in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
the Justices did agree that the assignement was good but that the two assignees could not work severally but together with one stock or such workmen as belonged to them both And Cook who reported the opinions of the Justices was of Counsel with the Lord Mountjoy And note in that case it was said That Proviso being coupled with other words of covenant and grant doth not create a Condition but shall be of the same nature as the other words with which it is coupled Pasch 25. Eliz. In the Common Pleas. 25. WEBBE and POTTER'S Case In an Ejectione firme the Case was this JOhn Harris gave Land in Frankmarriage to one White And the words of the Deed were Dedi concessi I. W. in liberum maritagium Joannae filiae suae Habendum eidem J. W. haeredibus suis in perpetuum tenendum de Capitalibus Dominis fâ—odi c. with warranty to the Husband and his heirs Periam Justice although the usuall words of gift in Frankmarriage are not observed yet the Frankmarriage shall not be destroyed for the usuall words are In liberum maritagium cum Joanna filia mea in the ablative case And it was holden by all the Justices that notwithstanding that the Frankmarriage was good Also a gift in Frankmarriage after the espousals is good as it was holden by all the Justices And see Fitz. Tit. Taile 4. E. 3. and 2. H. 3. Dower 199. And he said That a gift in Frankmarriage before the Stat. of Donis c. was a Feesimple but now it is but a special tail and if it should not be in law a gift in Frankmarriage then the Husband and Wife have an estate but for their lives for they cannot have an estate taile for that there are not words of limitation of such estate in the gift And hee cited 4. E. 3. and 45. E. 3. 20. to prove his opinion and hee much relyed upon the intent of the Donor which ought to be observed in construction of such Gifts according to the Statute And because the Habendum is repugnant to the premisses and would destroy the Frank-marriage it is void and the premisses shall stand good and to prove that he cited 9. E. 3. 13. E. 1. 32. E. 1. Tit. Taile 25. 3. H. 4. by Hill And he took this difference Where a Remainder is limited upon a Gift in Frankmarriage to a stranger and where it is limited to one of the Donees for in the first case the Remainder is good for the benefit of the stranger but in the second case it is void And he said that if a Rent be reserved upon such a Gift that it should be void during the four degrees but afterwards the Reservation should be good And if the Donor grant the Reversion over and the Donee in Frank-marriage attourn now he shall pay rent to the Grantee for by Littleton he hath lost the Priviledg of Frankmarriage viz. the Aquitall and no privitie is betwixt the Grantee and the Donees 10. Ass 26. 4. H. 6. That it is not any taile if it be not Frankmarriage Windham Justice Although it be no estate in Frankmarriage yet is it an estate taile and he cited 8. E. 3. although there want the word Heirs Also if a man give lands to another semini suo it is good 45. E. 3 Statham taile If it be not Frankmarriage yet it is a good estate in taile 19. Ass Land was given to Husband and Wife in Frank-marriage infra annos nubiles and afterwards they are divorced the Wife hath an estate in taile Meade Justice did agree with Windham and said That although there be not any Tenure nor any Aquitall yet it may be a good Frankmarriage as if a Rent Common or Reversion be given in Frankmarriage it is good and yet there is not any Tenure nor aquitall Dyer Chief Justice conceived That it is not Frankmarriage because that the usuall words in such Gifts are not observed for he said that the gift ought to be in liberum Maritagium and not Joannae filiae suae for that is not the usuall form of the words And he said That if the word Liberum be omitted that it is not Frankmarriage for that he said is as it were a Maxime and therefore the usuall words ought to be observed And by the same reason such a Gift cannot be with a man but ought to be with a woman also such a Gift ought to be with one of the blood of the Donor who by possibilitie might be his Heir Also there ought to be a Tenure betwixt the Donor and Donee and also an Aquitall And if these grounds and ceremonies be not observed it is not Frankmarriage Also if it once take effect as a Frankmarriage and afterwards the Donor granteth the Reversion over or if the Reversion doth descend to the Donees yet it shall not be utterly destroyed but shall remaine as an estate taile and not as an estate for life because it once took effect in the Donees and their issues as a Frankmarriage 31. E. 1. taile 116. If a man give lands in Frankmarriage the remainder to the Donees and the heirs of their bodies yet it is a good Frankmarriage And if a man give Lands in Frankmarriage the Remainder to another in taile it shall not destroy the Frankmarriage because that the Donor hath the Reversion in Fee in himself and the Donees shall hold of him and not of him in the Remainder in taile but if the Remainder had been limited to another in Fee simple then it had been otherwise Also if the Donor grant the Services of the Donees in Frankmarriage reserving the Reversion to himself it is no good Grant although that the Donees attourne for that the Services are incident to the Reversion but if he grant the Reversion then they do passe And he concluded That the Husband had the whole and that the Wife had nothing for she was no purchaser of the premisses because that the Gift did not take effect as a gift in Frankmariage And he said that he doth not construe it so by the intent of the Gift for here is an expresse limitation of the Fee to the Husband and his heirs which shall not be contradicted by any intendment for an Intendment ought to give way to an expresse Limitation as a consideration implyed ought to give place to a consideration expressed And afterwards this yeer it was adjudged that it was not a Frankmarriage nor a Gift in taile but that it was a Fee simple And the Justices said that although the old books are That where it takes not effect as a Frankmarriage that yet it shall take effect as an estate taile those Books are against Law But they agreed That where once the Gift doth take effect as a Frankmarriage that by matter ex post facto it might be turned to an estate in taile Pasch 26. Eliz. In the Common Pleas. 26. MEade and Windham the other Justices being absent were of opinion That a
the Kings Bench by the opinion of the whole Court the Judgment was reversed Trin. 21 Jacobi Intratur Hill 20 Jac. Rot. 137. in the Kings Bench. 444. KITE and SMITH's Case ONe Recovered by Erronious Judgment and the Defendant did promise unto the Plaintiffe That if he would forbear to take forth Execution that at such a day certain he would pay him the debt and damages And Action upon the Case was brought upon that Promise And now it was moved by the Defendants Councel That there was not any Consideration upon which the Promise could be made because the Judgment was an Erronious Judgment It was adjourned But I conceive that because it doth not appear to the Court but that the Judgment is a good Judgment that it is a good Consideration Otherwise if the Judgment had been reversed by a Writ of Error before the Action upon the Case brought upon the Promise for there it doth appear judicially to the Court that the Judgment was Erronious Trin. 21 Jacobi in the Kings Bench. 445. TOTNAM and HOPKIN's Case AN Action upon the Case was brought upon an Assumpsit And the Plaintiff did declare That in Consideration of c. the Defendant 1 Martii did promise to pay and deliver to the Plaintiffe 20 Quarters of Barley the next Seed-time Upon Non Assumpsit pleaded it was found for the Plaintiffe It was moved for the Defendant That the Plaintiffe ought to have shewed in his Declaration when the Seed-time was which he hath not done But it was answered That he needeth not so to do because he brings his Action half a year after the Promise for not payment of the same at Seed-time which was betwixt the Promise and the Assumpsit Dodderidge Justice If I promise to pay you so much Corn at Harvest next If it appeareth that the Harvest is ended before the Action brought it is good without shewing the time of the Harvest for it is apparent to the Court that the Harvest is past And here the Action being brought at Michaelmas it sufficiently appears that the Harvest is past And Judgment was given for the â—laintiffe Trin. 21 Iacobi Iatratur Hill 1â— Iacobi Rot. 652. inter Hard Foy in the Kings Bench. 446. KELLAWAY's Case IN an Ejectione Firme brought for the Mannor of Lillington upon a Lease made by Kellaway to Fey It was found by a special Verdict That M. Kellaway seised of the Mannor of Lillington in Fee holden in Soccage did devise the same by his Will in writing in these words viz. For the good will I bear unto the name of the Kellawayes I give all my Lands to John Kellaway in tail the Remainder to my right Heirs so long as they keep the true intent and meaning of this my Will To have to the said John Kellaway and the heirs of his body untill John Kellaway or any of his issues go about to alter and change the intent and meaning of this my Will Then and in such case it shall be lawfull to and for H. Kellaway to enter and have the Land in tail with the like limitation And so the Lands was put in Remainder to five several persons the Remainder to the right heirs of the Devisor M. Kellaway dyed without issue John Kellaway is heir and entred and demised the same to R. K. for 500 years and afterwards granted all his estate to Hard. Afterwards John Kellaway did agree by Deed indented with W. K. to levy a Fine of the Reversion to W. and his heirs H. Kellaway entred according to the words of the Proviso in the Will and made the Lease to Foy who brought an Ejectione Firme against Hard. And whether H. Kellaway might lawfully enter or no was the Question It was objected That in the Case there is not any Forfeiture because the Fine was without proclamations and so it was a Discontinuance only The first Question is If the Remainder doth continue The second is If it be a Perpetuity or a Limitation John Kellaway is Tenant in tail by Devise untill such time as John Kellaway or any of his issues agree or go about to alter or change the estate tail mentioned in the Will with Proviso to make Leases for 21 years 3 lives or to make Jointures Then his Will is That it shall be lawfull for H. K. to enter and to have the Land with the same limitations If it be a Perpetuity then it is for the Plaintiffe but if it be but a Limitation then it is for the Defendant The Fine was levied without proclamations and H. K. entreth for the Forfeiture Damport It is no Perpetuity but a Limitation which is not restrained by the Law as Perpetuities are Untill such time as c. shall discontinue c. The Jury find an Agreement by Indenture The act which is alleadged to be the breach is Conclusivit agreavit not to levy a Fine with proclamations but to levy a Fine without proclamations which is but a Discontinuance Yelverton If the Fine had been with proclamations then without doubt he in the Remainder during the life of him who levied it had been barred The Devise was To have to them and to the heirs of their bodies so long as they and every of their issues do observe perform fulfill and keep the true meaning of this my Will touching the entailed Lands in form following and no otherwise And therfore I M. Kellaway do devise unto John Kellaway the issue of his body the Remainder c. â—o have to the said John Kellaway and the issue of his body untill he or any of his issue shall go about to conclude do or make any act or acts to alien discontinue or change the true meaning of this my Will That then my Will is and I do give and bequeath to H K in tail And that it shall be lawfull for him the said H. K. or his issue to enter immediately upon such assent conclusion or going about to conclude c. And that H. K. and his issue shall leave it untill he or any of them go about c. C. 9 part Sundayes Case 128. where it was resolved That no Condition or Limitation be it by act executed or by limitation of an Use or by a Devise can bar Tenant in tail to alien by a common Recovery v. C. 3. part acc The Case was not resolved but it was adjourned to another day to be argued and then the Court to deliver their opinions in it Trin. 21. Intratur Trin. 20 Jacobi Rot. 811. in the Kings Bench. 447. KNIGHT's Case IN this Case George Crook said That Land could not belong to Land yet in a Will such Land which had been enjoyed with other might pass by the words cum pertinaciis As where A. hath two houses adjoyning viz. the Swan and the Red-Lyon and A. hath the Swan in his own possession and occupieth a Parlour or Hall which belongs in truth to the Red-Lyon with the Swan-house and then leaseth the Red-lyon
reasonable Herbage Here the Grant is not De omnibus grossis arboribus bonis catellis Felonum and of the Goods of Felons themselves and in the former Patent these were granted and so the Grant is for the Kings benefit and to the prejudice of the Patentee Also this Patent is ad proficuum Domini Regis For here is a Rent reserved and here is a Proviso for the committing of Waste in the premisses which were not in the first Letters Patents and in these Letters Patents there are divers Covenants which were not in the former Patents and so it is in forma sequente And so the Lease of Philip and Mary is good The King seised of a Manor to which he hath a Park doth grant the Stewardship of the Manor and the Custodie of the said Park with reasonable Herbage Afterwards in the same Letters Patents hee grants the said Manor of O. and all the Lands in O. excepting grosse trees in the Park If this Grant be not good for the Manor it is not good for the Park that was the Objection It is good for the Manor and also for the Park It was objected That the King grants the custody of the Park and so not the Park it selfe for how can the King grant the custody of the Park if he grant the Park it selfe it is dangerous that upon an implication in one part of a Patent the expresse words which follow should be made void the subsequent words in this Case are The King grants the Manor and all the Lands to the same belonging now the Park doth belong to it and the King excepts only the Deer C. 10 part 64. The King at this day grants a Manor unto a man as entirely as such a one held the same before it came into his hands c. the Advowson doth passe without words of grant of the Advowson for the Kings meaning is That the Advowson shall passe The meaning of the King is manifest in our Case C. 3. Part 31 32. Carr's Case There the Rent was extinct betwixt the Parties yet for the benefit of the King for his tenure it hath continuance for a thing may be extinct as to one purpose and in esse as to another purpose 38. Ass 16. a Rent extinct yet Mortmain Dyer 58 59. The Exception ought to be of the thing demised In our Case the Park doth passe but the King shall have the liberties in it and so here the Park shall passe and the Exception is of the liberties Com. 370. the Exception ought to be of that which is contained in the former words in the former Patents the Offices were first granted and in the same Letters Patents the Manor was afterwards granted But now King James grants the Manor first and then the Offices Construction of Statutes ought to be secuncundùm intentionem of the makers of them and construction of Patents secundùm intentionem Domini Regis C. 8. part 58. You ought to make such a construction as to uphold the Letters Patents C. 8. part 56. Auditor Kings Case There the Letters Patents were construed secundùm intentionem Domini Regis and adjudged good But to make void the Patent they shall not be construed secundùm intentionem but to make a Patent good they shall be construed secundùm intentionem Domini Regis The Case was adjourned till Michaelmas Terme next Note I have heard Sir Henry Yelverton say That it was the opinion of the Judges in this Case That he had but the custody of the Park and not the interest of the Park for that by the acceptance of the custody of the Park when he had a Lease of the Park before it was a surrender of his Lease Trinit 21. Jacobi in the Kings Bench. 492 SHORTRIDGE and HILL's Case SHortridge brought an Action upon the Case against Hill for ravishing of his Ward and the Writ was contra pacem without the words Vi armis Lib. Dent. 366. where three Presidents are of Actions upon the Case without Vi armis An Action upon the case for doing of any thing against a Statute must be contra pacem Ley Chief Justice Recovery in this Action may be pleaded in Barre in a Writ of Ravishment of Ward brought Dodderidge Justice The Action of Trespasse at the common Law is only for the taking away of the Ward and here he hath elected his Action at the common Law and then he shall not have an Action upon the Statute viz. a Ravishment of Ward but here the Action upon the Case is brought for the taking and detaining of the Ward so as he cannot preferr him in marriage and upon this speciall matter the Action upon the Case lieth without the words Vi armis A Writ of Ravishment of Ward ought to be brought in the Common Pleas but yet you may bring a Writ of Ravishment of Ward in this Court if the Defendant be in the custody of the Marshal of the Marshalsey for in such special Case it shall be brought in this Court if there be an extraordinary matter besides the Trespass then an Action upon the Case lieth as when A. contracts with B. to make an estate unto B. of Bl. Acre at Michaelmas if C. enter into Bl. Acre A. may have an Action upon the Case against C. for the speciall damage which may happen to him by reason that he is not able to perform that contract by reason of the entry of C. and he shall declare contra pacem but not Vi armis Trinit 21. Jacobi in the King 's Bench. 493 BAKER and BLAKAMORE's Case IN Trespass the Defendant pleaded That J. S. being seised in Fee gave the Lands unto Baker and the Heirs of his body and conveyed the Lands by descent to four Daughters and Blakamore the Defendant as servant to one of the Daughters did justifie The Plaintiff did reply That the said J. S. was seised in Fee and gave the same to Baker and the Heirs Males of his Body and conveyed the Land by descent to himself as Heir Male absque hoc that J. S. was seised in Fee Henden Serjeant did demur in Law upon the Replication and took Exception to the Traverse for that here he traverseth the Seisin of J. S. whereas he ought to have traversed the gift in tail made by J. S. for the being seised is but an inducement not traverseable and therefore he ought to have traversed the gift in taile for then he had traversed the seisin for he could not give the Lands in tail if that he were not seised thereof in Fee L. 5. E. 4 9. there in Formedon the Tenant would have traversed the Seisin of the Donor but the book is ruled that the Traverse ought to be of the gift in tail and that includes the Seisin Bridgment for the Plaintiffe and said That the Serjeant is of opinion contrary to the Books when he saith positively that you ought to traverse the gift in tail and not the seisin of the Donor
afterward the Husband suffers the wood to grow five and twenty yeers and afterwards hee dieth The question was Whether the Wife being Tenant for life might cut that Underwood And it was moved What shall be said seasonable Underwood that a Termor or Tenant for life might cut Dyer Chief Justice and all the other Justices held That a Termor or Tenant for life might cut all Underwood which had been usually cut within twenty yeers In 11. H. 6. 1. Issue was taken If they were of the age of twenty yeers or no. But in the Wood-Countries they may fell seasonable wood which is called Sylva caedua at six and twenty eight and twenty thirty years by the custome of the Country And so the Usage makes the Law in severall Countries And so it is holden in the books of 11. H. 6. and 4. E. 6. But they agreed That the cutting of Oakes of the age of eight yeers or ten years is Waste But by Meade Justice the cutting of Hornbeams Hasels Willows or Sallows of the age of forty yeares is no Waste because at no time they will be Timber Another question which was moved was That at the time of the Feoffment it was seasonable Wood and but of the growth of fourteen or fifteen yeers If this suffering of the Husband of it to grow to 25 years during the Coverture should bind the Wife so as she cannot cut the Woods Gaudy Serjeant said That it should not bind the Wife For if a Warranty descend upon a Feme Covert it shall not bind her So if a man seized of Land in the Right of his Wife be disseised and a Descent be cast during the Coverture it shall not bind the Wife but that she may enter after the death of the Husband But by Dyer Chief Justice and all the other Justices This Permission of the Husband shall bind the Wife notwithstanding the Coverture for that the time is limited by the Law which cannot be altered if it be not the custome of the Country As in the case of 17. E. 3. Where a man makes a Lease for years and grants that the Lessee shall have as great commoditie of the Land as hee might have Notwithstanding these words he cannot dig the land for a Mine of Cole or Stone because that the Law forbids him to dig the land So in the principall Case The Wife cannot fell the Wood notwithstanding that at the time of her estate she might and afterwards by the permission of the Husband during the coverture the time is incurred so as she cannot fell it because the Law doth appoint a time which if it be not felled before such time that it shall not be felled by a Termor or a Tenant for life but it shall be Waste Hill 23. Eliz. In the Common Pleas. 7. A Man makes a Lease of a Garden containing three Roodes of Land and the Lessee is ousted and he brings an Ejectione firme and declares that he was ejected of three Roods of Land Rodes Serjeant moved That by this Declaration it shall be intended that he was ejected of the Garden of which the Lease was made and so the Ejectione firme would lie And it was holden by the Lord Chief Justice Dyer That a Garden is a thing which ought to be demanded by the same name in all Precipes as the Register and Fitz. N. Brevium is And this Action is greater then an Action of Trespasse because by Recovery in this Action he shall be put into Possession But Meade and Windham Justices contrary And they agreed that in all reall Actions a Garden shall be demanded by the name Gardinum otherwise not But this Action of Ejectione firme is in the nature of Trespasse and it is in the Election of the Party to declare as here he doth or for to declare of the Ejectment of a Garden for a Garden may be used at one time for a Garden and at another time be ploughed and sowed with Corn. But they conceived that the better order of pleading had been if he had declared that he was ejected of a Garden containing three Roodes of Land as in the Lease it is specified Hill 23. Eliz. In the Common Pleas. 8. SErgeant Fenner moved this case That Land is given to the Wife in tail for her Joynture according to the Statute of 11. H. 7. The Husband dieth the Wife accepts a fine Sur conusans de droit come ceo c. of a Stranger And by the same fine grants and renders the Land to him for an Hundred years whether this acceptance of a Fine and Render by the Wife were a forfeiture of her estate so as he in the Reversion or Remainder might enter by the Statute Mead and Dyer Justices it is a forfeiture and Mead resembled it to the Case in 1 H. 7. 12. where it is holden That if Tenant for life do accept of a Fine Sur conusans de droit come ceo c. that it is a forfeiture and the Lessor may enter But Fenner asked their opinions what they thought of the principall case But haesitavernut because they said it was a dangerous case and is done to defraud the Statute of 11. H. 7. Pasch 23. Eliz. in the Common Pleas. 9. A Man made a Feoffment in Fee to two to the use of himself and his wife for the term of their lives without impeachment of waste during the life of the Husband the remainder after their decease to the use of I. his son for the term of his life And further by the same Deed Vult concedit that after their three lives viz. of the Husband Wife and Son that I. S. and I. D. two other Feoffees shall be seized of the same Land to them and their heirs to the use of the right Heirs of the body of the Son begotten It was moved That by this deed the two later Feoffees should be seized to the use of the right Heirs of the body of the Son begotten after the death of the Husband Wife and the Son But it was holden by all the Justices That the second Feoffees had not the Fee because by the first part of the Deed the Fee-Simple was given to the first Feoffees and one Fee-Simple cannot depend upon another Fee-Simple Notwithstanding that after the determination of the former uses for life the Fee-Simple should be vested again in the Heires of the Feoffer and that the words That the second Feoffees should be seized should be void But Dyer Chief Justice and the other Justices were against that because there wanted apt words to raise the later use As if a man bargain and sell his Reversion of Tenant for Life by words of Bargain and Sale only and the Deed is not Enrolled within the six months but afterwards the Tenant for Life doth attorne yet notwithstanding that the Reversion shall not passe because Bargain and Sell are not apt words to make a Grant And that Case was so adjudged in the Common Pleas as the
Lord Dyer said So in the principall Case and therefore the later Use was utterly void and shall not be raised by intendment But otherwise it had been if it had been by devise Pasch 23. Eliz. in the Common Pleas. 10. IT was holden by all the Justices of the Common Pleas That the Queen might be put out of her Possession of an Advowson by two Usurpations And she shall be put to her Writ of Right of Advowson as a common person shall be because it is a transitory thing and that the Grant of that Advowson made by the Queen after the two Usurpations should be void and that was so adjudged upon a demurrer in the point And so it is holden in 47 E. 3. 4. b. Psch 23. Eliz. in the Common Pleas. 11. AN Indenture of Covenant was made betwixt I. S. and I. D. in which I. S. did Covenant to Enfeoffe I. D. of his Manor of D. In consideration of which I. D. by the same Indenture did Covenant with the said I. S. to pay him 100 li. The Question is If I. S. will not make the Feoffment whether I. D. be bound to pay the money It was holden by the Lord Dyer Chief Justice and Justice Mead That he is not because the money is Covenanted to be paid Executory to have the Feoffment made and therefore if he will not make the Feoffment he shall not have the money As if I Covenant with one That I will marry his Daughter and he Covenants with me That for the same cause he will make an Estate to me and his Daughter and to the Heirs of our two bodies begotten of his Manor of D he shall not make it untill we are married But if I Covenant with a man That I will marry his Daughter and he Covenants with me To make an Estate to me and his Daughter if I marry another woman or if the Daughter marryeth another man yet I shall have an Action of Covenant to compell him to make the Estate because in this later Case the Covenant was made for another Cause And this difference was so taken by the whole Court 15 H. 7. 10. So if A. grant to B. all the ancient Pale and for that B. grants That he will make a new Pale it is holden in 15. E. 4. 4. by Catesby and affirmed by Littleton That if B. cannot have the ancient Pale that he shall be excused from making the new Pale But if two things are given by two Persons one for the other there if one of them detain the one the other cannot detain the other as is 9 E. 4. 20. and 15 E. 4. 2. It is holden That if one grant Tithes in Fee by one Deed and by the same Deed for the same Grant the Grantee grant to the same Person an Annuity of 20 li That if the Grantor of the Tithes enter into the Tithes yet the Grantee cannot detaine the Annuity because the grant of the Tithes is executed in him and he may have an Action for them if the other enter upon them But in the principall Case The Covenant was but Executory for the other and then if one be not performed the other shall never be performed Windham and Periam Justices conceived the contrary and therefore the case was adjourned and a demurrer in law upon it Pasch 23 Eliz. in the Common Pleas. 12. TEnant in taile the Remainder in Fee the Tenant in taile makes a Lease for life according to the Statute of 32 H. 8. and afterwards dieth without issue and before any entrie he in the remainder grants his Remainder by Fine Whether the Conusee of the Fine may enter upon the Tenant for life and avoid his Lease was the question Fenner Serjeant Hee cannot because when a Free-hold is given by Livery it cannot be defeated without Entrie As If a Parson make a Lease for life rendring rent and dieth and his successor accept the rent the lease is affirmed as it is holden in 11. E. 3. and 18. E. 4. The Case was That a man made a Lease for life the remainder in Fee Tenant for life granted over his estate and then a Formedon was brought against the Grantee and then the first Tenant for life died And by all the Justices except Littleton and divers Serjeants the Writ shall not abate if he in the Remainder hath not entred So in the principall case When he had made a Lease for life and afterwards died without issue living the Tenant for life his estate is not defeated before entrie of him in the Remainder And then when before entrie he in the Remainder grants his Remainder the Grantee shall have it but as a Remainder for so is his grant and so the estate of Tenant for life which was but voidable is made good And so was it holden by Windham and Periam Justices but Meade and Dyer Chief Justice did conceive that by the death of Tenant in taile without issue his Lease made to him for life was void and not voidable because by the death of Tenant in tail his estate out of which the estate of the Tenant for life was derived is determined and therefore the estate for life is determined also Et cessante causâ cessat effectus And Meade compared it to the Case of 21. H. 7. 12 where it was holden That if a man do make a Lease for life upon condition that if he pay unto the Lessee ten pounds at such a day that his estate shall cease Now by the performance of the Condition the estate is determined without entrie Mich. 24. Eliz. In the Common Pleas. 13. POLES Case THomas Pole one of the Clerks of the Chancery married a woman who was Executrix to her Husband and in an Action of Debt brought against them in the Common Pleas the said Pole brought a writ of Priviledg to have removed the said Action into the Chancery And by all the Justices the Writ was disallowed and the defendants ruled to answer there because the Wife was joyned in the Action with the Husband and she could not have the priviledg and therefore not the Husband And so it is adjudged by the whole Court 34. H. 6. 29. and 35. H. 6. 3. But see 27. H. 8. 20. where the case was That a man brought an Action in the Common Pleas against Husband and at the pluries returned he and his Wife were arrested into an inferiour Court veniendo to Westminster and because the Husband hath priviledg therefore his Wife shall be in the same condition But Dyer said That the reason there was because the Wife came in aid of her Husband to follow his suit And therefore it is not like the principall Case at the Bar. Mich. 24. Eliz. in the Common Pleas. 14. IN Debt upon a Bond of Forty pound for the Payment of Twenty pound at a Day and Place certain The Defendant pleaded That he had paid the said Twenty pound according to the Condition upon which they are at Issue and at
husband and therefore the prescription is not good that Potest ponere retes upon the land of another upon the Custome of the Sea for prescription must be in a thing done also by him the devise is not good according to the Custome for that is that she may devise and surrender and that ought to be all at one time and that in the presence of the Reeve and six other persons as well as the Surrenderer and the words of a Custome shall be so far performed as they may be Meade contrary And that these Witnesses shall be referred to the surrender onely for a devise may be without Witnesses And he said that sometimes the latter clause shall not refer to all the precedent matter but unto the latter onely as 7. H. 7. is Where a Praecipe was brought of lands in A. B. and C. in Insula de Ely the Clause in Insula de Ely is referred onely to C. And it was said That if in the principal Case the Will were good that then the husbands are Tenants in common and then the Action of Trespass is not maintainable Pasch 25. Eliz. in the Common Pleas. 23. THis Case was moved by Serjant Gawdy Thomas Heigham had an hundred Acres of lands called Jacks usually occupied with a house and he leased the house and forty Acres parcel of the said hundred Acres to I. S. for life and reserved the other to himself and made his Will by which he doth devise the house and all his lands called Jacks now in the occupation of I. S. to his wife for life and that after her decease the remainder of that and all his other lands pertaining to Jacks to R. who was his second son Whether the wife shall have that of which her husband died seised for her life or whether the eldest son should have it and what estate he shall have in it Meade The wife shall not have it for because that he hath expressed his Will that the wife shall have part it shall not be taken by implication that she shall have the whole or the other part for then he would have devised the same to her And therefore it hath been adjudged in this Court betwixt Glover and Tracy That if Lands be devised to one and his heirs males and if he die without heirs of his body that then the land shall remain over that he had no greater estate then to him and his special heirs viz. heirs Males and the reason was because the Will took effect by the first words Anderson Chief Justice It was holden in the time of Brown That if lands were devised to one after the death of his wife that the wife should have for life but if a man seised of two Acres deviseth one unto his wife and that I. S. shall have the other after the death of the wife she takes nothing in that Acre for the Cause aforesaid For the second matter If the Reversion shall pass after the death of the wife to the second son we are to consider what shall be said land usually occupied with the other and that is the land leased with it But this land is not now leased with it and therefore it cannot pass Windham The second son shall have the Reversion for although it doth not pass by these words Usualy Occupied as Anderson held yet because the devise cannot take other effect and it appeareth that his intent was to pass the land the yonger son shall have it Anderson Jacks is the intire name of the house and lands And that word when it hath reference unto an intire thing called Jacks and is known by the name of Jacks shall pass to the second son for words are as we shall construe them And therefore If a man hath land called Mannor of Dale and he deviseth his Mannor of Dale to one the land shall pass although it be not a Mannor And if I be known by the name of Edward Williamson where my name is Edward Anderson and lands are given unto me by the name of Edward Williamson the same is a good name of purchase And the opinion of the Court was that the Reversion of the land should pass to the second son Pasc 25. Eliz. in the Common Pleas. 24. The Lord MOUNTJOY and the Earle of HUNTINGTON'S Case NOte by Anderson Chief Justice and Periam Justice If a man seised of any entrie Franchises as to have goods of Felons within such a Hundred or Mannor or goods of Outlaws Waifes Strares c. which are causual There are not Inheritances deviseable by the Statute of 32. H. 8. for they are not of any yearly value and peradventure no profit shall be to the Lord for three or four years or perhaps for a longer time And such a thing which is deviseable ought to be of annual value as appeareth by the words of the Statute And also they agreed that the said Franchises could not be divided and therefore if they descend to two coparceners no partition can be made of them And the words of the Statute of 32. H. 8. are That it shall be lawful c. to divise two parts c. and then a thing which canot be divided is not diviseable And they said That if a man had three Manors and in each of the three such Liberties and every Manor is of equal value that yet he cannot devise one Mannor and the Liberties which he hath to it Causá quâ supra but by them an Advowson is deviseable because it may be of annual value But the Lord Chancellor smiling said That the Case of the three Manors may be doubted And there also it was agreed by the said two Justices upon Conference had with the other Justices That where the Lord Mountjoy by deed Indented and Inrolled did bargaine and sell the Manor of â—amford to Brown in Fee and in the Indenture this Clause is contained Provided alwayes And the said Brown Covenants and Grants to and with the Lord Mountjoy his Heirs and Assigns that the Lord Mountjoy his Heirs and Assigns may digg for Ore within the land in Camford which was a great Waste and also to digg Turffe there to make Allome and Coperess without any contradiction of the said Brown his Heirs and Assigns They agreed That the Lord Mountjoy could not devide the said Interest viz. to grant to one to digg within a parcel of the said Waste And they also agreed That notwithstanding that Grant That Brown his Heirs and Assigns owners of the Soile might digg there also like to the Case of Common Sans number The Case went further That the Lord Mountjoy had devised this Interest to one Laicott for one and twenty years and that Laicott assigned the same over to two other men And whether this Assignment were good or not was the Question forasmuch that if the Assignement might be good to them it might be to twenty and that might be a surcharge to the Tenant of the soile And as to that
King And as to the second Point they held the Law to be cleer That after that he hath retained as many as by the Law he may retaine and they are sub Signo and Sigillo testified to bee his Chaplains and by reason thereof have qualification to have two Benefices and have two Benefices by vertue thereof although that afterwards they are removed for displeasure or otherwise out of service yet during their lives their Master cannot take other Chaplains which may by this Statute be qualified for so every Baron might have infinite of Chaplains which might be qualified which was not the meaning of the Statute and of that opinion is the Lord Dyer in his Reports And as to the third Point they held That although he were removed from the Domesticall Service of the Family yet hee did remaine Chaplain at large and so a Chaplain within the Statute And further the Opinion of the Court was in this Case That if the party qualified to die the Queen or other Master mentioned in the Statute might qualifie another againe Quod nota The Case was entred Pasch 28. Eliz. Rot. 1130. Scot. Mich. 28 29. Eliz. in the King 's Bench. 48. ONE made a Deed in this forme Noverinit c. that I have demised and to Farme letten all my Lands in D. to I. S. and his Wife and to the Heirs of their two Bodies for thirteen years And it was moved That it was an Estate in taile and 5. E. 3. and 4. H. 4. were vouched But Clenche Justice who was only present in Court was of Opinion That it is but a Lease for years although it was put that Livery was made secundùm formam chartae and his said That if one make a Lease for forty years to another and his Heirs and makes Livery that it is but a Lease for years and he said It is no Livery but rather a giving of Possession But he would have it moved again when the other Justices came Mich. 28 29. Eliz. in the King 's Bench. 49 AN Action upon the Case was brought against an Inn-keeper upon the Custome of England for the safe keeping of the things and Goods of their Guests and he brought his Action in another County then where the Inn was and it was said by Clench Justice That if it be an Action upon the Case upon a Contract or for words and the like transitory things that it may be brought in any County but in this Case he said It ought to be brought where the Inn is Mich. 28 29. Eliz. in the King 's Bench. 50. ONE charged two men as Receivers The Question was Whether one of them might plead Ne unque son Receiver and it was moved That he could not but ought to say Nâ— unque son Receiver absque hoc that he and his Companion were Receivers Clenchè and Suit Justices held That it was well without Traverse and Vide 10. E. 4. 8. Where an Account was brought against one supposing the receipt of Two hundred Marks by the hands of I. P. and R. C. The Defendant as to One hundred Marks pleaded That he received it by the hands of I. P. tantùm without that that he received it by the hands of I. P. and R. C. And as to the other One hundred Marks he received them from the hands of R. C. only without that that he received I. P. and R. C. And there it was doubted Whether it be good or not But in the end of the Case by Fitz. Accompt 14. If an Account be brought against two and one saith He was sole his Receiver and hath accounted before such an Auditor if the Plaintiffe answer unto his Bar he shall abate his Writ because the Receipt is supposed to be a joint Receipt And it is not like unto a Praecipe quod reddat against two Mich. 28 29. Eliz. in the King 's Bench. 51. AN Action upon the Case was brought against one for that he said to another I will give thee Ten Pound to kill such a one and the Question was Whether the Action would lie It was said by Sir Thomas Coâ—kaine that such a Lady had given poyson to such a one to kill her Child within her that the words were not Actionable Also one said That another had put Gun-Powder in the Window of a house to fire such a house and the house was not fired adjudged that the words were not Actionable The Case was betwixt Ramsey of Buckinghamshire and another who said That he lay in wait to have killed him it was found for the Plaintiffe and he had Forty Pound Damages given him But of the Principall Case the Court would advise Mich. 28 29. Eliz. in the Kings Bench. 52 IT was holden by the Court That the Habeas corpus shall be alwayes directed to him who hath the custody of the Body Therefore whereas in the case of one Wickham it was directed to the Maior Bailiffs and Burgesses Exception was taken unto it because the pleas were holden before the Maior Bailiff and Steward but the Exception was dissallowed But otherwise it is in a Writ of Error for that shall be directed to those before whom the Judgment was given In London the Habeas corpus shall be directed Majori Vicecomit London because they have the custodie and not to the whole Corporation But I conceive that the course is that the Writ is directed Majori Aldermannis Vicecomitibus c. Mich. 28 29 Eliz. In the Common Pleas. 53 MARSH and PALFORD's Case OWen moved this Case That one had an upper chamber in Fee and another had the neather or lower part of the same house in Fee and he who had the upper chamber pulled it down and he which had the lower room would not suffer him to build it up again But the opinion of the Justices was that he might build it up again if he did it within convenient time And there it was said that it had been a Question Whether a man might have a Free-hold in an upper chamber Mich. 28 29 Eliz. in the Kings Bench. 54. A Question was moved to the Court Whether Tithe should be paid of Heath Turf and Broom And the opinion of Suit Justice was That if they have paid tithe Wool Milk Calves c. for their cattell which have gone upon the Land that they should not pay tithe of them But some doubted of it and conceived That they ought to say that they have used to pay those Tithes for all other Tithes otherwise they should pay tithe for Heath Turf Broom c. Mich. 28 29. Eliz. in the Kings Bench. 55. TWo Parsons were of two severall Parishes and the one claimed certain Tithes within the Parish of the other and said That he and all his Predecessors Parsons of such a Church scil of D. had used to have the Tithes of such Lands within the Parish of S. and that was pleaded in the Spiritual Court and the Court was moved for to grant
not have an Action without cause and if he were convicted then there is no cause of Action and he hath not shewed whether he was convicted or acquitted And he said that there was no difference betwixt an Action on the Case and a Conspiracie in such case but onely this That a Conspiracy ought to be by two at the least and an Action upon the Case may lie against one and he said that in both he ought to shew that he was legitimo modo acquietatus See 11. H. 7. 25. An Action of Conspiracy founded upon the Statute of 8. H 6. Cap. 10. where it is grounded upon a Writ of Trespasse brought against one onely But such a Conspiracy which is grounded upon an Indictment of Felony must be against two at the least for the same is an Action founded upon the Common Law Mich. 28 29. Eliz. In the Kings Bench. 92. BONEFANT against Sir RIC. GREINFIELD BOnefant brought an Action of Trespasse against Sir Richard Greinfield The Case was this A man made his Will and made A. E. I. O. his Executors and devised his Lands to A. E. I. and O. by their speciall names and to their heirs and further willed that his Devisees should sell the Land to I. D. if he would give for the same before such a day an hundred pound and if not that then they should sell to any other to the performance of his Will scil the payment of his debts I. D. would not give the hundred pound One of the Devisees refused to entermeddle and the other three sold the Land and if the Sale were good or not was the question Cooke The Sale is not good 1. Let us see what the Common Law is At the Common Law it is a plain case that the Sale is not good because it is a speciall trust and a joynt trust and shall never survive for perhaps the Devisor who is dead reposed more confidence in him who refused then in the others Vide 2 Eliz. the Case of the Lord Bray who covenanted That if his son marry with the consent of four whom he especially named viz. A. B. C. and D. that then he would stand seised to the use of his son and his wife and to the heirs of their two bodies begotten One of the four was attainted and executed The other did consent that he should marry such a one he married her yet no estate passed because the fourth did not consent and it was a joynt trust 38. H. 8. Br. Devises 31. A man willeth that his Lands deviseable shall be sold by his Executors and makes four Executors all of them ought to sell for the trust which is put upon them is a joynt Trust But Brook conceiveth that if one of them dieth that the others may sell the Lands The Case betwixt Vincent and Lee was this A man devised That if such a one dieth without issue of his body that then his Sons in law should sell such Lands and there were five sons in law when the Testatour died and when the other man died without issue there were but three sons in law and they sold the Lands and it was holden that the Sale was good because the Land was not presently to be sold Also he said that in the principall Case here they have an Interest in the Lands and each of them hath a part therefore the one cannot sell without the other But if the devise were that four should sell they have not an Interest but onely an Authority As to the Statute of 21. H. 8. Cap. 4. he said that that left our Case to the Common Law For that Statute as it appeareth by the preamble speaks onely of such Devises by which the Land is devised to be sold by the Executors and not devised to the Executors to sell And goes further and saith Any such Testament c. of any such person c. therefore it is meant of such a devise made unto the Executors and then no Interest passeth but onely an Authority or a bare Trust But in our Case they have an Interest for he who refused had a fourth part Then when the other sell the whole the same is a disseisin to him of his part If a Feoffment be made to four upon condition that they make a Feoffment over and two of them make the Feoffment it is not good Also the words of the Will prove that they have an Interest for it is that his Devisees shall sell c. Laiton contrary And he said That although the Devise be to them by their proper names and not by the name Executors yet the intent appeareth that they were to sell as Executors because it was to the performance of his last Will and that may be performed as well by the three although that the other doth refuse and the Sale of the Land doth referre to the performance of his Will in which there are divers Debts and Legacies appointed to be paid 2. H. 4. and 3. H. 6. A man devised his Lands to be sold for the payment of his debts and doth not name who shall sell the same the Lands shall be sold by his Executors 39. Ass A Devise is of Lands unto Executors to sell for the performance of his Will the profits of the Lands before the Sale shall be assets in the Executors hands 15. H. 7. 12. is That if a man devise that his Lands shall be sold they shall be sold by his Executors Also if I devise that my Executors shall sell my Lands and they sell it is an Administration and afterwards they cannot plead that they never were Executors nor never administred as Executors And although there are divers Authorities to be executed yet it is but one Trust 39. Ass 17. is our very Case A man seised of Lands deviseable devised them to his Executors to sell and died having two Executors and one of them died and the other entred and sold the Land and the Sale was good 49. E. 3. 15. Isabell Goodcheapes Case Where a man devised that after an Estate in taile determined that his Executors should sell the Lands and made three Executors and one died and another refused the third after the taile determined sold the Land and the Sale was holden good and that it should not escheate to the Lord for the Land was bound with a Devise as with a Condition as to the Statute of 21. H. 8. Cap. 4. the preamble of the Statute is as it hath been recited and although for exmaple the Lands in use are only put yet the Statute is not tied only to that As in the Statute of Collusion of Malbridge Examples are put only of Feoffments and Leases for years yet there is no doubt but that a Lease for life or a gift in taile to defraud the Lord is within the Statute So the Statute of Donis Conditionalibus puts onely three manner of estate tailes But Littleton saith That there are many other estate tailes which are
taile and waives the Lands taken in Exchange and before any other entry the heir of B. enters upon the Land which was given in Exchange and the opinion of the whole Court was That it was no breach of the Condition because that was not the Land of the Devifor at the time of the devise therefore it was out of the Condition Mich. 28 29. Eliz. In the Common Pleas. 116. PLYMPTON'S Case AN Action of Debt was brought by one Plympton and his wife Executors of one Dorrington upon a Bond with Condition to perform Covenants of an Indenture of Lease whereof one Covenant was That he should pay forty shillings yearly at the Feast of the Annunciation or within fourteen days after And the breach assigned was for not payment at such a Feast in such a year The Defendant said That hee paid it at the Feast upon which they were at issue And upon evidence given to the Jury it appeared That the same was not paid at the Feast but in eight dayes after it was paid And the opinion of the Court was That by his pleading that hee had paid it at such a day certain and tendring that for a speciall issue That hee had made the day part of the issue and then the Defendant ought to have proved the payment upon the very day But if the Defendant had pleaded That hee paid it within the fourteen dayes viz. the eighth day c. that had not made the day parcell of the issue but then hee might have given evidence that he paid it at another day within the fourteene dayes Then for the Defendant it was moved That the Plaintiffe had not well assigned the breach in saying that he had not paid it at the Feast without saying Nor within the fourteen dayes But the Court said That the Jury was sworn at the Barre and bid the Councell proceed and give in their evidence for the time to take exception was past Mich. 28 29. Eliz. in the Common Pleas. 117. IT was the opinion of Anderson Chiefe Justice and so entred by the Court That if a Copie-holder doth surrender to him who hath a Lease for years of the Mannor to the use of the same Lessee That the Copie-hold estate is extinct For the estate in the Copie-hold is not of right but an estate at will although that custome and prescription had fortified it And Wray said That it had been resolved by good opinion That if a Copie-holder accept a Lease for years of the Mannor that the Copie-hold estate is extinct for ever Mich. 28 29. Eliz. in the Common Pleas. 118. Anderson Chiefe Justice and Periam Justice being absent in a Commission upon the Queen of Scots Shuttleworth moved this case to the Court. If the Queen give Lands in taile to hold in Capite And afterwards granteth the Reversion how the Donee shall hold Windham Justice and Fenner Serjant The tenure in this case is not incident to the Reversion and the Donee shall hold of the Queen as in grosse and so two Tenures in Capite for one and the same Land And thereupon Windham Justice cited 30. H. 8. Dyer 45 46. That the Queen by no way can sever the tenure in chiefe from the Crown And therefore if the Queen do release to her Tenant in Capite to hold by a penny and not in Capite it is a void Release for the same is meerly incident to the Person and Crown of the Queen But Rodes Justice held the contrary viz. That the Tenure in Capite doth not remain But it was said by Windham That if the Queen had reserved a Rent upon the gift in tail the Grantee of the Reversion should have it Also he said That the Queen might have made the Tenure in such manner viz. to hold of the Mannor or of the Honor of D. Shuttleworth If Lands holden of the Mannor of D. come to the King may he give them to be holden of the Mannor of S that should be hard Windham I did not say That Lands holden of one Mannor may be given to be holden of another Mannor perhaps that may not bee but Lands which is parcell of any Mannor may be given Vt supra Mich. 28 29 Eliz. in the Common Pleas. 119 SErjeant Fenner moved Case If Lands be given to the Husband and Wife and to the heirs of their two bodies and the Husband dieth leaving Issue by his Wife and the Wife makes a Lease of the lands according to the Statute of 32. H. 8. If the Lease be good by the Statute Windham and Rodes Justices conceived that it is a good Lease Fenner The Statute saith that such Lease shall be good against the Lessor and his Heirs and the Issue doth not claim as Heir to the Wife onely but it ought to be Heir to them both and he cited the case That the Statute of R. 3. makes Feoffments good against no heirs but those which claim onely as Heirs to the same Feoffors c. So here Rodes Justice There the word only is a word efficacy And Windham agreed cleerly That the Lease should binde the issue by the said Statute of 32. H. 8. Mich. 28 29. Eliz. In the Common Pleas. 120 WAlmesley Serjeant moved this Case If a man deviseth Lands in taile with divers Remainders over upon condition that if any of them alien or c. that then he who is next heir to him to whom the land ought to come after his decease if the said alienation had not been made might enter and enjoy the land as if he had been dead But Ady of the Temple said That the words of the Devise are viz. That if any of them alien or c. that then his estate to cease and hee in the next Remainder to enter and retain the land untill the aliener were dead Rodes Justice The Devise is good and an estate may cease in such manner so as it shall not be determined for ever but that his Heir after him shall have it And he put the case of Scholastica Plow Com. 408. where Weston fo 4. 14. was in some doubt that if the Tenant in talle had had Issue if the Issue should be excluded from the land or whether hee should have the land by the intent of the Devisor And therefore if it were necessary to shew that the Tenant in taile had not Tssue But Dyer said that the words of the Will were that such person and his Heirs who alien or c. should be excluded presently so as the estate by expresse words is to be determined for ever But it is otherwise in this Case Windham doubted of the Devise Fenner cited the Case 22. E. 3. 19. Where a Rent was granted and that it should ceâ—se during the Nonage of the Heir of the Grantee and it was good Windham When a thing is newly created he who creates it may limit it in such manner as he pleaseth Fenner 30. E. 3. 7. Det. 10. A Feoffment was made rendring Rent upon
the Land unto another Shuttleworth moved it to the Court Whether the Patentee ought to shew the Letters Patents and he conceived He need not because he hath not any interest in them but the same do belong only to the Earle As if a Rent be granted to one in Fee and he taketh a wife and dieth and the Wife bringeth a Writ of Dower she is not bound to shew the first Deed by which the Rent was granted to her Husband because the Deed doth not belong unto her So hee who sues for a Legacie is not tied to shew the Will because the same belongs to the Executor and not him Periam Justice The Cases are not alike for they are Strangers and not Privies but the Lessee in the principall Case deriveth his interest from the Letters Patents and therefore he ought to shew them Rodes Justice remembred Throgmorton's Case Com. 148. a. where a Lease was made by an Abbot to J. S. and afterwards the same Abbot made a Lease unto another to begin after the determination of the first Lease made to J. S. and exception was taken That he ought to have shewed the Deed of the first Lease and the Exception was disallowed by the Court Periam That case is not like this case and he said That as he conceived the Lessee in this case ought to shew forth the letters Patents and if any Books were against his Opinion it was marvellous Mich. 28 29 Eliz. in the Common Pleas. 134 ONE intruded after the death of Tenant for life and died seised and the land descended to his Heire and a Writ of Intrusion was brought in the Per against the Heir and Gawdy Serjeant prayed a Writ of Estrepment against the Tenant And first the Court was in doubt what to do but afterwards when they had considered of the Statute of Gloucester Cap. 1. in the end of it Anderson said If the Writ be in the Per take the Writ of Estrepment but if the Writ be not in the Per we doubt whether a Writ of Estrepment will lie or not Mich. 28 29 Eliz. In the Common Pleas. 135 WOOD against ASH and FOSTER CErtain Lands with a Stock of Sheep was leased by Indenture and the Lessee did covenant by the same Indenture to restore unto the Lessor at the end of the Terme so many Sheep in number as he took in Lease and that they should be betwixt the age of two and four years Afterwards the Lessee granted the same Stock unto a Stranger viz. to Elizabeth Winsor who was the wife of Ashe whereas in truth all the ancient Stock was spent And it was holden by all the Justices upon an Evidence given unto a Jury at the Bar That when such a Stock of Sheep is leased for years the principall Property doth remain in the Lessor as long as those Sheep which were in esse at the time of the Lease should live but if any of them do die and other come in their roomes then the property of those new Sheep doth belong to the Lessee and therefore they held that the second Lessee should have so many of the Sheep as were left and did remaine at the end of the Lease and no other And yet it was objected by Walmesley That the Stock was entire and that as soon as any other came in the room of the ancient Sheep which were dead that they were accounted part of the same stock and although they be all dead and so changed successively two or three times yet he said it shall be said the same stock And he resembled the same to the case of a Corporation which although all the Corporation die and other new men come in their places it shall be said the same Corporation But notwithstanding his Opinion all the Justices were of opinion as before Walmesley said That agreeing with his opinion was the opinion of all the civill Lawyers but the Court was angry and rebuked him that he did in such manner crosse their opinions and that he cited the opinion of Civilians in our Law and they resolved the contrary and they said there is a difference betwixt the Lease of other Goods and a lease of live Cattel for in the first Case if any thing be added for mending repairing or otherwise by the Lessee at the end the Lessor shall have the additions for of them he hath alwayes the property and they are annexed to the principall but Lambs Calves c. are severed from the principall and are the Profits arising of the Principall which the Lessee ought to have else he should pay his Rent for nothing And as to the issue upon the Cepit by Foster it was shewed That he did but stay the Sheep in his Manor where he had Fellons Goods Waifes and Strayes and that the Sheep were stayed upon a Huy and Cry and that he had taken Bond of one to whom he had delivered the Sheep to render them to him who had the right of them And that stay was holden by the Court to be out of the point of the Issue For that he who doth stay doth not take Mich. 28 29. Eliz. in the Common Pleas. 136. The Heirs of Sir ROGER LEWKNOR and FORD's Case Intratur Pasch 28. El. Rot. 826. SIR Roger Lewknor seised of Wallingford Park made a lease thereof unto Ford for years and died the Lessee granted over his term to another excepting the Wood the term expired and now an action of Waste was brought against the second lessee by the two Coparceners and the Heir of the third Coparcener her Husband being tenant by the courtesie And Shuttleworth and Snag Serjeants did argue that the action would not lie in the form as it was brought And the first Exception which was taken by them was because the action was generall viz. Quod fecit Vastum in terris quas Sir Roger Lewknor pater praedict ' the plaintiffs cujus haeredes ipsae sunt praefat ' defend ' demisit c. and the Count was that the Reversion was entailed by Parliament unto the Heirs of the body of Sir Roger Lewknor and so they conceived that the Writ ought to have been speciall viz. cujus haeredes de corpore ipsae sunt For they said that although there is not any such form in the Register yet in novo casu novum remedium est apponendum And therefore they compared this case to the case in Fitz. Nat. Brevium 57. c. viz. If land be given to Husband and Wife and to the Heirs of the body of the Wife and the Wife hath issue and dieth and the Husband committeth Waste the Writ in that case and the like shall be speciall and shall make speciall recitall of the estate And so is the case 26. H. 8. 6. where Cestuy que use makes a lease and the lessee commits Waste the action was brought by the Feoffees containing the speciall matter and it was good although there were not any such Writ in the Register cujus
haeredes de corpore and we are not to devise a new form in such case but it is sufficient to shew the speciall matter to the Court. Also the words of the Writ are true for they are Heirs to Sir Roger Lewknor and the count is sufficient pursuant and agreeing to their Writ for they are Heirs although they are not speciall Heirs of the body and so the Court was of opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Justices said That the case is not to be compared to the case in F. Nat. Br. 57. c. for there he cannot shew by whose Demise the Tenant holdeth if he doth not shew the speciall conveyance viz. that the land was given to the Husband and Wife and the Heirs of the body of the Wife Nor is it like unto the case of 26. H. â— 6. for the same cause for alwayes the demise of the Tenant ought to be especially shewed and certainly which it cannot be in these two cases but by the disclosing of the Title also to the Reversion Another Exception was taken because that the Writ doth suppose quod tenuerunt which as they conceived is to be meant that tenuerunt joyntly whereas in truth they were Tenants in common Walmesley contrary because there is not any other form of Writ for there is not any Writ which doth contain two Tenuerunts And the words of the Writ are true quod tenuerunt although tenuerunt in Common But although they were not true yet because there is no other form of Writ it is good enough As Littleton If a lease be made for half a year and the Lessee doth waste yet the Writ shall suppose quod tenet ad terminum annorum and the count shall be speciall 40. Ed. 3. 41. E. 3. 18. If the Lessee doth commit waste and granteth over his term the Writ shall be brought against the Grantor and shall suppose quod tenet and yet in truth he doth not hold the Land 44. Ed. 3. and Fitz. If one make divers leases of divers lands and the Lessee doth waste in them all the Lessor shall have one Writ of waste supposing quod tenet and the Writ shall not contain two Tenets And such was also the opinion of the Court The third Exception was because that the Writ was brought by the two coparceners and the Heir of the third coparcener without naming of the Tenant by the Courtesie And thereupon Snagg cited the Case of 4. Ed. 3. That where a Lease is made for life the Remainder for life and the tenant for life doth waste he in the Reversion cannot have an Action of waste during the life of him in the Remainder So in this case the Heir of the third coparcener cannot have waste because the mean estate for life is in the Tenant by the courtesie And to prove that the Tenant by the courtesie ought to joyn he cited 3. E. 3. which he had seen in the Book it self at large where the Reversion of a tenant in Dower was granted to the Husband and to the Heirs of the Husband and the tenant in Dower did waste and they did joyn in an Action of waste and not good And so is 17. E. 3. 37. F. N. B. 59. f. and 22. H. 6. 25. a. Walmesley contrary for here in our case there is nothing to be recovered by the tenant by the courtesie for he cannot recover damages because the disinheresin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like unto the Books which have been cited for in all those the tenant was in possession and the place wasted was to be recovered which ought to go to both according to their estates in reversion But it is not so here for in as much as the term is expired the land is in the tenant by the courtesie and so he hath no cause to complain And such also was the opinion of the whole Court viz. that because the term was ended that the Writ was good notwithstanding the said Exception Then concerning the principall matter in Law which was Whether the Writ were well brought against the second Lessee or whether it ought to have been brought against the first Lessee It was argued by Shuttleworth that it ought to have been brought against the first Lessee for when he granted over his term excepting the trees the Exception was good Ergo c. For when the Land upon which the trees are growing is leased out to another the trees passe with the Lease as well as the Land and the property of them is in the Lessee during the term and therefore when he grants his term hee may well except the trees as well as the first Lessor might have done And that is proved by the Statute of Marlebridge Cap. 23. for before that Statute the Lessee was not punishable for cutting downe the trees and that Statute doth not alter the properties of the trees but onely that the Lessee shall render damages if he cut them down c. Also the words of the Writ of Wast proveth the same which are viz. in terris domibus c. sibi dimissis Also the Lessee might have cut them down for reparations c. and for fire-wood if there were not sufficient underwoods which he could not have done if the trees had been excepted And in 23. H 8. in Brooke It is holden that the excepting of the trees is the excepting of the Soile And so is 46. E. 3. 22. Where one made a Lease excepting the woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespasse quare vi armis clausum fregit c. and it was good notwithstanding that Exception was taken to it And it is holden in 12. E. 4. 8. by Fairfax and Littieton That if the Lessee cut the trees that the Lessor cannot carry them away but he is put to his Action of Waste Fenner and Walmesley Serjeants contrary and they conceived that the Lessee hath but a speciall property in the trees viz. for fire-boot plough-boot house-boot c. And if he passe over the Lands unto another that he cannot reserve unto himselfe that speciall property in the trees no more then he who hath common appendant can grant the principall excepting and reserving the Common or grant the Land excepting the foldage The grand property of the trees doth remain in the Lessor and it is proved by 10. H. 7. 30. and 27. H. 8 13. c. If Tenant for life and he in the reversion joyne in a Lease and the Lessee doth wast they shall joyne in an Action of Wast and Tenant for life shall recover the Free-hold and the first Lessor the damages which proves that the property of the trees is in him As to that that he was dispunishable at the common law that was the folly of the Lessor and although it was so at the
tail because the first words were indefinite and the later words were certain by which his intent did appeare to pass but an estate in tail He also cited 4. E. 4. 29. B. The words of an Obligation were Noverint universi per praesentes me I. S. teneri c. W. B. in ten pound solvendum eidem I. And it was holden by the whole Court that the same did not make the Bond to be void because it appeared by the promises of the Bond to whom the mony was in Law to be paid and the intent so appearing the Plaintiff might declare of a solvendum to himself and the word I should be surplusage And 22. E. 4. 9. A. B. The Abbot of Selbyes case Where the Abbot of Selby did grant annualem pensionem to B. ad rogatum I. E. illam scilicet quam I. E. habuit ad terminum vitae suae solvendum quousque sibi c. de beneficio provisum fuerit and it was holden by the whole Court in a Writ of annuity brought that sibi did referre to B. the grantee and not to I. E. And Cook Chief Justice said that the original Contract doth leade the measure in this Case and to that purpose he cited Kiddwellies case in the Commentaries where a Lease was made rendring Rent at Mich. at D. and if it were behind by a month after demand that the Lessor might reenter the demand must be at the first place which is in that case alledged to be certain viz. at D. The case was adjorned Trinit 10. Jacobi in the Common Pleas. 285 Sir Henry Lea and Henry Leas Case SIR Henry Lea was committed to the Fleet for the disobeying of a Decree made in the Court of Requests and having Suits depending in the Court of Common Pleas he prayed a Writ of habâ—as Corpus which was granted and upon the return of the Writ the cause of his Commitment appeared to be for a contempt for not performing of the said Decree and no other cause appeared in the return and the Court were of opinion that they could not deliver him because that no cause appeared in the return to warrant their delivery of him And the Court said that if the return be false yet they cannot deliver the party But the party may have his Action of false Imprisonment if the Imprisonment be not Lawfull But then it was shewed by Mountague Serjeant to the Court that the Decree was made in the Court of Requests upon a Bill containing this matter viz. That Henry Lea pretending Title unto Lands which Sir Henry Lea held by descent from his Unkle Sir Henry Lea shewed his Title to the Kings Majestie and thereupon the King upon the Petition of Henry Lea sends for Sir Henry Lea and had speech with him that he would give unto the said Henry Lea some recompence for his Title which he pretended to have to the said Lands And that thereupon the said Sir Henry Lea at the instance of the Kings Majestie did promise the King that if the said Henry Lea would not molest him for any of the said Lands which he had by descent from his said Unkle that then he the said Sir Henry Lea would give unto the said Henry Lea two hundred pound per Annum And for not performance of this promise made to the King Henry Lea Exhibited his Bill in the Court of Requests upon which the said Decree was grounded The said Sir Henry Lea answered that he did not know of any such promise he made to the Kings Majestie and pleaded to the Jurisdiction of the Court But upon a Certificate made by the Kings Majestie that he made such a promise unto him the Court of Requests made the said Decree which Certificate was mentioned in the body of the said Decree And Mountegue prayed that because it appeared that the said Henry Lea had remedy by way of Action upon the case at the common Law upon the said promise That this Court would grant a Prohibition in this case unto the Court of Requests and deliver the party from his Imprisonment But the Court said that they would advise of the Case because they never had heard of the like case But Cook Chief Justice advised Sir Henry Lea to agree the matter betwixt Him and his Kinsman Henry Lea For he said that he had learned a Rule in his youth which was this viz. Cum pare luctare dubium cum Principe stultum est Cum puero poena cum Muliere pudor Trinit 10. Jacobi in the Common Pleas. 286 GARVEN and PYM's Case GArven libelled against Pym for a Seat in the Church before the Bishop of Exeter in the spiritual Court there which by Appeal was removed into the Court of Arches And the Defendant did surmise in the Court of Common Pleas That he and his Ancestors have used time out of mind c. to have an Isle with a seat in the said Church for himself and his family and thereupon prayed a Prohibition But because it did appear upon Examination of the party himself That the Parish have alwayes used to repair the said Isle and seat the Court would not grant a Prohibition in this case for that proves that his Ancestors were not the Founders of the said Isle and Seat Also another man hath alwayes used to sit with him in the same seat which also proves that it doth not belong to him alone Cook chief Justice said That if a Gentleman with the assent of the Ordinary hath built an Isle juxta Ecclesiam for to set convenient Seats for him and his family and hath alwayes repaired the same at his own costs and charges In such case if the Ordinary place another man with the Founder without his consent in the same Seat that he may have his Action upon the Case against the Ordinary And if he be impleaded in the spirituall Court for such Seat that a Prohibition will lie And he said That the Heydons in Norfolk have built such an Isle next to the Church and placed convenient Seats there for them and their family But he said That if a man with the assent of the Ordinary set up a Seat in navi Ecclesiae for himselfe and another man doth pull up the same or defaceth it Trespas vi armis will not lie against him because the Freehold is in the Parson and he hath no remedy for the same but to sue the party in the Ecclesiastical Court And 9. E. 4. 14. the Dame Wiches Case was vouched where she brought an Action of Trespasse against the Parson for taking away her Husbands Coat-armour which was fixed to the Church at his Funerall and it was adjudged that the Action would lie and so will an Action in such case brought by the heir And Cook said That the Ordinary hath the onely disposing of Seats in the Body of the Church with which agrees the opinion of Hassey in 8. H. 7. And if the Ordinary long time past hath granted to a
the Court of York the Plaintiffe had Judgment that the Defendant should accompt And upon that Judgment the Defendant in the Court there brought a Writ of Error in the Kings Bench. And it was adjudged That no Writ of Error lay in that case because the Judgment to Accompt is but the Conveyance and the Plaintiffe hath not any benefit until he be satisfied by the Award of the Auditors for upon their Award the final Judgment shall be given Mich. 12 Iacobi in the Kings Bench. 357. The Bishop of SALISBURY's Case IT was holden in this Case That if a Bishop Parson or other Ecclesiastical person do cut down Trees upon the Lands unless it be for Reparations of their Ecclesiastical houses and do or suffer to be done any delapidations That they may be punished for the same in the Ecclesiastical Court and a Prohibition will not lie in the Case and that the same is a good cause of deprivation of them of their Ecclesiastical Livings and Dignities But yet for such Wastes done they may be also punished by the Common Law if the party will sue there Vide 2 H. 4. 3. Trin. 13 Iacobi in the Kings Bench. 358. PRAT and the Lord NORTH'S Case A Man was distreined by the Bailiffe of the Lord North for 20s. imposed upon him in the Court-Leet for the erecting and storing of a Dove-Cote And it was said That it cannot properly be called a Nusance but for the destroying of Corn which cannot be but at certain times of the year And therefore it was conceived That the party who was presented might traverse the Nusance to be with his Pidgeons and it was said that a man might keep Pidgeons within his new house all the year or put them out at such a time as they could not destroy the corn And Cook Chief Justice said That there is not any reason that the Lord should have a Dove-Cote more then the Tenant and he asked the Question where the Statute of E. 2. saith Inquiratur de Dove-Cotes erected without Licence Who should give the Licence Ad quod non fuit responsum In Mich. Term following the Case was argued by Damport who said That the erecting of a Dove-Cote by a Freeholder was no Nusance For a Writ of Right lieth of a Dove-Cote and in the Register it is preferred and named before Land Garden c. But he said that there was a fatal defect in the Plea which was That the Presentment at the Leet was That Prat had erected a Dove-Cote unlawfully and did not say ad commune nocumentum as it ought to be otherwise it is not presentable in the Leet And therefore although it was otherwise in the Plea That it was ad commune nocumentum the same did not help the defective Presentment Mich. 10 Jacobi in the Common Pleas. 359. GREENWAY and BARKER's Case BEtwixt Greenway and Barker It was moved for a Prohibition to the Court of Admiralty and the Cause was for taking of a Recognisance in which the Principal and his Sureties his heirs goods and lands were bounden And it was in the nature of an Execution at the Common-Law and thereupon they in the Admiral Court made out a Warrant to arrest the body of the Defendant there Dodderidge Serjeant said That it was not a Recognisance at the Common-Law but only a Stipulation in the nature of a Bail at the Common-Law and he said That it was the usual course to pledge goods there in Court to answer the party if sentence were given against him Nichols Serjeant They cannot take a Recognisance and by the Civil Law if the party render his body the Sureties are discharged and Execution ought to be only of the goods for the ship is only arrested and the Libel ought to be only against the ship and goods and not against the party 19 H. 6. acc ' And afterwards Dr. Steward and Dr. James were desired by the Court to deliver their opinions what the Civil Law was in this Case and Doctor Steward said He would not rest upon the Etymologie of the word for if it be a Recognisance Bail or Stipulation it is all one in the Civil Law and in such case he said by their Law Execution might be against the sureties And he argued 1. That ex necessitate it must be agreed that there is an Admiral Court 2. That that Court hath a Jurisdiction And by a Statute made in Henry the 8. time and by another in the time of Queen Elizabeth divers things as Appeals c. were triable by the Civil Law And he said That every Court hath his several form of proceedings and in every Court that form is to be followed which it hath antiently used And as to the proceedings he said That first they do arrest the goods 2. That afterwards the party ought to enter Caution which is not a Bond but only a Surety or Security which doth bind the parties And he said That the word Haeredes was necessary in the Instrument For for the most part the Sureties were strangers And he said That Court took no notice of the word Executors and therefore the word Haeredes is used which extends as well to Executors and Administrators as to Heirs And he said That upon a Judgment given in the Court of Admiraltie they may sue forth an Execution of it in forein parts as in France c. And he said That if Contracts be made according to other Laws the same must be tryed according to the Law of that Country the Contract is made Dr. James said That in the same Court there are two manners of proceedings 1 The Manner 2 the Customs of the Court are to be observed And he said that Stipulation ought to be in the Court by coertion which word is derived à stipite by which the party is tyed as he said as a Bear to the stake or as Vlisses to the Mast of the ship And he said In a Judicial stipulation four things are considerable 1 The Judicial Sistem 2. Reparratum habere 3. Judicatum solvere 4. De expensis solvendis as appeareth in Justinians Institutes cap de Satisdationibus For Satisdatio and Stipulatio are all one in the Civil Law And after Cook Chief Justice said That it ought to be confessed that there hath been a Court of Admiralty 2. That their proceedings there ought to be according to the Civil Law And he observed four things 1. The Necessity of the Court 2. The Antiquity of it 3. The Law by which they proceed and lastly the Place to which they are confined And as to the necessity of the Court he said That the Jurisdiction of that Court ought to be maintained by reason of Trade and Traffique betwixt Kingdom and Kingdom for Trade and Traffique is as it were the life of every Kingdom 2. A mans life is in danger by reason of traffique and Merchants venture all their estates and therefore it is but reasonable that they have a place for the trial of
â—uaere whether it be a good Plea because it doth amount to the general issue of Not guilty Curia avisare vult And v. Tompsons Case 4 Jac. in the Kings Bench It was adjudged that it was no good Plea Hill 6 Jacobi in the Common Pleas. 370. PAGINTON and HUET'S Case IN an Ejectione Firme the Case was this That the Custome of a Manor in Worcestershire was That if any Copyholder do commit Felony and the same be presented by twelve Homagers That the Tenant should forfeit his â—opyhold And it was presented in the Court of the Mannor by the Homage That Hâ—â—t the Defendant had committed Felony But afterwards at the Asâ—ises he was acquitted And afterwards the Lord seised the Copyhold And it was adjudged by the Court that it was no good Custom because in Judgment of Law before Attaindor it is not Felony The second point was Whether the special Verdict agreeing with the Presentment of the Homage That the party had committed Felony did entitle the Lord to the Copyhold notwithstanding his Acquital Quaere For it was not resolved Mich. 7 Iacobi in the Common Pleas. 371. THe Custom of a Mannor was That the Heirs which claimed Copy-hold by Discent ought to come at the first second or third Court upon Proclamations made and take up their Estates or else that they should forfeit them And a Tenant of the Mannor having Issue inheritable beyond the Seas dyed The Proclamations passed and the Issue did not return in twenty years But at his coming over he required the Lord to admit him to the Copyhold and proffered to pay the Lord his Fine And the Lord who had seised the Copyhold for a Forfeiture refused to admit him And it was adjudged by the whole Court That it was no Forfeiture because that the Heir was beyond the Seas at the time of the Proclamations and also because the Lord was at no prejudice because he received the profits of the Lands in the mean time Mich. 14 Iacobi in the Kings Bench. 372. A Copyholder in Fee did surrender his Copyhold unto the use of another and his heirs which surrender was into the hands of two Tenants according to the custome of the Mannor to be presented at the next Court. And no Court was holden for the Mannor by the space of thirty years within which time the Surrenderor Surrenderee and the two Tenants all dyed The heir of the Surrenderor entred and made a Lease for years of the Copyhold according to the Custome of the Mannor And it was adjudged per Curiaâ—â— That the Lease was good Mich. 14 Iacobi in the Common-Pleas 373. FROSWEL and WEICHES Case IT was adjudged That where a Copyholder doth surrender into the hands of Copy-Tenants That before Presentment the Heir of the Surrenderor may take the profits of the Lands against the Surrenderee For no person can have a Copyhold but by admittance of the Lord. As if a man maketh Livery within the view although it cannot be countermanded yet the Feoffee takes nothing before his entry But it was agreed That if the Lord doth take knowledge of the Surrender and doth accept of the customary Rent as Rent due from the Tenant being admitted that the same shall amount unto an Admittance but otherwise if he accept of it as a duty generally Mich. 5 Iacobi in the Exchequer 374. IT was adjudged in the Exchequer That where the King was Lord of a Mannor and a Copyholder within the said Mannor made a Lease for three lives and made Livery and afterwards the Survivor of the three continued in possession forty years And in that case because that no Livery did appear to be made upon the Endorsment of the Deed although in truth there was Livery made that the same was no forfeiture of which the King should take any advantage And in that case it was cited to be adjudged in Londons case That if a Copy-Tenant doth bargain and sell his Copy-Tenement by Deed indented and enrolled that the same is no forfeiture of the Copyhold of which the Lord can take any advantage And so was it holden in this Case Pasch 14 Iacobi in the Kings Bench 375. FRANKLIN'S Case LAnds were given unto one and to the heirs of his body Habendum unto the Donee unto the use of him his heirs and assignes for ever In this â—ase two points were resolved 1. That the Limitation in the Habendum did not increase or alter the Estate contained in the premisses of the Deed. 2. That Tenant in Tail might stand seised to an use expressed but such use cannot be averred Hill 13 Iacobi in the Chancery 376 WINSCOMB and DUNCHES Case VVInscomb having issue two sons conveyed a Mannor unto his eldest son and to the daughter of Dunch for life for the joynture of the wife the Remainder to the 〈…〉 The son having no issue his Father-in-law Dunch procured him by Deed indented to bargain and sell to him the Manner The Bargâ—ynor being sick who died before enrolment of the Deed within the 〈…〉 Deed â—ot being acknowledged And 〈◊〉 the 〈◊〉 coming to be enrolled the Clark who enrolled the same did proâ—â—â—e Waâ—â—â—nt from the Master of the Rolls who under-â—â—â— upon the Deâ—◠〈◊〉 the Deed be enrolled upon Affidavit made of the delivery of the Deed by one of the Witnesses to the same And afterwards the Deed was eâ—â—â—â—d within the six moneths And the opinion of the Court wasâ— That 〈◊〉 Conveyance was a good Conveyance in Law And therefore the younger brother exhibited his Bill in Chanchery pretending the Conveyance to be made by practice without any Consideration Mich. 15 Iacobi in the Kings Bench. 377 LUDLOW and STACIâ—S Case A Man bargained and sold Land by Deed indented bearing date 11 Junii 1 Jacobi Afterwards 12 Junii The same year Common was granted â—nto the Bargainee for all manner of Cattell commonable upon the Land 15 Junii theâ— Deed of Bargain and Sale was enrolled And it was adjudged a good grant of the Common And the Enrolment shall have Relation as to that although for collaterall things it shall not have relation Hill 15 Iacobi in the Kings Bench. 378. NOte that it was held by Dodderidge Justice and Mountagu Chief Justice against the opinion of Haughton Justice That if Lessee for years covenanteth to repair and sustein the houses in as good plight as they were at the time of the Lease made and afterwards the Lessee assigneth over his Term and the Lessor his Reversion That the Assignee of the Reversion shall maintain an Action of Covenant for the breach of the Covenants against the first Lessee Hill 15 Jacobi in the Common-Pleas 379. SMITH and STAFFORD'S Case A Man promised a Woman That if she would marry with him that if he dyed and she did survive him that he would leave unto her 100â— They entermarried and then the husband dyed not performing his promise The wife sued the Executor of her husband upon the said promise And whether the
duty did survive with the wife or were extinguished by the entermarriage was the Question And Hâ—bart Chief Justice and Warburton were against Winch and Hutton Justices That the marriage was a Release or discharge of the 100â— Quaere Hill 15 Jacobi in the Kings Bench 380. PLOT' 's Case AN Enâ—ant brought an Assise in the Kings Bench for Lands in Mich depending which The Tenant in the same Assise brought an Assise for the same Lands in the Common-Pleas which last Writ bore date and was recornable after the first Writ And the Demandant in the second Writ did recover against the Enfant by default by the Aâ—â—â—se who found the Seisin and Disseisin And upon a Plea in 〈◊〉 of the first Assise of that Recovery the Enfant by way of Replication set forth all the special matter And that the Deâ—andant at the time of the second Writ brought was Tenant of the Land And prayed that he might 〈◊〉 the Recovery And it was adjudged That he might falsifie the Recovery For in all Cases where a man shall not have Error noâ—â—â—taint he may Falsifie But in this case he could not have Error nor Attaint because the Judgment in the Common-Pleas was not given only upon the Default but also upon the Verdict And it should be in vain for him to bring an Attaint because he shall not be 〈◊〉 to give other Evidence then what was given at the first Trial. Also he shall falsifie the Recovery because it was a practise to defeat and take away the Right of the Enfant and to leave him without any remedy whatsoever Pasch 16 Iacobi in the Kings Bench. 381 INGIN and PAYN'S Case LEssee for years was bounden in a Bond to deliver the possession of a house unto the Lessor his heirs and assignes upon demand at the end of the term The Lessor did bargain and sell the Rendition by Deed enrolled to two One of the Bargainees at the end of the term demanded the Delivery of the Possession The Lessee refused pretending that he had no notice of the bargain and sale It was adjudged that the Bond was forfeited Pasch 16 Iacobi in the Common-Pleas 382. JERMYN and COOPER'S Case A Man by Deed gave Lands to A. and to a Feme sole and to their heirs and assigns for ever Habendum to them and to the heirs of their bodies the Remainder to them and the survivor of them for ever And it was adjudged by the Court That they had an Estate in tail with the Fee-simple Expectant Pasch 16 Jacobi in the Kings Bench. 383. A Man was Indicted De verberationem vulnerationem of J. S. and the words vi armis were left out of the Indictment And the same was adjudged to be helped by the Statute and that the Indictment was good Mich. 16 Jacobi in the Kings Bench. 384. BARNWEL and PELSIE'S Case A Parson did Covenant and grant by Deed with one of his Parishioners That in consideration of Six pounds thirteen shillings and four pence per annum be paid unto him that the said Parishioner should be discharged of all Tythes upon condition to be voyd upon default of payment Afterwards the Parson against his grant did sue the Parishioner in the Spirituall Court for Tythes in kind and it was moved for a Prohibition But the Court would not grant it because that the Originall viz. the Tythes do belong to spirituall jurisdiction But it was said that the Parishioner might have an Action of Covenant against the Parson upon the Deed in the Temporall Court 385. Posch 16 Jacobi in the Kings Bench. AN Action upon the Case was brought for speaking of these words viz. J. S. 34 years since had two Bastards and hath paid for the nursing of them And the Plaintiff shewed that by reason of these words contention grew betwixt him and his wife almost to a Divorce And it was adjudged That an Action would not lye for the words And the Chief Justice said That an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are twoâ— the one because by the Statute of 14 Eliz. the offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Hill 16 Iacobi in the Kings Bench. 386 HURLSTON and WODROFS Case HEnry Hurlston was Plaintiff against Robert Wodroffe in an Action of Debt upon a Demise of a Messuage with a Sheep-walk the Latin word being Ovile And it was moved in arrest of Judgement after a verdict found for the Plaintiff That the sheepwalk was not alledged to be appurtenant nor pleaded to be by Grant by Deed. But notwithstanding that it vvas ruled by the vvhole Court because it rested indifferent whether there was a grant by Deed or not That when the Jury find that the Sheep-walk did passe it shall be intended that there was a Deed. Dodderidge Justice in the Argument of this Case did hold That by the word Ovile although it be translated in English a Sheep-walk yet a Sheep-walk did not passe by it but a Sheep-Cote and by that the Land it self did passe Hill 16 Iacobi in the Kings Bench. 387. HILL and WADE'S Case HIll brought an Action upon the Case against Wade and declared upon an Assumpsit to pay mony upon request and did not alleadge the Request certain but issue was joyned upon another point and found for the Plaintiffe That the failing of certain alleadging of the Request in the Declaration made the same insufficient And so it was adjudged by the Court with this difference where it was a duty in the Plaintiffe before and where the Request makes it a duty For in the first case the Plaintiffe need not alleadge the Request precisely but otherwise in the later Dodderidge Justice put this Case If I promise J. S. in consideration that he will marry my daughter to give him 20â— upon request there the day and place of the request ought to be alleadged in the Declaration Montagu Chief Justice cited 18 E. 4. and 5 H. 7. to be contrary viz. That the finding of the Jury made the Declaration which was vitious to be good As if Executors plead That they have nothing in their hands the day of the Action brought it is insufficient But if the Jury find Assets it is good and so by consequence the Verdict shall supply the defect of Pleading But the Court held these books to be good Law and not to be contrary and well reconciled with this difference For there the Plea was naught only in matter of circumstance but otherwise it is where it is vitious in substance as in this case it is And a difference also was taken where the Verdict doth perfect all which is material and ought to be expressed
thing and shall he be bound by a Conveyance Anno. 16. H. 6. then in the time of Civil War Uses began and of Lands in use the Lord Chief Baron Tanfield in his Argument hath cited diverse cases where the lands in use were subject and lyable to the debt of Cestuy que use in the Kings Case and so was it untill the Statute of 27. H. 8. of Uses was made Babbington an Officer in the Exchequer had lands in the hands of Feoffees upon Trust and a Writ issued out and the lands were extended for the Debt of Babbington in the hands of his Feoffees Sir Robert Dudley having lands in other mens hands upon Trusts the lands were seized into the Kings hands for a contempt and not for debt or damages to the King And in this Case although that the â—nquisition do find the Conveyance but have not found it to be with power of Revocation yet the Land being extended it is well extended untill the contrary doth appear and untill the extent be avoided by matter of Record viz. by Plea as the Lord Chief Baron hath said before Ley Chief Justice of the Kings Bench argued the same day and his Argument in effect did agree with the other Justices in all things and therefore I have forborne to report the same at length And it was adjudged That the Extent was good and the Land well decreed accordingly Pasch 21 Jacobi in the Exchequer Chamber 417. The Lord SHEFFIELD and RATCLIFF'S Case IN a Writ of Error brought to reverse a Judgment given in a Monstrans de Droit in the Court of Pleas The Case was put by Glanvile who argued for Ratcliffe the Defendant to be this 2 E. 2. Malew being seised of the Mannor of Mulgrave in Fee gave the same to A. Bigot in tail which by divers discents came to Sir Ralph Bigot in tail Who 10 Jannarii 6 H. 8. made a Feoffment unto the use of â—is last Will and thereby after his Debts paid declared the use unto his right heirs in Fee and 9. H. 8. dyed The Will was performed Francis Bigot entred being Tenant in tail and 21 H. 8. made a Feoffment unto the use of himself and Katherine his wife and to the use of the heirs of their two bodies Then came the Statute of 26 H. 8. cap. 13. by which Tenant in tail for Treason is to forfeit the Land which he hath in tail Then the Statute of 27 H. 8. of Uses is made Then 28 H. 8. Francis Bigot did commit Treason And 29 H. 8. he was attainted and executed for the same Anno 31 H. 8. a private Act of Parliament was made which did confirm the Attaindor of Francis Bigot and that he should forfeit unto the King word for word as the Statute of 26 H. 8. is saving to all strangers except the Offendor and his heirs c. 3 E. 6. The heir of Francis Bigot is restored in blood Katherine entred into the Mannor and dyed seised 8 Eliz. their Issue entred and married with Francis Ratcliffe and had Issue Roger Ratcliffe who is heri in tail unto Ralph Bigot And they continue possession untill 33. Eliz. And then all is found by Office and the Land seised upon for the Queen who granted the same unto the Lord Sheffield Francis Bigot and Dorothy die And Roger Ratcliffe sued a Monstrans de Droit to remove the Kings hands from off the lands and a Scire facias issued forth against the Lord Sheffield as one of the Terre-Tenants who pleaded all this special matter and Judgment was thereupon given in the Court of Pleas for Roger Ratcliffe And then the Lord Sheffield brought a Writ of Error in the Exchequer-Chamber to reverse the said Judgment And Finch Serjeant argued for the Lord Sheffield that the Judgment ought to be reversed And now this Term Glanvile argued for Roger Ratcliffe that the Judgment given in the Court of Pleas ought to be affirmed There are two points The first If there were a Right remaining in Francis Bigot and if the same were given unto the King by the Attaindor and the Statute of 31 H. 8. Second If a Monstrans de Droit be a proper Action upon this matter which depends upon a Remitter for if it be a Remitter then is the Action a proper Action The Feoffment by Ralph Bigot 6 H. 8. was a Discontinuance and he had a new use in himself to the use of his Will and then to the use of his Heirs Then 9 H. 8. Ralph Bigot dyed And then Francis Bigot had a right to bring a Formedon in the Discendor to recover his estate tail 21 H 8. then the point ariseth Francis Bigot having a right of Formedon and an use by force of the Statute of 1 R. 3. cap. 1. before the Statute of 27 H. 8. by the Feoffment he had so setled it that he could not commit a forfeiture of the estate tail When a man maketh a Feoffment every Right Action c. is given away in the Livery and Seisin because every one who giveth Livery giveth all Circumstances which belongs to it For a Livery is of that force that it excludes the Feoffor not only of all present Rights but of all future Rights and Tytles v. C. 1. par 111. and there good Cases put to this purpose 9 H. 7. 1. By Livery the Husband who was in hope to be Tenant by Courtesie is as if he were never sised 39 H. 6. 43. The Son disseiseth his Father and makes a Feoffment of the lands the Father dyeth the hope of the heir is given away by the Livery It was objected by Serjeant Finch 1. Where a man hath a right of action to recover land in Fee or an estate for life which may be conveyed to another there a Livery doth give away such a Right and shall there bind him But an estate in tail cannot be transferred to another by any manner of Conveyance and therefore cannot be bound by such a Livery given I answer It is no good Rule That that which doth not passe by Livery doth remain in the person which giveth the Livery 19 H. 6. Tenant in tail is attainted Office is found The estate tail is not in the King is not in the person attainted but is in abeyance So it is no good Rule which hath been put When Tenant in tail maketh a Feoffment Non habet jus in re neque ad rem If he have a Right then it is a Right of Entre or Action but he cannot enter nor have any action against his own Feoffment 19 H. 8. 7. Dyer If Discontinuee of Tenant in tail levieth a Fine with proclamations and the five years passe and afterward Tenant in tail dyeth his issue shall have other five years and shall be helped by the Statute for he is the first to whom the right doth accrue after the Fine levied for Tenant in tail himself after his Fine with Proclamations hath not any right But if Tenant in tail be
Judgement was affirmed for by intendment the Judgment was given upon the first Original which bore date before the Iudgment Another Error was assigned because the Plea was That such a one was seised of the Castle and Mannor of Mulgrave predictis in the plural number I answer that there is not any colour for that Error for the word predictis doth shew that the Mannor and Castle are not one and the same thing So upon the whole matter I pray that the Iudgment given in the Court of Pleas may be affirmed Sir Henry Yelverton argued for the Lord Sheffield that the Iudgment might be reversed There are three things considerable in the Case First If any right of the ancient estate tail was in Francis Bigot who was attainted at the time of his Attainder Secondly admit that there was an ancient right if it might be forfeited being a right coupled with a Possession and not a right in gross Thirdly Whether such a Possession discend to Francis Bigot that he shall be remitted and if this Remitter be not overreached by the Office First If by the Feoffment of Francis Bigot 21. H. 8. when he was Cestuy que use and by the Livery the right of the ancient entail be destroyed And I conceive it is not but that the same continues and is not gone by the Livery and Seisin made There is a difference when Cestuy que use makes a Feoffment before the Statute of 1 R 3. and when Cestuy que use makes a Feoffment after the said statute of 1 R 3 For before the statute hee gives away all Com 352. but after the statute of R. 3. Cestuy que use by his Feoffment gives away no Right In 3 H. 7 13. is our very case almost For there the Tenant in Tail made a Feoffment unto the use of his Will so in our Case and thereby did declare that it should be for the payment of his debts and afterwards to the use of himself and the heirs of his body and died the heir entred before the debts paid but in our Case he entred after the debts paid there it is said that the Feoffment is made as by Cestuy que use at the Common Law for his entrie was not lawfull before the debts paid But when Francis Bigot made a Feoffment 21 H. 8. he was Cestuy que use in Fee and then is the Right of the Estate tail saved by the Statute of 1. R. 3. And by the Statute of 1. R. 3. he gives the Land as Servant and not as Owner of the Land and so gives nothing but a possession and no Right 5 H. 7. 5. Cestuy que use since the Statute of 1 R. 3. is but as a Servant or as an Executor to make a Feoffment And if an Executor maketh a Feoffment by force of the Will of the Testator he passeth nothing of his own Right but only as an Executor or Servant 9 H. 7. 26. proves that Cestuy que use since the Statute of 1 R. 3 hath but only an Authority to make a Feoffment For Cestuy que use cannot make a Letter of Attorney to make Livery for him for he hath but a bare Authority which cannot be transferred to another Cestuy que use hath a Rent out of Land and by force of the Statute of 1 R. 3. he maketh a Feoffment of the Land yet the Rent doth remain to him for he giveth but a bare possession So in our Case the right of the Estate Tail doth remain in Francis Bigot notwithstanding his Feoffment as Cestuy que use by the Statute of 1 R. 3. If Cestuy que use by force of the Statute of 1 R. 3. maketh a Feoffment without Warranty the Vouchee shall not Vouch by force of that Warranty For as Fitzherbert saith Cestuy que use had no possession before the Statute of 27. H. 8. Cap. 10. 27 H. 8. 23. If Feoffees to Use make a Letter of Attorney to Cestuy que use to make a Feoffment he giveth nothing but as a Servant The Consequent of this Point is That the right of the old Estate Tail was in Francis Bigot at the time of his Attainder and was not gone by the Feoffment made 21 H. 8. The second Point is Whether a right mixt with a possession of Francis Bigot might be forfeited by the Statutes of 26. H. 8. and the private Act of 31. H. 8. The Statute of 31. H. 8. doth not save this Right no more then the Statute of 26. H. 8. For they are all one in words I say that he hath such a right as may be lost and forfeited by the words of the Statute of 26. H. 8. Cap. 13. For that Statute giveth three things First It gives the Forfeiture of Lands and not of Estates Secondly How long doth that Statute give the lands to the King For ever viz. to the King his Heirs and Successors Thirdly It gives the lands of any Estate of Inheritance in Use or Possession by any Right Title or means This Estate Tail is an Estate of Inheritance which he hath by the Right by the Title and by the means of coming to the Right it is forfeited These two Statutes were made for the punishment of the Child For the Common Law was strict enough against the Father viz. he who committed the Treason And shall the same Law which was made to punish the Child be undermined to help the Child The ancient Right shall be displaced from the Land rather then it shall be taken from the Crown which is to remain to the Crown for ever And this Statute of 26 H. 8. was made pro bonoâ— publico and it was the best Law that ever was to preserve the King and his Successors from Treason for it is as it were a hedg about the King For before this Statute Tenant in Tail had no regard to commit Treason For he forfeited his Lands but during his own life and then the Lands went to the issue in Tail But this Statute doth punish the Child for the Fathers offence and so maketh men more careful not to offend least their posterity may beg I take two grounds which are frequent in our Law First That the King is favoured in the Exposition of any Statute Com. 239 240. The second That upon the construction of any Statute nothing shall be taken by equity against the King Com. 233 234. Here in this Case although the Right were not in possession yet it was mixed with the possession from Anno 13. E. 1. untill 26. H. 8. Tenant in Tail feared not to commit Treason For the Statute of West 2. did preserve the Estate Tail so as the Father could not prejudice his issue per factum suum And therefore the Commonwealth considering that a wicked man did not care what became of himself so as his issue might be safe provided this Statute of 26. H. 8. Cap. 13. although the Statute of 16. R. 2. Cap. 5. which giveth the Premunire doth Enact that all Lands and
Tenements of one attainted in a Premunire shall be forfeited to the King Yet Tenant in Tail in such Case did not forfeit his Lands C. 11. part 63. b. as the Statute of West 2. Cap. 1. saith in particular words That Tenant in Tail shall not prejudice his issue Therefore the Statute of 26. H. 8. in particular words saith That Tenant in Tail shall forfeit his Lands for Treason The Right of Francis Bigot is not a right in gross but a Right mixed with a possession The Statute of West 2. Cap. 1. brought with it many mischiefs For by that Statute the Ancestor being Tenant in Tail could not redeem himself out of prison nor help his wife nor his younger children and that mischief continued untill 12. E. 4. Taltaram's Case and then the Judges found a means to avoid those mischiefs by a common Recovery and this Invention of a common Recovery was a great help to the Subject Then came the Statute of 32. H. 8. Cap. 36. which Enacted That Fines levied by Tenant in Tail should be a good barr to the issue of any Estate any way entailed If the Son issue in tail levieth a Fine in the life of his Father who is Tenant in tail it shall be a barr to him who levieth the Fine and to his issues And both these viz. the Common Recovery and the said Statute did help the Purchaser And shall not this Statute of 26. H. 8. help the King The Statute of 26. H. 8. Cap. 13. hath not any strength against the Ancestor but against the Child For the Construction of Statutes I take three Rules First When a Case hapneth which is not within the Letter then it is within the intent and equity of the Statute Com. 366. 464. Secondly All things which may be taken within the mischief of the Statute shall be taken within the Equity of the Statute 4. H. 6. 26. per Martin Thirdly When any thing is provided for by a Statute every thing within the same mischief is within the same Statute 14. H. 7. 13. The Estate tail of Francisâ— Bigot and Katharine his wife is forfeited by the Statute of 26 H. 8. There is a difference when the Statute doth fix the forfeiture upon the person As where it is enacted that J. S. shall forfeit his lands which he had at the time of his Attaindor The Judges ought expound that Statute only to J. S. But the Statute of 26 H. 8. doth not fix the forfeiture upon the person but upon the land it self And Exposition of Statutes ought to extend to all the mischiefs 8 Eliz. Sir Ralph Sadler's Case in B. R. where an Act of Parliament did enact That all the lands of Sadler should be forfeited to the King of whomsoever they were holden Sadler held some lands of the King in that case the King had that land by Escheat by the Common-Law and not by the said Statute Com. 563 The Law shall say that all the rights of the tail are joyned together to strengthen the estate of the King Tenant in tail before the Statute of 1 E. 6. cap. 14. of Chauntries gave lands to superstitious uses which were enjoyed five years before the said Statute of 1 E. 6. made Yet it was adjudged that the right of the issue was not saved but that the land was given to the Crown for the issue is excluded by the saving in the said Statute If Tenant in tail give the lands to charitable uses the issue is barred For the saving of the Statute of 39 Eliz. cap. 5. excludes him And he is bound by the Statute of Donis So the Statute of 26 H. 8. cap. 13. and the private Act of 31 H. 8. do save to all but the heirs of the Offenders The third Objection was That Ratcliffe was not excluded by the saving for it was said That the same doth not extend but to that which is forfeited by his Ancestors body And here Ratcliffe had but a Right and that was saved And the Statute doth not give Rights I answer first The Statute of 26 H. 8. is not to be expounded by the letter for then nothing should be forfeited but that only which he had in possession and use Tenant in tail is disseised and attainted for treason By the words of the said Statute of 26 H. 8. he forfeits nothing yet the issue in tail shall forfeit the lands for the issue in tail hath a right of Entrie which may be forfeited 6 H. 7. 9. A right of Entrie may escheat and then it may be forfeited Secondly The Statute is not to be construed to the possession but if he hath a mixt right with the possession it is forfeited but a right in grosse is not forfeited Tenant in tail of a Rent or Seignorie purchaseth the Tenancie or the Land out of which the Rent is issuing and is attainted He shall forfeit the Seignorie and Rent or the Land for the King shall have the Land for ever And then the Seignorie or Rent shall be discharged for otherwise the King should not have the Land for ever For the King cannot hold of any Lord a Seignorie 11 H. 7. 12. The heir of Tenant in tail shall be in Ward for a Meanaltie descended unto him the Meanaltie not being in esse and yet it shall be said to be in esse because of the King C. 3 part 30. Cars Case Although the Rent was extinguished yet as to the King it shall be in esse The difference is betwixt a Right clothed with a possession and a right in grosse viz. where the Right is severed from the possession there it is in grosse For there the Right lieth only in Action and therefore neither by the Statute of 26 H. 8. nor by the private Act of 31 H. 8. such a Right is not forfeited C. 3. part 2. C. 10. part 47 48. Right of Action by the Common-Law nor by Statute-Law shall escheat and therefore it is not forfeited For no Right of Action is forfeitable because the right is in one and the possession in another Perkins 19. A Right per se cannot be charged 27 H. 8. 20. by Mountague A man cannot give a Right by a Fine unless it be to him who hath the possession C. 10. part Lampits Case Sever the possibility from the right and it doth not lie in grant or forfeiture but unite them as they are in our Case and then the Right may be granted or forfeited for that Right clothed with a possession may be forfeited A Right clothed with the possession 1. It tastes of the possession 2. It waits upon the possession 3. It changes the possession The Bishop of Durham hath all Forfeitures for Treason by the Common-Law within his Diocess viz. the Bishoprick of Durham And if Tenant in tail within the Bishoprick commits Treason and dyeth the Issue in tail shall enjoy the land against the Bishop Dyer 289 a. pl. 57. For the Bishop hath not the land for ever but the Issue
for years rendring Rent by an Enfant and afterwards at his full age he accepts the Rent of the particular Tenant it is a good comfirmation of the estate of him in the remainder Litt. 547. If he at full age confirm it is good which could not be if the Lease were void and yet in that Case it doth not appear that there was any Rent reserved The Enfant being a Copyholder makes no difference in the Case And in Murrels Case C. 4. part It is said That if a Copyholder make a Lease not warrantable by the Custome it is a forfeiture which proves it is a good Lease otherwise it could not be a forfeiture Hill 37 Eliz. in the Kings Bench Rot. 99. East and Hardings Case A Copyholder makes a Lease for three years by word to begin at Michaelmas next ensuing it is a forfeiture of the Copyhold and a good lease betwixt the parties Hill 18 Jacobi Haddon and Arrowsmiths Case One licensed his Copyholder for life to make a Lease for 20. if he should so long live and he made a lease for 20 years and left out the words if he should so long live yet because he was a Copyholder for life and so the lease did determine by his death and so he did no more then by Law he might do it was adjudged a good Lease and no forfeiture otherwise if he had been a Copyholder in Fee All Conditions in Fact shall bind an Enfant but not Conditions in Law C. 8. part 44. Whittinghams Case An Enfant Tenant for life or years makes a Feoffment in Fee it is no forfeture For if the Lessor entreth the Enfant may enter upon him again yet it is a good Feoffment but he shall avoid it by Enfancy but if it be by matter of Record then it is otherwise For if an Enfant be Lessee for life and levieth a Fine it is a forfeiture and in that case if the Lessor enter for the forfeiture the Enfant shall not enter again The same Law if an Enfant committeth Waste which is against a Statute it is a forfeiture and if the Lessor recovereth the place wasted the Enfant shall not enter again 9 H. 7 24. A woman an Enfant who hath right to enter into lands taketh a husband and a discent is cast yet she shall avoid the discent after the death of her husband The Court said That if in the Case at Barr the Enfant had been Tenant in Fee at the Common Law and made a lease without Deed and had accepted the Rent at his full age that the same had been good for that there he had a recompence but being a Copyholder it is a question Jones Justice It was adjudged in the Common Pleas in Peters Case That if a Copyholder without licence maketh a Lease not warranted by the Custome That such Lessee should maintain an Ejectione firme The Councel against the Enfant in the Case at Barr said That the Enfant made the Lease as Tenant by the Common-Law for that he made it by Conveyance of the Common-Law And so the Lease was voidable and not void and then the acceptance of the Rent had made the Lease to be good It was adjourned to another day Hill 2. Caroli Rot. 389 in the Kings Bench. 457. GEORGE BUSHER against MURRAY Earl TILLIBARN A Scire facias was brought dated 28 Junii retornable in Mich. Term 2 Car. Regis why Execution should not be awarded against the Defendant upon a Iudgment had against him in this Court The Defendant pleaded That King Charles 7 Octob. in the second year of his Reign did take him into his protection for a year and did grant unto him that during that time he should be free from all manner of Plaints but Dower Quare Impedit and Placit coram Justiciariis Itinerantibus It was said that this Protection was not warrantable by Law for three causes 1. Because it is after the purchase of the Scire facias and before the Retorn 10 H. 6. 3. 11 H. 4. 7. A Protection depending the Suit is not allowable although it make mention that the party is to go a voyage with the Kings Son 2. Because he doth not specifie any particular cause why the Protection was granted unto him All our books do express a cause viz. Quia moratur c. quia profecturus c. Register 22 23. there three Protections are Quia incarceratus 39 H. 6. 38 39 40. per Curiam The Protection ought to express a special cause otherwise it is not good Fitz. 28. a. b. the cause is expressed 1. R. 2. cap. 16. The particular cause ought to be in the Protection A Protection being general the party hath no remedy against him to traverse it or to procure it to be repealed 3. This Court is greater then a Iustice in Eyre and he is excepted in placitis itinerantibus That Court was of opinion that there was no colour for allowing of the Protection A Safe-conduct will only keep the party safe from harm but will not protect him from Actions Mich. 2 Caroli Intratur Pasch 18. Jur. Rot. 298. in the Common Pleas. 458. ROYDEN and MOULSTER's Case IN Trespass for entring into his Close called Dipson in Suffolk upon Not guilty pleaded the Jury gave a special verdict That the said Close was parcel of the Mannor of Movedon and demisable by Copy of Court-Roll and that the same was granted to G. Starling in Fee by Copy of Court-Roll who had issue two sons John and Henry And that 35 Eliz. George Starling did surrender the same to the use of his Will and thereby demised the same to John and the heirs males of his body with divers Remainders over and dyed seised And that the Surrender was presented according to the Custom and that John was admitted to have to him his heirs And that the said John had issue 3 sons Harry George and Nicholas And that the said John 43 Eliz. did surrender to the use of his Will and thereby devised the same to Katherine his wife and dyed and that the said Surrender 9 Martii 4t Eliz. was presented and the said Katherine was admitted Harry George and Nicholas dyed without issue They further found That the Custom of the Mannor is That the youngest brother is to have the Copyhold by discent And also That no Copyholder by the Custome could make any Estate in feodo and that the said Katherine took to her husband Francis Robinson who 1 Sept 17 Iacobi leased the same to Royden the Plaintiffe for one year who entred and was thereof possessed untill Moulster the Defendant by the commandment of c. did out him c. In which case the only Question was Whether a Copyhold be within the Statute of West 2. so as an estate thereof so limited should be a Fee tail or a Fee conditional And by the opinion of the Justices of the Common-Pleas it was adjudged That a Copyhold could not be entituled within the
Statute of West 2. First they said That Copyholds are not within the letter of the Statute which speaks onely de tenementis per chartam datis c. Secondly they are not within the meaning of it 1. Because they were not untill 7 E. 4. 19. of any accompt in Law because they were but Estates at will 2. The Statute of West 2. provides against those who might makeâ— a dissen heresin by Fine or Feoffment which Copyholders could not do 3. Because if Copyholders might give lands in tail by the Statute then the Reversion should be left in themselves which cannot be 4. The Makers of the Statute did not intend any thing to be within the Statute of Donis whereof a Fine could not be levied For the Statute provides Quod sinis ipso jure sit nullus 5. Great mischiefs would follow if Copyholds should be within the Statute of West 2. because there is no means to dock the estate and no customary conveyance can extend to a Copyhold created at this day 37 Eliz Lane and Hills case adjudged in the Common-Pleas was cited by Justice Harvey where a Surrender was unto the use of one in tail with divers remainders over in tail The first Surrenderee dyed without issue And first it was agreed and adjudged That it was no discontinuance 2. If it were a discontinuance yet a Formedon in the Remainder did not lie because there ought to be a Custom to warrant the Remainder as well as the first Estate tail For when a Copyholder in Fee maketh such a gift no Reversion is left in him but only a possibility And the Lord ought to avow upon the Donee and not upon the Donor And there is a difference when he maketh or giveth an estate of inheritance and when he maketh a Lease for life or years for in the one case he hath a Reversion in the other not 2. A Recovery shall not be without a special custom as it was agreed in the Case of the Mannor of Stepney because the Warrantie cannot be knit to such an Estate without a Custom And for express authority in the principal Case he cited Pits and Hockleâ—'s ase which was Ter Pasc 35 Eliz. rot 334. in the Common-Pleas where it was resolved That Copyholds were not within the Statute of Donis for the weakness and meanness of their estates For if they were within the Statute of West 2. the Lord could not enter for Felony but the Donor and the Services should be done to the Donor and not to the Lord of the Mannor And so and for these mischiefs he conceived That neither the meaning nor the words of the said Statute did extend to Copyholds Hill 34 Eliz. Rot. 292. in the Kings Bench Stanton and Barney's Case A Surrender was made of a Copyhold within the Mannor of Stiversden unto one and the heirs of his body and after issue he surrendred unto another And it was agreed by all the Justices That the issue was barred And Popham did not deny that Case but that it was a Fee conditional at the Common-Law and that post prolem suscitatam he might alien And so it was agreed in Decrew and Higdens case Trin. 36. Eliz. rot 54â— in the Kings Bench and in Erish and Ives case 41 42 Eliz. in the Common-Pleas in an Evidence for the Mannor of Istleworth That no Estate tail might be of Copyhold without a Custom to warrant it Mich. 36 37 Eliz. in the Kings Bench it was adjudged That a Copyholder could not suffer a common Recovery and the reason was because that the Recovery in value is by reason of the Warrantie annexed to the Estate at the Common-Law which could not be annexed to a Customary estate And another reason was given because that he who recovers in value shall be in by the Recovery and the Copy of the Court-Roll only should not be his Evidence as Littleton and other books say it ought to be And Crook said That the Statute of Donis was made in restraint of the Common-Law And it should be very disadvantagious to the Lord if Copyhold should be construed to be within that Statute And therefore he conceived that the said Statute did not extend to Copyholds by any equitable construction And such difference was taken by Popham Chief Justice 42 Eliz. in the Kings Bench rot 299. in Baspool and Long 's Case For he said That a Custom which did conduce to maintain Copyholds did extend to them But a Statute or a Custom which did deprave or destroy them did not As if one surrender to the use of one for life the Remainder in Fee where the Custom is to surrender in Fee the Custom doth not extend thereunto because a Custom which goes in destruction of a Copyhold shall be taken strictly But if a man be Copyholder in Fee he may grant a Fee conditional Harvey Justice put some Cases to prove the small account the Law had of Copyholds at the time of the making of that Statute as 40 E. 3. 28. 32 H. 6. br Copyhold 24. And he said That there is not any book in the Law but only Mancels case in Plow Comment That the Statute of West 2. doth extend to Copyholds Hill 2 Caroli rot 235 in the Kings Bench. 459. LITFIELD and his Wife against MELHERSE A Writ of Error was brought upon a Judgment given in an Action upon the Case brought by Husband and Wife in the Common-Pleas for words spoken of the Plaintiffs wife And the Judgment in the Common-Pleas was That the husband and wife should recover And that was assigned for Error in this Court because the Husband only is to have the damages and the Judgment ought to be That the Husband alone should recover But notwithstanding this Error assigned the Judgment was affirmed by the opinion of the whole Court Pasch 2 Caroli rot 362. in the Kings Bench. 460 HOLMES and WINGREEVE's Case A Writ of Error was brought to reverse a Judgment given in the Court at Lincoln in an Action of Trespass there brought for taking away a Box with Writings And four Errors were assigned 1. Because the Plaintiffe did not appear by Attorney or in person at the retorn of the Attachment against the Defendant so as there was a discontinuance for the Plaintiffe ought to appear de die in diem 2. Because in his Declaration there he saith That the Defendant took a Box with Writings and doth not make any title to the Box nor shews that the same was lockt nailed or sealed 2 H. 7. 6. a. The certainty of the writings ought to be shewed that a certain issue may be taken thereupon Com. 85. 22 H. 6. 16. 14 H. 6. 4. 21 E. 3. He ought to shew the certainty of the writings 18 H. 1. Charters in a Box sealed C. 9. part Bedingfields case C. 5. part Playters case The Declaration was insufficient because the Plaintiffe therein did not name the certain number of the Fishes 3. He pleaded That he made a