is the eldest Son although they alleadge their births in severall Counties yet it shall be tryed where the Land lyes and so in that Case a Release of all his right was pleaded against him and he pleaded that he was within age and borne in another County yet it shall be tryed where the Land lyes and so adjudged 7 H. 4. 8. and 17 E. 3. 36. b. 19 H. 6. 15. Nay though the Espousals be alleadged to be in another County yet it shall be tryed where the Land lyes and adjudged 7 H. 4. 8. And Davenport inferrs from 36 H. 6. 9. A grand Cape against one he comes and pleads that he was within age at the time of the first Cape which shall be tryed where the Land lyes And another exception was taken because the Venire facias was not well awarded for it was directed to the Sheriff of Middlesex that he should cause to come twelve Coram nobis apud westmonasterium which is not good for that Court follows the King and may be removed to any place and therefore it ought to have been Vbicunque fuerimus in Anglia but all the Judges Fleming being absent after mature deliberation held the tryall at Middlesex good for they took this difference in their answer to the rule layd downe that what concernes the realty it shall be tryed where the Land lyes for when nonage or the birth are alleadged to intitle one to the Land demanded as if in an Assise the Tenant pleads a discontinuance the Demandant sayes he was within age at the time or to debarr another of Land that he was borne before marriage in these Cases because the Inheritance of the Land depends upon it although they be alleadged in another place yet they shall be tryed where the Land lyes 19 H. 6. And so it is 39 H. 6. 49. b. to be intended but if nonage or birth be pleaded as matter dehors and not to the disabling of the title to the Land but to another purpose as here it is to the person because he could not appeare by Attorney in this Case it shall be tryed where the Infancy is alleadged As if in a Formedon in the Remainder the Tenant pleads nonage in the Plaintiff and prayes that the Plea may stay untill his full age if Issue be taken upon it it shall be tryed in the place where it is alleadged And as to the Exception to the Venire facias the Roll is right which warrants the Writ and therefore they held it was but the Writers fault and should be amended and Doddridge and Cook held the Triall good if Infancy be alledged the Triall shall be by inspection during his Nonage as it is 17 E. 3. Account 121. and 11 H. 4. 115. 25. Ass 2. and 48 E. 3. 11. and the 11. Rep. f. 30. but if his Age upon inspection remains doubtfull then the Judges may swear the party and examine Witnesses And 25 E. 3. 44. and 50 E. 3. 5. but if the Infant come to full Age it shall be tried by the Countrey 33 H. 8. and they took this Difference in what place it should be tried for if the Action be reall it shall be tried where the Land lies as it is 21 E. 3. 28. 28 E. 3. 17. 44 Assis 10. 46 E. 3. 7. 13 H. 4. 3. and if both places be in one County then the venire facias shall be of both 22 E. 3. 11. H. 4. 75. but if nonage be alledged in a personall Action the Triall shall be where the writ is brought 43. H. 6. 40. in Debt the Defendant pleaded infancy and that he was born in such a place yet the Venire facias was awarded of that place where the Action was brought and 43 H. 6. 40. Prisot was of the same opinion and the Law is the same when it concerns the person as in misnomer or that he is not the same person and so in the Case in question although the Action be brought in one place and the nonage pleaded in another County yet it shall be tried where the Action was brought and therefore the Action being brought in Midd. the triall of Midd. is good for a writ of Error is of the nature of an Originall which is personall and they held the Venire facias should be amended being but a matter of Form and that it was no mistriall it being awarded at a right place and likewise the will is right which warrants it and therefore it is but a misprision and no mistriall and the Venire facias shall be amended according to the will and Judgement was given for the Plaintiff in the writ of Error Formedon BRigham versus Godwin The Formedon did abate by the death of one of the Demandants and upon a new writ brought by Journes accounts the Tenant was Essoined and it was moved by the demanded that the Essoin should be quashed because the Tenant was Essoined upon the first writ but the Essoin was allowed by the Court but it was held by the Court that if the Tenant had the view upon the first Writ he should never have the view again at the Common Law we might have had a new Essoin upon view as often as he brings a new writ and Husband held that if by the Common Law it is to be granted the Statute doth not abridge it two views do not ly upon one writ at the common Law and if this shall be accounted but one Writ the view lieth not but in this case the Tenant did relinquish the view because he had day to plead NEvill versus Nevil Mich. 15 Jac. rotulo 77. Formedon in le Discender the writ was generall and the Count was upon a Feofment made after the Statute of uses and a speciall verdict whether the Deed warrant the Count the verdict is whether upon the whole matter the said A. N. gave the moity of the third part of the Mannor c. for default of Issue of the Bodies of either the said G. and D. to the use of either of them surviving and of the Heires males of his Body to be begotten or no the Jury are wholly ignorant the writ was to the use of G. and D. and of the Heirs males of the Bodies of the said G. and D. lawfully to be begotten and for default of such issue male of the Body of either of them then to the use of either of them having issue male of his Body lawfully begotten and for default of such issue male of both the Bodies of the said G. D. or either of them lawfully to be begotten then to the use c. By Deed an implication cannot be intended if there be not apt words otherwise it is in a Will for this is but a gift to a man and his Issue for this gift is but to both of them for life and severall inheritances Bishop al. versus Cossen Trin. 16 Jac. rotulo 62. In Formedon the Tenant pleaded a warranty and pretends
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
although his Estate be ended And the like if a Lease be granted to a Woman so long as shee shall live sole or shall behave her selfe wel if shee commit Waste the Writ shall be brought in the Tenet ad terminum vite and the Count shall be speciall If Tenant in Dower grants over his Estate to a Stranger and commits Waste yet the Action lyes against the Tenant in Dower but otherwise it is if the Heire grants over his Estate And the like for Tenant by the Curtesie If Waste be brought against two and one appear upon the Distringas and the other make default the Plaintiff shall have a Writ to inquire of the Waste but shall declare against him that appears for a man shall not recover by moities in Waste as one shall recover in a Precipe quod reddat against two for in waste the Land shall not be lost by default by an Action tryed and if a waste be committed between the Judgement and Execution a writ shall be awarded to inquire of the waste but Quaere thereof If a woman while she is sole commits waste and marries the writ shall be that the woman while she was sole committed waste and if Tenant in Tail in remainder brings an Action of waste against Tenant for life the writ may be which he holds of the Tenant in Tail although they hold of him in the Reversion in Fee and so it was adjudged Pasch first James that the writ was good An Action of waste lies against Executors for waste for waste committed by the Testator and if a man have Land in the Right of his Wife and waste is committed and the woman dies now no Action of waste lies against the Husband after the death of the wife In waste if the Term be ended and nothing be recovered but damages there a concord with satisfaction is a good plea and if the Lease for years determines pending the writ the Plaintiff shall recover nothing but damages and not the place wasted The Defendant may disclaim in his Action if he that hath the fee pleads no waste done this is a forfeiture of his Estate the Defendant may plead no waste done and give in Evidence that the Tenements at the time of the Demise were ruinous ancient Demesne is no Plea in Waste If a Guardian in Socage in the Right of his wife commits waste the writ shall be brought against the Husband onely Mich. 27. Ed. 1. rotulo 329. If an Action of waste be brought against the Husband and wife and the Husband appear upon the Distringas and the wife maketh default this shall be the default of both of them Mich. 20. H. 4. rotulo 393. the Plaintif may abridge the waste assigned in part so that he aabridges not the whole as if writ be of waste in houses and wood he may abridge part of the assignment in the houses and woods but not the whole and if Issue be joyned for part and demurrer for another part the Issue may be tryed before the Demurrer adjudged If an Indenture to raise uses upon good consideration be made and he that hath the Estate for life commits waste he to whom the reversion is limited by the same Indenture may have a generall writ of waste by saying generally that he hath demised it or a speciall writ at his pleasure and Mich. 27 H. 7. it was held by all the Judges that it is an ill return for the Sheriff to return upon a writ to inquire that he hath commanded his Bailiff because the Sheriff is both Officer and Judge which power cannot be committed to the Bailif of the Liberty and the writ is a Non omittas in it self but Quaere for there are divers Presidents against it the Lessee may cut down Trees for the repairing of houses when the Lessor is bound by covenant to repair and doth not and it is no good Plea for the Lessee in waste brought against him by his Lessor to say generally that he hath nothing in the Reversion but he must shew how the Reversion is not of him but upon a grant of the Reversion and waste be brought by the Grantee nothing in Reversion is a good Plea Upon no waste pleaded the Defendant cannot give in Evidence that the Tenements were sufficiently repaired before the writ brought If an Issue arises iâ— a forreign County the Jury shall not be examined of the view and if the Jurors be not examined of the View when they should be examined it is Error If my Father leases Land for term of life the writ of Waste shall be of houses c. which the said A. Father to him demised and so in a Writ of waste of a Lease made by my Predecessor but if the Abot or the Son himself bring the writ it shall be of Houses which he holds for a Term c. if waste be made sparsim in a Close or wood the Plaintiff shall recover the whole Close or wood and the treble value shall be levyed by Fieri facias or Elegit and not by Capias because a Capias lies not upon the Originall the Sheriff may take a Posse Comitatus to stay the Tenant from doing of waste upon an estrepment Two Tenants in Common one of them makes a Lease for years to the other An Action was brought against Tenant for years by him in the Reversion the Case was that the Lessorafter the Lease made granted another Lease in Reversion for yeares and this matter pleaded in abatement pretending that the Lease in Reversion was an impediment against the Plaintiff inbringing his Action but otherwise adjudged for if a Lease be made for life the Remainder for years and waste be committedby Tenant for life notwithstandingthe Lease for years in remainder waste lies SKeate against Oxenbridge and his wife Trin. 12 Jac. rotulo 849. waste brought of Lands and Gardens in L. of which E. K. was seised in his Demesne as of Fee and being so thereof seised after the fourth of February 27 H. 8. thereof infeoffed E. S. and others to the use of the said E. S. dead and of the said E. for Term of their lives and the longest liver of them and after the decease of the said E. S. and the said E. then to the use of the Heirs of the body of the said E. S. to be begotten upon the body of the said E. of which said E. S. dead the now Plaintiff is Son and Heir begotten on the body of E. committed waste and in the Declaration he shewed the Feoffment made to the Feoffees and the habend to them and their Heirs and because the word Heirs was omitted in the writ exception was taken but because it was in the Declaration it was adjudged good and note in this Case the woman was received upon the default of the Husband and pleaded to Issue If the Feoffees have but an Estate for life then they cannot convey an Estate in Fee simple over SAunders against Marwood H. 41. El. rot
goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
an inquiry of damages between the Plaintiffs and Dawby according to the Award upon the Roll which is the warrant for the Venire facias and it was shewed that the Jury knew nothing of the matter for which they were warned for they ought to have onely given their Verdict against Scullard and not against Dawby and it was likened where two matters are in Issue and they give a Verdict for one and nothing for the other it is naught for all And this was the opinion of the whole Court except Justice Williams who relyed upon 9. Eliz. Dyer Sir Anthony Cook and Wottons Case in partition against two one confessed the Action and the other pleaded to Issue and the Venire facias was to try the Issue between the Plaintifs and the two Defendants and it was amended by the opinion of the Court But marke the difference for no damages are to be recovered in partition but it is otherwise in Trespass and therefore in Cooks Case it was found by the Court that it was as if a meer stranger to the Record had been named in the Venire facias WInckworth against Man Mich. 5. Jacobi The Plaintiff declares for a Trespass in one Acre of Land in D. and abuts that East West North and South and upon not guilty pleaded the Jury found the Defendant guilty in halfe an Acre within written and moved in Arrest of Judgment because upon the matter no Trespass had been found for there is no such moity bounded as the Plaintiff had declared for the whole Acre is onely bounded by the Plaintiff containing his Trespass within those bounds and the Defendant ought to be found a Trespassor within those bounds for otherwise it is not good and it is impossible for the moity of one Acre to be within those bounds But the whole Court except Fenner were of opinion that the Plaintiff should have his Judgement for if the Plaintiff layeth his Action for a Trespass committed in one Acre and the Jury find that onely to be in one foot of it it is good and here they have found the Trespass in the moity of the Acre bounded which is sufficient in this Action where damages onely are to be recovered but if it had been in Ejectment the Verdict had been naught for it is incertaine in what part he should have his Writ of Habere facias possessionem BVckwood against Beale Mich. 5. Jacobi In an action of Trespass it was sayd by the Court That if a Sheriff execute a Capias and there is no Originall to warrant it he is excused it for he is not to examine whether the Originall be sued out or no and for this Trewyrmards Case 38 H. 8. And so if a Bailiff execute a Process made to him by the Steward for damages recovered in the Mannor in a thing in which they had no authority to hold Plea The Bailiff is excused and shall not be punished because he is not to examine the jurisdiction of the Court 7 H. 4. 27. 22 Ed. 3. 22. Ass But if Process come to the Sheriff to arrest J. S. and he arrest J. N. or to make execution of the Goods of J. S. and he make execution of the Goods of I. N. he is a Trespassor for in this Case he must take notice at his perill of the Person and the Goods for when he arrests I. N. or does execution upon his Goods he doth it without warrant And so if I. S. sue a Replevin to the Sheriff to replevin his Cattell and I. S. comes to the Sheriff and shews him the Cattell of I. N. and saith they are his Cattell and he makes replevin of the Cattell he is a Trespassor to I. N. and the Sherif may have an Action of Trespass against I. S. for his false information for the Sherif must at his owne perill take notice whose Cattell they be 3 H. 7. 14 H. 4. but if there be any fraud in the matter he may averr that MOnrey versus Johnson An Action of Trespass brought for entring into a mans House The Defendant pleads that he was a Constable c. And it was held by the whole Court that a Constable may justifie his entry into the House of any man for Felony or Treason STrickland against Thorpe Pasch 6. Jacobi Thorpe brought an Action of Trespass against Strickland wherefore he broke his close the 20. of June 3 Jacobi with a continuance thereof untill the sixth of November after and upon a not guilty pleaded it was found for the Plaintif and Judgment entred but it was entred nothing of the Fine because it is pardoned And upon a Writ of Errour brought he assigned for Errour that the Judgment should have been entred with a Capiatur because the King and Parliament pardoned all offences before the 25. of September and therefore the Trespass being alleadged to have been continued untill the sixth of November following onely part of the Trespass was pardoned and therefore as to that it should have been a Capiatur but the whole Court were of opinion that the Judgment was well entred for the first Trespass which was by force and Armes being pardoned all that depends on that was pardoned and the continuance of the Trespass being onely as to the entring and consuming the Grasse is for increase of damages onely but not for the Kings Fine for the first entry being only with force and Arms makes the Trespass REpps against Bonham Trin. 6. Jacobi The Case in Trespass was that a Feofment was made of three Acres to R. Repps and Mary his Wife for their lives and afterwards to the first second and third Son of the body of the sayd Mary and after to the heirs of the body of the said Mary by the said Richard to be begotten and they had no Son but one Daughter Richard levies a Fine of the Land and Mary dyes the Plaintif enters and the Defendant pleads Richards Fine and adjudged that the Plaintif is not barred by the Fine for Richard had onely an Estate for life and the Estate tayle was in the woman only by the opinion of the five Justices for they said that the Husband is only named to declare what heir of the body of the woman should inherit and not any Heir but such an Heir as Richard her present Husband should beget And if the limitation had been to the Heirs of the body of the woman by her Husband and by I. S. to be begotten the Inheritance had been only in the woman but by the last words for if shee had no Heirs by her Husband and afterwards marries I. S. the Heirs that shee should have by I. S. should inherit And they were all of opinion that the Inheritance was only in the woman because the word Heir which makes the estate of inheritance is annexed only to the body of the woman but if it had been to the Heirs which the Husband should have got of the body of the woman there the
intaile had been in both 19. H. 6. 75. And the like Law if it had been to the Heirs which the Husband should beget of the body of the woman Little 82. 6. HOrn against Widlake Mich. 6. Jac. An action of Trespass brought wherefore he broke his Close and spoiled his Grass in D. The Defendant pleads that in the Close wherein the Plaintiff supposes the Trespass to be done time out of mind there hath been a foot-way for all people passing in by and through the said Close untill such a day and that such a day the Plaintiff plowed up the said Foot-way and sowed it with Corn and laid thorns on the sides of it And further pleads that in the said Close neer the said ancient Foot-way the Plaintiff before the Trespass supposed to be committed left and set out another Foot-way for all people who would use that new way which way since it was laid forth hath been used by all Foot-passengers by reason whereof the Defendant the time in which c. went in the way so laid forth unto such a place c. which is the same trespass c. and demands judgment c. and the Plaintiff demurs and adjudged against the Plaintiff because the Plaintiff made the first wrong in stopping up the ancient way and had assigned a new way for passengers And therefore the Defendants plea is good by way of excuse as to the Plaintiff for it is not fit he should punish the Defendant against his own agreement As if there were a Foot-way through the Close of I. S. over an hedg and I should remove the hedg into a new place if passengers in using their way goe over the hedg where it is newly placed and fixed they shall not be punished for that for it arises of the Act and wrong of the Plaintiff himselfe and volenti non fit injuria As if water run by the Land of M. and M. stop the water-course so that it surround my ground if now abate this hee shall not have an action against me for entring into his Close because the stoppage was his own Act and the same law in the principall case And although the Defendant hath pleaded generally that the Plaintiff hath set out a way and shews not where it is is not materiall for that which is common to all cannot be assigned to any particular person which was the opinion of the whole Court except Justice Yelverton MEtham versus Barker Mich. 6. Jacobi An action of Trespass brought for that the Defendant the first of August in the fifth yeare the Plaintifs Close at L. in the County of Suffolke hath broken and entred and spoiled his Grass with his Cattel c. The Defendant pleads that in the time when the Trespass c. the free-hold of the Land where c. was in Sir Jo. T. And that the Defendant as servant and by his commandement hath entred and put in his Cattell The Plaintiff replyed that true it was that the Free-hold was in Sir John T. But said that a long time before the Trespasse c. Sir Iohn leased the Close to the Plaintiff at will by reason whereof he entred and was possessed untill the Defendant did the Trespass and traverses without that that the Defendant by the command of Sir Io. entred and put in his Cattell and the Defendant demurred and adjudged against the Plaintiff for the plea in Barre is good and in no wise avoided by the Replication for the Replication must be good only by way of Title And the Plaintiff doth not intitle himselfe to any good Lease at will for he doth not alledg indeed any Seisin in Sir Iohn or any possession in him out of which a Lease at will may be derived And although a Declaration may be good to a common intent and in debt upon a Lease as 21. H. 7. is the Plaintiff may declare that he devised And need not alledg a seisin in himself when he made the Lease c. Yet when a title is made by Barre or Replication as 2 E. 4. 9. is that ought to be certain to all intents because it is traversable and because the Defendant had made a good Justification in Law that ought to be answered by the Plaintiff with a good title to wit that Sir I. T. was seised and made a Lease to him at will which is not so done but it is all one as if he should have replyed that Robin-Hood in Barnwood stood without that by the command of Sir Iohn c. which observe And this by the opinion of Fennor Williams and Cook being only then in Court and Judgment was given accordingly GOodman against Ayling Mich. 6. Jac. An action of Trespass brought that the Defendant the 8. of February 4. Iacobi broke the Plaintiffs house and took and carried away one Brasse Chafer of the Plaintiffs price 20 s. The Defendant pleads that the house is parcell of halfe a yard Land in P. and that it was holden of H. Earl of North as of his Mannor of W. by homage fealty escuage incertain suit of Court inclosure of the Park-pale rent one pound of Comyn and for the Rent behind for three years and the homage and fealty of Th. P. Tenant thereof the Defendant as servant of the Earl and by his command justified the Entry and taking c. The Paintiff replies that the house was held of R. Stanley as of his Mannor of Lee without that that it was held of the Earl in manner and form and upon this they were at issue and the Jury found it was held of the Earl as of his Manner of P. by homage fealty inclosure of the pale rent of a pound of Comyn and no otherwise And if it seemed to the Court that it was not held in manner and form they found for the Plaintiff c. And adjudged for the Defendant for although the verdict did not agree with the plea in manner and form of the tenure yet it agreed in substance in the point for which the taking was to wit that the Land was holden of the Earl and that suffices for there is difference between a Replevin and Trespass For in Replevin because the Avowant is to have return it behoves the Avowant to make a good Title in all things but otherwise it is in Trespasse for there the Defendant is bound only to excuse the Trespass and therefore if there be any tenure it suffices for if the Lord or Bayliffe in his right distrains for that which is not due yet he shall not be punished in Trespass as Littleton 114. for the manner and form And 9. H. 7. which mark by the whole Court and Fleming Justice vouched the 33 H. 8. Dyer 48. B. where the issue was whether a Villain regardant c. or free And the Jury found a Villain in grosse yet it was held good for the substance of the Villianage and of the issue were found H. 5. Jac. rotulo 834.
to whom the private damage is done may have action And he said that the Register contains many Writs for publique wrong when that is done to private men as fol. 95. A man fixes a pale crosse a navigable River by which a Ship was cast away and the Owner maintained action of Trespasse And fol. 97. A man brought Trespasse against one which cast dung into a River by which his Medow was drowned so if the River be infected with watering Hemp or Flax he which hath fishing there may maintain action of Trespasse and 2 H. 4. 11. Action of Trespasse by one for ploughing of Land where one had a common way and so it is 13. H. 7. 17. One brings an action of Trespasse against another for erecting a Lyme Kill where many others are annoyed by that So by an assault made upon a servant the Master and servant also may have severall actions and so in the other cases many may have actions and yet this is no reason to conclude any one of them that hee shall not have his action for in truth those are rather actions upon the Case then actions of Trespass for the truth of the Case is contained in the Writ Also in this case it doth not appeare that there are any other Commoners which have Common there and for that this Objection is not to the purpose and it appears by Heisman and Crackesoods Case 4 Coke 31. That Copy-holder shall have Common by prescription in the demesnes of the Lord and so he concluded and prayed Judgment for the Plaintiff Coke cheife Justice said that it was adjudged in this Court Trinity 41 Eliz. Rot. 153. b. between Holland and Lovell where Commoner brings an action upon the Case as this Case is against a stranger which pleads not guilty and it was found by verdict for the Plaintiff and it was after adjudged for the Plaintiff for insomuch that the Plaintiff may take them damage feasant that proves that he hath wrong and this is the reason that he may distraine doing dammage And by the same reason if the Beasts are gone before his comming he may have action upon his Case for otherwise one that hath many Beasts may destroy all the Common in a night and doe great wrong and shaâ—l not be punished and it is not like to a Nusance for that is publique and may be punished in a Leet but the other is private to the Commoners and cannot be punished in another place nor course and he also cyted one Whitehands case to be adjudged where many Copy-holders prescribe to have Loppings and Toppings of Pollards and Husbands growing upon the Waste of the Lord and the Lord cuts them and one Copy-holder only brings his action upon the Case and adjudged that it was very well maintainable notwithstanding that every other Copy-holder may have the same remedy And he said also that so it was adjudged in the Kings Bench Hillary 5 Jacobi Rot. 1427. in George Englands Case And 2 Edw. 2. b. Covenant 49. If a man Covenant with 20. to make the Sea banks with A. B. and every one of them and after he doth not doe it by which the Land of two is drowned and damnified and they two may have an action of Covenant without the others Quere for it seems every one shall have an action by himselfe But Foster and Wynch Justices seemed that the Plaintiffe ought to sue in his Court that the Beasts of the stranger escaped in the Common or were put in by the Owner for it may be they were put in by the Lord which was owner of the Soile or by a stranger in which cases the Owner of the Beasts shall not be punished But Coke and Warburton seemed the contrary and that this ought to be averred and pleaded by the Defendant in excuse of the Trespasse as in action of Trespasse why he broke his Close And so it was adjourned see Gosnolds case 490. see Judgment Pasche 1612. 10. Jacobi in the Common Bench. Henry Higgins against George Biddle IN Replevin the Defendant made Conusance as Bayliff to Sir Thomas Leigh and Daine Katherine his Wife intimating that Isabel Bradburn was seised of the place where c. in their demesne as of Fee and so seised the first of June 15 H. 8. gives this to the Lord Anthony Fitzherbert and Maud his Wife and to the Heirs males of their bodies which have Issue Thomas Fitzherbert Knight John Fitzherbert and William Fitzherbert Anthony and Maud dyed and the said place where c. discended to Sir Thomas Fitzherbert as Heire to the Donees to the Intayl and the said Thomas Fitzherbert the 5. of Aprill 6 Edw. 6. of that enfeoffed Humphrey Swinnerton Ralph Cotton and Roger Baily to the use of William Fitzherbert and Elizabeth his Wife for their lives and after to the use of Sir Thomas Fitzherbert and the Heirs of his body the remainder to the use of the right Heirs of the said William Fitzherbert William Fitzherbert dyed Sir Thomas Fitzherbert disseised the said Elizabeth and the said John Fitzherbert had Issue Thomas and dyed Sir Thomas Fitzherbert dyed without Heir of his body and the said place where c. discended to the said Thomas as Cousin Heir of the said Sir Thomas and Son and Heir of the said John Fitzherbert which enters and was seised to him and to the Heirs Males of his body as in his Remitter And the said Thomas Fitzherbert 4 of Novemb. 39. Eliz. by Indenture of Bargain and Sale enrolled in the Chancery within six moneths bargained and sold the said Land to Sir William Leighton his heirs and Sir William Leighton 5 of Novemb. 43. Eliz. by Indenture enrolled within six moneths for 4000. l. bargained and sold the said land where c. to Sir Thomas Leigh and Dame Katherine as aforesaid and so avowed the taking for doing damage And the Plaintiff for Barr to the said Avowry pleads that well and true it is that the said Sir William Leighton was seised of the said place where c. in his Demesne as of Fee as it was alledged by the Defendant But further hee saith that the said Sir William Leighton so being thereof seised 1 Decemb 44 Eliz. enfeoffed the Plaintiff in fee and by force of that the Plaintiff was seised and put in his Beasts into the said place where c. without that that the said Sir William Leighton bargained and sold the said Land in which c. to the said Sir Thomas Leighton and Katherine his Wife as in the Conusance hath been alledged by the Defendant upon which the Defendants joyn Issue and it was agreed by all the Justices that notwithstanding this admission of the Parties is an Estoppell by the pleading yet as well the Plaintiffe as the Defendant were admitted to give another evidence to the Jury against their own pleading that is that Sir William Leighton was not seised and so nothing passed by the bargain and sale and also
the Rent is gone If I make a Lease for Life reserving a Rent to me and my Executor neither the Executor nor the Heir shall have the Rent Justice Walmsley held this difference in making a Lease to two during their Lives if one die the other shall have it otherwise it is if it be made to one during the Life of two and one of them die in this case the Lease is ended and there is difference between a reservation of Rent and Lease for Reservation is according to the will and pleasure of the Lessor and Justice Walmsley said if a Lessee for years granteth a Rent to A. during the Life of B. and C. this Reservation is good although one should die which Sir Edward Cook denied and Judgement was given for the Plaintiff in Hills case If I make a Lease for years reserving a Rent and then I grant demise and to farm let Reversionem domus for years and the Rent to have and to hold the Reversion and the Rent from a time past if the Lessee cannot get an Attornement yet it is a good Lease in Reversion and shall take effect after the end of the first Lease habendum terram habendum reversionem est terra revertens and no difference If the Husband with his own money purchaseth for his Wives Joynture Land to them and the Heirs of their two Bodies the Remainder in Fee to the Wife and they have Issue two Sons and the Husband dieth and the Wife suffereth a Recovery to the use of the youngest Son the eldest Son notwithstanding shall have the Land by the Statute of Joyntures Hill 6. Jac. If I set-out my Corn and after take it away the Parson may sue me in the Spiritual Court or bring an Action of Trespass against me but if the Parson sue in the Spiritual Court a stranger for taking away the Tithes which were set out this is a Praemunire in the Parson Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent if a man hold over his terme and pay his old Rent he shall be accounted Tenant at will For one joynt Debt for one Contract you cannot plead Nil debet for part and demur for the rest for he pleads Nil debet and the matter in Law is reserved Licet saepius requisit is a sufficient Request upon a Bond because it is a Debt Unto an Action brought against a man upon a Bond pleads Denis age the case was this that when the Obligation was sealed and delivered the Defendant was of full age but at the time when the Bond bore Date he was under age and at the Assises the Judge there ruled that at the time of making the Bond was when the Bond was sealed and not when it bore Date The Court were of opinion that where a Bishop holds Land discharged of Tithes and he makes a Feofment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest-land discharged of Tithes and the King grants this Land the Grantee is discharged of Tithes and it is a general Rule that he which may have Tithes may be discharged of Tithes If I let Land for years reserving Rent if I command one to put his Cattle into the Land I cannot distrain them for my commandement is a wrong and an Action of case will lie against the commandor If I make a Lease and bid the Tenants cut down the Trees yet I may have an Action of waste against my Lessee In Sir Cheydens case the commandment to take Possession was void unless he had commanded him to expell the Tenant and then he might joyn either to distrain or bring an Action of Debt for the Lease was made by him and two more 28 H. 8. If I make a Lease to the Husband and Wife covenant to do no waste or repair Houses and the Husband dieth and the Wife surviveth and holdeth in if the Wife commit waste or not repair the House no Action lieth against the Wife but to such a Lease the Wife is tied to pay the Rent or to perform a condition made by the part of the Lessor but not observe or perform Covenants of the Lessee Pasch 10. Jacobi The Court much doubted whether one that had a Park and was used to pay one Shoulder of Deer for all manner of Tithes and the Park is dis-parked should now pay Tithes in kinde or not For Wooll and Lamb no Action upon the Statute for not setting out of Tithes for they are no predial Tithes and no Action lies upon this Statute for small Tithes An Administration granted durand minori aetate execut is not within the Statute of 21 H. 8. And by the Civil Law the Judge may after Administration by him granted revoke it and grant it to another And if an Administration be granted to a Feme Covert yet she shall sue in their Court as a Feme sole One Briefly married an Administratrix and entred into Bonds for the Intestates Debts and afterwards the Wife leaveth her Husband and refuseth the Administration and it was granted to another and now B. prayeth a Prohibition for that he may be sued for Debts and denied by the Court untill he be sued This Administration was first granted by Doctor B. and after by him revoked and a new granted by him to the Wives Brother and afterwards he revoked that and established the first Administration and the Appeal A Feofment in Fee by Deed indented Rent reserved it is good but without Deed cannot reserve Rent If Land be devised by three upon condition to pay them 100. l. equally to be divided and one of them dieth his Executor or Administrator shall have the Money and so it is if one were bound to pay Money The Commissary granted Administration of the Intestates Goods to the Wife and did make a Divident of his Estate to some of the rest of his Kindred and this was-held not to be warranted by Law and more then the Ordinary could do because the Administratrix is chargeable to pay all Debts and Promises of the Intestate and to bring up his Children which she cannot do if the Goods be taken away Vbi delinquit ibi punietur If a Copy-holder of Inheritance accept a Lease for years of his Copy-hold the Copy-hold is gone by the opinion of the whole Court If a Legacy be granted of Land this shall not be sued for in the Spiritual Court but if one by Will devise Land to be sold for payment of Legacies this shall be sued for in the Spiritual Court by the opinion of the whole Court If two Fulling-mils be under one Roof and a rate-tithe paid for the Mils and after you alter these Mils and make one a Corn-mill your Rate is gone and you must pay Tithes in kinde or if you have but one
31 H. 8. of Monasteries which gives the Houses dissolved to the King but in the same degree and qualitie as the Abbot had them And the Abbot was charged with the power given by himself and so was the King Which mark VVAnto versus Willingsby Pasch 5. Jacobi The Bishop of Exceter in the time of H. 8. by his Deed gives Land c. to Nicho Turner and by Bill his Cousin in consideration of service done by Turner and for other considerations him moving to them and the Heirs of their bodies and dyes They have Issue Jo. and William N. T. dies and Sybill marries Clap. and they alien the Land to Iohn in Fee Sybill and Iohn leavie a Fine to Walther in Fee of the Land And afterwards Sybill infeoffes William her younger Son who infeoffes Willinghby Io enters and leaseth to Walther and Willingby for the tryall of his title seals a Lease to ward who declares of so many Acres in Sutton Cofeild And the Jury upon a not guilty pleaded foundby the Verdict that the Bishop gave the Tenements aforesaid by his Deed the tenor of which Deed follows c. And by the Deed it appeared that the Lands did lye in Little Sutton within the Lordship of Sutton Cofeild And notwithstanding the Plaintiffe shall recover For first it was held not to be any Joynture within the Statute of 11 H. 7. for it is not any such gift as is intended by the Statute for the Bishop was not any Ancestor of the Husband and the Husband took nothing by that but it was a voluntary recompence given by the Bishop in reward of the service passed And the Statute intended a valuable confideration And also the Bishop might well intend it for the Advancement of the woman who appeared to be Cozen to the Bishop And Tanfeild held if the woman were a Doneâ— within the Statute of 11 H. 7 she could be but for a moyetie for the gift was before the marriage and then they took by moyeties And the Baron dying first the woman came not to any part by the husband but by the course of Law as survivour But quaere of this conceit for the other Judges did not allow it And secondly they held that the Fine of Io. the elder Son of Sybill levied to Walther destroyed the entry of Io. and of Walther For although in truth the Fine passed nothing but by conclusion yet Io. the Son and Walther his Conusee shall be estopped to claim any thing by way of forfeiture against that Fine on the womans part then any title accruing after the Fine For they shall not have any new right but Io the Son upon whom the Land was intayled is barred by the Fine Thirdly although upon view of the Deed made by the Bishop the Land which by the Declaration is layed to be in Sutton Cofeild by the Deed appears to be in Little Sutton yet this is helped by the Verdict by which it is found expresly that the Bishop gave the Lands within written and therefore being so precisely found the Deed is not materiall Which mark KNap versus Peir Iewelch Pasc 5. Jacobi An Ejectment brought for Lands in Wiccombe which were the Deans and Chapters of Chichester And in this case it was agreed by the whole Court that if it be a Corporation by prescription it is sufficient to name them by that name they are called And the Court held that if a man demands Rent upon the Land to avoid a Lease upon a condition the Demand ought to be made in the most open place upon the Land The Dean and Chapter of Chichester made a Lease to one Raunce the Lessee of the Defendant of Lands in Wiccombe rendring Rent payable at the Cathedrall Church of Chichester upon such a condition it was agreed by the whole Court that the Demand ought to be made in the Cathedrall Church of Chichester although it was of the Land Leased And the Demand ought to be made at the setting of the Sun the last instant of that day and when he made his Demand he ought to stand still and not walk up and down for the Law did not allow of walking Demands As Pipham said and he ought to make a formall demand And because those whom the Dean and Chapter did send to make the demand of Rent said bear witnesse we are come hither to demand and receive such Rent it was held by the Court that such a demand was not good And they held the demand ought to be made at that part of the Church where the greatest and most common going in is And in this case it was said by Popham that if a man make a Lease to one for yeers to commence at a day to come and then he lease to another for yeers rendring Rent upon a condition to commence presently And he enter And the first Lease commence and he enter the Rent and Condition reserved upon the second Lease is suspended A man leases for years rendring Rent after he leaseth to another to commence at a day to come and the first Lessee attorns the second shall not have the Rent reserved upon the first Lease by Popham but he doubted of it And Popham and Tanfeild held none contradicting that the Letter of Attorney made by the Dean and Chapter to demand their Rent was not good because the Letter of Attorney was to make a general demand on any part of the Land which the Dean and Chapter had leased And that ought to have been speciall onely for that Land And secondly it was to demand Rent of any person to whom they had made a Lease And the Letter of Attorney ought to be particular and not generall of any person TOmpson versus Collier Mich. 5. Jacobi The Plaintiffe declares upon a Lease of Ejectment made by Robinson and Stone of one Messuage and fourty Acres of Land in the Parish of Stone in the Countie of Stafford The Defendant imparled tryall another Terme and then pleads that within the Parish of Stone there were three Villages A. B. and C. And because the Plaintiffe hath not shewed in which of the Villages the Land he demanded Judgement of the Bill c. And the Plaintiffe demurred upon this Plea And adjudged for the Plaintiffe For first after an Imparlance the Defendant cannot plead in abatement of the Bill for he hath admitted of it to be good by his entring into defence and by his Imparlance And secondly the matter of his Plea is not good because the Defendant hath not shewed in which of the Villages the House and fourty Acres of Land did lye And that he ought to have done For where a man pleads in abatement he alwayes ought to give to the Plaintiffe a letter writ with mark And the whole Court held that this Plea was not in barr but that he should answer over And Williams Justice took this difference that when a man demurrs upon a Plea in abatement And when he
is not a fault in form which is helped by the Statute but it is a defect in matter and then the Jury having assessed intire Dammages for both the Trespasses and that no cause of Action is supposed forme the verdict was not good which the Court granted FReshwater vers Reus Mic. 2 Jac. tenant in tail convenanted to stand seised in consideration of a marriage to be had by his Son with the Daughter of J. S. to the use of himself his heirs untill the marriage be had afterwards to the use of himself for life afterwards to his Son and his wife the daughter of J. S. and the heirs of their bodies and suffers a recovery with a single voucher to that purpose they die without Issue and adjudged that the Entry of him in the Remaindant depending upon the estate Tail was lawfull for first there is no consideration to raise an use for the consideration is onely the marriage of his Son with a stranger the which as to the changing of the possession is not any benefit to the Father for he is as a stranger to that personall particular consideration but if the consideration had been for the establishing of the Land in his name and blood it had been good for that onely concerned the Father and the whole Court agreed that although it were an alteration of the Estate as to himself but not to strangers for if he had after such Covenant to stand seisedtook a Wife she should have had Dower In Trespasse the Proces is Attachment and Distress infinite but if nihil be returned Proces of Outlary lyes and if the Defendant be returned attached by such Goods and Chattels if the Defendant omit to cast an Essoine at the returne of the Writ of Attachment he shall forfeit the Goods by which he was attached but if he cast an Essoine he shall have a speciall Writ reciting the matter to the Sheriff to deliver to him his Goods or Cattell although he doe not appeare at the day of the adjournment of the Essoine And if the Defendant at the returne of the Attachment will appear without an Essoine he may and then he shall not forfeit the Goods And note the Essoine shall not be adjourned by from fifteen dayes to fifteen dayes And if the originall Writ be against many they shall have but one Essoine in personall Actions And if a Lord of the Parliament appeare not he shall forfeit an hundred pounds and upon issue joyned in this Action the Proces against the Jury is the Venire facias Habeas corpus and Distresse And if a Baron of the Parliament be a Defendant then if a Knight be not returned upon the Pannell the Defendant may at the Assises quash the Pannell and if at the Assises the Jury doe not appeare full to wit twelve men this may be supplyed by the Justices at the request of the Plaintiff and the Sheriff ought to returne two Hundreds at the least in this Action and so in every personall Action but foure in reall Actions for if a challenge be made Pro defectu hundredo if two be not returned the Jury shall remaine and a Distringas with a Decem tales shall be awarded returnable in Court but no circumstances shall be awarded in Court for if the Jury in Court doe not appeare full or are challenged for that the Jurors have no freehold and it be tryed a new Habeas corpus shall issue out with a Decem tales if it be desired And if the Jury appeare full in the Court and the Array be challenged either for that it was of the Plaintiffs denomination or that the Sheriff or under Sheriff who returned the Jury are of the Kindred of the Plaintiff or any other principall cause of challenge and this is confessed or tryed by two of the Jurors who have appeared being assigned and sworne by the Court to be tryers of the challenge who shall give their Verdict that the challenge is true then the Array shall be quashed and if he that arrayed the Pannell remaine Sheriff the Venirefacias de novo shall be awarded to the Coroners if there be no cause of exception against them or any of them by reason of Kindred or any other principall cause And if there be cause of challenge to any of them the Venire facias shall issue to the rest and his companion shall not intermeddle with the execution of it and if there be good cause against all then a Venire facias shall issue to Estizors to be appointed by the Court to returne the Writ but if the Sheriff who returned the first Pannell be removed then a new Venire facias shall issue to the Sheriff who shall be then in Office And note no challenge shall be made to the Array returned by the Estizors but by the Poll and if the Jury appeare full and no challenge be made untill twelve be sworne the Jury shall proceed to heare their Evidence and give their Verdict and if the Jury finde for the Plaintiffe then they shall give costs and dammages but if they find for the Defendant they shall finde neither costs nor dammages And the Judgement for the Plaintiff is that the Plaintiff shall recover his dammages found by the Jury and costs of suit but if the Jury find for the Defendant the Judgment is that the Plaintiff shall in t capiat per breve but if Judgement in this case had lyen a Nil dicit confession or Non sum informat then the Court shall award to the Sheriff a Writ to inquire of dammages and no challenge lyes to the Jury upon a Writ to inquire And if the Sheriff returne but twenty and one upon the Jury and twelve of them appeare and try the Issue and give a Verdict it is a good Verdict but if onely ten or eleven of them appeare and the Jury be made up at the Assises De circumstantibus and the Issue be tryed and a Verdict given it is naught and not holpen by the Statute And if the Issue be joyned and the Sheriff be cozen to the Defendant the Plaintiff shall not have a Venire facias upon the challenge of Kindred of the Sheriff to the Defendant but it ought to stay untill that Sheriff be removed and another Sheriff made And if the Defendant be Lord of the Hundred within which Hundred the ten doth arise the Plaintiff may shew that and have a Venire facias to the next Hundred or if the Array be quashed for that cause he may have a Venire facias to the Coroners of the next Villiage in the next Hundred next adjoyning And note The Venire facias shall not issue to the Coroner but upon the principall challenge and if a challenge be to the Tales and that be found true the Tales onely shall be quashed and the principall Pannell shall stand And if an Issue be joyned between the Mayor and Commonalty of a City and another concerning a Trespass done within that
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
any private Prison And it seemes if any do against this Statute that an action of false Imprisonment lies For every one ought to be committed to the Common Goal to the intent that he may be dilivered at the next Goale delivery and also if any be committed to any of the Counters in London unlessthat it be for debt that an action of false Imprisonment lieth for that for these are private Prisons for the Sheriffes of London for Debt only Note in Debt for ten pound the Defendant confesseth five pound and for the other five pound pleades that he oweth nothing by the Law and at the day the Plaintiff would have been nonsuited And it was agreed by all that if he be nonsuited that he shall loose all as well the debt confessed as the other Note the yeare of the Reigne of the King was mistaken in the Record of nisi prius but the Record which remaines in the Court was very well and it was amended For insomuch that it was a sufficent and certaine Issue this was sufficent Authority to the Justices of nisi prius to proceed but nothing being mistaken but the yeare of the Reigne this shall be amended for it is only the misprision of the Clark see Dyer 260. 24 25. 9. Eliz. 11. H. 6. Note also if Tenant in Dower be disseised and the Disseisor makes a Feoffment the Tenant in dower shall recover aâ—l their dammages against the Feoffee for she is not within the Statute of Glocester chapter 1. By which every one shall answer for their time Hillary 8. Jacobi 1611. in the Common Bench. Reyner against Poell See Hillary 6. Jacobi fol IN second deliverance for copy-hold in Brampton in the County of Huntington the case was copy-hold Lands were surrendered to the use of a woman and the Heires of her Body and she took a Husband the Husband and the Wife have Issue 2. Sonnes and after Surrenders to themselves for their lives the remainder to the eldest Son and his Wife in fee the Husband and the Wife dye the eldest Son dies the youngest Son enters and Surrenders to the use of a stranger And the sole question upon which they relied if the Wife was Tenant in tayl or if she had fee simple conditionall and it was argued by Nicholls that the Wife was Tenant in tayl and to prove that he cited 2. cases in Littleton where it is expresly mentioned who may be Tenant in tayl see Sect. 73. 79. And who may have a Formedon see in the discender sect 76. And he grounded that upon reason for that that it cannot be denied But that fee simple might be of copy-hold according to the custome and as well as fee simple as well it may be an estate tayl for every greater containes his lesse and he said that this is grounded upon the reason of other cases as if the King grant to one to hold Plea in his Court of all actions of debt and other actions and then one action of debt is given in case where it lieth not at the common Law yet the Grantee may hold Plea of that But if a new action be framed which was not in experience at the time of the grant but is given after by Statute the grant shall not extend to that and to the Objection that copy-hold is no Tenement within the Statute of gifts c. As to that he saith that that shall be very well intended to be within the Statute as it is used and 4. H. 7. 10. A man makes a gift in tayl by deed the Donee hath an estate tayl in the deed as well as in the Land so Morgan and Maxells case Commentaries 26. And so of Office Honour Dignity and copy-hold also and Dyer 2 and 3. Phil And Mary 114. 61. It is found by speciall verdict that copy-hold Lands have been devisable by copy in tayl and so it is pleaded 2 and 3 Eliz. Dyer 192. b. And when a lesser estate is extracted out of a greater that shall be directed and ordered according to the course of the Common Law and for that the Wife shall have plaint in nature of a Cui in vita and 15. H 8. b. Title Tenement by copy of Court Roll it was said for Law that tayl may be of a copy-hold and that Formedon may well ly of that in descender by protestation to sue in nature of a Formedon in descender at the Common Law and good by all the Justices for though that Formedon in descender was not given but by Statute Yet now this Writ lieth at the Common Law and shall be intended that this hath been a custome time out of mind c. And the Demandant shall recover by advise of all the Justices and the like matter in Essex M. 28. H. 8. And Fitz. affirms that in the chamber of the Dutchy of Lancaster afterwards and also he saith that when custome hath created such Inheritances and that the Land shall be descendable then the Law shall direct the discent according to the Maximes and Rules of the Common Law as incident to every estate discendable and for that shall be possessio Fratris of a copy-hold estate 4. Coke 22. a. Brownes Case b. And there 28. a. Gravener and Tedd the custome of the Mannor of Allesley in the County of Warwick was that copy-hold lands might be granted to any one in fee simple and it was adjudged that a grant to one and the Heires of his Body is within the Custome for be that Estate Tayl or Fee simple conditionall that is within the Custome So he may grant for life or for yeares by the same Custome for Estate in Fee simple includes all and it is a Maxime in Law to him that may do the greater it cannot be but the lesse is lawfull and over he said that in all cases where a man was put to his reall action at the Common Law in all these cases a copy-holder may have plaint with protestation to prosecute in â—…re of the same action and to the objection that there cannot be an Estate tayl of copy-hold Land for that that the Tenant in tayl shall hold of him in revertion and shall not be Tenant to the Lord to that he said that this Estate may be created as well by Cepit extra manus Domini as by Surrender and then there is not any reversion or remainder but it is as if Rent be newly granted in tayl but he said there may be a reversion upon an Estate tayl as well as upon an Estate for life and he did not insist upon the Custome but upon this ground that if the Custome warrant the greater Estate which is the Fee simple the lesse shall be included in that And he did not argue but intended that it would be admitted that discent of copy-hold Land shall not take away entry nor Surrender of that nor shall make discontinuance so prayed Judgement and â—…rne Harris the youngest Serjeant argued for the Plaintiff that it shall be
cannot a Copy-holder which hath so base an estate And if this shall be so these mischeifes will insue That is that this base estate should be of better security then any estate at the Common Law for Fine shall not be a Barr of that for it cannot be levied of that also Recovery cannot be suffered of that for there cannot be a Recovery in value neither of Lands at the Common Law neither of Customary Lands for they cannot be transferred but by the hands of the Lord. And to Littleton he agreed and also 4 Ed. 2. which agrees with this where it is said that at Stebenâ—eath a Surrender was of Copy-hold Lands to one and the Heires of his Body but he said that that shall not be an Estate taile for then the Estate hath such operation that this setles a Reversion and Tenure betwixt the Giver and him to whom it is given but this cannot be of Copy-hold Land for this cannot be held of any but only of the Lord and to the others this Estate doth not lye in Tenure and yet he agreed that of some things which did not lye in Tenure Estate Tail may be but Land may be intailed but Copy-hold Estate is so base that an Estate tail cannot be derived out of it so that though that custome may make an Estate to one and the Heires of his Body yet this cannot be an Estate taile but Fee-simple conditionall and also he agreed that they might have Formedon in Discender but it is the same Formedon which was before the Statute as if Tenant in Fee-simple conditionall before the Statute would alien before issue but it was no Estate taile with the priviledges of an Estate taile before the Statute and to the other matter of Surrender that is the admittance of the parties which is an Estate taile that doth not conclude the Court as it appears by the Lord Barkleys Case in the Commentaries where the Estate pleaded severally by the parties is not traversed by any of them and so concludes and prayes Judgment c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant and he said that there are three questions in the case First If Copy-hold land may be intailed Secondly Admitting that it may be intailed if Surrender makes discontinuance Thirdly If it shall be Remitter and to the first he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that he said that Littleton placed that amongst his Estates of Free-hold and hath been time out of minde and is a primitive Estate and not derived out of the Estate of the Lord and the Lord is not the Creator of that but the means to convey that after that it is cerated and what is created then shall have all the priviledges and Benefits which are incident to it and shall be nursed by the custome and is time out of minde and the Law alwaies takes notice of it and he cited 24 H. 4. 323. by Hankf Bracton Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke which is not simply an Estate at the will of the Lord but at the VVill of the Lord according to the custome of the Mannor and when it hath gained the reputation of Free-hold then it shall be dircted according to the rules of the Common Law and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed and he saith That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue intaile also a Copy-holder shall have a Cui in vita also a Copy-hold is within the Statute of Limitation and so upon the Statute of buying of pretenced rights And it is alway intended when a Statute speakes of Lands and Tenements that Copy-hold Lands shall be within that And he saith That all the Objections which have been made of the contrary part are answered in Heydons Case but he relyed upon that that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land 25 Ed. 3. 46. Estate tayle is of a Corrody and office which proves that Copy-hold is a reall Inheritance and for that shall be within the Statute 46 Ed. 3. 21. Gavelkinde Land may be intailed 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled and he said that the reason is that for that it is Inheritance and time hath applyed them to an Estate and so concluded and prayed Judgment for the Defendant Hutton Serjeant argued for the Plaintiff that Copy-hold Lands cannot be intailed for that is but a customary Estate and the Law doth not take any notice of it but onely according to Custome for there were no Estates tayle before the Statute for then all were Fee simple absolute or conditionall that is either implyed or by limitation which cannot be of an Estate tayle which is not within the Statute of Westminster 2. for no Actions are maintainable by that but those which are by the Custome and a Writ of false Judgment See Fitzherberts Natura brevium 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents which are incident to Estates at the Common Law without Custome as Dower See Revetts Case and so is Tenancy by the Curtesie and there shall be no discent of that to take away Entry and so of other derivatives And he seemed that it is not within the Statute for three reasons apparent within the Statute First That it is hard that Givers shall be barred of their reversions but in case of Copy-holds the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent but onely Subpena and in this Case the Lord may releive himselfe for the losse of his services for that the Statute provides no remedy for him Secondly That the Statute doth not intend any Lands but those of which there is actuall reversion or remainder and those which passe by Deed so that the will of the Giver expressed in the Charter may be observed and of which there may be a subdivision as Lord Mesne and Tenant for there shall be alwayes a reversion of the Estate tayle and the Donee shall hold of the Donor and not of the Lord. Also it seems that the Statute doth not intend to provide for any but those for whom the VVrit in the Formedon ordained by the Statute lyes and agreed that for Offices and such like Formedon lyeth if the party will admit Estate tayle to be discontinued Also the Statute intends those things of which a Fine may be levyed for the Statute provides that the Fine in his owne right should be nothing but by Copy-holder Fine cannot be levied and for that he shall not be within the
Mannor held in cheife and of other Mannors and Lands held of a Common person in socage and had Issue foure Sonns Thomas William Humphrey Richard And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life without impeachment of wast and after his desease to the use of such Farmors and Tenants and for such Estates as shall be contained in such Grants as he shall make them and after that to the use of his last will and after that to the use of VVilliam his second sonn in tayle the Remainder to Humphrey his third Son in tayle the Remainder to Richard the fourth Sonn in tayle the Remainder to his own right Heires with power of Revocation and after makes a Feoflment according to the covenant and after that purchases eight other acres held of another common person in socage and after makes revocation of the said Estates of some of the Mannors and Lands which were not held by Knights service and after that makes his Will and devises the Land that he had purchased as before and all the other Land whereof he had made the Revocation to Thomas his eldest son the Heirs Males of his body for 500. years provided that if he alien and dye without Issue that then it shall remaine to William his second sonne in tayle with the like proviso as before and after dyed and the Jury found that the Lands whereof no revocation is made exceeds two parts of all his Lands Thomas the eldest sonne enters the 8. Acres purchased as before and dyes without Issue male having Issue a Daughter of whom this Defendant claimes these eight Acres and the Plaintiff claims them by William the second Son And Dodridge the Kings Serjeant argued for the Plaintiff intending that the sole question is for the 8. acres purchased and if the devise of that be good or not by the Statute of 34. H. 8. And to that the point is only a man which hath Lands held in cheife by Knights service and other Lands held of a common person in Socage conveys by act executed in his life time more then two parts and after purchases other Lands and devises those if the devise be good or not And it seems to him that the devise is good and he saith that it hath been adjudged in the selfe same case and between the same parties And this Judgment hath been affirmed by writ of Error and the devise to Thomas and the Heirs males of his body for 500. years was a good estate tayle and for that he would not dispute it against these two Judgments But to the other question hee intended that the devise was good and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things 1. To execute estates in the life time of the party for advancement of his Wife or Children or payment of his debts and for that see 14. Eliz. Dyer and that may be done also by the common Law before the making of this statute But this statute restrains to two parts and for the third part makes the Conveyance voyd as touching the Lord But the statute enables to dispose by Will a parts where he cannot dispose any part by the Common Law if it be not by special Custome but the use only was deviseable by the common Law this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise or which he purchased afterwards for a third part of this Land should remain which hee had at the time of the devise made and if a third part of the Land did not remain at the time of the devise made sufficient should be taken out of that but if the Devisor purchase other Lands after hee may those wholly dispose And for that it was adjudged Trin. 26. Eliz. between Ive and Stacye That a man cannot convey two parts of his Lands by act executed in his life time and devise the third part or any part so held by Knights service and also he relyed upon the words of the statute that is having Lands held by Knights service that this shall be intended at the time of the devise as it was resolved in Butler Bakers Case That is that the statute implies two things that is property and time of property which ought to be at the time of the devise But here at the time of the devise the Devisor was not having of Lands held by Knights service for of those he was only Tenant for life and the having intended by the statute ought to be reall enjoying and perfect having by taking and not by retaining though that in Carrs Case cited in Butler and Bakers Case rent extinct be sufficient to make Wardship yet this is no sufficient having to make a devise void for any part Also if the Statute extend to all Lands to be after purchased the party shall never be in quiet and for that the Statute doth not intend Lands which shall be purchased afterwards for the Statute is having which is in the Present tence and not which he shall have which is in the Future tence and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands assures that to his Wife in joynture and 8. years after purchases Lands held in cheife by Knights service and devises two parts of that and agreed that the Queen shall not have any part of the land conveyed for Joynture for this was conveyed before the purchase of the other which agrees with the principall case and though to the Question what had the Devisor It was having of Lands held in Capite insomuch that he had Fee-simple expectant upon all the estates tayl he intended that this is no having within the Statute but that the Statute intend such having of which profit ariseth and out of which the K. or other Lord may be answered by the receipt of the profits which cannot be by him which hath fee-simple expectant upon an estate tayle of which no Rent is reserved and also the estate tayle by intendment shall have continuance till the end of the world and 40. Edw 3. 37. b. in rationabili parte bonorum it was pleaded that the Plaintiff had reversion discended from his Father and so hath received advancement And it seems that was no plea in so much that the reversion depends upon an estate tayle and upon which no Rent was reserved and so no advancement So of a conveyance within this Statute ought such advancement to the youngest sonne which continues as it is agreed in Binghams Case 2 Coke that if a man convey lands to his youngest sonne and he convey that over to a stranger in the life time of his father for good consideration and after the Father dies this
are to be recovered agreement is a good Plea as in 47. Ed. 3. 24. and 10. Ed. 3. in Debt upon a Lease for yeares concord is a good Plea and 7. Ed. 4. 23. in Detinue for charters it is a good Plea and in 6. Ed. 6. Dyer 75. 25. it is a positive rule that in all Cases and Actions in which nothing but amends is to be recovered in Dammages there an agreement with an execution of that is a good Plea and for that in Detinue it shall be a good Barr So in Covenant it was adjudged in Blakes Case 6. Coke 43. 6. As where an Obligation is with a Condition to pay money at such a day the payment of another thing is good if the Obligation be to pay a certaine Sum of money But if a man be bound in a Sum of money to make another Collaterall thing the acceptance of an other thing Collaterall shall not be a Barr for money is to the measure and the price of every thing if a man be bound in two Horses to pay one acceptance of another thing shall be no Barr But the acceptance of such a Sum of money in satisfaction is good Barr for this is the just Estimation and measure of every thing see 12. H. 4 Where a man was bound in an Obligation with Condition that he shall make acknowledgement of the Obligation of twenty pound to the Obligee before such a day c. And agreements are much favoured for it is a Maxim and Interest of the Common-Wealth that there be an end of suits for by Concord small thing increase and by Discord great things are consumed and the beginning of all Fines is Et est Cordia talis c. and the 11. of Rich. 2. Barr. 242. In Debt upon a Lease for yeares the Defendant pleads that by the same Deed by which the Land is let the Plaintiff grants that the Defendant ought to repaire the houses lett when they are ruinous at the costs of the Plaintiff and he retaines the Rent for the repaire of the houses being ruinous and a good Barr And if it be a right of Inheritance or Free-hold that cannot be barred or extinct by acceptance of another thing though it be of other Land as of another Mannor as it is agreed in Vernons Case 4. of Coke A woman accepts Rent out of the Land of which shee is not Dowable in recompence of her Dower this shall not be a Barr 5. Ed. 4. 22. 3. Eliz. Dyer and he said that the book of 11. H 7. 13. is misprinted insomuch that it is reported to be adjudged But in truth this was not adujdged for then it would not say in 13. H. 7. 20. the residue before 11. H. 7. 13. And in the 16. of H. 7. warranty it is agreed that in wast against Lessee for yeares Agreement is a good Plea otherwise if it be against Lessee for life And if they have adjudged 11. H. 7. 15. which was so small a time before they would not have adjudged the contrary in 16. H. 7. and Hillary 6. Ed. 6. Bendlowes in wast against Lessee for yeares in the Tenet Agreement is affirmed to be good Barr And in the book of Reports in the time of H. 7. printed in time of H. 8. the yeare of the 11. of H. 7. there was no print at all And he then upon that inferrs that as well as a man might agree for Trees so well might he agree for Tearme and to the booke of 9. H. 5. 15. a. That release of one Plaintiff in an Action of wast is a good Barr he said that this is to be understood in wast of the Tenant and then it shall be a good Barr see in the 12. of Ed. 4. 1. a. Two joyne in an Action of wast and the one was summoned and severed the other recovered the halfe of the place wasted and in the 26. H. 6. 8. Agreement is a good Barr in an Action of wast and he intended that in all Actions by force and Armes where a Capias lies at the Common Law Agreement or Arbitrement are good Pleas as Ravishment of Ward which is given by Statute in lieu of Trespasse for taking of a Ward where a Capias lies at the Common Law and Agreement was a Bar and for that now Agreement shall be a Barr in Ravishment of a Ward And he intended that an Ejectione Firme which is Trespasse in his nature and the Ejectment is added of later times And in all their Entries this is entred Trespasse and severs the Trespasse from the Ejectment and the Ejectment will vanish and the Statute of 4. Ed. 3. chap. 6. which gives Action to Executor of goods carried away in the life time of the Testator extends to that which proves this to be Trespasse for by the Statute the Executors may have Ejectione Firme for Ejectment made to their Testator notwithstanding that ancient Demesne is a good Plea in that and in the 44. Ed. 3. 22. That is called an Action of Trespasse and so all the Entries are De Placito Transgressionis and in the book of Entries in Mayhme it is cited to be adjudged 26. H. 6. Trin. Rot. 27. that concord is a good Plea in an appeale of mayne 35. H. 6. 30. But in an Action in the realty it is no Plea otherwise in Quare Impedit for there nothing is to be recovered but that which is personall and he intended that Agreement by one of the Defendants in personall Action is a good Barr as in 36. H. 6. Barr concord made by the freind of one of the parties was a good Barr Statham Covenant accordingly and 35. H. 6. 〈◊〉 7. H. 7. One of the petty Jury in Attaint pleads agreement and good and in an Ejectione Frime Lease made to try Title is not within the Statute of buying of Titles if it be not made to great men but to a Servant of him which hath the Inheritance and cannot mainetaine or countenance the Action and Bracton fol. 220. Lessee for yeares hath three remidies if he be evicted that is Covenant Quare Ejecit infra Terminum against the Feoffee of the Ejector or an Ejectione Firme against the Immediate Ejectors and in Ejectione Firme the Tearme shall be recovered as 12. H. 4. 1. H. 5. and 11. H. 6. 6. Non-Tenure is a good Plea in Ejectione Firme ergo the Tearm shall be recovered 7. Ed. 4. 6. 13. H. 7. 21 and 14. H. 7. It is adjudged that the Tearme shall bee recovered in Ejectione Firme and so he concluded that the agreement shall be a good Barr because Wise men seeke peace Fooles seeke strifes And that Judgement shall be given for the Defendant which was done accordingly Mâ—hcaelmass 1611. 9. Jacobi in the Common Bench. Mallet against Mallet LANDS were given to two men and to the Heires of their two Bodies begotten and the one died without Issue and the remainder of the halfe reverted to the Donor and he brought an Action of wast
Lessee for years or life surrender before the performance of the condition the Fee doth never increase as it is 14. H. 8. 20. and the Lord Chandois Case 6 Coke But the Estate tayl remaines after the condition performed and then hath the Fee dependant upon the Estate tayl and that there is a necessity that there shall be an office as it was in Nicholls Case in the Com because of the right and that after the condition performed then the Fee shall vest Ab Initio and this corporates together partly by the Letters Patents and partly by the performance of the condition and so it is in Butler and Bakers case that it is not a Grant in futuro but one immediate Grant to take effect In futuro see 2. H. 7. for the execution of Chantrey and Grendons Case in the Com. and 2. H. 7. If the King grant Land to J. S. for life the remainder to the right Heires of J. R. which is in life the remainder is good as well as in case of a common person and so he seemed that Judgement shall be given for the Plaintiff Walmesley Justice agreed that it shall be remainder and not reversion as if Lands begin to the Husband and the Wife and to the Heires of the Body of the Husband the Husband dies this is a remainder in the Heires Males and not a reversion for it cannot grow higher and it was not in the King as one distinct Estate before the Grant and Formedon in remainder lieth for it and though it be misrecited yet it shall be good and ayded by the Statute of Misrecitalls and grant of a thousand is suffered to convey the reversion of a thousand by the common Law and if the recitall were that it was a reversion depending upon the Estate tayl it was good without question and the King may grant five hundred reversions if he will and that the last Damus is ex certa scientia et mêre motu nostris Damus et concedimus that if the Patentee pay twenty shillings Tunc sciatis quod nos de ampliori gracia ea certa scientia et mero motu nostris concedimus c. and that the word Volumus will amount to a Covenant or a Release as 32. H. 6. The King by his Patent by these words Nolent that he shall be impleaded and this amounts to a release and so words which intends expresly words of Covenant may be pleaded as a Grant in case of the King as it is 25 Ed. 4 So is a common person license another to occupy his Land this amounts to a Lease of Land if the time be expressed so if a man grants to another that he shall have and injoy his Land to him and his Heires that by that Fee passeth And if the King grant reversion to begin at Michaelmasse the Grant is void for that it is to begin totally at Michaelmasse and doth not looke back to any precedent thing But if it relate to any precedent Act then that shall be good by relation and shall passe ab Initio see Com. Walsinghams Case 553. b. that in such case the performance of the condition divests the Estate out of the King and there is no difference in this case betwixt the King and a common person and agreed in the case of Littleton Where a man makes a Lease for yeares upon condition to have Fee that the Fee shall not passe till the condition be performed and with this agrees 2. R. 2. But if a man makes a Charter of Feoffment upon condition that if the Feoffee injoy the Land peaceably for fifteen years that the Feoffment shall be void In this case the Fee-simple determineth by the performance of the Condition and in this case the Fee passeth ab Initio by the Livery as in 10. Assise 18. Assise 1. 44. Assise 49 Assise And he agreed that the words Habeat et Teneat the Reversion passes and this is good Fee-simple and this refers to the first Damus et Concedimus and so concluded that he seemed that Judgement shall be given for the Plaintiff Coke cheife Justice accordingly and he conceived that there are two questions upon the substance of the Grant And to the first objection that hath been made that is that reversion was granted and increase of an Estate cannot be of a reversion and in all these cases which have been put they are of an Estate in possession and so is the case of Littleton also and he agreed that it shall not be good if it be not good ab Initio that though there be not other words then Reversionem predictam That it shall be good And to the second point upon the former He conceived that the Grant is but a Grant and that the condition is but precedent Limitation when the Estate of Fee-simple shall begin and so it is said by Montague in Colthurst and Brinskins Case in the Com. And further he saith that there are four things necessary for increasing an Estate First that it ought to be an Estate upon which the increasing Estate may increase Secondly the particular Estate ought to continue for otherwise it is grant of a reversion in Futuro Thirdly That the Estate which is to increase ought to vest by the performance of the Condition for if there be disturbance that it cannot then vest then it can never vest Foutthly that both the Estates as well the particular Estate as the Estate which is to increase ought to have their beginning by one self same Deed or by diverse Deeds delivered at one self same time And to the first and to prove that he cyted 44 Ed. 3. Attaint 22. Lessee for yeares upon condition to have Fee granes his Estate the Fee doth not increase upon the performance of the condition for then it shall passe as a Reversion and so the particular Tenant surrenders his Estate as it is sayd 14. H. 8. For if the Privity be destroyed the Fee will never increase but there is no such â—ycity but that if the substance of the Estate remains though it doth not remain in such form as it was at the first Reversion the Estate may well increase as if Lands be given to the Husband and wife and to the Heirs of the Husband upon the Body of the Wife to be begotten the Wife dies and the Husband is Tenant after possibility of Issue extinct yet he may well perform the condition for the Estate remaines in substance and with this agrees 20 H. 6. Ayd and so it is if a Lease be made to two for years upon condition to have fee one dies the other may perform the Condition and shall have Fee-simple as it is agreed by 12. Assise 5. the reason is that the privity remaines and the Estate also in substance Thirdly As to that also it seems that it ought to vest upon the performance of the condition which is the time limited for the beginning of the Estate and if it do not vest
twenty yeares if the Husband and wife and the Issue male of their Bodies so long live and it was there adjudged that the Lease doth not determine during the lives of any of them for in this disjunctive it is referred to an Intiâ—e Sentence and is as much as if he had sayd if the Husband or the Wife or the Issue of their Bodies so long live Hillary 7. Jacobi 1609. In the Common Bench. Borough of Yarmouth THE King John by his Letters Patents granted that the Burrough of Yarmouth should be incorporated and the grant is made Burgensibus without naming of their Successors and also he granted Burgensibus teneri placita coram balivis and in pleading it was not averred that there were Bailiffs there and it was objected that the Burrough cannot be incorporated but men which inhabite in that but to that it was resolved that the Grant is good and the Lord Coke sayd that he had seen many old Grants to the Citizens of such a Town and Good and so that the Grant Burgensibus that the Bâ—rrough should be incorporated being an old Grant should have favorable construction but the doubt was for that that it was not averred that there were Bailiffs of Yarmouth and if a Grant to hold Pleas and doth not say before whom the Grant is voyd according to 44 Ed. 3. 2 H. 7. 21 Ed. 4. and for that it was adjourned But the opinion of all the Court was that the Grant made Burgensibus was good without naming of their Successors as in the case of Grant civibus without more Note that Executors or Administrators shall not finde speciall Bail for the Debt of the Testator though that the debt be for a great sum as three thousand pound or more for it is not their Debt nor his Body shall not be lyable to execution for that 43 Ed. 3. Suit was commenced hanging another Writ it is a good Plea though that the Writ was returnable in the Common Bench and the last Suit was begun in a Base Court but if so be and doth not appeare to this Court that the Plaintiff begun suit in a base Court for the same Debt for which the Suit is here begun Attachment shall be awarded see 2 H. 6. 9 H. 6. but this ought to appear to the Court by Affidavit c. Hillary 7 Jacobi 1609. In the Common Bench. Chapman against Pendleton IN second deliverance the case was this A man seised of a house and fifty Acres of Land held by Rent fealty and Harriot service enfeoffs the Lord of three Acres parcell of the Land and after infeoffs the plaintiff in this Action of three other Acres and upon this rhe sole question was if by this Feoffment to the Lord of parcell Harriot service is extinct or not Harris Serjeant conceived that the Harriot remaines for he sayd that it is reserved to the Reversion of the Tenure but it is not as anuall Service but casuall and it is not like to rectify for that it is incident to every service And by 43 Ed. 3. 3 It is no part of the service but Improvement of the service And Bracton in his Tractate De Relevijs 2 Booke 2 7. saith that Est alia prestatio vocata Harriot c. Que magis fit de gratia quam ex Jure and it is not like to a releife see the Booke at large and he agreed that if the Tenant had made fifty severall Feoffments to fifty severall men that every of them shall pay a severall Harriot as it appears by Bruertons Case 6 Coke 1. a 34. Ed. 3. Harriot 1. 2 Ed. 2 Avowry 184. 〈◊〉 Ed. 2. Ibidim 206. 11 Ed. 3. Avowry 101. 24 Ed 3. 73. a 34 Assise 15. 22. Ed. 4. 36. 37. 29 H. 8. Tenures 64. But he grounded his Argument principally upon Littleton 122. 223. Where it is sayd that the reason why Homage and Fealty remaine if the Lord purchase part of the Tenancy is for that that they are of annuall Services and it seemed to him that Littleton is grounded upon 7 Ed. 4. 15. Extinguishment 2. 8 Ed 3. 64. 24. Ed 3 B. Apportionment last case which accords the reason and upon this he concluded that for that that the Harriot is not annuall it shall not be extinct by the Feoffment but remaines but he agreed if a man makes a Lease for years rendring Rent and parcell of the Land comes to the Lord the Rent shall be apportioned if it be by Lawfull means as it appears by 6 R. 2. F. Quid Juris clamat 17. Plesingtons Case and 24 H. 8. Dyer 4. 1. Rushdens case by which c. Nicholls Serjeant that it hath been agreed that it is intire service and that then he concluded upon that that it shall be of the nature of other intire services as it apperrs by 2 Ed. 2. Avowry 184. and 34 Ed. 3 F. Harriot 1. 5. Ed. 2. Avowry 206. And he agreed that in the case of Littleton the Homage and Fealty remain and the escuage shall be apportioned but this is not for the reason alledged in Littleton that is for that that they are not annuall services but for that that the Homage is incident to every Knights service and as the Lord Coke sayd fealty is incident to every service in generall and the Tenant shall make Oath to be faithfull and loyall to his Lord for all the Tenements which he holds of him and the reason for which the Escuage shall be apportioned is for that that it is but as a penalty which is inflicted upon the Tenant for that that he did not make his services as it appears by the pleading of it and shall be apportioned according to the Assesment by Parliament and by 22 Ed 4. It appears that this purchase by the Lord is as a release and if the Lord release his services in part this extincts the services in all and he sayd there is no difference where an intire service is to be payd every third or fourth year and where it is to be payd every year as to that purpose and yet in one case it is annuall and in the other it is casuall and yet in both cases if the Lord purchase parcell of the Land of the Tenant all the intire services shall be extinct and gone though that they are to be performed every third or fourth year by which c. Foster Justice that the Harriot is entire service and for that though that it be not annuall it shall be extinct by purchase of parcell of the Tenancy by the Lord as if a man makes a Feoffment with warranty and takes back an Estate of part the warranty is extinct as it appears by the 29. of Assise so if a man hold his Land by the service to repaire parcell of the fence of a Park of the Lords and the Lord purchase parcell of the Tenancy the Tenure is extinct as it appears by 15 Ed. 3. And it is