the estate of the land which all the Court agreed 5. If the Fine had not been the auncient uses were determined without entry or claime because he himselfe was tenant for life of the land and the act of revocation is as strong as claime and this point was agreed in the Earle of Salops case 6. By the same conveyance that the auncient uses are revoked others may be raised without claime or other act and the Law adjudges a priority of operation Whites case adjudged according Maildmayes Case 24. Eliz. fo 175. A Use cannot be raised by any covenant proviso or bargaine c. upon a generall consideration and therefore if a man by Deed indented and inrolled c. for divers good causes considerations bargaine and sell his Land to another and his heires nihil operatur inde for no use shall be raised upon such generall considerations for it doth not appeare to the Court that the bargain or had quid pro quo But the bargainee may averre that money or other valuable consideration was paid or given if in truth it was so and the bargaine and sale is good It was resolved that when uses are raised by covenant in the consideration of advancement of any of his bloud and after in the same Indenture a Proviso that the Covenantor may make Leases for yeares c. that the Covenantor in this case may not make Leases for yeares to his sonne daughter or any of his bloud much lesse to any other person because that the power to make Leases for yeares was voyd when the Indenture was sealed and delivered For the covenant upon this generall consideration will not raise any use and no particular averment in this case may be taken but if the uses be limitted upon a recoverie fine or feoffment there needeth not any consideration to raise any of the uses Resolved that the words other consideration cannot comprise any consideration expressed in the Indenture before the proviso for other ought to be in quality nature and person different and advancement of his daughter is a consideration mentioned before Anthonie Mildmay brought an action of the case against Roger Standish for saying that Lands were lawfully assured to John Talbott for 1600. yeares and that he was lawfully possessed of the same tearme whereas in truth the said Lands were not lawfully assured for the said tearme nor the said John Talbott was lawfully possessed of the interest thereof And so for slaundering of the title by speaking of the words Mildmay brought an action Standish justified the words and shewed the title of Talbott and it was adjudged that the action was maintaineable and good although that Talbott had a limitation of the Land by will which was the reason that Standish being a man not learned in the Lawes affirmed the words yet because he tooke upon him the notice of the Law and medled in a matter that did not concerne him Judgement was given for Mildmay Et ignorantia juris non excusat THE SECOND BOOK Of Sir Edward Cooke Lord c. Mansers Case 26. Eliz. fo 3. IF a man be unlearned and cannot read and be bound to doe an act of sealing assurances writings c. upon tender c. he is not bound to seale and deliver any such writing if there be not some ready which may read the Deed if the party so require it and in the same language and tongue that he understandeth Ignorantia duplex est facti juris and ignorance in reading or of the language Quae sunt ignorantia facti may excuse but ignorantia juris non excusat and if it be read unto him he may not have a reasonable time to shew it to his Councell learned to see whether it agree with his bond or covenant for he must seale it at his perill or if the same be truly expounded to him it is good enough But if it be read amisse or declared contrary to what it is and thereby the illiterated man is deceived he may very well plead non est factum For the Law saith it is not his Deed and so it was adjudged in Throughgoods case being the third case in this second Booke Resolved that if a man be bound that a stranger shall doe an act in such case he takes upon him that he shall doe it at his perill for he which is bound takes more upon him for a stranger then for himselfe in many cases If a man plead that he hath kept a man indemnified c. he ought to shew how otherwise where he pleads in the negative Non fuit damnificatus Goddards Case 26. El. fo 4. AN obligation dated the fourth of Aprill Anno 24. El. and delivered as the Deed of the partie 30. July An. 23. El. adjudged the Deed of the partie for though the plaintiffe in pleading cannot alledge the delivery before the Date because he is estopped yet a Jury which are sworne to speake the truth shall not be estopped The Date of a Deed is not the substance of the Deed. For if it want date or have an impossible Date as the 30. February the Deed is good For there are three things of the essence or substance of a Deed viz. writing in paper or parchment sealing and delivery And if it have these three although it want In Cujus rei testimonium Sigillum suum apposuit c. yet the Deed is good and when a Deed is delivered it takes effect by the delivery not by the date Throughgoods Case 26. Eliz. fo 9. REsolved that 't is not materiall whether the party to whom the Deed is made or another by his procurement or a Stranger of his owne head reades the writing in other words then the writing is so that he that seales it be a lay man and without covin in him deceived and the pleading of it is alwayes generall without shewing by whom 't was read and A. shall voyde an obligation to B. by pleading that he did it â—y menace of C. Resolved that such a lay-man is not bound to deliver a Deed if no body be present that can reade it in such language as he can understand and if it be read in other words it shall not binde him and 't is at the perill of him to whom 't is made that the very effect and purport of it be declared if it be required but if he doe not request it he shall be bound by it though it be made contrary to his meaning Resolved that it shall not binde if the effect be declared in other words then it is as if the Deed had been read in other words Two Justices a Feoffement of two acres is read as of one it shall not binde see Mansers case before Wisemans Case 27. Eliz. fo 15. TEnant in tayle of certaine Lands the remainder to another in Fee he in remainder by Deed indented and inrolled in consideration of bloud c. as for other good considerations doth covenant to stand seized of the said
the Case lyeth for disparaging the Plaintiffes Title unto Lands Page 17 THE SECOND BOOKE AN illiterate man is not bound to seale a Deed without hearing the same read and Ignorantia facti may excuse but Ignorantia juris doth not Page 19 If a man plead that he hath kept I. S. indemnified he must shew how but not if he pleads in the negative Page 19 20 The Date of a Deed is not of the substance thereof Page 20 If a Deed be made by Menace it is avoidable by Plea ib. If it be read in other words then it is it bindeth not Page 21 But if he require it not to be read it shall bind him ib. Touching considerations to raise an use Page 21 Where an estate taile is barrable notwithstanding 34. H. 8. Page 22 A Lease by the Q. under the Exchequer Seale is good ib. What Act doth extinguish a Copy-hold Page 23 Things which lye in grant are effectuall by delivery of the Deed without other ceremony ib. Where the Habendum in a Deed is void and where voidable ib. A sale by the Bankrupt after a Commission awarded is void Page 24 13. Eliz. giveth benefit to such onely as comes in ib. The possession of the House is a good possession of the Lands also Page 25 What passeth by this word Cum pertinentijs ib. Where by a Deed Lands are granted Scituate in one place and they lye in another what passeth thereby ib. Where the Act of 34. H. 8. aideth a voidable grant Page 26 A. demiseth bargaines and sells to B. upon consideration for yeares and no Attornement to B. what passeth to him Page 27 Much learning of Elections ib. What Persons capable of Tithes at the Common Law Page 29 Where a man may prescribe to have Tithes appurtenant to a Mannor Page 30 Where a Religious House or Colledge is given to the K. by 1. E. 6. Page 31 Where a perpetuall unity dischargeth Tythes by 31 H. 8. or 1. E. 6. Page 32 Where a possibility shall make a grant good Page 33 Where a Tender upon a condition shall devest an estate Page 34 An estate of freehold cannot commence in Futuro Page 35 The Office of the premisses and Habendum ib. Where the Husband solely may declare the use of a fine of his Wifes Land and when it shall bind her and when not Page 36 Where a Variance in the Declaration avoideth all Page 37 What act of the feoffor dispenseth with a condition Page 38 Where a feoffee is disabled to performe a condition ib. An estate made to three and to the Heires of one the jointure continueth ib. A demise made by Baron and Feme without saying by Deed ib. Attornement of one Tenant for life to the grantee is good Page 39 Where one jointenant may prejudice another ib. In what clauses this word Proviso maketh a condition Page 40 By a fine levyed a condition is not extinct much good matter Page 43 Common assurances construed favourably ib. Where another use may be averred upon a fine upon grant and render or another consideration then is expressed Page 44 When a request is necessary and in what cases ib. The remainder to the right Heires of the Conisor is a reversion Page 45 Where a Donee in taile shall hold of no body Page 46 A man wounded upon the Sea dyes upon the Land unpunishable ib. The Law respects the Originall Act Page 47 THE THIRD BOOKE WHere a Writ of Error or right of Action is given to the King by 28. H. 8. Page 49 A diversity betweene inheritances and Chattells personall Page 50 Neither an Action without a Right nor a right without an Action shall make Remitter ib. A reversion upon an estate taile is out of the Statute of 9. R. 2. c. 3. Page 51 Where a grant from the Q. ought to haue precise words ib. A render to the Wife onely voidable where shee is not party Page 52 The Husband onely vouched where it barreth the remainder Page 53 A recovery against Tenant for life and he in remainder in taile shall not bind the taile Page 54 A grant of a Copy-hold for life is within 31. H. 8. of Monasteries ib. Excellent Rules for interpretation of all Statutes ib. What Statutes extend to Copy-holders and what not ib. Whether West 2. c. 1. extends to Copy-holds Page 55 Where the rents shall be intended to be the old rents Page 56 If the particular estate may determine before the remainder can comence what is become of it ib. In VVills the intent of the Devisor must be considered Page 57 Paying in a VVill where it is a condition and where a limittation ib. VVhere Debt lyeth for rent before the last day of payment Page 58 Three sorts of privities Page 59 Lessee assigneth Bargainee of the reversion shall not have Debt against the Lessee but the Lessor might Page 60 An Executor of a Termor not liable to Debt after Assignement ib. The Lessor may charge the Lessee or his Assignee Page 61 VVhere an estate may be waved in pays at the common Law and where by the Statute of 27 H. 8. of Vses Page 61 62 Much notable Learning upon the Statutes of 32. 34. H. 8. of VVills and of Relations and what inheritances are devisable Page 63 64. c. VVhere the second delivery of a Deed shall relate to the former Page 67 The severall sorts of custodies and Gardians Page 68 VVho shall have the custody of the Heire apparent an infant Page 68 69 The Mother shall have the custody c. within 4 5. Phil. Mar. c. 8. Jure naturae Page 69 Equally to be divided in a VVill and their construction Page 70 Excellent Learning of discents and of Possessio fratris ib. The Sheriffe is not bound to bring a prisoner in Recta linâ—a Page 71 VVhat Act is an escape and how prevented by the Sheriffe ib. A lease for three lives by a fine where within 11. H. 7. c. 20. Page 72 VVhat person may take advantage by entry within that Act ib. A VVoman accepts a fine and renders back for 1000. yeares it is within that Statute Page 73 A prisoner taken againe in Recenti insecutione is in Execution againe Page 73 An Action will lye against the Sheriffe before he be retaken ib. And after he is taken he shall be in prison againe ib. After a demurrer there shall be no repleader Page 74 Issue Tenant in taile suffers a recovery the Mother releaseth with warranty this is not within 11. H. 7. Page 74 75 Otherwise if the Wife had released after the death of the issue Page 76 An estate transferred in the Post before the warranty discend Page 77 The Lessor having cause of entry but no notice accepts rent ib. The Lessor may have debt after a reentry Page 78 A Lease for yeares is not made good by acceptance if the condition be to be void othewise of a Lease for life ib. Acceptance and an acquittance barreth all former
AN EXACT ABRIDGMENT IN ENGLISH Of the eleven Books of Reports of the Learned Sir Edward Coke Knight late Lord Chiefe Justice of ENGLAND and of the Councel of Estate to His Majestie King JAMES Composed by the Judiciouâ— Sir Thomas Ireland Knight late of Grayes Inne and an Ancient Reader of that Honourable SOCIETIE Wherein is briefly contained the very substance and marrow of all those Reports together with the Resolutions on every CASE Also a perfect Table for the finding of the Names of all those Cases and the principall matters therein contained Very usefull for all men especially the Students and Practisers of that Honourable Profession Brevitas Memoriae Amica LONDON Printed by M. Simmons for Matthew Walbancke at Grayes Inne Gate and H. Twyford in Vine-court in the Middle Temple 1650. To the Reader Gentle Reader THE Abridger of these Reports was not onely a Learned Lawyer but also was very conversant with the Author of them For my part I was onely entreated by many Friends to view and correct the Copy from the Presse If any faults be you may blame the Printer If I should commend the Original work I should disparage the Author who all learned Lawyers know that never any man wrote like him and for the excellency of this Abridgement it hath in it the very pith and substance of the Reports at large and so I rest It is an abuse that the lawes usages of the Realm with their Causes are not written whereby they may be knowne so that they may be understood of all Mirrour Justice fol. 225. An exact Table of all the Cases in each severall Book The First Booke of the Lord Coke LOrd Buckhursts Case Pelhams Case fol. 1 Porters Case fol. 2 Altonwoods Case Capels Case Archers Case fol. 3 Bredons Case fol. 4 Corbets Case fol. 5 Shelleyes Case fol. 6 Albaines Case fol. 7 Chudleighs Case fol. 8 Anne Mayowes Case fol. 11 The Rector of Chedingtons Case fol. 12 Digges Case fol. 14 Mildmayes Case fol. 16 The second Booke of the Lord Coke MAnsers Case fol. 19 Goddards Case Thoroughgoods Case fol. 20 Wisemans Case fol. 21 Lanes Case fol. 22 Baldwins Case fol. 23 Case of Bankrupts fol. 24 Bettisworths Case fol. 24 Doddingtons Case fol. 25 Sir Rowland Heywards Case fol. 26 Bishop of Winchesters Case fol. 29 Arch-Bishop of Canterburies Case fol. 31 Sir Hugh Cholmleyes Case fol. 33 Buckleyes Case fol. 34 Beckwiths Case fol. 36 Winningtons Case fol. 37 Westcots Case fol. 38 Tookers Case fol. 39 Lord Cromwels Case fol. 40 Binghams Case fol. 45 The Third Booke of the Lord Coke THe Marquesse of Winchesters Case fol. 49 Copledikes Case fol. 53 Heydons Case fol. 54 Borastons Case fol. 56 Left out Dowties Cass and Sir Willam Harberts Case Walkers Case fol. 58 Butler and Bakers Case fol. 61 Ratclifts Case fol. 68 Bontons Case fol. 71 Sir George Browns Case fol. 72 Rigewaies Case fol. 73 Lincoln Colledg Case fol. 74 Pennants Case fol. 77 Westbies Case fol. 80 Deane and Chapter of Norwich's Case fol. 81 Fermors Case fol. 83 Twines Case fol. 86 The Case of Fines fol. 89 The Fourth Book of the Lord Coke VErnons Case fol. 95 Bevils Case fol. 98 Actions of Slander the Lord Cromwels Case fol. 101 Cutler and Dixons Case fol. 102 Sir Richard Buckley and Woods Case fol. 103 Stanhop and Blyths Case fol. 104 Hext Justice of Peace against Yeomans fol. 104 Birchleyes Case fol. 105 Weaver and Caridens Case fol. 105 Stukley and Bulheads Case fol. 106 Snagg and Gees Case fol. 106 Baton and Allens Case fol. 106 Anne Davies Case fol. 106 Jeames Case fol. 107 Oxford and his wife against Crosse fol. 108 Sir G. Gerrard Master of the Rolls against Mary Dickinson fol. 108 Barhams Case fol. 109 Britteridges Case fol. 110 Palmer and Thorps Case fol. 111 Coppi-hold Cases fol. 111 Brownes Case fol. 111 Rivets Case fol. 113 Deale and Rigdens Case fol. 113 Bullock and Dibleyes Case fol. 113 Gravenor and Teds Case fol. 114 Fitch and Huckleyes Case fol. 114 Clark and Pennifathers Case fol. 114 P. 26. of the Queene fol. 115 Rous and Arters Case fol. 116 Murrell and Smyths Case fol. 116 Kite and Queintons Case fol. 117 Melwich and Luters Case fol. 118 Neales Case fol. 120 Clifton and Molineux Case fol. 120 Taverner and Cromwels Case fol. 120 Hubbard and Hamonds Case fol. 121 Westwick and Wyars Case fol. 122 Bunting and Lepingwels Case fol. 123 Downes and Hollakins Case fol. 124 Harm and Sayes Case fol. 125 Shaw and Tompsons Case fol. 126 Hoe and Taylors Case fol. 126 Frenches Case fol. 127 Foyston and Crachrodes Case fol. 128 Myttons Case fol. 129 Bozouns Case fol. 130 Terringhams Case fol. 132 Cases of Appeales and Indictments Brookes Case fol. 135 Wetherell and Darly's Case fol. 135 Youngs Case Walkers Case Heydons Case fol. 136 Hume against Ogle Hudson and Lees Case Syers Case fol. 138 Bibiths Case Vauexs Case fol. 139 Wrote and Wigges Case fol. 140 Waits Case fol. 142 Hill 30. of the Queene Ognels Case fol. 143 Rawlins Case fol. 145 Wardens Commonalty of Sadlers Case fol. 148 Forse and Hemblings Case fol. 149 Harlakendens Case fol. 150 Fulwoods Case fol. 152 Hindes Case fol. 154 Boroughes Case Palmers Case Hollands Case fol. 156 Case of Corporations fol. 157 Digbies case fol. 158 Nokes case Sir Andrew Corbets case fol. 159 Southcots case fol. 160 Luttreles case fol. 161 Druries case fol. 162 Slades case fol. 163 Adams and Lamberts case fol. 164 Actons case fol. 166 Dumpors case fol. 167 Bustards case fol. 168 Beverleys case fol. 169 The Fifth Booke CLaytons case Elmers case fol. 171 Jewels case Lord Mountioyes case fol. 172 Justice Windhams case Brudenels case fol. 173 Hensteads case Ives case fol. 174 Saunders case Rosses case fol. 175 Countesse of Salops case fol. 176 Case of Ecclesiasticall persons Covenants c. concerning Leasees Assurances c. fol. 177 Slingsbyes case Rosewels case fol. 180 Higginbottoms case Stiles case Sir Anthony Mayns case fol. 181 Laughters case Hallings case Matthewsons case fol. 182 Lambs case Broughtons case fol. 183 Deane and Chapter of Windsors case Sir Thomas Palmers case fol. 184 Earl of Rutlands case fol. 185 Cases of Executors Russels case Middletons case Harrisons case fol. 188 Piggots case Princes case fol. 189 Caulters case Hargraves case Pettifers case fol. 190 Robinsons case Reades case fol. 191 Ployters case fol. 192 Walcots case Baynhams case Gardiners case Bishops case fol. 193 Teys case fol. 194 Dormers case Rowlands case fol. 195 Countesse of Rutlands case Godwels Case Nichols case Bohuns case fol. 196 Freemans case Gages case Cookes case fol. 197 Franklins case Gilbert Littletons case Drywoods case fol. 198 Vaughans case Wyrrels case Biggens case fol. 199 Halls case Pages case fol. 200 Knights case fol. 201 Specots case fol. 202 Fosters case fol. 203 Gooches case fol. 204 Sparries case Case of By-Lawes Chamberlain of Londons case fol. 205 Clerks case Jeffrayes case fol.
206 Lord Cheneys case Cases of Usury fol. 208 Buttons case Claytons case fol. 208 Hoes case St. Johns case fol. 209 Williams case Case of Orphanes of London Wymarks case fol. 210 Cliftons case fol. 211 Pilkintons case Earl of Pembrooks case Pagets case fol. 212 Boothes case fol. 213 Samons case Grayes case Fitz Herberts case fol. 214 Fords case Case of of customs Snellings case fol. 215 Case of Market Overt Perimans case Sir Henery Knevits case fol. 216 Pennrins case Cases of Executions Blumfields case fol. 217 Garnons case fol. 218 Frosts case fol. 219 Hoes case fol. 220 Semaynes case fol. 221 Barwicks case fol. 223 Goodalls case Countesse of Northumberl case Buries case fol. 224 Flowers case Rookes case fol. 225 Penruddocks case fol. 226 Windsors case Hungats case fol. 227 Bakers case Boulstons case fol. 228 Aldens case Sir Henry Constables case fol. 229 Foxleyes case fol. 230 Malaries case Wades case fol. 232 Foliambs case Olands case Pynners case fol. 233 Edriches case fol. 234 Whelpdales case Longs case fol. 235 Saffins case De libellis Famosis fol. 236 Palmers case Caudreys case fol. 237 The Sixth Booke BReuertons case fol. 239 Markals case fol. 240 Sir John Molins case fol. 241 Wheelers case Ferrers case fol. 242 Spencers case fol. 243 Gentlemans case Morrices case Cases of Pardon fol. 244 Arundels case fol. 245 Treports case Edens case Colyers case fol. 246 Wildes case Sir Edward Cleers case fol. 247 Packmans case fol. 248 Gregories case Michelborns case fol. 249 Butler and Goodalls case Ambrosia Gorges case fol. 250 Marquesse of Winchester his case Reades case Helyars case fol. 251 Ruddocks case Sharps case fol. 252 The case of Souldiers Vicont Mountagues case fol. 353 Greenes case fol. 254 Boothies case Fitz Willams case fol. 255 Bishop of Baths case fol. 256 Dean and Chapter of Worcesters case fol. 257 Bellamyes case Henery Finches case fol. 257 Sir Anthony Mildmay Blakes case fol. 258 Higgins case Dowdales case fol. 259 Boswels case fol. 260 Countesse of Rutlands case fol. 261 Lord Chandows case Bredimans case fol. 262 Gatewards case fol. 263 Catesbies case fol. 264 Sir Moyle Finches case fol. 265 Lord Darcies case fol. 266 Burrels case Sir Drue Druries case fol. 267 Sir Gorge Cursons case fol. 268 Bullens case Lord Abergavennies case Sir Edward Phittons case fol. 269 The Seventh Booke CAlvins case fol. 271 Bulwers case fol. 273 Sir Miles Corbets case fol. 274 Gendils case fol. 275 Milbornes case Earle of Bedfords case Oghtreds case fol. 276 Englefields case fol. 277 Case of Swannes fol. 279 Sir Thomas Cecills case Lord Andersons case fol. 280 Butts case fol. 281 Cases of Quare Impedit Halls case fol. 282 Sir Hugh Portmans case Baskervills case fol. 283 Mauds case Discontinuance of processe by the death of the Queen fol. 284 Case of a Fine levied by the King fol. 285 Nevils case Penall Statutes fol. 286 Lillingtons case Bedels case fol. 287 Beresfoeds case Kenns case fol. 288 The Eighth Booke THe Princes case fol. 291 Calyes case Paynes case fol. 293 Barretry Greysleyes case fol. 294 Whittinghams case fol. 295 Jehu Webbs case fol. 296 Sims case fol. 297 Roger Earl of Rutlands case fol. 298 Beechers case fol. 299 Swaines case Sir William Fosters case fol. 300 Lovedayes case Crogates case fol. 301 Trollops case fol. 302 Whitlocks case Greenlyes case fol. 303 Lord Staffords case fol. 305 Wiat Weilds case fol. 306 Vinyors case Sir Richard Pexals case fol. 307 Buckmers case fol. 308 Frauncis case fol. 309 Foxes case fol. 310 Mannings case fol. 311 Baspoles case Sir Richard Lechfords case fol. 312 Talbots case fol. 313 Doctor Bonhams case fol. 314 Case of the City of London Case of Thetford Schoole fol. 316 Turnors case fol. 317 Shiplyes case Sir John Nedhams case fol. 318 Sir Francis Barringtons case fol. 319 Doctor Druries case fol. 320 Davenports case The Six Carpenters case fol. 321 Edwards Althams case fol. 323 Arthur Blackamores case fol. 324 Cases in the court of wards Myghts case fol. 326 Digbies case Earl of Cumberlands case Paris Stoughters case fol. 327 Toursons case Sir Gerard Fleetwods case fol. 328 Hales case Sir Henry Constables case fol. 329 Virgill Parkers case fol. 336 The Ninth Booke DOwmans case fol. 331 Anna Beddingfields case fol. 332 Case of Avowry fol. 333 The Abbot of Strata Marcella his case fol. 334 Bucknals case Henslowes case fol. 336 Earle of Shrewsburies case fol. 339 Hickmots case fol. 340 Batens case fol. 341 The Poulters case Aldreds case fol. 342 Lambs case fol. 343 Bradshawes case Mackallies case fol. 344 Peacocks case fol. 346 Doctor Husse case fol. 347 Combs case fol. 348 Petoes case fol. 349 Agnes Gores case Coneys case fol. 351 Pinchons case fol. 352 Banes case fol. 354 Sir George Reynels case fol. 355 Podgers case fol. 356 Treshams case fol. 357 Marys case fol. 358 Lord Sanchars case fol. 359 Cases in the Court of wards Lawes case fol. 360 Floyers case fol. 362 Sondayes case Quicks case fol. 363 Bewleys case Holts case fol. 364 Menes case fol. 365 Ascoughs case fol. 366 Thorogoods case fol. 367 Beaumonts case fol. 368 The Tenth Book THe case of Suttons Hospitall fol. 371 Portingtons case fol. 374 Lampets case fol. 375 Case of the Chancellor Masters Scholars of the University of Oxford fol. 378 Bishop of Salisburies case fol. 379 Whistlers Case Church-wardens Case of St. Saviours in Southwark fol. 381 The Case of the Marshalsea in false imprisonment fol. 382 Loveis Case in Ejectione ferme fol. 384 Doctar Leyfields Case fol. 387 Seymors Case fol. 389 Bewfages Case fol. 391 Denbawds Case in Error fol. 396 Lofields case in debt upon bond fol. 397 Legats Case fol. 398 Pilfolds Case fol. 399 Cheyneyes Case fol. 400 Case of the Major and Burgesse of Lin fol. 401 Cluns Case fol. 402 Osborns Case fol. 403 Read and Redmans case fol. 404 Richard Smiths Case fol. 405 Cases upon the Commissions of Sewers Case of Chester Mille Keighleys case fol. 406 The Case of the Isle of Elie fol. 407 Scroops Case fol. 409 The Eleventh Book THe Lord Delawares case fol. 411 Auditor Curles case fol. 412 Sir John Heydons case fol. 413 Priddle and Nappers case fol. 414 Doctor Grants Case fol. 416 Sir Henry Nevils case fol. 417 Doctor Ayrays Case fol. 417 Henry Harpurs case fol. 418 Henry Pigots case fol. 420 Alexand. Poulters case fol. 420 Metcalfes case fol. 423 Richard Godfreyes case fol. 425 Richard Lifords case fol. 426 The Taylors of Ipswich case fol. 428 Edward Savels case fol. 429 Benthams case fol. 429 Doctor Fosters case fol. 429 Magdalen Colledge case fol. 432 Lewis Bowles case fol. 34 The Case of Monopolies fol. 436 The Earle of Devonsh case fol. 437 James Bagges case fol. 438 THE FIRST BOOK The Lord Buckhursts Case 40. El. fo 1. IF a man for him and his heires do warrant Land to one and his heires this is a generall warrantie because there is not
house or not When a man maketh a feoffment of a Messuage cum pertinentii he departeth with nothing thereby but that which is parcell of the house as buildings curtelage and gardens If a Lessee for yeares makes a Lease for a certaine Tearme of any parcell and so divides the possession thereof from the residue if of this parcell so severed Liverie be made the possession in the residue by the first lessee is not any impediment to the liverie of this parcell otherwise if a Lessee make a Lease at will of any parcell there his possession of the residue shall hinder the liverie made in this parcell and with this judgement agreed all the other Justices and Serjeants of Serjeants Inne in Fleete-streete Doddingtons Case 27. Eliz. fo 32. KIng H. 8. Ex certa scientia c. granted to A. for 300 l. Omnia illa Messuagia in tenura Johannis Browne Scituate in Well nuper prioratini de W. Spectant ' And in truth the Lands lie in D. in this Case 't was resolved that the grant was voide by the Common Law as well in case of a common person as the King because the grant is generall and is restrained to one certaine Village and the grantee shall not have any Lands out of that Village to which the generallity of the grant is referred for this Pronoune Illa hath his necessary reference as well to the Towne as well as to the Tenure of I. B. for if eyther the one or the other faile the grant is voide And so it was adjudged Per tot cur de Banco Regis Resolved also that this grant was not holpen by the Statute of 34. H. 8. For no grants are holpen by this Statute nor by any act of confirmation but such as comprehend convenient certainty 1. Quia generale nihil certum implicat And here no Tenements are mentioned to be granted because the generall grant being intire was referred to a falsity and therefore it cannot be said that the Towne was misnamed and great inconvenience would follow if c. for the King should be deceived but the Statute helpes when there is a convenient certainty as a Mannor Farme Land knowne by a certaine name or containing so many Acres c. So that it may appeare what things the King intended to passe Note t is the most sure way for the Pattentee to expresse as much as he can in certainty before the generall words SIR Rowland Heywards Case In cur Wardor 37. Eliz. fo 35. SIr Rowland Heyward seised of a Mannor in Demeans and rents in consideration of money doth demise grant Bargaine and sell to A. the said Mannours Lands Tenements and the reversions and remainders with all Rents reserved upon any demise to have and to hold to A. and his asignes after the death of the Lessor for seaventeene yeares rendring a rose the Indenture was inrolled and after the Lessor by Indenture doth Covenant with B. to stand seised of the premises to the use of himselfe and the Heires of his body and no attornment was made to A. The Question was What passed to A and it was resolved by Popham and Anderson chiefe Justices and the Court that A. may have his election eyther to take the same by demise at the common Law or by bargaine and Sale Per Statutum 27. H. 8. without attornment for it was one entire demise and bargaine of one Mannor without any fraction or division thereof and this election remaineth to A. and his Executors and assignes for here is not Election to claime one of two severall things by one Title but to claime one thing by one of the two severall Titles for where the things are severall nothing passeth before Election and the Election must precede but when one thing passeth the Election of the Title may be subsequent For if I. have 3 Horses and doe give to you one of them the property comenceth by Election and must be made in the life of the Parties The Bi of Sarum had a great wood of 1000 Acres called Brerewood and infeoffed another of one House and seaventeene Acres parcell of the Wood and made Liverie in the Wood House nothing passeth of the Wood before Election and the Heire of the feoffee may not make Election Bullocks Case 10. Eliz. Dyer In case where election is given of two several things he which is the primer Agent and that ought to doe the first act shall have alwayes the Election As if a man grant a Rent of twenty Shillings or a Robe the Grantor shall have the Election for he is the primer Agent eyther by paying the one or delivering the other If a man make a Lease rendring twenty shillings or a Robe the Lessee shall have the Election Causa qua supra but if I give unto you one of my Horses in my Stable there you shall have the Election for you are the Primer Agent by taking or seising one of them and so of twenty trees in my Wood. Note for Elections these diversities 1. When nothing passes to the grantee c. before Election there it ought to be made in the life of the Parties but when the Estate passes presently c. the Grantee c his Heire or Executor may elect 2. When the same thing passes and the Donee c. hath Election in what manner c. he will take it the Donee Heire or Executor may elect 3. When Election is given to severall persons the first shall stand 4. When Election is given of two severall things he which ought to doe the first Act shall have Election 5. When the thing granted is annuall and to have continuance there the Election remaines to the Grantor in case where the Law gives him Election as well after the day as before otherwise t is when the thing is to be performed Vnica vice 6. The feoffee c. by his act may forfeit his Election as if A. infeoffe B. of two Acres Habendum the one for life the other in Taile and hee before Election makes a feoffement of both here the feoffor shall enter in which he pleases for the wrong of the feoffee 7. Though the Lessees here enter generally yet they may Elect after so if one be Executor and Devisee of a terme and enters generally c. and after the Lessees in the principall case made Election for to take by bargaine and Sale and had the Rents The Bishop of Winchesters Case 38. El. fo 43. In a prohibition REsolved that at common Law none had capacity to take Tythes but spirituall persons or Persona mixta as the King and regularly no meere Lay man was capable of them except in speciall Cases for he could not sue for them in Court Christian and regularly a lay man had no remedy for them till 32 H. 8. A Lay-Man may be discharged of Tythes at the common Law by grant or by composition but not by prescription for it is commonly said in our law-Law-Books that a lay man may
accordingly and if no request be made and the Feoffee or Grantee that ought to performe the condition dye the condition is broken Yet this generall rule admits an exception for here in case of an advowson he hath not time during his life though no request be made but upon contingency to wit if no avoydance fallin the meane time for if the Grantee stay till the avoydance fall Ipso facto the condition is broken for B. cannot have all the presentations during his life which was the effect of the grant and the Advowson is come into another plight then t was But where the day is certaine for the performance and the party dye before the condition is discharged because the performance is become impossible by the Act of God and therefore when a day certaine is appointed t is good that the Heire of the feoffee be named in the condition Another diversity was also agreed when t is to be performed to a stranger he ought to request the stranger in convenient time for to limit a time when it shall be done but if it be to the Feoffor himselfe he ought not to performe it before request Another diversity was taken by some when the feoffee dyes and when the feoffor dyes for in the one case the condition is broken in the other not Binghams Case 43. of the Queene fo 91. R. Bingham the Grandfather held the Mannor of B. M. of Sir Jo Horseley as of his Mannor of H. and levyed a fine to the use of him and his Wife for life and after of R. the Father his Sonne and Heire in taile and after to the right Heires of the Grand father R. the Father dyed the remainder in taile discended to R. his Sonne within age Sir I. H. suffered a recovery of the Mannor of H. to the use of himselfe and his Wife in taile and after to Sir R. H. his Sonne and Heire in taile after to the Heires of Sir I. Sir I. and his Wife dyed without issue Sir R. enters R. B. the Grandfather dyes by which the reversion in Fee discended to R. B. the Wife of Robert dyes R. within age enters and Leases c. Resolved that the use limitted to the right Heires of the Grandfather upon the fine is a reversion in the Grandfather expectant upon the taile not a Remainder so t was resolved in Fenwick and Mitfords Case and so t was resolved in the Earle of Bedfords Case Resolved that Sir R. H. shall not have the ward of the Land for the reversion in Fee is holden of him and not the Taile though both discend from the same Ancestor for the taile cannot be drowned and if Tenant in taile grant over the reversion he shall hold the Taile of his Grantee and though the Seigniory of the taile be suspended yet the Donee hath two distinct estates and the reversion is as a Mesne betwixt the Donee and the Lord and the Lord is not defeated for the Law gives no wardship in such cases and if it were admitted that by the unity of Tenure betwixt the Donee and reversion t was determined yet nothing shall be holden of the Lord but the reversion and in some cases the Donee in taile shall hold of no body as a gift in taile the remainder to the King Resolved if the Grandfather were Tenant for life the remainder to the Father in taile the remainder to the Father in fee the Father dyes his Heire within age and Sir I. H. grants the Seigniory to Sir R. H. and the Grandfather dyes that Sir R. H. shall not have the ward of the Heire because R. the Father did not hold of him nor any of his Ancestors the day of his death nor the Taile was not within the see and Seignory of Sir Ra. or any of his Ancestors at the death of R. the Father and the Writ saith Praecipe c. Eo quod terram illam de eo tenuit die quo obijt And though that during the life of Tenant for life the Heire of the remainder shall not be in ward because Tenant for life is Tenant to the Lord yet the death of Tenant for life is not the cause of ward but the removing of an impediment as in Paget and Caries Case Tenant for life commits wast and after Tenant for life in remainder dyes he in remainder in fee shall have wast T was said when two accidents are required to the consummation of a thing and the one happens in the time of one and the other in the time of another neither the one nor the other shall have benefit by it as the Tenant ceases for a yeare the Lord grants his seigniory and then the Tenant ceases for another yeare neither shall have a Cessavit which was agreed So Lacies Case Trin. 25. of the Queene who gave a mortall wound upon the sea of which the party dyed upon the Land yet he was discharged because the stroake was upon the Sea the death upon the Land so that neither the Admirall nor a Jury can inquire of it and t was said when diverse accidents are required to the consummation of a thing the Law more respects the Originall cause then any other A man presents to a Church in time of Warre notwithstanding the party be instituted and inducted Tempore pacis all is voyd So the Law more respects the death of him in the remainder the Originall cause of wardship then the death of Tenant for life which is but Causa sine qua non and rather a removing of an impediment then a cause so t was resolved that neyther the one nor the other shall have the ward Resolved that Sir Ra. should not have the third part of the Land by 32. 34. H. 8. for though R. the Grandfather had limitted the use to the Father which is within the Statute yet when R. the Father dyes in the life of the Grandfather the Statute extends no further for the Heire of the Father who is in by discent shall be in ward by the common Law not by the Statute and if the Statute should extend to the Son and Heire of him in remainder by the same reason it should extend to all the Heires of him in remainder In infinitum THE THIRD BOOK The Marques of Winchesters Case 25. of the Queene fo 1. LIonell Norris and Anne Mills were seised of the Mannor of M. and to the heires of the body of L. a common Recovery is had against L. without naming Anne H. Norris being in remainder in taile is executed for Treason and 't is enacted that he shall forfeit Mannors c. uses possessions offices rights conditions and all other hereditaments L. dyed without issue Anne dyed the Queene brought error against the Marques of Winchester heire of the survivor of the recoverors the error was that the originall Writt of entry wants the defendant pleaded that 14. of the Queene shee gave and restored to the Lord Norris Sonne and heire of H. Norris
land of M. was lost by the Statute of 4. and 5. P. and M. ca ' 8. Resolved that there were two manners of custodies or Gardianships the one by the common law the other by the Statute at common Law foure manner of Gardians viz Gardian in Chivalry Socage Nature by Nurture The first two are fully described in our Bookes but great controversie was at barre for Gardian by Nature Some held that the Father onely shall have the custody of his sonne and heire apparent within age not the Mother Grandfather c. Also that the Father shall not have the custody of his daughter and heire for it ought to be such an heire as shall continue sole and apparent heire as the Father shall not have the custody of the youngest sonne in Borough English for tenure in Chivalry Others affirme that not onely the Father but every auncestor male or female shall have the custody of his heire apparent male or female Trespas quare 〈◊〉 consanguinium haeredem of the plaintiffe cujus maritagium ad ipsum pertinet c. rapuit c. lyes The Mother though she had no land brought ravishment of ward of J. her Sonne and heire against the grandfather who had land that might descend By the Court both erre for 't is true that every auncestor shall have trespas or ravishment of ward against a stranger for his heire male or female and the Writ shall say Cujus maritagium ad ipsum pertinet and good reason for the establishment of his house consists upon providing of a convenient marriage for his heire apparant and it matters not of what age such heire is but such action lyes not against gardian in chivalry by any of his auncestors but the Father So the Court resolved here the Mother could not be gardian in Socage if the land had descended to the daughter nor by nurture because she was above 14. but the common Law gives remedy against a Stranger as aforesaid Resolved here the Mother shall have the custody within the provision of the Act which hath ordained two new manners of custodies 1. By reason of nature 2. By assignation the first the Father after his death the Mother the second by assignation of the Father by his will or any act in his life See the Booke at large for the exposition of this Statute Resolved that the assent of the husband was not materiall for the Statute hath annexed the custody to the person of the Mother jure naturae which is inseperable and by marriage cannot be transferred to the husband the Father shall not forfeit the wardship by outlawry nor shall his Executors have it Resolved though she departed out of the house sixe houres before the contract yet in judgement of Law the Mother had the custody at the time of the contract for 't is inseperably annexed to the person of the Mother Resolved that by this devise the two daughters wete tenants in common in taile by these words equally to be divided though they never make partition in facto and so it hath been often adjudged Resolved that the husband and wife damsell had good title upon this verdict against the other daughter for by these words to the next of kin to whom the inheritance should c. come after her decease during the life of such person who shall so contract c. it seemes the daughter shall not have the forfeiture for though she be of the blood yet if M. dye her issue shall have the land if without issue the Mother in the remainder To the objection that the Mother cannot have it for she is not of the blood of the daughter but econtra Father or Mother are not next to whom administration shall be granted and land shall escheate rather then it shall goe to Father or Mother Resolved often against 5. E. 6. that the Father or Mother are next to whom administration may be granted and Littleton says that the Father is neerer of blood then the Uncle and therefore the Father shall have a remainder limitted to the next of blood of the Sonne but he shall not have an inheritance by discent from the Sonne for a Maxime prohibits it And 't was said at barre if he in reversion had been brother of the halfe blood he might have entered as Proximus de sanguine yet none of the halfe blood could inherit See the Booke at large where is excellent learning of discents as also the learning of Possessio fratris c. Resolved by the Court that it doth not come in question who shall enter for the forfeiture by the Statute for the issue was joyned upon a collaterall point whether the Mother had the custody at the time of the contract and the finding of the Jury is not materiall and therefore though the Plaintiffe who was lessee of the husband of the damsell as appeared had good title against the defendant being lessee of the husband of the other Sister yet because the issue was found against him judgement was given Quod nihil capiat c. Boytons case 35. Eliz. in Banco regis fo 43. A Writ of cap ad satisfaciendum is retornable at Westminster die Lunae prox post Crastin Animarū the partie is arrested the Sheriffe is not bound to bring the prisoner in recta Linea from the place where he was arrested or from the Countie But if he have the prisoner in Court at the day of the returne being never out of his custody in the meane season it is good But if a Sheriffe or a Bayliffe assent that one who is in execution and under their custody to goe out of the Gaole for a time and then to returne yet although he returne at the time it is an escape And so it is likewise if a Sheriffe suffer him to goe with a Bayliffe or a Keeper for the Sheriffe ought to have him in arcta custodia the Statute of Westminster 2. cap. 11. says Quod carceri manucipentur in ferris So as the Sheriffe may keepe him in yron and fetters to the intent that they may sooner satisfie their Creditors The Sheriffe upon a Habeas corpus for one in execution may bring the partie what way he will so as he have his bodie at the day according to the Writ If one in execution escape out of the Gaole and fly into another Countie the Sheriffe upon fresh suite taketh him again before any action brought against the Sheriffe the Judges have adjudged this no escape and if one in execution escape de son tort and be taken againe he shall never have an audita querela because a man shall not take advantage of his own wrong Sir George Brownes case 36. of the Queene fo 50. ISsue in speciall taile the remainder to himselfe in fee in the life of his Mother tenant in speciall taile levies a Fine in truth with Proclamations though they were not found to Sir G. B. the Mother living the Sonne leased for three lives
and because wives were not dowable of the use estates were made by the Feoffees to the husband and his wife before or after the marriage for life c. for a competent provision for the wife then 27. transferred the possession to the use and if further provision had not been the wives should have their dowers and joyntures also and therefore those branches were made in the same Statute of 27. Resolved that the Feoffement to the use of himselfe for life the remainder to his wife for life for the joynture of the wife is within 27. for though that five estates onely are expressed 1. To the husband and wife and the heires of the husband 2. c. to the heires of their two bodies 3. Of the body of one of them 4. For their lives 5. To the husband and wife for life of the wife yet many other estates are within the Act for these are put for example not to exclude others But resolved that no estate is a joynture except it takes beginning presently after the death of the husband for so are all the examples and therefore to himselfe for life the remainder to B. for life the remainder to his wife c. is not within the Statute c. And therefore though the wife enter and takes the profits she shall have Dower An estate to one and his wife and the heires males of their two bodies adjudged a good joynture yet none of the five estates mentioned an estate made to a woman for life before marriage adjudged a good joynture Resolved though the estate here were upon condition and though Dower in place of which the joynture comes were absolute yet because an estate for life upon condition is an estate for life 't is within the words and the intent of the Act if the wife accept it c. Resolved that a wife cannot waive a joynture made before the coverture as she may a joynture made after and this by the Proviso if any woman hath lands c. assured after marriage for her life c. after death of the husband she hath liberty to refuse c. and therefore the intent of the Statute was that she should not refuse a joynture made before and land conveyed for part of her joynture or in satisfaction of part of her Dower is no barre of any part for the incertainty for the Statute says for the joynture of the wifes and not for part of the joynture Resolved that though the estate of the wife be upon an expresse condition for to performe the will which imports a consideration of making the estate yet it may be averred for joynture for the one consideration well stands with the other and though it be not expressed in the Deed yet it may be averred and the case is the stronger because the averment is given by the words of the Act. And a Fee simple to the wife in satisfaction of her Dower is a joynture within the equity of 27. for the reasons aforesaid as also because 't is within the expresse words for terme of life or otherwise for all estates as beneficiall or more are within by this word otherwise in joynture after judgement was given against the demandant A devise to a wife for life in taile c. for her joynture is a good joynture within 27. as 't was resolved in Leake and Randalls case Otherwise where a man devises to his wife for life c. generally this cannot be averred to be for joynture and therefore no barre of Dower 1. Because a devise imports a consideration in it selfe and shall be taken as a benevolence 2. All the will for land by 32. 34. H. 8. ought to be in writing and no averrement ought to be taken out of the will which cannot be collected by the words within an estate before marriage is within the equity of the Statute so an estate by devise which takes effect after the marriage dissolved is within 27. Bevills Case 27. 28. of the Queene fo 8. TEnant by Homage Fealty and Escuage and suite to Court twice a yeare the Lord was seised of the Fealty onely by the hands of the tenant Resolved that seisin of Fealty was a seisin of all the said services for when the tenant doth fealty he takes a corporall oath that he shall be faithfull and true to the Lord and shall beare him faith of the tenements which he claimes to hold of him and that he will lawfully doe the customes and services c. And though Homage be more honourable and the most humble service that a Freeholder can doe to his Lord yet Fealty is the more sacred service for this is done upon oath not the other And the words shall be faithfull and true are also parcell of Homage and Seisin of any part of any service is a Seisin of the whole and the Law for this reason so respects these services that no distresse for them shall be excessive and though distresse be so often that the tenant cannot manure his land he shall not have an Assise as for rent or other profits Resolved that seisin of a superior service is a seisin of all inferior services incident to it as a seisin of escuage of homage and fealty homage of fealty rent of fealty where the Seigniory is by fealty and rent Resolved that doing of homage is a seisin of all services inferior and superior because he takes upon himselfe to doe all services Resolved that seisin of rent or suite or of other annuall service is seisin of escuage homage fealty ward releife heriot service service for to cover the hall of the chiefe house of the Mannor for to impale the Parke of the Lord or such casuall services which perchance will not fall in sixty yeares but seisin of one annuall service is not seisin of another annuall service as rent of suite nor of worke dayes for 't is the folly of the Lord that he attained not seisin and it should be mischeivous to the tenant for perhaps in ancient time the worke dayes are discharged which now cannot be shewne Note Reader all this is to be intended of a seisin in Law for seisin of fealty here is no actuall seisin of homage nor of suite nor fealty of rent but seisin of any part of a service is an actuall seisin of all to have an Assise And as to make a vowry seisin in Law suffices but for an Assise actuall seisin is requisite so in a Writ of right of Land See the Booke at large and there where ancient seisin to an estate altered or changed from one person to another shall be sufficient where not Resolved that seisin in Law was sufficient to make an avowry within the letter and the intent of the Statute of 32. H. 8. for the intent was to limit a time within which seisin ought to be had not to exclude any seisin which was a lawfull seisin by the common Law which appeares by the Preamble Also the
offence but here his life was not in jeopardy So if a man be convicted by verdict or confession upon an insufficient indictment and no judgement given he may be againe indicted and arraigned for the law wants its end but if upon such insufficient indictment the felon hath judgement quod suspendatur per collum and so attainted which is the end of the Law he cannot be indicted againe c. till this judgement be reversed and upon such acquittall no conspiracy lyes Wrote and Wigges case 33. 34 of the Queene fo 45. THe defendant in an appeale of murder pleads that auter foits by inquisition taken before the Coronor of the Queenes houshold and B. one of the Coronors of M. he was indicted of Manslaughter which inquisition was certified to N. at the Goale delivery and the defendant upon this was arraigned confessed the felony and had his Clergy and it appeares the arraignement c. was after the purchase of the Writ of appeale and before the retourne Resolved that auter foits convict of man-slaughter and Clergy is a good barre in an appeale of murder as 't was adjudged in Holcrofts case In which it was likewise resolved that an inquisition taken before B. Coronor of the houshold c. and one of the Coronors of M. is well taken and within the Statute of articuli super chartas though the Statute requires two persons for the intent of the Act was performed and the mischiefe recited avoyded for though the Court removes yet he may proceed as Coronor of the County Resolved also upon the Statute of 3. H 7. ca ' 1. that this case was out of the Statute for if the defendant had his Clergy the appeale lyes not a fortiori when he is convicted onely and prayes his Clergy and the Act of the Court to be advised as to the allowance of Clergy so the case was shall not prejudice the party in case of life And 't was resolved that attaint of murder in the Act extends to a person convicted by confession or verdict as to a person attaint for he which is attainted is convicted and more And Agnes Gainsfords case adjudged that where 3. H. 7. is That the wife or heire of him so slaine shall have appeale that the heire of a woman c. shall have it against him who was acquitted of the same murder So resolved here an indictment and conviction or acquittance of manslaughter is a barre to an indictment of the same death for all is the same felony though the circumstance alter it Resolved that at common law the Coronor of the houshold had an exempt jurisdiction within the Verge and the Coronor of the County could not meddle as appeares by Articuli super Chartas and Swifts case adjudged where a Coronor of the County tooke an inquisition within the Verge 't was avoyded by plea the one cannot meddle within the power of the other But Justices of the Kings Bench of oyer and terminer c. may inquire heare and determine all murders c. within the Verge for their authority is generall through all the County so resolved in Holcrofts case Resolved that the indictment was insufficient for it doth not appeare that D where the stroke and death was was within the Verge and though in truth it were within yet it ought to be found by the oath of the indictors and cannot be supplied by nude averrement and it shall not be voyd coram non judice as to the Coronor of the houshold and good before the Coronor of the County for the Record is intire and taken intirely before them c. And the defendant in his plea hath averred that D. was within the Verge so the Coronor of the County could not take the indictment onely Resolved for that the indictment upon which he was convicted was insufficient that he may be newly indicted c. for his life never was in jeopardy Resolved that where the stroke was one day the death another the conclusion ought to be that he was murdered the day of his death otherwise 't is nought for 't was not murder before and 't was resolved that the finding of the stroke and the death were not sufficient of it selfe without conclusion and so T. W murdered the said R. W. Resolved that though the conviction were pending the appeale yet if it had been lawfull and before that the defendant was compelled to plead it had been a good barre Waits case 45. of the Queene fo 47. REsolved that where a woman brought seaven severall appeales against severall persons as principalls all ought to abate but the first for all the principalls and the accessories before the murder and after and before the Writ purchased against whom the plaintiffe will bring an appeale ought to be named in the Writ for if all make default except one yet the plaintiffe ought to count against all therefore he ought to bring the appeale against all And the defendant shall not have damages by the Statute of W. 2. for it is out of it because the Writ abated And the Statute of Magna Charta says appellum in the singular number Hill ' 30. of the Queene fo 48. AN indictment upon 8. H. 6. was quashed Quia fuit inquisitio capta ad sessionem pacis in Com' S. tent ' die Martis die Mercurij though the sessions may indure two or three dayes yet the Record ought to mention that they were holden at a day certaine as also for that the Statute was misrecited in a point materiall Note because misrecitall is fatall the sure way is to draw the indictment with conclusion contra formam statuti and with no recitall of the Act. Ognels case 29. of the Queene fo 48. AN Executor possessed of a grange consisting of divers parcels demises all the grange except H. to A. for 23. yeares and H. to F. for 23. yeares and grants all the residue of his terme in the intire grange to A. F. B. the revertion or grants a rent charge in fee out of all his lands c. called C. grange quondam in tenura B. the testator and now in tenura occupatione de A. The rent is areare the intire terme expires the reversionor makes a Feoffement the grantee dyes the Feoffee leases at will the Executors distraine for arrearages Resolved that at common law in some case debt lyes for arrearages of an Annuity in fee though it continues as if a Parson or Prebend resigne or dyes because the Parson is chargeable otherwise of a rent service charge or secke when the Freehold continues and for a rent there is a diversity when a rent in fee is extinct by the act of the party and when of the Law and when particular estates expire see the booke at large But 't was resolved in the case at barre that the arrerages due in the life of the grantee were lost at common Law Resolved that H. was not charged with the
rent without limitting any place or to whose hands the Lessee may pay it at the Exchequer or to the Bayliffes or Receivers of the Queene and when shee so appoints it by expresse words 't is no more then the Law appointed and though the words be Ad receptum scacc ' apud Westm it needs not that the receite be holden at Westminster the Law would have implied that And when a common person appoints no place the Law appoynts the payment upon the Land Palmers Case 39. Eliz. in Banco regis fo 74. THe Sheriff by vertue of a Fier Faci may sell a Lease of the Defendant and in his Writing the true commencement and terme of the Lease must be expressed or else if he selleth all the interest that the defendant hath in the Lands he needeth not to make any mention in the returne but generally Quod fieri fecit de bonis catallis c. But an inquisition found that the Debtor of the King was possessed Pro termino quorundam annorum c. 't was void for a terme cannot be extended without shewing the certainty of the commencement for after the Debt satisfied he is to have the remainder Resolved for that the case at Barre was an execution by Elegit which ought to be made by inquisition the sale here was voyd for the terme was mistaken in the inquisition and so mistaken was apprised by the inquisition and the Sheriffe cannot sell any terme but that onely which was apprised by the Jurors Hollands Case 39. of the Queene fo 75. REsolved that before 21. H. 8. ca ' 13. if he which had a benefice with cure accept another with cure the first is void but this was no avoydance by the common Law but by constitution of the Pope of which the Patron might take notice if he would and present without deprivation but because the avoydance accrued by the Ecclessiasticall Law no Lapse incurred without notice as upon a deprivation or resignation so that the Church was voyd for the benefit of the Patron not for his disadvantage But now if the first benefice be of the value of 8. l. per annum the Patron at his perill ought to present for to an avoydance by Parliament every one is party but if not of 8. l. 't is voyd by the ecclesiasticall Law of which he needs not take notice Resolved that 21. H. 8. is such a generall Act of which the Judges Ex officio though it be not pleaded ought to take notice See the Booke at large upon this Learning what act shall be said a generall act Of which the Judges are bound to take notice what not The Case of Corporations 40. and 41. of the Queene fo 77. REsolved that where diverse Citties c. are incorporated by the name of Mayor and communalty Mayor and Burgesses c. and in the Charters 't is prescribed that the Mayors Bayliffs c. should be chosen by communalty and Burgesses c. which is as much as to say as by all the Burgesses or all the communalty that yet the ancient and usuall Election by a certaine selected number of the principall of the communalty c. Commonly call'd the Common-Councell and not by all of the communalty or so many of them as will come to the Election was good in Law and warranted by their Charter for in every Charter they have power given to them to make Lawes Ordinances and constitutions for the better government and ordering of their Citties and Boroughes by force of which and to avoyd popular confusion they by their common assent have instituted c. that the election shall be by such a select number And though this ordinance cannot be now shewne yet it shall be presumed that such ordinance and constitution was made at first Digbyes Case 41. Eliz. fo 78. IT was adjudged that when a man hath a benefice with cure above 8. l. and afterwards taketh another with cure and is presented and instituted and before induction procure the Letters of dispensation that this dispensation commeth too late for by the institution Ecclia plena consulta existit against all persons but the King for every rectory consisteth upon spirituallty and temporallty And as to the spiritualty Viz. Cura animarum hee is compleat Parson by the institution for when the Bishop upon examination had admitteth him able then he doth institute him and saith Jnstituo te ad tale beneficium habere curam animarum of such a Parish accipe curam tuam c. Vide 33. H. 6.13 But touching the temporallties as the Glebe Lands c. hee hath no freehold in them untill induction for by the generall councell of Lateran Anno. Dom. 1215. it appeareth that by the acceptance of two benefices the first is voyd Aperto jure for upon this Councell are our Bookes in this case founded And 't was resolved that this was an acceptance of a benefice Cum cura within the Statute of 21. H. 8. Institution is an acceptance by our Law and 't was lately adjudged that if before induction the Clerke be inducted to another the first is void by 21. H. 8. which saith Accept and take another and for that now the avoidance is declared by 21. H. 8 he is bound to take notice but till after induction c. Nokes case 41. Eliz. fo 80. A Man maketh a Lease by these words Viz. Demise c. Grant c. and Covenants that the Lessee shall injoy without eviction by the Lessor or any claiming under him and was bound to performe all covenants c. the Lessee assignes his terme a stranger enters upon the Assignee and recovers in an Ej firmae after ouster the first Lessee brings Debt This is a covenant in Law and the assignee shall have a writ of covenant 9. Eliz. 257. Dyer And if a man be bound by obligation to performe all covenants grants c. This doth extend as well to covenants in Law as to Covenants in Fact Resolved though the recovery were by verdict yet he ought to shew that the Plaintiffe in this recovery had an elder Title for otherwise the Covenant in Law is not broken It was holden that an expresse Covenant doth qualify the generallity of the Covenant in Law and restraineth that by the mutuall consent of both parties but a warranty in Law and an expresse warranty the party may choose whither he will have for this word Dedi importeth a warranty Sir Andrew Corbets Case 41. and 42 of the Queen fo 81. A Devises Land to B. c. to have c. till 800. l. shall be paid by them of the profits to marry his Daughters and dyes the Heire conceales the Will takes all the profits and dyes the will is found by office the Devisee enters and hath leavyed 640. l. and imployes it accordingly whither the profits taken by the Heire shall be parcell of the 800. l. was the Question Resolved that the words shall be leavyed shall be
his warrant to bring the party before himselfe and it is good and sufficient in Law for it is most like that he hath the best knowledge of the matter and therefore most fit to doe Justice in that matter upon refusall to finde surety the Constable may commit him without a new warrant Gooches case 32. El. in banco le roy fol. 60. WRay chiefe Justice said that if A. make a fraudulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and continueth in possession and is reputed as owner B entereth in communication with A. for the purchase and by accident B. hath notice of this fraudulent conveyance Notwithstanding he concludes with A. and takes his assurance In this case B. shall avoide the said fraudulent conveyance by the said Act notwithstanding the notice for the Act by expresse words hath made the fraudulent conveyance voyde as to the purchasor And for as much as that is within the expresse provision of the Statute it ought to be taken and expounded in suppression of fraud Resolved that fraud may be given in Evidence because the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret in arbore cava opaca And according to this opinion it was resolved Per tot ' Cur ' in communi banco Pasche 3o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and after offred to sell the same to one Standen and before the assurance by Bullock Standen had notice thereof and notwithstanding proceeded and tooke the assurance from Bullock Standen avoyded the former assurance of fraud by the said act for the notice of the purchasor cannot make that good which an Act of Parliament hath made voyde as to him And it is true Quod non decipitur qui scit se decipi But in this case the purchasor is not deceived for the fraudulent conveyance whereof he had notice is made voyde as to him by the Statute and therefore he knew it could not hurt him Sparries case 33. Eliz. in Scaccar fol. 61. IN action of Trover and convertion the defendant pleads that there is another action depending in the Kings Bench for the same Trover and good for in actions which comprehend no certeinty as assize or trespas this is no plea before a Count because thereby it is made certeine and then it is a good plea and not before but in this action and debt and detinue it is a good plea at the first because they are certeine that an action is depending in an inferiour Court is no plea. Cases of By-Lawes Chamberlaine de Londons case 32. El. in Banco le roy fol. 66. THe Inhabitants of a village without any custome may make Ordinances or By-Lawes for reparation of the Church or of high-wayes or any such thing which is for the publicke weale generally and in this case the consent of the greater part shall binde all without any custome vide 44. E. 3.19 But if it be for their owne private profit for that Towne as for their well ordering of their common of pasture or such like then without custome they cannot make by-Lawes And if it be a custome yet the greater part shall not binde all if it be not warranted by the custome for as custome hath created them so they ought to be warranted by the custome 8. E. 2. tit ass As pontage murage Tolle and such like as appeareth in 13. H. 4.14 In which cases the summes for reparations of the Bridge walls c. ought to be so reasonable that the Subject may have more benefit thereby then charge Clerks case 38. Eliz in communi banco fol. 64. KIng Edward 6. did incorporate the Towne of St. Albones and granted them to make Lawes and Ordinances c. The Tearme was kept there and the Major c. by assent of the plaintiffe assessed every Inhabitant for the charges in erecting of the Courts there and if any did refuse to pay c. to be imprisoned c. the plaintiffe being Burges refused to pay c. and the Major justified c and it was adjudged no plea c. For this Ordinance is against Magna Charta ca. 29. Nullus liber homo imprisonetur which act hath been confirmed divers times viz. thirty times and the assent of the plaintiffe cannot alter the Law in this case But it was resolved that the Major c. might inflict reasonable penaltie but not imprisonment which penaltie ought to be Levied by Distresse for which offence an action of Debt lyeth and the plaintiffe in this case had judgement Jeffrays case Michaelis 31 32. en Bank le Roy. fol. 66. WIlliam Jeffray Gent. brought a prohibition against Abraham Kenshley and Thomas Forster Churchwardens of Haylesham in Com' Sussex for that they sued him in Court Christian before Doctor Drury for certaine money imposed upon him without his assent for repaire of the Church That the Church-wardens with the assent of the greatest part of the Parishioners juxta quantitatem qualitatem possessionum reddit ' infra dict' parochiam existent Determined and agreed to make a taxation for repaire of the said Church and that notice of such assembly was given in the Church at which day the Church-wardens and greater part of the Parish which were there assembled made a taxation viz. every occupier of Land for every acre 4. d. c. Geffray dwelt in another Parish and declared that the Parishioners of every Parish ought to repaire their Church and not the Church of another Parish Cooke of councell with the defendant demurred in Law and after many arguments a Writ of consultation was granted And it was resolved that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae Britton who writ in 5. E. 1. And in the Statute of Circumspecte agatis but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda It was also resolved that although Geffray did dwell in another Parish yet for that he had Lands in the said Parish in his proper possession he is in the Law Parochianus de Haylesham But it was resolved that where there was a Farmor of the same Lands the Lessor that receiveth the rent shall not be charged but the Inhabitant is the Parishioner and the receipte of the rent doth not make the Lessor a Parishioner Diverse of the civill Lawyers certified the Court that the Church Wardens and a greater part of the Parishioners upon a generall warning assembled may make a Taxation by their Law and the same shall not charge the Land but the Person in respect of the Land for equality and indifferency and this was the first leading case that was adjudg'd reported in Our Bookes touching these matters and many causes after were adjudged thus and now it is generally received for Law The Lord Cheneys Case 33. Eliz.
or Ignominious Signes as Gallowes c. The Punishment is by Indictment as in the Starre-Chamber Palmers Case 8. Jac. fo 126. banco regis THe Gardian in Chivalry shall have the single value of the Marriage of the Heire without tender otherwise the Heire may defeate the Lord by Marriage or goe beyond the Sea and so prevent the Lord of any tender if it were requisite Caudreyes Case 33. Eliz. in Trespasse THe Jury found the Statute of 1. Eliz. cap. 1. and cap 2. and that the Plaintiffe was deprived for Preaching against the Booke of Common Prayer by the Bishop of London una cum assensu c. Resolv 1 The deprivation was good for the first offence because the Act of 1. Eliz. for uniformity of Common Prayer doth not abrogate 1. Eliz. for Ecclesiasticall Jurisdiction without negative words and by an expresse proviso the Jurisdiction of the Bishop is saved Resolv 2. That sentence given by the Bishop by assent of his Collegues ought to be allowed by our Law Resolv 3. The Commissioners shall be intended Subjects borne c. Stabitur praesumptionj c. Also it is found that the King authorized them Secundum formam Statuti Resolv 4. The Act of 1. Eliz. for Ecclesiasticall Jurisdiction was onely declaratory for the King being an absolute Monarch and head of the body politick had plenary power to minister justice to his Subjects in Causes Ecclesiasticall and temporall See Circumspecte agatis 13. E. 1. and Articulj Clerj 9. E. 2. Reges sacro oleo uncti sunt spiritualis jurisdictionis capaces See there diverse judgements Lawes and Acts of Parliament cited to prove the Kings supremacy in Causes Ecclesiasticall The End of the Fifth Booke THE SIXTH BOOK Where Services intire shall be Apportioned Bruertons Case 36. Eliz. In the Court of Wards Fol. 1. LORD and Tenant of three Acres by Homage Fealty a hawke and Suite of Court the Tenant makes a Feoffement of one Acre the Feoffee by the common Law shall hold by all intire services annuall and casuall and the Statute of Quia emptores Terrarum doth not extend to intire services but by the Statute of Marlebr c. 9. the Feoffees shall make but one Suite and he who doth it shall have Contribution against the others if they are severally infeoffed otherwise if jointly 2. Intire services shall be multiplied by the Act of the Tenant and extinct by the Act of the Lord as if he purchase part 3. By Act of the Lord intire service for his private benefite is extinct otherwise if it be for the publick good for works of Charity Devotion or administration of Justice 4. If part comes to the Lord by act in Law yet the intire service remaines except in Case where Contribution is to be made for the Lord shall not contribute 5. If part comes to the Lord by Act in Law and of himselfe as by recovery in a Cessavit all the intire services are gone Where the Paroll shall demurre for the nonage of the Demandant and where the Tenant shall have his Age. Markals case 35. Eliz. com banco fo 3. IN a Formedon in the remainder by an Infant of a remainder limitted to his Father and his heirs the tenant cannot pray that the parol may demur but in a Formedon in the reverter he may In actions auncestrell the Tenant may pray that the parol may demurre because a right onely discends to the Infant and the Law will not suffer him to sue for feare that he may loose for want of understanding but in possessory Actions he cannot because then every one will put Infants out of possession and it would be mischevious if they should not regaine their possession untill full age So it is in all Writs where the cause of action happens in the time of the Infant And as to Actions auncestrell they are of two sorts Droiturell and possessory the first is where a right onely discends from the Auncestor and the Infant ought to lay the explees in the Auncestor and there the Tenant without plea pleaded may pray that the paroll may demurre but if the Auncestor were never in possession as in this case he was not and the Infant himselfe is the first in whom it vests there without plea pleaded hee shall not pray that the Parol may demurre but if a right discend from an auncester who was in possession although the Action doth not discend the Tenant may pray that the parol may demurre as if Non compos mentis alien and dye In actions auncestrell possessory the parol shall not demurre without plea but if at the common Law the Tenant had pleaded a feoffement of the auncestor then he may pray c. but the Statute of Gloucester cap. 2. aideth that in writs of Cosinage Besaiell and aiell but this extends not to other actions in a Formedon in the discender where an Infant recovers but a limitted estate the Parol shall not demurre without plea in an Assize or assize of Mortdauncester the Parol shall not demurr because the Jury is to appeare the first day and try all things The Statute of Westm 1. cap. 46. Age is taken away in entry upon disseisin where fresh suite is made but an Infant shall have his age in all reall Actions where he is in by discent and the Action is not founded upon his owne wrong except in Nuper obijt and Partitione facienda where both are in possession or attaint for the mischiefe of the death of the Petty Jury The Statute of West 2. cap. 40. Ousteth the age of the Vouchee in cuj in vita and Sur cuj in vita although that the Tenant will answer if the parol ought to demurre yet the Court ought to award that the parol shall demurre Sir John Molyns Case 40. Eliz. in Scaccar fo 5. KIng Edward the third Lord Abbot of Westminster Mesne and C. Tenant C is attainted of Treason the King grants to Sir Jo. Mo. Tenendum de nobis álijs capitalibus dominis feodi illius per servitia c. the Mesnalty is revived Obj. 1. That the tenure shall be Per servitia inde debita at which time no service was due to the Mesne 2. An expresse tenure of the King is limitted and it cannot be immediatly holden but of one To the first it was answered that there are sufficient words to renew the Mesnalty because the intention of the King appeares to be so and it is reasonable that the Mesne who offended not should not suffer losse 2. It shall be holden imediatly of the Abbot and mediatly of the King Wheelers Case 43. Eliz. in Scaccario fo 6. THe King grants Land Tenendum by a Rose Pro omnibus servitijs this is Socage in chiefe and the tenure shall be by fealty and a Rose and Pro omnibus is to be intended of other services which the Law doth not implie Resolutions and Diversities when a barre in one action shall be a barre in another Ferrers Case 41. Eliz. Com.
none will buy their Wardships 5. After Tender and refusall if the heire be made Knight and marry he shall not forfeite the double value because he is out of Ward but immediatly the Lord shall have a Writte de valore maritagij This was the last Case that Sir John Popham chiefe Justice of England c. ever Argued Sir George Cursons case 7. Jac. Cur. Wardor fol. 75. SIr W. L. seised of a reversion expectant upon taile made to his sonne of land in Capite Covenants to stand seised to the use of his neece the sonne dyeth the King shall not have primier seisin 1. Resol It was Collusion apparent within the Statute of Marlebr cap. 6. to infeoffe the heire apparent and if he infeoffe others upon Collusion averrable but no averrement shall be where the remainder or reversion is left in a stranger or upon a Devise 2. Or otherwise to dispose in the Statute of 32. H. 8. have relation to wills onely for before the Statute every man might dispose of his lands by act executed 3. The Clause in the said Statute which saveth primier seisin to the King hath relation onely to acts executed for the King shall have without that primier seisin of the third part not devised but without that he shall not have it of any part conveyed by act executed 4. If the grandfather convey land to the sonne living the father this is out of the Statute otherwise if the father be dead and so a gift to a Collaterall Kinsman who is not heire apparent is out of the Statute for none will by intendment disinherit his heire to defeate the King of the Wardship or primer seisin and so is the experience of the Court of Wards Bullens case 5. Jacobi Com. Banco fol. 77. THe Lord may have a certeine summe pro certo letae for it shall be intended it was granted at the first by purchase of the Leete for the ease of the Tenants and in consideration of the Lords claiming of it at his owne costs every Eyre The issue was if the plaintiffe was a chiefe pledge and by speciall verdict he was found a Resiant and certified by the chiefe pledges to be a chiefe pledge and was amerced for his default It seemeth he was not Sed materia praedicta consopita fuit in arbitrio See 30. E. 3.23 of franke pledges Lord Abergavenies case Com. Banco fol. 78. A Judgement in an action of Debt is had against a joyntenant for life who afterwards releaseth to his companion all the right c. yet that moytie is liable to the Judgement and so it is of a rent charge during the life of the Releasor Sir Edward Phyttons case Com. Banco fol. 79. EXecutors may take benefit of the Kings generall pardon by which is enacted that all Subjects of the King their heires Successors Executors and Administrators shall be acquitted and discharged of all offences contempts c. and that shall be expounded most beneficially for the Subject And further doth give and grant all goods Chattells Debts c. forfeited And prohibiteth any Clerke to make out any Writte c. Provided that every Clerke may make forth cap. ut at the suite of the plaintiffe against persons outlawed to the intent to compell them to answer and that the partie shall sue forth a scir fac before the pardon in that behalfe shall be allowed which is as much to say having regard onely to the plaintiffe But in regard of the King it is an absolute pardon and grant of his goods and he is a person inabled against the King but not against the partie plaintiffe And every person by himselfe or his Atturney may plead this act for discharge Executors shall have restitution upon the Statute 21. H. 8. Also Administrators shall have a Writt of error upon the Statute 27. El as was adjudged in the Lord Mordants case 36. El. And yet these Statutes speake onely of the partie and not of the Executors or Administrators because no Writt can be against Executors they may plead it without Processe The End of the Sixth Booke THE SEAVENTH BOOK Postnati Calvins case 6. Jacobi Banco Regis fol. 1. R C. By his gardian bringeth an assize the defendants say the plaintiffe ought not to be answered Quia est alienigena natus 5o. Novembris Anno Domini Regis Angliae c. tertio apud E. infra regnum Scotiae ac infra ligeanciam Domini Regis Regni sui S. ac extra ligeanciam Regni sui Angl. c. the plaintiffe demurreth The Case was Adjourned into the Exchequer Chamber and was argued by two Justices every day and by the Chancellour and resolved by the Chancellour and all the Justices except Walmesley and Foster that the plaintiffe ought to be answered For these six demonstrative Conclusions drawne from the Law of Nature the Law of the Land Reasons of State and Authorities of Records and Booke Cases 1 Every one that is an Alien by birth may be or might have been an Enemy by accident but C. could never be an Enemy by any accident whatsoever ergo no Alien by birth 2. Whosoever are borne under one naturall ligeance due by the Law 〈◊〉 nature to one Soveraigne are naturall borne Subjects But C. was borne under one c. ergo a naturall borne Subject 3. Whosoever is borne within the Kings protection is no Alien But C. was borne under c ergo he is no Alien 4. Every stranger borne must at his birth be either amicus or inimicus but C. at his birth could neither be amicus nor inimicus because he was subditus ergo no stranger borne 5. Whatsoever is due by the Law of man may be altered but naturall legeance of the Subject to the Soveraigne cannot be altered ergo not due by mans Law Lastly whosoever at his birth cannot be an alien to the King of E. cannot be an alien to any of his Subjects of E. but C. at his birth could be no alien to the King of E. Ergo he cannot be an alien to any of the Subjects of E. the Maior and Minor both be Propositiones perspicuè verae and although Alienigena dicitur ab aliena gente yet that is all one as Alienae ligeantiae and arguments drawne from Etymologie are feeble for Saepenemero ubi proprietas verborum attenditur sensus veritatis amittitur yet when they agree with Law Judges may use them for Ornament and dâ—verse inconveniences would follow if the Plea against the Plaintiffe should be allowed For first it maketh legeance locall wereupon should follow first that legeance which is universall should be confined within locall limits 2. That the Subject should not be bound to serve the King in Peace or in Warre out of those bounds 3. It should illegitimate many which were borne in Gascayne Guyan Normandy c. and diverse others of his Majesties Dominions whilst the same were in actuall obedience And lastly this strange and new devised Plea inclineth too much to
devise is good for two parts for the reasons reported in Loveyes Case 5. Although the consideration of advancing his Wife and their issues extends not to the Brothers yet the use is well raised to them because the Law implyeth a consideration and it is not to the purpose that they are found Brothers because it appeareth in the Deed. 6. For the Mannor of G. the estate tayle vanisheth by the death of Sir H. without issue male and therefore that estate is no cause to restraine the devise for any part but the reversion in fee is for a third part So resolved that the Plaintiffe shall have judgement for two parts Exceptions to the count and Visne 1. The Ejectione firmae is of Tithes without shewing the kinds of them Ergo not good for a certaine judgement and execution cannot be made 2. It may be it is in a modus decimandi for which an Ejectione firmae lyeth not 2. Capella is demanded which ought to be demanded by the name of a house 3. The Venire facias is not well awarded for it appeares that there are two B. one a Ville the other a Parish and W. a Ville in the Parish of B. and the Tithes are alleadged to be in W. in parochia de B. so the Visne must be out of B. and W. because there is the most certainty so that by reason of these exceptions no Judgement was entred but it was sayd that the Court of Wards where a Bill depends for this matter will take order for the possession accordingly Henry Pigots Case 12. Jacobi fol. 26. B. W. brings debt upon Obligation made to him when he was Sheriffe omitting the name of his Office but it was after interlined by a stranger the Defendant pleads Non est factum without Oyer of the Deed and judgement was given for the Plaintiffe 1. When a Deed is rased the Obligor may plead Non est factum 2. If a Deed be rased by the Obligee himselfe in a place not materiall it is voyd but not if done by a stranger except in a place materiall and here it was in a place not materiall because it appeareth not to the Court that he was Sheriffe If a Deed consist of diverse parts whereof one doth not depend upon the other and some of them are against Law the Deed is good in part but if any of them be rased it is voyd in all so if the Seale of one be debrused all is voyd See Matthewsons Case in the fifth Booke Alexander Powlters Case 12. Jacobi fol. 29. Indictment A. P. felleo animo burned a House in New-market whereby the greatest part of that Towne was burned Resol He shall not have his Clergy for this was felony by the Common Law and so haynous that he was not replevishable no more then for Treason as appeares by Westminst 1 cap. 15. but he shall have his Clergy at the Common Law for impediments to have Clergy were first disability to be a member of holy Church as a blind man or woman 2. Heresie 3. Infidelity as a Saracen or Jew but a man excommunicated or outlawed shall have it 5. Confession before the Statute of Articuli Cleri cap. 15. because he cannot make his purgation 6. High Treason or petty Treason before 25. E. 3. cap. 4. So of Sacriledge and of insidiatores viarum depopulatores agrorum See the Statute of 4. H. 4. cap. 2. but the Statute of 23. H. 8. cap. 1. taketh away Clergy where one is found guilty of burning of Houses but that is to be intended by verdict or confession for if hee stand mute or challenge more then he ought or be outlawed these are out of the Statute or if he commit Burglary and not Robbery he shall have his Clergy by 25. H. 8. cap. 3. hee who is found guilty of any of the sayd offences shall loose his Clergy and if he stand mute or challenge above his number but that extends to the principall onely in case of indictment and not to the accessory before the fact nor to appeales or approvements nor to outlary but these two Statutes were taken away by 1. E. 6. cap. 12. but 25. H. 8. was revived by 5. 6. E. 6. cap. 10. Obj. That the sayd Statute was not revived in all but as to stealing of Goods in one County and flying into another for so is the stile of the Act. 2. If it be revived this takes not away Clergy where one is found guilty by Verdict but the Statute of 23. H. 8. which is not revived But it was Reâ—olved that the intire Act is revived 1. Although the Statute of 5. E. 6. reciteth these offences solely and reviveth the Act as to Clergy touching such offences that shall be intended such in mischeife so Westminster 2. cap. 5. is expounded touching Infants having advowsons whether they be in ward or not and the stile is not to the purpose for many Statutes are of greater extent then the stile as 27. H. 8. of uses concerning Joyntures yet the preamble is of transferring uses into possession also otherwise these words and every clause c. shall be surplusage if it extend not to all the Act for there is but one clause in it which concerneth the offences in 5. 6. E. 6. also it is that every Article concerning Clergy as to such offences shall be revived and there is but one which concernes these offences and many times penall Statutes are taken by Equity as 8. H. 6. cap. 12. ordaineth that the imbezelling or withdrawing a Record whereby a Judgement may be reversed shall be Felony and by Equity making of a badd Judgement good is Felony so 25. E. 3. for killing of a Master extends to the Mistris 2. 25. H. 8. takes away Clergy where one is found guiltie by Verdict because it takes away if he stand mute or challenge c. in like manner as if he were guilty after the Lawes of the Land which are affirmative words And 4. 5. Phil. Mary cap. 4. takes away Clergy from the accessory before which they would not have done if they had not thought that it was taken away from the principall by the other Act. By 18. Eliz. cap. 7. Clergy is taken away in case of Burglary where hee is found guilty by Verdict confession or Outlary but if he be indicted at the Common Law and stand mute or challenge over c. he shall have it and not if hee be indicted by 23. H. 8. or 5. E. 6. of Burglary and put them who were in the House in feare with Robbery or upon 1. E. 6. without Robbery 4. 5. Phil. Mary takes away Clergy where one is accessory before to a Robbery in a dwelling House Ergo before that such an accessory shall have it Breaking of a House in the night without Robbery is no Burglarie and if he doth robb he shall have his Clergy if none were put in feare or that any of the Family and not
lyeth against Executors for the Testators Debt Page 352 VVhere a man may wage his Law Page 353 VVhat words shall be adjudged a good consideration Page 354 VVhat Offices grantable for yeares and by what Acts Offices may be forfeited and where the King may seise without Scire facias Page 355 356 Copy-hold estates are within 4. H. 7. of fines Page 356 Disseissor of Copy-hold levyes a fine what time the Lord hath ib. VVho may enter without command to avoid a fine Page 356 357 A plea by an administratrix of fully administred must be certeine Page 358 VVhere an Allegation generally of Covin is good ib. A commoner Copy-holder may have an Action of the Case for the losse of his Common so he may distreine damage feasant ib. A Baron of Scotland shall be tried by Commons of England Page 359 See the diverse Resolutions of difficulties arising upon the Indictment of the Lord Sanchar and others Page 359 360 Cases in the Court of Wards The Kings release doth not extinguish a service inseparable Page 361 VVhen the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be ib. VVhere the particular estate is out of 32. H. 8. no wardship accrueth to the King by advancement of him in remainder otherwise of a reversion for he is Tenant Page 362 VVhat words are sufficient to create an estate taile Page 363 The Kings possibility shall not devest a VVardship vested Page 364 The reviving of an ancient Tenure preferred before the reservation of a new ib. By death of the father before livery sued after tender The King looseth primer seisin but no meane rates Page 365 Of a fruitlesse reversion a wardship but not primer seisin ib. Where the saving in 32. H. 8. giveth ward and primer seisin Page 366 A Mensnalty cannot be suspended in part and in esse for part by the act of the party but it may by Act of Law or a third person ib. There are foure manner of Avowries Page 367 What Act is a good delivery of a Deed or of seisin of Land ib. One may have an estate taile which cannot discend Page 368 Three manner of Confirmations Page 369 THE TENTH BOOKE WHat things requisite to the Founding of an Hospitall see at large Page 371 An estate taile barred by recovery in value without recompence Page 374 A Feme Covert shall not loose her Land by any conclusion without examination upon a Writ in Court ib. Tenant for life suffers a recovery and he in remainder in taile is vouched the reversion in fee is barred Page 375 The devise of a terme to one for life the remainder to another for life is good as an Executory devise Page 376 The first Devisee cannot barre him who hath the Executory devise ib. Assent to the first devise is an assent for all ib. Such an executory devise not grantable over ib. but it may be extinguished by release to the first Devisee ib. Qui destruit medium destruit finem Page 377 If a Recusant grant the next avoidance before conviction it is void by 3. Jacobi for he is disabled from the beginning of the Session c. Page 378 Covin shall not be presumed if it be not averred ib. A private Act shall be taken as it is Pleaded ib. What grants of Offices by a Bishop are void by 1. Eliz. except for twenty one yeares or three lives and what Circumstances requisite Page 380 Praerogativa Regis c. 15. excepts Knights fees and advowsons and indowments all other appendants now passe by grants and so doe they in Case of Restitution Page 381 A Corporation aggregate may make a surrender in Law not in Deed Page 382 The Jurisdiction of the Marshalsea and the reasons thereof Page 382 383 About 4. E. 3. the Court of Kings Bench became resident Page 383 A good diversity where the Court hath Jurisdiction but proceed In verso ordine and where they have not Jurisdiction there all they doe is Coram non judice and void Page 383 384 Diverse abstruse points resolved some at the common Law and severall upon the Statutes of 32. 34 H. 8. of wills Page 385 386 VVhat Colour is and where it must be given Page 388 VVhere a privy interest although he claime but part must shew the first Deed except he claim meerly by Law Page 388 389 VVhere a man may have a freehold discendible Page 390 A warranty barres no estate which is not displaced at the time of c. ib. A warranty cannot inlarge an estate where it may be given in evidence Page 391 VVhat Obligations made to Sheriffes are within the Statute of 23. H. 6. Page 391 Forma verbalis Forma legalis or Essentialis Page 392 393 The time of granting a Tales and when it is well granted Page 396 397 The proper place of a reservation is after limitation of the estate Page 397 Increase of services is betweene very Lord and very Tenant Page 398 VVhen Lands shall be said to be concealed from the K. 398 399 A man shall have costs in all cases where hee recover dammages Page 400 Where a man shall recover damages and costs also ib. Where to the writ of Inquiry and to the verdict and judgement ib. Where insufficient verdict may be supplyed by a writ of Inquiry and where it cannot a good difference Page 401 A difference between auncient Corporations and new in matter of Misnosmer Apices Juris non sunt Jura Page 401 402 Which is the legall time of payment of Rent Page 402 If payment be in the morning and the lessor dye at noone this is satisfactory against the heire but not against the King ib. Where the lessee shall hold rent free for a quarter Page 402 Where Damages may be assessed intirely and where not Page 403 404 What words passe under the name of Latine Page 404 Where by death of one of the Plaintiffes after summons and severance the writ abateth divers good diversities Page 404 405 A Qu. impedit praesentare ad medietatem Ecclesiae where good ib. Cases upon the Commissions of Sewers Where the Commissioners may subvert a Cawsey and where not Page 406 If a wall be subverted by a sodaine inundation the Commissioners may taxe all equally who have damage thereby ib. Otherwise if it come by neglect of him who ought to doe it ib. If the Commissioners have power to make a new River and a generall taxe so much upon every Towne for doing thereof Page 407 What is a good revocation of old uses and limitation of new Page 409 THE ELEVENTH BOOK A Difference between a disability absolute and temporary or personall Page 411 The grant of the office of Auditor to two is good Page 412 What offices grantable in reversion ib. Where the Jurors may assesse damages severally Page 413 Where one shall have an attaint that is a stranger to the issue ib. Where a writ of Enquiry shall issue Page 414 The plaintiffe shall have judgement de melioribus damnis ib. The conclusion of a plea is not traversable Page 415 In every issue there must be an affirmative and a negative ib. The Impropriation sufficient in the life of the Incumbent ib. VVhere the witnesses are not punishable for perjury Page 416 Perpetuall unity a discharge and what requisite thereunto ib. VVhat prescription for tithes of houses is good ib. A customary Mannor may be holden of another Mannor Page 417 VVhat variance in the name of a Corporation doth vitiate Page 418 VVhat devise of socage by tenant is Capite is good Page 419 An Ejectione firmae of tithes without shewing their kinds not good ib. If a deed be rased the obligor may plead Non est factum Page 420 A diversity where it is rased by the obligee himselfe and where by another ib. VVhere Clergy allowable at the Common law and where at this day copious and excellent matter Page 421 VVhere an Errour lyeth not before the finall Judgement Page 423 A fine by the Stewart of a Mannor where it is well assessed Page 425 VVhere the Lord may destreine for it without prescription ib. VVhere an action shall abate in part and where for the whole Page 426 Notwithstanding the exception trees remaine parcell of the Inheritance ib. A thing in possession cannot be parcell of a reversion upon an estate for life Page 427 None may be prohibited by the common law to use any trade Page 428 An ordinance by a Corporation against law is void ib. How an Ejectione firmae must be brought Page 429 Although the dammages are not well assessed yet the Plaintiffe may have judgement ib. Much variety of Learning touching Recusancy and upon the severall Statutes concerning them Page 429 430 Master and Fellowes of a Colledge restrained to grant by 13. Eliz. what statutes doe binde the King Page 432 Some grants to the King void and some voidable Page 433 VVhere acceptance of Rent doth barre and where not Page 434 Tenant in taile after possibility of c. hath a greater estate in quality then tenant for life not in quantity Page 434 435 VVhat priviledges belong to his estate Page 435 A lease without impeachment of wast what passeth thereby ib. A monopoly is against law and hath three incidents against the weale publique Page 436 What fees belong to the office of Master of the Ordnance Page 427 In the Kings Case the law maketh a privity to be accomptable ib. For what causes a Citizen may be disfranchised Page 438 The 3. Book fol. 9. Dowties Case A Difference where the first certainty is false in a grant and where the first is true and the second false Page 439 Where lands are in the Q. by 33. H. 8. c. 20. without seisure ib. Fol. 11. Sir William Harberts Case What remedy for debts at the common law and when the body and lands became liable thereunto Page 440 44â— In all actions vi et armis the body was subject unto Imprisonment and so for debt at the Kings suite Page 441 The heirs of the conâ—isâ—ser shall not have contribution against a purchasor ib. Changes reall doe not survive but personall doe Page 442 Three Errours there moved but not resolved ib. FINIS