation upon the Foundation and that by the same Name they shall implead and be impleaded but that ut idem nomen et sub eodem nomine sint habiles ad perquirend concedend to be impleaded and to implead but that is to be meant idem re for it is not necessary that it be idem litera for qui haeret in litera haeret in Cortice but if it be idem re with the Foundation it is well enough And therefore it hath been adjudged That where the Colledge is incorporated by the Name of Masters and Fellows Collegii St. individ Trin. in Cantabrig and they make a Lease by the Name of Collegii Trin. this is good enough for the word Trinity implies and imports St. individ And therefore such variance was holden not material But here in our case is a variance in Substance betwixt the Name given to the Hospital upon the foundation and the name usurped in the Lease And the same will clearly appear upon my Argument viz. If the Name given to this Hospital upon the foundation of it and the Name usurped in the Lease be not unum in sensu not in your private understanding as private persons but in your judicial knowledge upon the Record quod coram vobis residet as Iudges of Record then this lease is void For although you as private persons otherwise than by Record know That the Hospital of Savoy and the Hospital vocat le Savoy are all one Hospital you ought not upon that your private knowledge to give Iudgment unless also your judicial knowledge agree with it that is the knowledge which is out of the Records which you have before you But if the Name given upon the Foundation and the usurped Name be not idem sensu in your Iudicial knowledge and you cannot otherwise conceive the Identity of these two Hospitals nor make any Construction to imagine it but by the Record for the Record is your eye of Iustice and you have no other eye to look unto the cause depending before you but the Record and to this purpose he cited the case of 7 H. 4. 108. Where a man killed another in the presence of a Iudge traveling on the way where the murther was And at the next Assises in the said County before the same Iudge another man is indicted of the same murder and arraigned and convicted by verdict In that case The Iudge he ought not to carry himself according to his private knowledge which he hath of the said fact sci to acquit the Prisoner but all that he can do is to respite Iudgment against the party because of the Iudges knowing to the contrary and to make further Relation thereof to the King for his Pardon of grace for the Party So in our Case It may be that you in your private knowledge know That the Hospital de le Savoy and the Hospital vocat le Savoy is all one but that doth not appear unto you upon the Record which is before you but it may be for any thing that appears in the Record that they are diverse and several Hospitals Therefore the Lease is void To prove my Minor I do say that this word de as here de Savoy designes a place so as by this Word de the place is become parcel of the Name but this word vocat locum non denotat but only the very name and so here is a material difference and variance for here by pretence of the Name in this Lease there is not any place of the Corporation in the Name but the Corporation is transitory which cannot be for a Corporation especial consisting of many persons as Corpus aggregatum ought to have a certain place of their abiding or otherwise it cannot be discerned by the Law and it is but a Mathematical thing and nothing else but a fiction and they cannot be otherwise considered in Law but as they are circumscripti within the bounds of their house and they cannot appear but by Attorney and if a Prebend consist upon a Manor afterwards the Manor by Writ be demanded against the Prebend and he lose it here he hath lost his Name because he hath lost that which giveth to him his Name by Contrary by Blake for his estate and place in the Chapter doth remain unto him And secondly for another Cause here is a material variance for this word de supposeth a place before the Foundation as the place upon which the Hospital was erected was called Le Savoy before the Erection of it but these words vocat le Savoy supposeth the same Name Savoy was imposed upon the Foundation Thirdly these words de le Savoy do import the Hospital to be part of the place which before the Foundation was called Savoy but vocat trencheth only to all the place called Savoy Fourthly de le Savoy is matter of certainty and verity vocat but matter of Reputation And so for these four reasons great difference in substance appeareth betwixt the very name of the Hospital and the Name usurped in the Lease And he cited the Case 29 Eliz. in the Kings Bench betwixt Hall and Wingat King E. 4. did incorporate the Dean and Cannons of Windsor by the Name of Dean and Cannons of the King and Queens Free Chappel of Saint George the Martyr within his Castle of Windsor and made a Lease by another Name viz. by the Name of Dean and Cannons of the King and Queens Free Chappel there and the same Lease was made in the time of Queen Mary and it was holden that the same was a variance in Substance And he cited another Case 30 Eliz. in the Kings Bench betwixt
Fisher and Boys A Colledge in Oxford was by Act of Parliament incorporated by the Name of Warden and Scholars Domus sive Collegii Scholarium de Merton in universitate Oxoniae and they make a Lease by the Name Custos Domus sive Collegii de Merton in Oxonia and Scholares ejusdum Domus and the variance in that point because in the very name of the Foundation Domus five Collegii Scholarium de Merton and in the usurped Name in the Lease Domus sive Collegii de Merton was holden material and the true name was de Merton in universitate Oxoniae but in the Lease in Oxonia only leaving out the word Vniversity and the same was holden a variance in substance For Oxford doth contain in it self the Vniversity which is a thing of it self and also the City is a thing by it self and it may be that there is a Colledge in the City called Merton Colledge and also a Colledge which is called by such Name in the Vniversity and so in our Case it may be that there is an Hospital which is called the Savoy and also another which is Le Savoy and then the Court shall be enveigled c. And in the end of the Argument the Lord Treasurer which was the Lord Burleigh put this Case which was adjudged in his time The Guild of Boston in Lincolnshire was incorporated by the Name of the Guild of St. Nicholas and our Lady the Virgin Mary c. and they made a Lease for years by the Name of the Guild of our Lady the Virgin and St. Nicholas Religione quadam motus ut nomen Virginis Mariae in charta dimissionis proponeretur nomini Sancti Nicholai and it was adjudged a void Lease for the variance aforesaid And afterwards at another day the matter was argued by Atkinson on the part of the Defendant Starkey 21 E. 4. 56. saith That the Name of the Corporation by which it is incorporated is as properly the Name of a Corporation as the Name of Baptism is the Name of a single and individual person and yet there is a great difference in the misprision of them for the Name of Baptism doth consist of one word and therefore it cannot admit of any variance but the name of a Corporation doth consist of many words in which case variance in words which are supplyed by other words and not in matter of substance shall not hurt and that hearing is notably discussed in the case of the Cooks of London cited before by Godfrey Four things are to be considered in the Name of a Corporation which are of the Essence and Substance of it First the persons incorporated of which the Corporation doth consist as here the Master and Chaplains de Savoy Secondly The quality of the Corporation as Dean and Chapter Mayor and Commonalty Thirdly the Patron or Founder as Merton Colledge Fourthly The Place whereupon the Corporation is founded As to this last point see 31 E. 3. 28. and fo 15 by Knivet and see 6 Eliz. Dyer King H. 8. erected the Dean and Prebend of Chester by these words scil Decanus et Capit. Cathedralis Ecclesiae Christi et Sanctae Mariae Virginis Cestriae And afterwards by Letters Patents gave to the said Dean and Chapter certain Manors Decano et Capitulo Ecclesiae Cathedralis Christi et Sanctae Mariae Virginis by us before erected and that grant was holden void because that the place where c. is not expressed in the said Letters Patents for Cestria is the local place of the Incorporation And as to the Objection made upon the word de that this word de goeth only to part and vocat goes to the whole and so here is a great difference the same is not any reason for this word de extends as well to the whole as to part As a Rent granted percipiend de Manerio de D. the same shall go to the whole Mannor 5 E. 4 5. ad respondendum I. Abbati Monasterii Sanctae Mariae Ebor. where the Obligation was Abbati Monasterii Sanctae Mariae Virginis extra Muros Ebor. and yet the Writ was well enough notwithstanding such variance a fortiori in the case of a conveyance and Interest And I conceive that it appeareth in the Record That the Lease given in evidence of the part of the Defendant is a Lease made by the Master and Chaplains of the Hospital of the Savoy for it is found by verdict That King Henry the eighth upon the Site of the Manour of Savoy betwixt the house of the Bishop of Worcester and the house of the Bishop of Carlisle and that it was incorporated by the Name c. and that afterwards Q. Mary by her Letters Patents reciting the foundation of the said Hospital called the Savoy and lamenting the Ruin of it being surrendred in the time of E. 6. did restore it by which it appeareth That the Hospital of the Savoy and Hospital called the Savoy is one and the same in respect of the Bounds Foundation and Situation And in the whole course of our Books no case can be found That any Corporations have avoided their own acts by such cause of Misnosmer nor of such matter is any question moved in our Books And as to that which hath been objected That although the Iudges in their private knowledge well know That the House de le Savoy and the House vocat the Savoy be all one yet they ought not to judge according to such their private knowledge but according to their judicial knowledge which they have out of the Record I conceive That the Iudges of necessity ought to use in such cases their private knowledge as where Misnosmer of a Colledge was objected viz. Trinity Colledge in Cambridge where it was incorporated by the Name of Masters Fellows and Scholars Collegii Sanctae individuae Trin. and they made a Lease by the Name of Master Fellows and Scholars of the Colledge of Trinity the same was holden a good Lease for the Iudges knew well enough That this word Trinity doth imply in it self Sancta individua but by what knowledge not by their judicial knowledge but by their private knowledge So in our case Egerton the Queens Sollicitor to the contrary It is a clear and plain Rule in our Law That the name of a Corporation is as a name of Baptism to a natural man and if there be any difference I conceive that the Law requires more strict certainty in the name of a Corporation than in the Name of any particular person For a name is more necessary to a Corporation than to another for when an infant is born he is presently a perfect creature before any name given him and the giving of the Name is not a matter of necessity but of policy for distinction c. but in the case of a Corporation The Name is the substance and essence of it and it is not a Body before a Name be imposed upon it and therefore in the