Common Law the King by such Attainder shall have such benefit and advantage as well of Vses Rights Entries Conditions c. as of Possessions Reversions c. as if it had been done and declared by Authority of Parliament that is as much as to say as if the Condition in its proper terms had been given to the King by Act of Parliament c. and vouched Dacres case 17 Eliz. cited by him before where upon a Grant of all his Goods and Chattels revokable upon tender of 5 s. it was resolved That such a Condition was given to the King and by special Grace of the Queen Sir Tho. Gorge had the benefit of it And here although the cause of the Proviso be private and special yet the Condition is not tyed in the cause and the Statute gives to the Queen all Conditions which are usual and for the benefit of the Queen and at the time of the making of this Statute such Conditions were usual tunc temporis the Condition was pen'd not by way of re-entry but that the use should be void and that such Conditions were usual at the time of the making of the Statute of 29 Eliz. appeareth by the Statute made two years before scil 27 Eliz. for the repressing of fraudulent Conveyances By which it is provided by an express branch of it against such Conditions containing power of Revocation and Laws are for the most part made to give order for things which may happen And I conceive That this tender for the Queen is well enough for the time notwithstanding all the terms are past yet the two years are not incurred I covenant within a year to suffer a common Recovery all the terms are past without any Recovery suffered yet no Action lyeth upon that covenant before the year be fully expired although that the terms be past it being impossible to suffer a Recovery within the time prefixed A. covenants with B. in consideration of Marriage to suffer a Recovery before the Feast of St. Michael and if A. before the said Feast doth not suffer such Recovery that then he shall be seized to the use of C. Trinity Term passeth without any Recovery had yet no use shall rise before the said Feast And I conceive that there needs not here any Office but if the Condition be to be performed on the part of the Patentee then the breaking of the Condition ought to be found by Office contrary where the condition is to be performed on the part of the King For acts which Subjects do are matters in paâ—s therefore an Office is requisite to make them of Record but where the Queen doth any thing there needs not any Office to make it of Record The Queen herself might tender the King but by commission under the Great Seal she hath authorized another to do it and she hath taken sufficient notice that there was such a condition And when the Certificate is made and retorned the same is sufficient to inform her that the condition is performed for the Certificate being retorned is of record as well as the Commission as the retorn of the Writ And he cited the Case before cited Bartues Case 2 Eliz. Dyer The King leased the Manor of D. for years to A. upon condition that if the King at any time during the term shall make a Lease to the said A. of the Manor of S. for life then the Lease for years shall cease and be void the King makes the Lease for life the lease for years is void without any Office for the Lease for life is upon record The case of Auditor 3 Eliz. Dyer 197. where the Forfeiture of the Office appears of record And Baron Plags Case 15 H. 8. ibidem the determination of the Office of Remembrancer by acceptance of the Baron shall bind in the Exchequer void without a Scire Facias or Office. Vide etiam Dyer 5 Ma. 159. he being Iustice of the Common Pleas was made Iustice of the Kings Bench his first Office was gone and determined Also he said That the Condition being performed ut supra sua vi virtute without any Office shall make void the Conveyance to which it was annexed And if Sir Francis being attainted had tendred the King ipso facto as it worked to him so ipso facto it should work to the Queen When the Act of 29 Eliz. had made the Assurance void the Land is in the Queen presently by means of Sir Francis to whom the Land returned and from him in the same instant vested in the Queen Cook to the contrary The Condition is not given to the Queen Words make the Plea therefore the words of the Condition are to be considered in which it is to be seen if this Condition be annexed to the privity of Nature or be general The Form of the Condition is Sir Francis being a man of great Living and having a great Manor of his own Name in consideration of the preservation of his Name and Blood c. covenanted to stand seized c. And further pro eo quod his said Nephew was of tender age and his proof could not now appear and it might be that in time to come he might be given to intolerable Vices therefore the said Sir Francis did not think it convenient to settle the said Inheritance in his said Nephew absolutely without a bridle to restrain him therefore it was provided That if the Vncle delivered a King of Gold to his Nephew to the intent to make void c. And this is a special Condition private and peculiar to the person of Sir Francis incident to him and to no other and incommunicable and therefore it is not given to the Queen But such Conditions which the Heir Lord by Escheat or Executors may have the Queen shall have by the Statute 10 H. 7. 18. Lessee for years of a House covenants to repair it within six years within which term he dyeth no reparation being made covenant lyeth against the Executors contrary if the covenant had been that he should repair during his life It hath been said That the things which are matters of privity are the considerations which caused Sir Francis to make this Proviso but they are not any part of the condition or Proviso Truly the consideration raises the use and precedes the Proviso which is tyed to the consideration with an Ideo and all is but one Sentence knit together with the Ideo And although consideration of Blood be not parcel of the Proviso yet that which follows is scil for that his Nephew c. And in this Conveyance Sir Francis praestitit utrumque munus Nutricis ubera verbera And Acts of Parliament do not give away things knit to Nature by the general words All things Vide the Lord Brays case 2 Eliz. Dyer 90. The Father having the Wardship of his Son and Heir apparent if he Outlawed shall not forfeit the same for it is inseparable to him notwithstanding that
the Land be holden of the Queen and so Nature cannot be transferred therefore neither this Proviso And so is the Tenure of Frankalmoigne 35 H. 6. 58. and it should be a great rigour to take the bridle out of the hands of the Natural Vncle into the hands of Iustice which is Manus regia And he cited the Case of the Lord Norris where it was rul'd That where the Act of Attainder of Norris gave to the King all Rights Titles c. yet a Writ of Error was not given thereby Manwood Actions are not expresly given by the said Act of Attainder As to the second point I conceive that the Coveyance is become void when the terms within the two years are passed and shall not expect until the two years be expired for the Inrollment ought to be within the term so that if all the terms of the two years be past it is now impossible for to inroll the Deed within the time limited by the Statute and then by 29 H. 8 the Conveyance is void and then is the Queen seized in Fee at the time of the making of the Lease by the Attainder of Sir Francis As to the Certificate without Office it is not sufficient to entitle the Queen to the Land and I deny the difference put by Popham between a Condition to be performed on the part of the Patentee and on the part of the King I confess that a Certificate to inform the Queen or her Councel of the quantity quality value c. of the Land is good without Office but not to entitle the Queen de novo to the Inheritance of another I grant that the Commission is of Record but the tender of the King is matter in pais and not of Record Three things ought to be observed in every Certificate to make it a good and lawful Certificate according to the course of the common Law unless it be in cases of necessity as in case of Ouster le mere c. 1. It ought not to be in the absence of the party 2. It ought to be pendente placito convocatis in ea parte convocandis 3. It ought to be directed to a known Officer but a thing certified by a private person being no Officer cannot be good Also a Certificate according to the course of the common Law being good is not traversable At another day the Case was argued by Egerton Solicitor for the Queen The Condition is given to the Queen by 33 H. 8. and also by 29 Eliz. and this Condition in it self is a general and ordinary Condition and rests not in privity and such an Act as may be made by any stranger as well as by Sir Francis himself scil the tender of the King. The reasons which moved Sir Francis to knit this Condition to the Conveyance were natural but the Proviso and the performance of it not tryed to Nature and therefore all the cases of privity are here out of Seisin As to the Lord Brays Case the same was not any Wardship but only an Order for the government or his Son and Heir for the Wardship of the Father in the Son is not a Chattel in him As to the Case of the Lord Norris the Writ of Error could not accrue to the Queen for by the Act of Attainder no Actions were given to the King And here is not any such privity as hath been pretended for by the words of the Proviso the Ring might be tendred to his Executors or Administrators therefore the Condition might be tendred when he is dead therefore without privity Title for alienation in Mortmain of Lands purchased by a Villain of the King or for a Condition broken are not in the King before Office But here the Condition is to be performed on the part of the Queen which her Royal Majesty cannot perform and therefore Commissioners are appointed to do it which they have done and upon the Commission retorned have informed the Queen of all the performance of it and all is now upon Record And there is a great difference between Certificates as in our case and Certificates which have been cited on the other side which are used to make Tryals upon Issues joyned betwixt party and party and in such Certificates I confess the Law as Cook hath argued The Sheriff is not known to be such an Officer but by his Commission under the Great Seal he upon a Writ of the King to him directed Summons Disseisins Attaches c. these are matters in fait but when the Sheriff hath retorned his Service then it is become matter of Record So in our case the retorn of the tender c. where the Queen is to be informed of the Lands of the Subject which she is to have there ought to be an Office but here the Queen is to do an act and that she hath done under the Great Seal by Commission by the Retorn of which she is in the whole matter therefore there needs not an Office to inform her of that which she her self hath done by another Authorized by her to do it And he said that the Leases made by the Queen being Tenant pur auter vie were not void ab initio but from the time of the two years but now the Estate of the Queen for life is determined therefore also the Leases derived out of it Exception hath been taken to the Information scil Praedictus Franc ' per Indenturam suam factam inter c. without saying sigillo suo sigillat ' that is good enough for facta esse non potuit nisi etiam sit sigillat ' therefore facta includes sigillat ' And afterwards Trin. 33. Eliz. this Case was argued by the Barons Clark puisne Baron said That Iudgment ought to be given for the Queen And first he said I conceive that here upon this Indenture is no use created in Sir Francis for he shall pay for a Licence of Alienation if the Lands be holden in chief and they themselves in pleading the uses say Virtute cujus the said Sir Francis was seized in his Demesne as of Freehold for his life the remainder thereof c. Although this Condition be tyed to Nature and rests in privity as hath been objected and so inseparable yet by Act of Parliament it may be transferred Impropriations Frankalmoign Frankmarriage Guardianship in Socage cannot be given away regularly but by Act of Parliament they may which vide for Impropriations by the Statute of 31 H. 8. Impropriations of Abbies and Priories dissolved nam Parliamentum omnia potest It may alter the nature of Lands make Gavelkind discendable according to the course of the common Law and so of Borough-English Attaint Error Disceit c. are Actions which lye in privity yet by Act of Parliament they may be transferred And in the case of the Lord Norris If the Act of Attainder had given to the Queen all Actions she might have had a Writ of Error And we see by experience That the
ordinary Condition But if the Condition was to be performed by Sir Francis in his proper person or by subscribing his name with his hand or such like act then it had been otherwise The case of Littleton 76. A Feoffment in Fee is made upon Condition that if the Feoffee pay to the Feoffor such a day 10 l. then the Feoffee shall have the Land to him and his Heirs for ever and before the day the Feoffee makes a Feoffment over upon a Condition the second Feoffee tenders the Mony it is a good tender and yet the words of the Condition do not extend so far but only to the first Feoffee who was privy to the Condition so where the payment is to be made on the part of the Feoffor and he dyes before the day tender by the Heir is good and here this is a general Condition and therefore may be performed generally without being restrained to any person for the performance of it And here we are in an Act of Parliament Quod omnia potest 32 H. 8. gave to Assigns of the Reversion which always before were fixed in privity Monks dead persons in Law by Act of Parliament made capable of Purchase and Inheritance Gavelkind and Borough-English made discendable at the common Law which the King could not do An Alien born is made Denizen by the King by which he may Purchase but yet not inherit But an Act of Parliament may make him heritable Corruption of Blood the King cannot take off but it ought to be purged by Act of Parliament As to the Statute of 29 Eliz. it hath made the Conveyance void as hath been objected for the Terms within the two years limited by the Statute are past and then the Condition is gone as against Intail upon Condition if the Intail be spent the Condition is gone But I conceive that until the two years be fully expired the Estates limited by the Conveyance continue and the Condition also The words of the said Statute are Shall within two years after the last day of this Session c. openly shew and bring forth into the Queens Court of Exchequer his Conveyance and there in the Term time in open Court shall offer and exhibit the same These words shew that the parties ought to shew the Conveyance within two years but doth not speak of any term and in the other Clause it speaks of term but not of two years so the time in which it ought to be shewed is two years but the time of the Inrollment might be in the term after the two years well enough for there are two two times in the Statute the one to shew the Conveyance the other for the Inrollment of it and two things are to be done Shewing and Inrollment and two times answerable to them two years and Term-time And he took it for a general Rule that time once expressed shall not be afterwards by implication abridged And if by your construction you make the time to end with the Term you abridge the time by a Month at least which was expressed before two years And for the reasonable construction of times Vide 28 H. 8. Dyer 44 Boulds Case If it fortune Joan Moll ' to decease before the Feast of c. without Issue Male of her Body then living c. this word then shall be referred to the Feast and not to the time of the death of the party for as the reason of the Case is where the intent of the parties is to have continuance in the thing the thing which they would have continue to the most extream time as may be And if Lands be given to one and the Heirs Males of his Body begotten and if he dye without Heirs of his Body then it shall remain over by this Implication if he dyes without Heirs of his Body the Donee shall not have general Tail but it shall be intended such Heirs to whom it was limited before And in our Case here there are some weeks between the ends of the Terms and the end of the two years and those weeks shall not be utterly void for in these weeks after the end of the Terms those of the Chancery shall take Conusance of Deeds And here in our Case the party was only to shew the Deed which might have been done at any time after the Terms so as it be within the two years if one be bound with Condition That if within two years he pay the Queens Silver upon a Fine to be levied and then and there in Term time ingross the same if he pay the Queens Silver within the two years he hath saved his Bond although that the Fine be not ingrossed until a Term after the two years So if one be bound to acknowledge a Deed in the Chancery within two years and there in the Term-time to Inroll the same if he do acknowledge it within two years it is sufficient and he may inroll it afterwards So in our Case the Estates continuing and the Condition also till the two years are fully expired therefore the Condition is well performed for the Estate continues defeazable by the Condition because within the two years and to abridge time is a violent thing And now Sir Francis is alive so as the power of the tender of the power of the King continueth And I conceive That the Certificate is sufficent without any Office and the party grieved may have traverse to it And I hold clearly that as this Case is Office cannot be found Office properly is to be found of things in paâ—s which happen before the Office as the Nonage of an Heir or of an Alien born or of a Villain here to entitle the King an Office is necessary to find things which have hapned before and without doubt this Certificate is traversable as the Certificate of the Bishop of Recusancy and also the Certificate of the Commissioners of Sewers and here those who are to certifie are to certifie a thing done by themselves and therefore there needs not any Office because they do it virtute Commissionis If a Commission be awarded to take a Surrender of the Bishoprick of N. or of a Pentioner c. there needs not any Office to find it and in the time of King Hen. 8 divers Abbots surrendred their Possessions to him of which no Office was found And now for conclusion The Queen comes in paramount her first Estate which she had pur auter voy scil by Attainder and now she hath it by the Condition and so paramount the Title under which the Defendants claim And afterwards Iudgment was given for the Queen Trin. 31 Eliz. In the Common Pleas. CCLXXVII The Scholars of All Souls and Tamworths Case This Case is Reported in the first Part of Leonard IN a Writ of Right by the Colledge of All Souls in Oxon against Tamworth the Writ was Quod clamat tenere de nobis in liberam puram perpetuam Elemosinam And Exception was taken
Common Pleas. LII Frice and Fosters Case IN Ejectione firmae the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 day of January the same year and it was found by Witnesses that the Lease was sealed and delivered upon the Land the 13 day of January Variance Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant that for that variance between the Declaration and the Evidence of the Plaintiff that the Iury might be discharged Evidence good to maintain Issue But Anderson Chief Iustice said that the Evidence was good enough to maintain the Declaration for if the Lease was sealed and delivered the 13 of January it was then a Lease 14 January Quod caeteri Justiciarii concesserunt LIII Mich. 32 Eliz. In the Common Pleas. IN a Quare Impedit against the Bishop of Coventry and Lichfield The Case was that A. seised of an Advowson in Fee Quare Impedit by Executors the Church voided the Bishop collated wrongfully A. dyed Collation it was holden that his Executors might have a Quare Impedit upon that disturbance and that by the equity of the Statute which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Case THe Case was that the Husband seised of Land in the right of his Wife made a Lease of it for years Fine by the Husband where avoids a Lease ê contra 1 Roll. tit Charge in Marg. 389. Plow Quaer 31. 261. ib. plus and afterwards he and his Wife conveyed the Land to a stranger by Fine the Husband died Wray Chief Iustice was of opinion that the Conusee should hold the Land discharged of the Lease Gawdy contrary In case of a Rent granted or a Recognizance acknowledged by the Husband the Conusee of the Fine shall avoid any of them But in this Case the Conusee meddles with the Land it self and an Estate in the Land is conveyed by the Husband which none but the Wife or her Heirs shall avoid and if the Wife after the death of her Husband accept the Rent upon such a Lease by that the Lease is confirmed Mich. 33 Eliz. In the Kings Bench LV. Blaby and Estwicks Case IN Assumpsit It was moved in stay of Iudgment Assumpsit that one of the Defendants was dead after verdict but notwithstanding that Allegation Iudgment was given Attornment for the Court cannot take Notice of it judicially nor any of the Parties hath day in Court to plead it and therefore the Court is not to have regard to such Informations Wray It is not honourable for us upon such surmises which cannot be tryed to delay Iudgment and also the Party is not without remedy for he may have a Writ of Error 33 Eliz. In the Kings Bench. LVI Hore and Briddleworths Case HOre brought Trespass against Briddlesworth Quare clausum Domum suam fregit the Defendant pleaded and put the Plaintiff to a new Assignment i. e. a House called a Stable a Barn and another House called a Carthouse and Garnier And that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy said it was good enough for Domus in the Declaration contains all things contained in the new Assignment but if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Chief Iustice Domus est nomen collectivum and contains many Buildings as Barns Stables c. And such was the Opinion of the Court. Mich 33 Eliz. In the Kings Bench. LVII Mans Case Prohibition MAn was sued before the Commissioners in Ecclesiastical Causes for an Incestuous Marriage viz. for marrying his Wives Sisters Daughter and although it be not expresly within the Levitical degrees yet because more farther degrees are prohibited the Archbishop of Canterbury and other the Commissioners gave Sentence against him Consultation upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special that it be not within the Levitical degrees and therefore a Consultation was granted Trin. 26 Eliz. In the Kings Bench. LVIII Doylies Case Appeals IN an Appeal de Roberie against Doyly It was agreed by the Iustices that the Party robbed shall have an Appeal of Robbery 20 years after the Robbery committed and shall not be bound to bring it within a year and a day as in the Case of an Appeal of Murder Vide contr 22 Ass 97. vide Stamford 62. Trin. 26 Eliz. In the Kings Bench. LIX Ruishbrook and Pusanies Case THe Plaintiff brought Trespass for pulling down his Hurdles in his Close The Defendant justified by reason that one Beddingfield was Lord of the Mannor of D. and that the said Beddingfield and all those whose Estate he had in the said Mannor had had a free course for their sheep in the place where c. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Mannor and that the said Beddingfield let to the Defendant the said Mannor and because the Plaintiff erected Hurdles without leave c. in the said Close he cast them down as it was lawful for him to do The Plaintiff replyed of his own wrong without cause c. It was holden by the Iustices to be an ill Plea Traverse for the Plaintiff ought to have traversed the Prescription 19 Eliz. In the Common Pleas. LX. Par Marquess of Northamptons Case PAr Marquess of Northampton took to Wife the Lady Bourchier Heir of the Earl of Essex Leases by a Baron contrary to Act of Parliament void 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit c. with a Grant and Render to them for Life the remainder to the right Heirs of the body of the said Lady And afterwards by Act of Parliament â—5 H. 8. It was enacted That the said Lady should retain part of her Inheritance and dispose thereof as a Feme sole and that the said Marquess should have the residue and that he might lease the same by himself without the Wife for 21 years or lesser term yielding the ancient Rent being Land which had been usually demised c. The Marquess leased the same for 21 years and afterwards durante termino praedict he let the same Land to another for 21 years to begin after the determination of the former Lease It was moved that the last Lease was void for three Causes 1. Because the Marquess had but for Life and then it cannot be intended that the Statute would enable
one who had an Estate so determinable to make such a Lease which peradventure could not begin in his Life 2. The Letter of the Act is 21 years or under and the word under strongly expounds the meaning of the Act to be not to extend to such an Estate for hereupon the matter is a Lease for 40 years 3. Because the Land leased is the Inheritance of the Wife and it was said that in the Case of one Heydon such a private Act of Parliament was strictly construed Acts of Parliament It was enacted that all Copies for three Lives granted by the Lord Admiral of the Lands of his Wife which was Queen Katherine should be good The Admiral granted in Reversion for three Lives It was holden that the Grant was void and not warranted by the said private Act of Parliament Dyer The words are general omnes dimissiones therefore not to be restrained to special Leases Manwood A Feme covert by duress joyns in a Lease with her Husband it shall bind her The Case was adjourned LXI Mich. 19 Eliz. In the Common Pleas. THe Queen leased for years rendring 10 l. Rent the Lessee granted the Land over to A. rendring 20 l. Rent A. granted the Land over to B. who surrendred to the Queen and took a new Lease And Manwood said that the first Lessee should have an Action of Debt for the Rent of 20 l. against him Debt for Rent who was possessed of the Land and not against A. his Assignee for it is a Rent issuing out of the Land and he who hath the possession of the Land shall pay it and no other for if any part of the Land be evicted the Rent shall be apportioned and because it is meerly a Rent and ensues the privtiy real viz. the possession of the Land and not the privity personal the Person of him who was party or privy to the Contract and he said If the first Lessee who reserved the Rent entred upon the Land the Rent is suspended Dyer The first Lessee hath Election which of them he will sue 18 H. 6. 1. in Debt against Lessee for years for the Arrearages of Rent reserved upon it he needs not declare that the Lessee had entred for the Contract is the ground of the Action 44 Eliz. 3. 5. Debt against the Lessee notwithstanding the Assignment Mich. 26 Eliz. In the Common Pleas. LXII Bluets Case BLuet granted the next Avoidance to Stell and Brooks and was bound to Brooks in an Obligation that he should enjoy the said Presentment without any disturbance or claim of the said Bluet Stell released to Bluet his Interest on the said Advowson The Church became void Bluet offer'd to joyn with Brook Obligation forfeited in presenting to the Avoydance It was holden in this Case that the Obligation was forfeited although that Bluet had a puisne Title to it after the Obligation was entred into Mich. 32 Eliz. In the Common Pleas. LXIII Shrewsbury and the Inhabitants of Ashtons Case Action upon Statute of Huy and Cry. AN Action was brought by Shrewsbury against the Inhabitants of the Hundred of Ashton in the County of Bucks upon the Statute of Huy and Cry It was moved by Fleetwood Serjeant for the Defendants That if upon such Huy and Cry the Inhabitants do their endeavours as much as in them is to pursue and take the Malefactors and yet they cannot apprehend them that in reason they ought not to be charged But the whole was very strongly against him For Anderson Chief Iustice said that the Inhabitants of the Hundred in which the Robbery is done are bound to apprehend the Felons or to satisfie the Party robbed and the Party robbed is not bound to give notice to the Inhabitants nor to direct them which way the Felons took their flight but the Inhabitants are bound to pursue the Felons without any such instruction And afterwards the Inquest was taken and gave a Verdict in this manner That where the Plaintiff had declared that the Robbery was done in the Parish of D. in the Hundred aforesaid the Iury found that the place where the Robbery was done was a Lane within the said Hundred and that the one side of the said Lane was within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done on the side of the said Lane which was in the Parish of S. and prayed the Opinion of the Court upon the matter And the whole Court was clear of Opinion That notwithstanding the Exception the Plaintiff should have Iudgment for here is the right Hundred which ought to be charged and the mistaking of the Parish was not to the purpose Mich. 32 Eliz. In the Common Pleas. LXIV Josselin and Josselins Case IN Debt the Plaintiff declared That he let certain Lands for years to the Defendant rendring Rent payable at the Feasts of the Annunciation and St. Michael or within forty days after every of the said Feasts and that the Rent was behind at the Feast of St. Michael last past unde actio accrevit The Defendant pleaded Nihil debet upon which they were at Issue It was shewed to the Court that here upon the Pleading is a Ieofail for the Rent is reserved payable at the said Feasts Jeofails or within forty days after and he declares that the said Rent upon which the Action was brought was behind at St. Michael without respect to the forty days after which cannot be for before the forty days after each Feast no Action did lie whereupon the Court awarded a Repleader Mich. 32 Eliz. In the Kings Bench. LXV The Queen and the Earl of Shrewsburies Case THe Queen granted to George Earl of Shrewsbury Grants of the King. Office of Marshal of the Kings Bench. An. 15 Eliz. the Office of Earl Marshal of England and now came the said Earl and prayed that J. N. one of his Servants to whom he had granted the Office of Marshal of the Kings Bench might be admitted to it because that the same is an Office incident to his Office and in his power to grant and that Knowles to whom the Queen had granted the same Office of Marshal of the Kings Bench which she had by the Attainder of Thomas Duke of Norf. might be removed And a President was shewed M. 14 and 15 Eliz. between Gawdy and Verney where it is agreed That the said Office was a several Office from the said great Office and not incident to it And as to the Case of 39 H. 6. 33 34. the truth is that the said Marshal of the Kings Bench was granted expresly to the Duke and so he had it not as incident to his Office of Marshal of England On the other side were three Presidents shewed In the time of Edward 2. That the Office of Marshal of the Kings Bench was appendant to the said Office of Marshal of England And 8 H. 2. when the said Great Office was in the
Mildmay had a Commission to make leases for 21 years of the Lands of the Queen because the Queen should not be troubled with it They could not make leases but in possession only by virtue of their Commission but all others which exceed 21 years and in Reversion passed by the hands of the Attorney of the Queen and not by them only by their Commission 2. Because he cannot make a lease upon a lease for by the same reason that he might make one future lease he might also make 20 leases in ruturo and so make void the Act It was Marshals Case upon the Statute of 1 Eliz of leases to be made by Bishops The Bishop of Canterbury made a lease for one and twenty years and afterwards he made another Lease for 21 years to begin at the end of the first Lease It was holden that the second Lease was not good Leases by spiritual persons as Bishops c. But in the great Case upon that point in the Exchequer Chamber there the second Lease was in possession and to begin presently and ran with the other and therefore it was adjudged a good Lease because the Land was not charged with more than with 21 years in the whole and if it had been so done here it had been good Wray said that if the second lease had been made two or three years before the expiration of the first lease then clearly it had been void but because but one two or three days or a month before he doubted if it should be void or not The Statute of 32 H. 8. Leases made for one and twenty years to be good from the day of the date thereof and one makes a lease to begin at a day to come and by two of the Iustices of the Common Pleas it is good but the two other Iustices held the contrary Clench Iustice There is no difference if it be by one Deed or several Deeds and therefore he held that if the Earl had made a lease for one and twenty years and within a year another it is a void Lease whether it be by one Deed or two Deeds for he exceeds his Authority And so in the principal Case If there had been no Proviso he could not have made any lease therefore the Proviso which gave him Authority ought precisely to be performed At another day it was argued by Daniel for the Lessee in Reversion to begin at a day to come and by him words only are not to be taken or considered in a Statute but the meaning of them and they are not to be severed Also Statute Law is to be expounded by the Common Law and by the Common Law if one give Authority to another to make leases of his Lands he may make leases in Reversion because an Authority shall be taken most beneficially for them for whom it was given So if one grant an Authority to make Estates of his Lands by that general word he may make leases for years or life or gifts in tail Feoffments or other Estates whatsoever If one gives a Commission to another to make leases for One and twenty years of his lands he may make a lease in Reversion and that Case was in the Duchy between Alcock and Hicks Leases 2. It is good by Statute Law For the Statute of Richard 2. which gives Authority to Cestuy que use to make leases he may thereby make leases in Reversion The Statute of 27 H. 8. which gives Authority to the chief Officer of the Court of Surveyors to make leases if it had stayed there he might have made leases in Reversion but the said Statute goes further and says Proviso that he shall not make a lease in Reversion vide 19 H. 8. Dyer 357. The Statute of 32 H. 8. of leases to be made by Husbands of the lands of their Wives by the general words of the said Statute they might make Leases in Reversion But the Statute goes further Proviso that there shall not be any former Lease in being above 21 years before the making of the said Leases In all Cases of Statutes which are with Provisoes the Law upon them shall be taken generally if not in such particulars which are restrained by the Proviso as here the Proviso goes to the ancient Rent to be reserved that the Countess shall have remedy against the Lessees for the said Rent c. therefore it is at large in all other points but in these As if the Wife be within age and she and her Husband joyn in a Lease yet this Lease is good by the Statute of 32 H. 8. because the Law is general and doth not restrain these Imperfections expresly So a Feoffment in Fee with warranty Proviso that he shall not Vouch yet that is a restraint as to the Voucher only and he is at large to Rebutt or have warrantia Chartae A Lease for life Proviso he shall not do voluntary waste he is at large to do other waste but otherwise it were if there were no Proviso Therefore a Proviso makes the words precedent to be expounded more liberally The words of the Statute of 33 H. 8. cap. 39. of Surveyors which gives authority to the chief Officer to devise set or let for 21 years he might have made a Lease for 21 years in Reversion if the Proviso had not been But the words of the Act in our Case are demise demises therefore shall be taken most liberally 3. As to the intent of the Act this Lease is within it for the intent is to be collected out of the words and shall not be drawn to any private intent against the words which should be done here for by such Exposition the Earl his Heirs Executors c. should be prejudiced and the Countess only should be benefited Also Remedy is given to the Countess by this Act against such Lessees that she should have the Rent by Debt or Distress as it she had been party or privy therefore it is reason via versa that they have remedy against her for their Leases Also he said that the same remedy should be for them as against the Earl himself if he had lived therefore they shall have remedy against her who might have had it against the Earl in his life Also the Statute is to be expounded according to the words where such Exposition is not rigorous nor mischievous Also private Laws are to be expounded by the Letter and strictly as the Deed of the party as 14 E. 4. 1. Br. Parliament 16. a particular Act was made that the Chancellor calling to him one of the Iustices might award a Subpoena between A. and B. and end the matter between them there by all the Iustices but Littleton he shall not award a Subpoena general but a Subpoena making mention of the Act for he shall pursue the particular Act strictly and a common Act for the common profit shall be construed largely Also a Statute shall not be construed largely by Equity to
20 Of omnia bona by an Executor what passeth 22 Of a Reversion by a Bishop 23 Of the Office of a Sheriff 33 Habeas Corpus WHere the cause of Commitment must be retorned upon it Where not 21 Heirs The second Son shall inherit the Land purchased by his eldest Brother notwithstanding the Attainder of the Father 5 Jeofails WHere upon a Jeofail the Court awarded a Repleader 19 Indictment Quare Clausum A. B. fregit held good notwithstanding A. had but a Lease at will of the Land. 6 De uno Equo for a Gelding not good But where Trespass is brought de Equo ellato and the Jury find a Gelding c. it is otherwise ibid. Upon Stat. 13 Eliz. c. 8. for being a Broker in an usurious Contract for which he incurred a Premunire 32 Upon Stat. 5 E. 6. against P. for drawing his Dagger in the Church against J. S. holden void for that it is not said he drew it with intent to strike the party 49 Upon Stat. 8 H. 6. two Exceptions taken to it but disallowed ibid. For stopping quandam viam valde necessariam quashed for want of the word Regiam and for that the party indicted had not any addition therein 121 Infant Makes a Lease for years and at his full age says to the Lessee God give you joy of it the Lease is thereby affirmed 4 If an Infant being in Execution sues a Writ of Error and is bailed the Recognisance shall be by his Bail only that he shall appear and if Judgment be affirmed that they pay the mony and not render his Body to Prison 6 Inmates Who shall be accounted Inmates upon the Stat. of 31 Eliz. 10 Interest Difference between an Interest and a Limitation 33 Judgment Shall not be stayed upon Allegation that one of the Defendants was dead after Verdict for the Court cannot take notice of it judicially nor any of the parties have day in Court to plead it besides the party is not without remedy for he may have a Writ of Error 15 If the Court may reverse their own Judgment Quaere 60 Reversed for Error in omitting the Costs the Jury gave 61 Jurors Where bound by confession of the parties where not 56 A Juror before the Retorn of the Pannel became a Minister of the Church and therefore prayed to be discharged according to the priviledge of those of the Ministry but it was not granted because he was a Lay man at the time of the Pannel made 190 Justice of Peace One cannot be Justice of Peace by Prescription 149 Lease OF a Manor c. with all the profits of a Wood except 40 Trees to the Lessor to take at his pleasure the Wood is not comprised within the Lease but the Lessee shall only have the profits as Pawnage Herbage c. 9 If a man makes a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit the Lessee cannot thereby cut the Trees nor do waste 9 Made by a Corporation void for Misnosmer 11 Good to maintain an Ejectione firmae 14 Leases by a Baron contrary to Act of Parliament void 17 By Tenant at will if a disseisin 35 Leases made by Prebendaries within the Equity of the Statute of 32 H. 8. c. 28. 51 Leet Pound breach is not inquirable there 12 But excessive Toll is ibid. Nobleman SHall be bound with Bayl in a Recognizance to render his Body 6 By 13 E. 1. if he hath not Goods or Lands his Body shall be taken in Execution ibid. Obligation Forfeited 18 Outlary How avoided by Plea in person 22 186 Payment OF Rent before the day by the Obligee doth not discharge him 4 Of a Debt generally by a Surety Executor to the Principal if it shall be as Executor or as Obligor Quaere ibid. Pleadings In a special Justification in Trover the place of Conversion may be traversed but where a Justification is general the County is not traversable at this day 4 It is no good Plea for the Tenant in a Writ of Entry sur disseisin to say that the House in demand is within the City of London whereof he is a Citizen and that King H. 3. concessit civibus c. quod non implacitentur c. extra muros Civitatis praed sed illis rectum teneatur infra Civitatem praed secundum cons Civit. praed For he ought to have shewed That the Citizens for their Lands there ought to be impleaded in the Hustings 13 In Trespass for pulling Hurdles c. the Defendant justified by Prescription to have a free course for Sheep in the place where c. and because the Plaintiff erected Hurdles without leave of the Lord of the Manor the Defendant cast them down prout c. the Plaintiff replyed of his own wrong without cause and held naught for he should have traversed the Prescription 17 Traverse of the place in Trover where good 22 Special Plea to an Assumpsit not good and why 31 Posse Comitatus It differs from Posse Manerij 87 Possessio Fratris Where it shall not be of Copyhold Lands 38 Previledge Denied to the Treasurer of the Records of the Kings Bench and why 81 Prohibition If the Parson Libels in the Spiritual Court against the owner of Lands for Tythes which he severed but a Stranger took and carried away no Prohibition shall issue for that he might plead the same matter in bar in the Spiritual Court. 7 To the Spiritual Court to stay a Suit commenced there for Tythes upon a Prescription shewed in the Kings Bench. 25 Granted to stay a Suit in the Court Christian commenced against an Executor by one for a Legacy bequeathed to him by his Father who willed his Goods should be parted amongst his Children according to the Custom of London 12 Upon claim of Property 150 Quare Impedit May be brought by Executors to remove a Clerk collated wrongfully in the life time of the Testator 15 Recognizance IF a Recognizor of a Recognizance acknowledged before a Master in Chancery dye before it be inrolled it may be inrolled at the Petition of his Executors 8 Common Recovery Feme not party to the Writ of Covenant not bound by Recovery 26 Remainder Where void 21 Resceit One prayed to be received in a Formedon and was ousted of it by the Court. 51 Reservation Of Rents upon a joint Lease 27 Difference between a Reservation and a Contract 29 Retorn Of the Sheriff where void 21 Sale. OF a Bayliwick of an Hundred is not within the Statute of 5 E. 6. c. 16. 33 Of Goods by the Sheriff upon Execution where good where not 20 21 Surrender If Lessee for years take a second Lease from Guardian in Soccage made in his name it is a surrender of the first Lease 7 What shall be said to be a surrender of a Term what not 30 Treason UPon Attainder of Treason who shall seize the Goods for the Queen 34 Tythes Unity no discharge of Tythes 47 Venire Facias GRanted de novo after Verdict for that the first Venire Facias was of K. only for that it ought to have been de Vicento de K. W. 85 Vesturam terrae He who hath Vesturam terrae cannot dig the Land. 43 Those who have Lot-Meadow viz. to change every year according to Lots have not any Freehold therein but only Vesturam terrae 43 Writ DE fama gestu what it is 40 FINIS
be made rendring rent with clause of re-entry The Lessor grants the Reversion for life such a Grantee is an Assignee within the said Statute Jefferies The Condition is gone A. leaseth two Acres for years rendring rent with clause of re-entry the Lessor accepts a surrender of one Acre the whole Condition is gone but the rent shall be apportioned A Parson leaseth land whereof he is seized in his own right and land whereof he is seized in the right of his Church for years rendring rent with clause of re-entry and dieth the rent shall go according to his respective capacity and the Condition divided Condition apâ—â—â—â—â—â—ned So if part of the land so demised be evicted the Rent shall be apportioned and the Condition also And he said that the Bargainee is not an Assignee within the Statute Barham If the Reservation doth not make the lease several yet it shall make the Reversion several c. Mead 6 Eliz The Court was moved in this Case A. leased for years rendring rent with clause of re-entry and afterwards became bound to another by Recognizance the Recognizee extended the moiety of the rent and Reversion in Execution Condition suspended and the clear Opinion of the Court was that the Condition was suspended If A. let lands for years rendring rent with clause of re-entry to a Man and to a Feme sole and afterwards the Lessor intermarries with the Feme the Condition is suspended Mounson Iustice The Demise is joynt although that the Reservation be several Cestuy que use is seized of an Acre in possession and of another in reversion and makes a Lease for years of both rendring rent Severance here are several rents 13 E. 3. A. seized of two Acres of lands before the Statute of Westminster 3. made a Feoffment thereof to hold the one Acre by Knight Service and the other in Socage the Tenancy in such case is several 9 Ass 24. a lease is made of a Mill. and of a Wood rendring for the Mill 10 s and for the Wood 20 s. these are several rents and so here they are several rents and several conditions Two Tenants in Common make a lease for years rendring rent upon clause of re-entry the condition is several according to the reversion for joynt words in the Letter have sometimes as the matter requires constructions in the severalty As A and B covenant by Indenture and are reciprocally bound the one to the other to perform all Covenants contained in the said Indenture the same is to be construed such Covenants which on the part of A. are to be performed and so of the other part B. And he conceived that by the distracting of the reversion the condition was gone a condition by an act in law may be divided but not by the act of the party Conditions by act in Law divided not by act of the Party As a man makes a lease for years rendring rent with clause of re-entry takes a Wife and dyeth The Wife recovers the third part of the land devised for her Dower now that third part is discharged of the condition during the estate in Dower but the residue is subject to the condition and vide F. N. B. 21 the Heir at Common Law shall have a writ of Error for his part and the Heir in Borough English for his part two Ioyntenants make a lease for life upon condition and one releaseth the condition Statute of 32 H. 8. of Conditions taken by Equity the same barred the condition And he conceived that the Bargainee is an Assignee for the Statute of 32 H. 8. shall be taken by Equity c. As if a man leaseth lands for years to begin at Michaelmas next and before Michaelmas he makes a Feoffment and at Mich. the Lessee enters the Feoffee is an Assignee within the Statute two Ioyntenants make a lease for years rendring rent with clause of re-entry and the one releaseth to his companion he is an Assignee within the Statute Manwood He is an Assignee and in by the Bargainor The words of the Statute of 32 H. 8. are Grantees or Assignees to or by any Person or Persons and here the Bargainee is an Assignee to the Bargainor as to the use and for the possession he is an Assignee by him He who is in by a common recovery is not an Assignee although the recovery was to his use for the Writ disaffirms his possession if Tenant for llfe be disseised and he in the reversion confirms the estate of the Disseisor and the Tenant for life re-enters the Disseisor is now an Assignee but otherwise it is if he in the reversion doth release to the Disseisor and he conceived that the Lessor should recover part of the land in an action of Waste or enter in part of the land for a forfeiture for an alienation in fee that the condition remains Harper Several reservations do not make several leases for the reservation is not of the essence of the lease for it is good without any reservation and whereas it hath been said that a Lease is a contract I say Difference between a Reservation and a Contract that there is a great diversity between a reservation and a contract for if I sell to you a Horse for 40 s. and afterwards I take this Horse out of your possession yet I shall have an action of Debt for the 40 s. But if I lease land to you reserving rent and afterwards enter into parcel of the land demised I shall not have the rent and if I lease two Acres for years with several reservations I shall have but one action of waste but several Avowries according to the several reservations And here if any part of any of the said rents be behind the party may re-enter into the whole therefore the lease is but una eadem And I conceive that the Assignee of the Assignee is by the Statute to take advantage of the condition even to the twentieth degree as a warranty to one of his Heirs and Assigns extendeth to the twentieth Assignee But here in our case he is not such an Assignee that shall take advantage c. for he is in by the Statute scil in the Post but not in the Per and here the Bargainee hath but an use by the act of the Party and the possession of the Statute of 27 H. 8. But admitting that he is an Assignee yet he is an Assignee but of part and therefore shall not have advantage Condition suspended in part is suspended in all c. When a condition is suspended in part it is suspended in all A. leaseth lands for years upon condition and afterwards the lessor confirms his Estate in part for life the condition is gone Dyer The Lease is one and entire although there be several reservations for here are not several capacities nor several interests 42 Ass Two Ioyntenants lease for life rendring rent to one of them yet the rent and
the Husband dyed the Wife recovered and entred and surrendred to the Lord and by Wray the Stranger to whom the Lord granted it after the Surrender by the Husband should have the Land and not the Lord himself against his own Grant. Pasc 28 Eliz. In the Common Pleas. CLXXXVII Chomley and Conges Case CHomley brought Trespass of Assault and Battery made to his Wife against Cony and upon the general Issue it was found for the Plaintiff It was moved in Arrest of Iudgment that the Action was not well brought for the same being an Action of Trespass done to the person of the wife the Writ ought to be brought and prosecuted in both their Names for now if Iudgment be given for the Husband and he dye before Execution the Wife to whom the wrong was done should not have Execution but the Executors of the Husband and afterwards upon advice the Plaintiff had Iudgment to recover Vide Cont. 9 E. 4. 51. 38 H. 6. 25. Pasc 28 Eliz. In the Common Pleas. CLXXXVIII Blithe and Colegates Case Vide this Case Reported by Cook 2 Part of his Reports REplevin by Blithe and Colegate who made Conusans as Bayliff to Roger Beckwith Son and Heir of Elizabeth Beckwith for damage feasant and upon a Special Verdict the Case was That the said Eliz. was seized and took to Husband Christopher Kenne and by an Indenture made by the said Eliz. without the assent of her said Husband by the name of Elizabeth Beckwith bearing date 14 March 14 Eliz. declareth the uses of a Fine to be levied c. 1. To the use of the said Elizabeth for life without impeachment of Waste and after to the use of the Conusees for their lives and after to the use of the said Elizabeth and her Heirs And that afterwards the said Christopher Kenne before any Fine levied in Feb. 20 Eliz. by Indenture between himself and the said Elizabeth his Wife of the one part and R. W. of the other part without the consent of the said Elizabeth declared that the uses of the said Fine so to be levied should be to the use of the said Christopher and Elizabeth for life c. And afterwards the said Fine was levied by the Husband and Wife and the only Question upon the matter was if the uses declared by the Wife or the uses declared by the Husband should stand It was argued by Shuttleworth Serjeant that the uses declared by the Husband should stand and that the Declaration by the Wife should be rejected for a Feme Covert is not sui juris but is sub potestate vâ—ri And therefore â—7 Ass 17. a Feme Covert without her Husband acknowledgeth a Fine the Husband shall avoid it and as to the Declaration of the uses it is no other thing but the shewing of the meaning of the Parties to the Fine how and in what manner the Land of which the Fine is levied shall be disposed of by the Fine but such a power cannot be in a Feme Covert For if an Infant levy a Fine and declare the uses by Indenture the Declaration is void and the Fine shall be to his own use and that was adjudged in the Court of Wards The same Law in case of a man of Non sanae memoriae and if an Ideot levy a Fine and declare uses upon it the Declaration is void and the Fine shall be to his own use and that Case also hath been adjudged in the Court of Wards And by intendment of the Law every Wife is at the disposition of her Husband as in a Praecipe quod reddat against the Husband and Wife the Wife makes default it shall be accounted the default of the Husband for the Law intends that the Wife is ameanable by the Husband 21 Ass The Husband seized in the right of the Wife made a Feoffment in Fee and in making of Livery his Wife interrupts him it was not any interruption or impediment quo minus the Livery operetur for cui ipsa in vita contradicere non potuit c. So in a Praecipe quod reddat against the Husband and Wife the Husband pleads one plea and the Wife another the Plea of the Husband shall be admitted 33 H 6. 43. 89 Ass 1 And the Husband may in some case prejudice his Wife in point of Inheritance as by Cession Vide E. 4 2. Fitz. Cui in vita 22. And he argued much upon the ground where it shall be said the folly of the Wife to take such a Husband If the Husband be seized in the right of his Wife they sell the said Land and for Assurance levy a Fine to the Vendee now the Husband alone shall have an Action of Debt for the mony upon the Sale which proves that it is the Sale of the Husband alone which see 48 E. 3. 18. Fenner Serjeant contrary And first he confessed that the Declaration by the Wife is utterly void and also the Declaration by the Husband and therefore when the Husband and Wife levy a Fine the Conusee in judgment of Law is in by the Wife and not by the Husband so as the Husband as to the right is a Stranger to the Land and to the Estate which passeth by the Fine although he be Party to the Fine for that is not for any Interest which he hath in the Land but for the conformity of Law which disables a Wife to levy a Fine without her Husband and therefore it is not any reason that the husband alone shall be received to declare the uses for he is no Proprietor of the Land in right especially forasmuch as in account of the Law the whole passeth from the Wife And the Law in divers Cases frames its Iudgment according to the possession of the Wife and that in acts done by the Husband 14 H. 8. 6 where A seized of a Rent-charge in Fee issuing out of the Land of the Wife A releases the Rent to the Husband and his Heirs the same shall enure to the Wife Vide 38 E. 3. 10. From such Cases the Law respects the nature of the Seisin and the manner of the possession And as to the Case vouched out of Dyer 12 Eliz. where the Husband and Wife were seized of a Messuage to them and to the Heirs of the Husband they suffer a common Recovery and the Husband alone declareth the uses the same is good for in that Case the Fee was in the Husband and always he who hath the Fee ought and may declare the use if all who have interest will not joyn and therefore if Lands be given to two and to the Heirs of one of them if they both joyn in a Fine he which hath the Fee may by himself declare the uses But if there be two Ioyntenants in Fee they both ought to joyn in the Declaration of the uses or otherwise make several Declarations of their several Moieties So if Cestuy que use and his Feoffees joyn in a Fine and make
Aid prayer the Party to have Aid shewed such Special matter But in our Case the Tenant for life hath vouched his Bargainor and not without cause for he hath a warranty from him and the Demandant cannot Counterplead it for he had a Seisin whereof he might make a Feoffment As to the Case 14 E. 3. Fitz. Resceit 135. Lessee for life in a Praecipe against him without Aid prayer pleadeth to the Enquest the first day he in reversion may enter It is true he may enter and enter into the Resceit but not into the Land for a Forfeiture For then Fitzherbert would have abridged that Case in the Title of Entre Congeable and not in the Title of Resceit And the Book in 5 Ass 3. is good Law for there the Tenant doth confess the reversion to be in another but in our Case the Tenant voucheth which is a lawful Act and according to the Covenants of his Purchase And although the recovery was by agreement yet it is not for that a Forfeiture for if the Tenant for life voucheth truly it is not a Forfeiture Before the Statute of West 2. cap. 3. which gave resceit to a woman and to those in reversion where the particular Tenant is impleaded and made default reddere noluerit no remedy for these Cases but a Writ of Right but no Entry and that was for the credit which the Law gave to recoveries car si puissoit then is resceit given but that only in the two Cases aforesaid But afterward because it was found that many particular Tenants being impleaded would plead faintly The Statute of 13 R. 2. gave resceit in such case And upon what reasons were these Acts made if in such cases the Entry was lawful But after these two Statutes another practise was devised for such particular Tenants would suffer recoveries secretly in such sort that those in the reversion could not have notice of it so as they could not ante judicium and prayer to be received for the remedy of which mischief the Statute of 32 H. 8. was made by which all recoveries had against the Tenant by the Curtesie or otherwise for life or lives by agreement of the Parties of any Land whereof such particular Tenant is seized should be void as Tenant by the Curtesie c. should be void against him in the reversion And yet an Evasion was found out of that Statute for such particular Tenant would make a Feoffment with warranty and then the Feoffor should be impleaded in a Writ of Entry and he vouch the Tenant for life who should vouch over and such a Recovery was out of the Statute of 32 H. 8. for the recovery was not against such particular Tenant c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it was provided that such recoveries had where such particular Tenant shall be vouched should ve void if such recovery be had between them by Covin And he conceived That the Forfeiture is not in respect of the recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it was found that the recovery was with their assent and that was lawful as this Case is for they may agree to have such recovery for further assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but had also a remainder in tail although not immediately depending upon the Estate for life which he cut off therefore it was not meerly a feigned recovery And Vide 5 E. 4.2 Br. Forfeiture 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger it is not a Forfeiture for it doth not disaffirm the reversion c. contra of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to the two chief Iustices to know their Opinions upon these Points and they were of opinion That the Voucher of a stranger was not any Forfeiture and also that after the recovery was executed he in the remainder could not enter but they conceived that the right of him in the remainder was not bound And he said That after the recovery executed he in the remainder could not enter which see Br. Forfeiture 87. 24 H. 8. For if Entry in such Case had been lawful infiniteness of Suits would follow which would be a thing against the credit of recoveries As to the Objection of the Infancy the same will not help the matter 6 H. 8. Br. Saver default 30. Recovery had against an Infant in which he voucheth and loseth is not erronious contrary upon default And if an Infant Tenant in tail suffereth a recovery it is discontinuance for in such Recovery Infancy is not respected And in a Scire Facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a Case out of Bendlowes Reports 5 Eliz. Tenant for life the remainder over to a stranger in Fee Tenant for life is disseized by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who entreth into the Warranty generally and voucheth over the common Vouchee It was adjudged that that recovery was out of 32 H. 8. for the recovery was not had against the particular Tenant but he was but Tenant in Law quia Vouchee and also the recovery is a good bar to him in the remainder notwithstanding that he was within age at the time of the recovery And at another time it was argued by the Barons and Clark said That he conceived that the Entry of him in the remainder was lawful It hath been objected that Pelham did not know that the Bargainor had but for life or that any other person had any remainder in the Land that is to no purpose to excuse him for 42 E. 3. every Purchasor ought at his own peril to take notice of the Estates and Charges upon the Lands which he purchaseth For the Law presumes that none will purchase without advice of Counsel and without knowing the Titles of the Land. And although Statutes have been made to provide against the practises of particular Tenants yet that is no Argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the meer right it is a Forfeiture And he held strongly That the Iudgment did not take away the Entry a cause of Forfeiture being given before the Iudgment 5 Ass 3. He in the Reversion after Iudgment and Execution may enter See also 22 Ass 31 to the same purpose For where Tenant for life is impleaded he ought to wait upon him in the Reversion and expect Instructions from him in
the Estate for the life of another by the accession of the Fee-simple and the Queen is in by a new right It was adjudged 29 Eliz. here That where the Queen had the Land of a Fugitive for the life of another and leased the same to another Quam diu in manibus nostris fore contigerit and after the Fee-simple of the Fugitive came to the Queen by his Attainder the same Lease was void King E. 6. gave to his Sister Mary Manerium de B. for her life secundum tenorem effectum Testamenti sive ultimae voluntatis of King Hen. 8. whose Will was that she should have it as long as she remained unmarried she granted a Rent-charge King E. 6. dyed by which the Fee descended to the said Mary being Queen of England and afterwards she married He made it a Quaere if the Rent be not gone Dyer 3 4 Phil. Mary 240. But Bendloes Reports the same Case to be adjudged That the Rent was gone Sir Francis Englefield 1 Eliz. with leave of the Queen went beyond Sea his Licence expired the Queen directed to him a Privy Seal with her Commandment to return which he received but did not return but adhered to the Queens Enemies there upon which the Queen seized his Lands and 8 Eliz. granted a Manor parcel thereof and all profits thereof quam diu in manibus nostris fore contigerit afterwards by Act 14 Eliz. for there was some doubt if the Queen might make Leases grant Copyholds or usual Woodfalls of such Lands or only take the ordinary profits thereof as vesturam terrae it is explained that during the Interest of the Queen she might do ut supra as Tenant for the life of another might do upon which a new Seizure was made for the Queen and a Steward appointed by the Queens Letters Patents who held a Court and took Surrenders in the hand of the Queen and granted Admittances c. And it was resolved by the two Chief Iustices That the two Seizures gave not the Queen any other or better Seisin in the said Manor than she had before by the first Seizure at the Common Law notwithstanding both the said Statutes and so the Courts holden by the Queen void and all Surrenders and Admittances also And so it is adjudged 23 Eliz. Dyer 375. upon which it may be concluded That if by the said Statutes or any of them had had a new right the last Copy had been good notwithstanding the Grant of the Manor before Also for 8 Ass the King grants Custodiam terrae haeredis quam diu in manibus nostris fore contigerit the Heir being a Daughter and after a Son is born now the Grant of the King is void Tenant in tail the Reversion in the King discontinues the Discontinuee is attainted the King seizeth and leaseth for years Tenant in tail is attainted of Treason now the Queen shall avoid her own Lease So if the Disseisor be attainted upon which the Queen seiseth and leaseth and afterwards the Disseisee is attainted And he cited the Case of the Abbot of Colchester 13 Eliz. The Abbot committed Treason and afterwards by the Statute or by Surrender the Abby came to the Crown who leased the Land for years the Abbot is attainted of the said Treason now the King shall be seized by force of the Attainder and shall avoid his Lease As to the Leases made to the Defendant by the Queen one was made after the Statute of 29 Eliz. and the same is not saved by the saving there for the words are of Estates then in esse 1. Such Estate as they had before the making of the Act As to Leases made before they are drowned in the Fee-simple which accrued to the King by the Attainder c. and here by this Statute the Estate of the Queen for the life of another is not saved by the Statute and then the Leases derived out of it are not saved The Queen is not bound by the said Statute to exhibit any Conveyance for she shall not take any Oath according to the Statute and if the Queen be not within the Body of the Act she is not within the saving Now as to the Condition The Statute of 33 H. 8. gives to the Queen Vses Rights Conditions It hath been Objected That such Conditions are intended to be given to the King which are to be performed on the part of the Donee Lessee Grantee Covenantee but not on the part of the Grantor c. For it was in the will of the Grantor if he would perform them or not and a Will cannot be transferred over But as to that it may be answered That a Will by Parliament may be transferred over for Parliamentum omnia potest It hath been Objected If that shall be said the Will of Sir Francis which now is the Will of the Queen it shall be a great prejudice to Francis Englefield the Nephew for now he shall be doubly bridled by his Vncle and by the Queen It hath been Objected That here is a Conditional Condition 1. If the Nephew shall be given to intolerable Vices and it is not added to enable the Queen to take advantage of the Condition that he is otherwise than of good behavior and conversation but the words of the Proviso clear the matter 1. Lest he should be given to intolerable Vices and not if he be given c. So as it is not a Condition to a Condition but a Motive to a Condition And the Statute of 29 Eliz. by which Sir Francis was attainted gives to the King all conditions It hath been objected that in the said Statute of 29 Eliz. is a saving by which Leases made by the Queen are preserved But if that Proviso be well observed it doth not extend to our case 1. That Act extends to make void any Grant Lease c. made by the Queen after the Treason committed c. but that shall be of such force as if the said Act had not been made As to that I say That this Statute doth not add or detract from such Leases but leaves them as it found them for the Statute gives to the Queen the Condition which Condition avoids the said Leases for it avoids the Estate of the Queen out of which the said Leases are derived And although that the Conveyance as to the benefit of Sir Francis or his Nephew be void by the Statute for not Inrollment of them yet it is not utterly void as to the Queen also The Statute of 1 Eliz. Enacts That Leases made by Bishops against the Form of the Statute shall be void Yet they shall not be void against the Bishop himself or against the Lessor Exception hath been taken for that the tender of the King is not found by Office But he needs no Office for the tender is the Act of the Queen her self there she ought not to be informed of it for to what purpose shall the Queen be certified
A TABLE OF THE Principal Matters Contained in this BOOK Abatement of a Writ IN Account the Writ abated for part and for part the Plaintiff had Judgment 39 In Action upon the Case and why 55 Account Of the King against a Stranger 32 Actio personalis moritur cum persona Trover is an Action personal for it is grounded upon a personal wrong and ariseth upon a disceit and wrong and if there was no Conversion then an Action of Detinue should lye 44 Where one takes my Horse and dyes I shall not charge his Executor 46 If a Smith pricks my Horse my Executors shall not have an Action for it ibid. Action upon the Case Assumpsit Where it is requisite for the party in an Action upon the Case to express the Assumpsit with the Request and where not 2 If one promise in consideration c. to assign to J. S. the Lease of a Stranger for this an Action will lye Adjudged 2 If A. Prisoner at the Suit of B. escapes and being at liberty promiseth to B. that if he will permit him to be at large c. that he will pay to him 10 l. for this no Action will lye Adj. 3 A Promise against a Promise will maintain an Action upon the Case ibid. By an Executor to a Creditor upon forbearance to pay his Debt makes him lyable to pay it of his own Goods Adj. 1. ibid. Will lye against the Executors of A. upon his Promise at full Age to save one harmless who was bound with him for his Debt when he was an Infant 5 Will not lye against an Executor if he promises to pay a Debt and hath not Assets ibid. Nor is an Heir subject to an Action upon such a promise if he hath nothing by Descent 6 An intire Assumpsit cannot be severed by Action ibid. To avoid Controversies and Suits is a good and sufficient Consideration to ground an Assumpsit upon 31 The Defendant exhibited a Bill to the Justices of Peace complaining that the Plaintiff is a disquieter of his Neighbours c. and served a Process upon J. S. on a Sunday and the Justices to whom it was exhibited awarded Process against the Plaintiff to find Suerties for his good Behaviour by virtue of which he was taken and imprisoned For this an Action of the Case will not lye 35 Action upon the Case for Words What words are actionable and what not 24 54 121 181 Action upon the Statute Upon 5 Eliz. of Apprentices holden clearly That if one hath been an Apprentice for seven years at any Trade mentioned within that Statute he may exercise any Trade named in the said Statute although he hath not been an Apprentice to it 9 Action upon the Statute of Hue and Cry. 18 Upon the Statute of 5 Eliz. of Perjury 25 Upon the Statute of 5 Eliz. of Usury 43 Upon the Statute of Hue and Cry 51 Upon the Statute of 23 Eliz. of Recusancy 54 Upon the Statute 4 Eliz. of Perjury 105 Upon the Statute of 1 Eliz. of Leases made by Bishops 61 Upon the Statute of Hue and Cry 85 Upon the Statute 5 E. 6. for buying of Woolls 103 Upon the Statute of 31 H. 8. of Partition 106 Upon the Statute of Hue and Cry 191 Alien Purchaser 82. suffers a Common Recovery 84 Amendment If a Writ of Error be brought and delivered to the Chief Justice of the Common Pleas and allowed by him under his hand the Record cannot afterwards be amended 50 Day given by the Court to amend the Count in Disceit 123 Of a Writ of Quare Impedit openly in Court by a Clerk of the Chancery 12 Amercement Of the Sheriff for making a Retorn contrary and repugnant in it self 57 Appeal If Robbery may be brought 20 years after the Robbery committed and the party robbed shall not be bound to bring it within a year and a day 16 If the Defendant be attainted by Verdict in an Appeal of Robbery the fresh Suit shall be inquired of but otherwise if he be attainted by Outlary 48 Assignment Of Debts to the King. 80 No Bonds shall be assigned to the Queen but such as are made for payment of Mony. 9 Attaint Where the King is sole party against the Subject and the Jury find for the King no Attaint lyeth 46 But where the Suit is tam pro Domino Rege quam pro seipso contrary ibid. Attornment What shall be a good Attornment what not 23 Surrender of a Copyhold Reversion with the Rent to the use of a Stranger and his admittance thereupon are in the nature and so amount to an Attornment 25 If A. seized of a Manor Lease the same for years rendring Rent with Clause of Re-entry and afterwards levy a Fine sur Cognizance de droit c. to the use of himself and his Heirs and the Rent being demanded is behind he cannot re-enter nor avow for the Rent but is without remedy for the same without Attornment 34 If A. seized of a Rent in fee grants the same by Fine to B. to the use of C. there needs no Attornment to the Conusee because all the right of the Rent is out of the Conusor and transferred to Cestuy que use instantly 50 Attornment doth not give a right but is only a consent 129 Bargain and Sale. IF the Bargainee levies a Fine and within six months the Deed be inrolled the Land shall pass by the Fine 4 Bayl. If a Scire Facias issue against them before a Capias issue against the Principal and they be taken they shall be put to their Writ of Error 36 Bills The King may exhibit one Bill in the Exchequer for several causes arising within several Counties and it shall be good 26 Carrier SEnt with a Letter by one to a Merchant for Merchandizes to send them to him receiving a sum of Mony the Merchant sent them by the Carrier without mony the Buyer shall not be charged for the mony the Bargain being conditional and it was the Merchants folly to trust the Carrier with those Wares 7 Chancery May compell a Tenant to Attorn 8. 184. Common and Commoner A Commoner cannot kill Conies which destroy his Common 7 In what Case Common appurtenant by Prescription sans number is improveable by the Lord of the Waste 41 Condition Broken by Lessee for years 5 Destroyed in part good in part 27 Divided ibid. Grantee of parcel of the Reversion is an Assignee within 32 H. 8. of Conditions 28 Apportioned ibid. Suspended ibid. Conditions by Act in Law divided not by Act of the Party ibid. Statute of 32 H. 8. of Conditions taken by Equity 29 Condition suspended in part is suspended in all ibid. Shall be taken favourable for him who is to perform it 70 Consultation Was granted because the Prohibition was general where it ought to have been special 16 Conversion In Trover is Traversable and therefore ought to be certainly alledged 45 Conveyance By the Heir upon Intrusion 60 Copyholder Baron Surrenders Femes