of the said Anne and of the right heirs of the same W. Wallshot Anne died and if this Lease should bind the Conusee was the question for it was agreed by all that the Issue in Tail was bound by the Fine Quaere the Case was only put but not resolved CXLV Trin. 30 Eliz. In the Common Pleas. UPon a recovery in a writ of Entry sur disseisin of two Acres of Lands an Habere facias seisinam was awarded the Sheriff as to one Acre returned Habere feci and as to the other tarde And that return was shewed to the Court Amercement of the Sheriff and all the Iustices but Periam held that the Sheriff should be amerced for that return being contrary repugnant in it self but Periam said it may be that the Acre of which no seisin is had was so distant from the other Acre whereof the seisin was had that the Sheriff in time could not make execution of both being so remote the one from the other To which it was answered That if the truth of the case was such Then might the Sheriff make Execution in one Acre in the name of both Acres And if upon a Capias ad satisfaciend against two the Sheriff retorn as to one a Cepi and as to the other Tarde he shall be amerced for his several retorns cannot stand together Mich. 29 Eliz. In the Common Pleas. CXLVI Lees and Lord Staffords Case COmpton made Conusans as Bayliff to Edward Lord Stafford and shewed that Henry Lord Stafford Father of the said Edward and Ursula his Wife were seized of the place where and let the same for years to Edward Lees the Plaintiff Robert Lees and Elizabeth Atwood upon Condition they nor any of them should alien the said Term nor any part of the same without the leave of the Lord or his Heirs Henry Lord Stafford and Ursula died and that the Reversion thereof descended to Edward Lord Stafford and shewed further that the said Edward Lees the Plaintiff had aliened To which the Plaintiff in bar of the Conusans said that the said Edward now Lord Stafford gave License that the said Edward Lees Robert or Elizabeth might alien and that was without Deed. It was conceived by some that this Licence was not of any force to dispense with the Condition because it is uncertain and doubtful in the disjunctive and it was resembled to the Case of 11 H. 7. 13. where a man gives a thing to J. S. or A. B. it is void for the incertainty But all the Court was to the contrary For here the thing which is given is but a Liberty and is not to be resembled to a Gift or Interest and the intent of the Lord Stafford was that one of them might alien but not all of them and afterward Iudgment was given for the Plaintiff Trin. 31 Eliz. In the Kings Bench. CXLVII Limver and Evories Case LImver as Administrator of one A. brought Debt against Evory and the case was F. made G. his Executor and G. made H. an Infant his Executor and died and during the minority Administration was granted to the Plaintiff who as Administrator of G brought an Action of Debt upon a Bond made to the first Testator and that was assigned for Error for the Plaintiff ought to bring his Action as Administrator of the first Testator vide 10 E. 4. 1. 26 H. 8. 7. and for that Cause the Iudgment was reversed Mich. 33 Eliz. In the Kings Bench. CXLVIII Knevit and Copes Case KKnevit brought Ejectione firmae against Cope and declared 3 Leon. 266. whereas John Hopkins by his Deed bearing date the 20 of May 32 Eliz. had let to him a House and two yard Lands containing forty Acres of Land Meadow and Pasture at Tithingham de forecomb in the Parish of Steep c. and upon Not Guilty the Visne was of Tithingham de Forecomb Exception was taken by Cook that the Declaration had not certainty for it is not shewed certain how much Meadow Land and how much Pasture is contained in the said two yard Lands and the Iury may find the Defendant Guilty as to so much Land but not to the residue also he hath not shewed in the Declaration when the Lease was made but only saith that by Indenture bearing date 20 May c. but doth not shew any day of delivery of the Indenture for then is the demise To which Exception it was said by the Iustices That the Declaration as to that was good enough for it shall be intended to be delivered at the day of the date Another Exception was taken to the Visne because that the Visne ought to have been from the Parish and not from Tithingham 11 H. 7. 23 24. Forcible Entry in the Manor of B. in B. the Visne shall not be from the Manor of B. but of B. Gawdy You shall never have a Visne of the Parish for divers Towns may be in one Parish but here the Visne is well of Tithingham for it may be that it is a Town Cook It is but a Vill conus from which a Visne cannot come CXLIX Trin. 28 Eliz. In the Common Pleas. Rot. 1027. MIlbourn brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex it was found by Special Verdict that the Plaintiff was robbed 23 Aprilis inter horam secundam matutinam tempore nocturno ante Lucem ejusdem diei and the Opinion of the Court was clear that the Plaintiff should be barred for the said Statute provided for ordinary Travel as in the Case of Archpool who came to his Inn post Sunset ante noctem in tempore diurno which is an usual time for travelling to come to his Inn but the Law doth not receive any in protection of this Stat. who travel in extraordinary hours for it is the folly of the Traveller to take his journy so out of season and the Inhabitants are not bound to leave their Houses and to attend the ways tempore nocturno and another reason was alledged by the Iustices because the said Statute appoints watch to be kept in the time of night à Festo Ascensionis usque ad Festum Sancti Michaelis and this Robbery was done the 23 of April so as it was out of that time and afterwards Iudgment was given against the Plaintiff Mich. 26 Eliz. In the Common Pleas. CL. Barkers Case Estrepement in Partition A Writ of Partition by Barker heir of Gertrude Marquess of Exceter who devised all her Lands to Blunt by which the third part was descended to the Plaintiff and he prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ ought not to be granted for that the Plaintiff might have a more proper remedy upon the Statute cum duo tres c. and in a Writ of Partition no Land is demanded Trin. 29 Eliz. In the Kings Bench. CLI Megot and Davies Case
Assumpsit MEgot brought an Action upon the Case against Broughton and Davy upon Assumpsit and it was found by Nisi Prius for the Plaintiff and afterwards before the day in Bank Broughton dyed and after Iudgment given Davy the other Defendant brought a Writ of Error in the said Court scil in the Kings Bench where Iudgment was given and assigned an Error in fact scil the death of Broughton depending the Writ vide 2 R. 3. 21. and this Case is not like to Trespass for Trespass done by many are several Trespasses but every Assumpsit is joynt If the Court may reverse their own Judgment and if the Court upon this matter might reverse their own Iudgment was the Question the Case was not resolved but adjourned CLII. Trin. 31 Eliz. In the Common Pleas. IT was found by Office that J. S. held by the Queen and dyed without Heir whereas in truth he had an Heir scil A. S. who leased the Lands for an hundred years and afterwards traversed the Office Office trove and had an Ouster le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner in behalf of the Sheriffs of London before whom the matter depended to whom it was said by Anderson Chief Iustice Conveyance by the Heir upon Entrusion That where the King is entituled by an Office to a Chattel as to a wardship c. there if the Heir without any intrusion bargain and sell levy a Fine or lease for years during the possession of the King it is void against the King but shall bind the Heir but where the King is intituled to the Fee-simple as in this Case such a Conveyance is meerly void Hil. 31 Eliz. In the Kings Bench. CLIII Samuel Starkeys Case HOmine replegiando by Samuel Starkey to the Sheriffs of London Who returned that the said Starkey was indicted to be de mala fama deceptione Domini Regis with divers other general words and namely that he had deceived J. S. a Clothier and that he was a common Cozener and thereof being found guilty Iudgment was given by the Mayor and Recorder That he should be disfranchized of his Freedom and should be fined and imprisoned for a year and further said that he had not paid his Fine nor the year expired Cook Such Return hath not been seen and it is directly against the Statute of Magna Charta Wray Chief Iustice gave a Rule that the Sheriffs should make their Return at their perils before such a day Hil. 31 Eliz. In the Kings Bench. CLIV. Bushy and Milfeilds Case IN Error brought by Bushy and Milfeild It was assigned for Error that where in the first Action the Iury gave four pence Costs and the Court gave de incremento three and twenty shillings that in the Iudgment the four pence was omitted Error It was the Opinion of the Court That for that Cause the Iudgment should be reversed although it be for the advantage of the Party so where the Iudgment is quod sit in misericordia where it ought to be Capiatur Hil. 29 Eliz. In the Common Pleas. CLV Bingham and Squires Case BIngham brought Debt upon an Obligation against Squire Obligation 3 Leon. 151. The Condition was If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the said Bingham so as the said Bingham at the said next Avoidance may present that then c. The Case was That afterwards by the means and endeavour of Squire the Grant of the next Avoidance was made to Bingham but before the next Avoidance the present Archdeacon was created a Bishop so as the presentment of that Avoidance belonged to the Queen It was adjudged in this Case that the Condition was not performed and that by reason of these words scil So that Bingham may present And afterwards Iudgment was given that the Plaintiff should recover Hil. 26 Eliz. In the Common Pleas. CLVI Mansors Case A. Man bound himself in an Obligation to make an Assurance of Lands the first day of Jan. and the last day of December he to whom the Assurance was to be made scil the Obligee the said last day before Sun-setting came to the Obligor with a Deed ready to be sealed and prayed him to seal it who said to him that he was a man unlearned and said he would shew the same to his Counsel and then he would seal it And if the Obligation was forfeited or not because he did not seal it presently was the question And Fenner argued that it was not for when a thing is to be done upon request then he who makes the request ought to give sufficient and convenient time to perform the Condition I agree That where the Condition is absolute there if the Condition be not performed he shall not be excused by the default of another As if a man be bounden to marry A.S. and she will not marry him or to enfeoff J. S. and he refuseth as 3 H. 6. is the Obligation is forfeited Yet in these Cases if the Obligee himself be the cause that J. S. will not take the Feoffment or he will not marry A. S. the Obligation is not forfeited So in our Case for by his late request it is impossible for me to perform the condition for before my Counsel shall have perused it the time will be past If a man be bound to enfeoff one of Lands in Barwick request ought to be made so long time before that after that he may go to Barwick So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender so long time before the last instant of the last day that the mony may conveniently be told This Case was in question A man made a Feoffment of the Manor of D. with the Appurtenances to which an Advowson was appendant and covenanted that the Manor upon request should be discharged of all manner of Incumbrances and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died the Clark of the Grantee was instituted and inducted the Feoffee requested the Feoffor to discharge the Incumbrance The opinion of many Sages of the Law was that he had not made his request within convenient time So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. shall have Issue of his Body If the Obligee demand Assurance after the death of J. S. without Issue yet the Obligation is not forfeited In 22 E. 4. if Lessee for the life of another continues possession for two or three weeks after the death of Cestuy que use where he could not have more speedy notice of his death he shall not be a Trespassor In 15 Eliz it was holden in Wottons Case That where he was bound to make a Feoffment to J. B. and J. B. came to him in Westminster Hall and tendred to him a Writing
or his Servant had put the Horse to grass and afterward the Horse is stollen there an Action upon the Case doth lye Trin. 29 Eliz. In the Common Pleas. CXCVII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs Citizens and Commonalty of the City of Norwich the Original Writ was directed to the Coroners of the said City And Exception was taken to the Writ because it was not directed to the Sheriffs of the said City but to the Coroners Sed non allocatur for the Sheriffs are parcel of the Corporation as it is to see by the name by which they of Norwich are incorporated And also it hath been adjudged That a Sheriff cannot summon himself and therefore by the Award of the Court the Writ was allowed to be good Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands the Kings Silver was entred and the Conusans taken but the Fine was never engrossed and now he who claimed under the Fine came in Court and prayed that the Fine might be engrossed and the Court examined them upon their Oaths to what use the Fine was levied and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine Vpon which Examination it appeared fully to the Court that the Party to whom the Fine was levied was seized after the Fine and suffered a Common Recovery of the Land and that the said Land had been enjoyed according to the said Fine at all such times since c. Whereupon the Court commanded that the Fine be ingrossed Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer CXCIX The Lord Dacres and Philip Fines Case THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite levied a Fine thereof without Licence 3 Leon. 261. and Process issued against the Tenants for Life It was holden by all the Barons that by Plea he should be discharged it was holden That if the Conusor had any other Lands ubicunque in Anglia the Fine for Alienation should be levied upon them But it was moved If the Tenant should be driven to plead it because it appears upon Record that the Conusor was but Tenant in Tail in Remainder and that was in an Office containing such matter which was pleaded by another in another Cause before by which Office it appeared that the Lord Dacres was Tenant in Tail the Remainder in Tail to Philip Fines and now Fines had levied a Fine sur Conusans de droit c. and because the same appeared on Record Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed Trin. 29 Eliz. CC. Paston and Townsends Case IN Trespass by Paston against Townsend The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized and the Land descended To which the Plaintiff replyed and said c absque hoc that Tindal was seized in Fee upon which they were at Issue On the part of the Defendant to prove the Issue it was given in Evidence to prove the Issue in his right that the said Tindal long time before his death was seized and aliened and never after was seized It was said that that Evidence did not prove the Issue for the Defendant for the Seisin in Fee intended in the Issue is in the nature of a dying seized and so Periam conceived that the Defendants Plea did not intend any other Seisin a dying seized and the dying seized is taken by Protestation to avoid the doubleness So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal and Seisin at large or a general Seisin at any time during the life of Tindal quod Anderson concessit Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case ERror by Griffith against Price upon a Iudgment in Chester in Ejectione firmae and the Error assigned was because the Original bore date 16 April 28 Eliz. and the Plaintiff declared of an Ejectment 17 April 28 Eliz. So as it appeareth that the Action was brought before there was any cause of Action and that was holden to be Error And also Ejectione firmae is not a personal Action and afterwards the Iudgment was Reversed Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls and upon that Error was brought in the Kings Bench quod nota For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior Vide â— N. B. 22 23. And Wray asked Wherefore the Writ of Error was brought here To which it was answered by Dodding Clark that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant to the purpose to bring a Writ of Error quod coram vobis residet And the Error was assigned in this that by the Statute of 18 Eliz. cap. 5. it is enacted that upon every Information that shall be exhibited a special Note shall be made of the Day Month and Year of the exhibiting of the same into any Office or to any Officer who lawfully may receive the same And here upon this Information there is not any such Note according to the said Statute And in truth no Information may be exhibited for there is not any Officer there appointed for that matter for the entry in such Cases in that Court is Talis venit deliberavit hic in Curia Miloni Sands c. But in the Case at Bar the Entry is Talis venit deliberavit in Curia but without shewing to whom But note that the words of the said Statute of 18 Eliz. are in the disjunctive into any Office or to any Officer and that such Information shall not be of Record but from that time forwards and not before wherefore here this Information is not upon Record and then no Iudgment can be given upon it Cook This Information may be well sued in London for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King And the Court in London is a Court of Record of the King and every Court of Record hath an Officer to receive Declarations and Pleas and if it be delivered into the Office it is good enough 2. The Offence is laid in the Parish of Bow in Warda de Cheap alibi in Civitate London and so there is not any place laid where the Offence shall be tryed Cook This Alibi is a Nugation Trin. 31 Eliz. In the Kings Bench. CCIII Peuson and Higbeds Case IN Assumpsit the Plaintiff declared that in consideration that he by his Servant had delivered to the Defendant two Bills
that Reversion shall descend to all the daughters notwithstanding the half blood for the Estate for years which is made by Indenture by license of the Lord is a demise and a Lease according to the order of the Common Law and according to the nature of the demise the Possession shall be adjudged which possession cannot be said possession of the Copyholder for his possession is customary and the other is meer contrary therefore the possession of the one shall not be the possession of the other therefore there shall be no Possessio Fratris in this case Possesso Fratris But if one had been the Guardian by custom or the Lease had been made by Surrender there the Sister of the half blood should not inherit And Mead said the Case of the Guardian had been adjudged Mounson agreed And it was said that if a Copyhold doth descend to the Son he is not a Copyholder before admittance but he may take the profits and punish a Trespass before admittance CIV Pasc 19 Eliz. In the Common Pleas. A Parson let his Rectory for three years and covenanted that the Lessee shall have and enjoy it during the said term without expulsion or any thing done or to be done by the Lessor and is also bound in an Obligation to the Lessee to perform the said Covenant Forfeiture Quaere Afterwards for not reading of the Articles he was deprived ipso facto by the Statute of 13 Eliz. The Patron presented another who being inducted ousted the Lessee wherefore an Action was brought upon the Obligation It was the Opinion of all the Iustices That this matter is not any cause of Action for the Lessee was not ousted by any Act done by the Lessor but rather for Non feasans and so out of the compass of the Covenant aforesaid as if a man be bound that he shall not do any waste permissive waste is not within the danger of it Pasc 26 Eliz. In the Common Pleas. CV King and Cottons Case IN Ejectione firmae the Case was Lessee for years the Remainder for life the Remainder in Tail to Lessee for years Lessee for years made a Feoffment in Fee with warranty and dyed he in the Remainder for life dyed the Issue in Tail entred and made a Lease to the Plaintiff It was clearly resolved by the Court in this Case Entre Congeable That the entry of the Issue in Tail was lawful notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty scil to the Estate for life Vide 50 E. 3. 12 13 46 E. 3. 6. Fitz. Garr 28. Pasc 26 Eliz. In the Common Pleas. CVI. Scot and Scots Case BArtholomew Scot brought a Writ of Accompt against Thomas Scot Accompt Thomas Scot sum ' fuit ad respondend Barth Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum c. And declared quod cum the said Thomas Scot fuit receptor denariorum c. recepisset so much by the hands of such a one c. Cumque idem Thomas habuisset recepiâ—â—et diversa bona and shewed what ad merchandizand c. Exception was taken to the Declaration because the Writ and Declaration is general against the Defendant as Receiver whereas for such goods as the Defendant had received ad merchandizand he ought to have been charged as Bayliff Quod Curia concessit Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traversed severally both the Charges whereupon several Issues were joyned and both found for the Plaintiff And as to the monies with the Receipt of which he was charged as Receiver the Plaintiff had Iudgment and as to the others Abatement of Writ which he received ad Merchandizandum the Writ abated And it was said by the Court That the Writ should have abated in the whole unless the several Issues had helped the matter because the Plaintiff might have had an Action for part in other manner Vide 9 H. 7. 4. by Brian 17 Eliz. In the Star-Chamber CVII Morgan and Coxes Case MOrgan exhibited a Bill of Perjury in the Star-Chamber against one Cox setting forth that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench and he in discharge of the said Recognizance had obtained a Writ De Fama gestu to enquire of his Conversation and therefore at the Sessions in the County of Devon where the said Morgan was dwelling the grand Iury charged with the said Matter the said Cox gave Evidence to the said grand Iury in maintenance and continuance of the said Recognizance and upon the Evidence given by Cox the said Bill was conceived It was moved by the Counsel of the Defendant That that Bill upon the matter did not lye for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance and that to the grand Iury which was charged for the Queen But as to that it was said by the Lord Chancellor and both the Chief Iustices that the Writ De fama gestu Brief de Fama gestu is an especial Writ at the Suit of the Party and not of the Queen and the Court cannot deny it to him who asketh it and the grand Iury as to that matter shall be accounted a special Iury c. Mich. 16 Eliz In the Common Pleas. CVIII Jackson and Darcys Case Tail barred by a Fine 3 Leon. 57. IN a Writ of Partition betwixt Jackson and Darcy the Case was Tenant in Tail the Remainder to the King levied a Fine had Issue and dyed it was adjudged that the Issue was barred and yet the Remainder to the Queen was not discontinued for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail passed to the Conusee Trin. 17 Eliz. In the Common Pleas. CIX Stroads Case Tenures IN a Replevin the Case was Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries The King granted the Lands over unto another it was holden in this Case that the Patentee should hold of the King according to his Patent and not of the ancient Lord but the Patentee should pay the rent by which the said Land was before holden as a Rent-seck distrainable of Common right to the Lord and his Heirs of whom the Land was before holden CX Mich. 19 Eliz. In the Common Pleas. A. Seized of Lands in Fee devised them to his Wife for life and after her decease Estate she to give the same to whom she will He had Issue two daughters and died Devises Leon. 121â— the wife granted the Reversion to a Stranger and committed waste and the two daughters brought an Action of waste In this Case it was holden that by that Devise the wife had but an Estate for life but she had also an authority
for 21 years to begin at Michaelmas before and in pleading it was shewed That virtute cujus dimissionis posterioris the Plaintiff entred fuit possess crastino Michaelis which was before the making of the Lease and the Plaintiff in his Declaration declared That the Defendant in consideration that the Plaintiff had assigned to him the said Leases had promised to pay to him 630 l. It was found for the Plaintiff Cook For where the Plaintiff in an Action upon the Case declares upon two Considerations in such Case although the one be void yet if the other be good and sufficient the Action is maintainable but the Damages shall be given without respect had to the Consideration insufficient and the Plaintiff was to declare upon both Considerations for the Assumpsit upon which the Action is conceived was in consideration that both the Leases were assigned to the Defendant and our Declaration ought to be according to the Assumpsit and it was not material although that one of the Considerations was utterly void Another Exception was taken Because the Lease is set forth to be made 18 October and that by virtue thereof the Plaintiff entred Cro. Mich. Then the Plaintiff entring Cro. Mich. was a Disseisor and then being in by disseisin he could not assign his Interest to another and that appears clearly to the Court upon the whole matter But Cook said That shall not hurt us for it is but matter of surplusage to say Virtute cujus c. As 20 H. 6. 15. the Plaintiff in Trespass supposed by his Declaration that the Trespass for which the Action was brought commenced 10 H. 6. with a Continuando until the day of the Action brought viz. idem 14 Febr. 17 H. 6. where the Writ bore date 12 die Octobris Anno 17 H. 6. And Exception was taken to the Declaration because the continuance of the time was not put in certainty But the Exception was not allowed for it is certain enough before the viz. the day of Writ brought and so the viz is void and all that which follows upon it And so here this Clause Virtute cujus est totum sequitur est omnino void 7 H. 4.44 Br. Action upon the Case 37. The Writ was Quare Toloniam asportavit illud solvere recusavit Exception was taken to the repugnancy for it would not be carried away if it were not paid before yet the Writ was awarded good and the first word Toloniam asportavit holden void So here in the principal Case As to the other Exception it is clear That here is not any Disseisin upon this Entry of the Plaintiff before the making of the said Lease for there was a Communication betwixt the Parties of such a Lease to be made or of such an Assignment and peradventure the Entry was by assent of the other part and then no Disseisin And posito it should be a Disseisin yet the Plaintiff hath assigned all the Interest quod ipse tunc habuit according to the consideration and delivered to the Defendant both the Indentures of Demises and so he hath granted all that which he might grant And if it be a void Assignment or not is not material for quacunque via data the Consideration is good and then the Assumpsit good also Egerton Solicitor contrary In every Action upon the Case upon Assumpsit three things ought to concur Consideration Promise and breath of Promise and in this Case the Assignment of the Lease to begin after the death of the Lessor is void being but Tenant for life and no Consideration upon the confession of the Plaintiff himself And upon the second Consideration it appeareth the Lessor viz. the Wife who held for life had but a right to the Land demised for she was disseised for he to whom the Land was after let entred before the Lease was made for it doth not appear that he entred by force of any agreement made before the Lease therefore by his Entry he was a Disseisor It was also moved That here was not any sufficient consideration for by a bare or naked delivery Nihil operatur and here is not any word of Give or Grant. To which it was answered That the delivery of the Indenture was not a bare Bailment but a Delivery to the use in the Indenture and so it is pleaded and therefore thereby an Interest passed for such a delivery cannot be countermanded An Indenture with an Averment shall never make an Estoppel Clench Iustice If I deliver any thing to one for his proper use an Interest passeth but if it be to the use of another no Interest passeth The party may have usum but not proprietatem CCLVII Mich. 18 Eliz. In the Kings Bench. Contract IF a Contract be made betwixt two here in England scil that one of them shall carry certain Goods of the others to Burdeux in France and sell them there and with the mony thereof coming shall buy other Goods for the use of him who was the owner of the first Goods and safely them deliver to him in London If now the party sell them in Burdeux and buyeth others with the monies thereof and brings them into England and there converts them to his own use upon this matter an Action lyeth at the Common Law for the Contract and the Conversion being the cause of the Action was made in England But if the Contract only was in England and the Conversion beyond the Seas the Party at his Election may sue at the Common Law or in the Court of Admiralty And if a Merchant here write to his Factor in France to receive certain Merchandizes which he hath sent to him and to Merchandize with them for his use if the Factor receiveth them and converts them to his own use the Father shall be sued in the Admiralty 25 Eliz. CCLVIII. The Earl of Huntington and the Lord Mountjoyes Case IT was agreed by the two Lord Chief Iustices 1 And. 308. upon conference had with the other Iustices in the Case between the Earl of Huntington and the Lord Mountjoy That where the Lord Mountjoy by Deed indented and inrolled bargained and sold the Manor of Camford to Brown in Fee in which Indenture a Clause was Proviso semper and the said Brown covenants and grants cum and with them the Lord Mountjoy his Heirs and Assigns That the said Lord his Heirs and Assigns might dig for Ore in the Wasts of Camford And also to dig Turf there to make Allom and Copperice without any contradiction of Brown his Heirs and Assigns that now here is a new Grant of an Interest to dig to the said Lord and his Heirs in the Lands aforesaid and not a bare Covenant and it was holden also that the said Lord could not divide the Interest granted to him in form aforesaid viz. To grant to another to dig one part of the said Waste c. But they were of Opinion That Brown his Heirs and Assigns notwithstanding
But all the Court held the contrary and that the Copy should bind the Feoffee and the ceremony of admittance was not necessary For otherwise every Copyholder in England might be defeated by the sole act of the Lord viz. his Feoffment But the Lord by his own act which shall be accounted his folly hath lost his advantages viz. Fines Heriots and such other Casualties Mich. 29 Eliz. In the Common Pleas. CCCLXV Boxe and Mounslowes Case THomas Boxe brought an Action upon the Case against John Mounslowe That the Defendant slandred him in saying That the said Thomas Boxe is a perjured Knave and that he would prove the said Thomas Boxe had forsworn himself in the Exchequer c. and supposed the said words to be spoken in London 4 Feb. 28 Eliz. Et praedict ' Johannes Mounslowe per Johannem Lutrich Attornatum suum venit defendit vim injuriam quando c. Et dicit quod praedict ' Tho. Boxe actionem suam versus eum habere non debet quia dicit quod praedict ' Thomas Boxe being one of the Collectors of the Subsidies before the speaking of the said words viz. 27 28 Eliz. in Curia Scaccarij apud Westm ' did Exhibt a Bill against the said John Mounslowe containing That the said John being assessed in ten pounds in Goods the said Thomas Boxe came to him and demanded of him sixteen shillings eight pence which the said John Mounslowe did refuse to pay and that demand and refusal was supposed to be in London in Breadstreet Et pro verificatione praemisiorum adâ—unc ibid ' Sacramentum Corporale per Barones praefat ' Thomae Boxe praestitit The said Thomax Boxe swore the said Bill in substance was true ubi revera the said John Mounflowe did not refuse per quod the said John Mounslowe postea viz. praedict tempore quo c. dixit de praefat ' Thoma Boxe praedict verba c. pâ—out ei bene Leuit The Plaintiff replyed that the Defendant spake the words de injuria sua propria absque causa per praefat Johannem Mounslowe superius allegata Et hoc petit quod inquiratur per Curiam praedict defendens similiter And a Venâ—re Facias was awarded to the Sheriffs of London and it was found for the Plaintiff and damages 400 l. And now it was moved in Arrest of Iudgment that there was no good Trial nor the Issue well joyned for the Issue doth consist upon 2 points triable in several Counties viz the Oath which was in the Exchequer and that ough to have been tryed in Middlesex and the matter which he affirmed by the Oath viz the demand and the refusal to pay the subsidy and that was alledged to be in London and is there to be tryed and the Issue viz. de 〈…〉 propria goeth to both for the ubi revera will not amend the Case as Penam Iustice said and both are material For the Defendant ought to prove that the Plaintiff made such Oath and also that the substance and matter of the Oath was not true for otherwise the Plaintiff cannot be proved perjured And therefore the Counties here if they might should have joyned in the Tryal And the Opinion of the Court was against the Plaintiff For Anderson and Wincham said That if this Issue could have been tryed by any one of the Counties without the other it should most properly and naturally have been tried in Middlesex where the Oath was made for the Perjury if any were was in the Exchequer But they said The Issue here was ill joyned because it did arise upon two points triable in several Counties which could not joyn whereas the Plaintiff might have taken Issue upon one of them well enough for each of them did go to the whole and if any of them were found for the Plaintiff that he had sufficient cause to recover Gawdy moved that it should be helped by the Statute of Ieofails which speaks of mis-joyning of Issues Anderson The Issue here is not mis-joyned For if the Counties could joyn the Issue were good but because that the Counties cannot joyn it cannot be well tryed But the Issue it self is well enough Windham and Rhodes were of the same Opinion but Periam doubted it Anderson said That if an Issue tryable in one Court be tryed in another and Iudgment given upon it it is Error And afterwards Lutrich the Attorney said That it was awarded that they should re-plead Nota quod mirum For first the Statute of 32 H. 8. cap. 30. speaks of mis-joyning of Process and not mis-joyning of Issues and admit that this Case is not within any of those Clauses each of them being considered by it self yet I conceive it is contained within the substance and effect of them being considered together Also I conceive it is within the meaning of both Statutes viz. 32 H. 8. cap. 30. 18 Eliz. cap. 14. for I conceive the meaning of both Statutes was to waste delays circuits of Actions and Molestations and that the party might have his Iudgment notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appear to the Court. And here the Plaintiff hath sufficient cause to recover if any of the points of the Issue be found for him For if it be found that the matter and substance of the Oath be found true which might be tryed well enough by those in London the Plaintiff had cause to recover Wherefore I conceive that the Verdict in London is good enough and effectual And note that Rhodes said that he was of Counsel in such a case in the Kings Bench betwixt Nevil and Dent. CCCLXVI Mich. 19 Eliz. In the Common Pleas. 3 Leon. 103. THe Case was A. granted B. a Rent-charge out of his Lands to commence when J. S. dyes without Issue of his Body J. S. dyes having Issue and the Issue dyeth without Issue Dyer said That the Grant shall not take effect for J. S. at the time of his death had Issue and therefore the Grant shall not then commence and if he dyeth then not at all by Manwood And Dyer and Manwood said If the words had been to begin when J. S. is dead without Issue of his Body then such a Grant should take effect when the Issue of J.S. dyes without Issue c. And they said That if the Donee in tail hath Issue which dyeth without Issue the Formedon in Reverter shall suppose that the Donee himself dyed with Issue for there is an Interest And there is a difference betwixt an Interest and a Limitation For if I give Lands to A and B. for the term of their lives if either of them dyeth the Survivor shall hold the whole But if I give Lands to A. for the lives of B. and C. now if B. or C. dyeth the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest CCCLXVII Temps Roign
Common Pleas. LII Frice and Fosters Case IN Ejectione firmae the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 day of January the same year and it was found by Witnesses that the Lease was sealed and delivered upon the Land the 13 day of January Variance Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant that for that variance between the Declaration and the Evidence of the Plaintiff that the Iury might be discharged Evidence good to maintain Issue But Anderson Chief Iustice said that the Evidence was good enough to maintain the Declaration for if the Lease was sealed and delivered the 13 of January it was then a Lease 14 January Quod caeteri Justiciarii concesserunt LIII Mich. 32 Eliz. In the Common Pleas. IN a Quare Impedit against the Bishop of Coventry and Lichfield The Case was that A. seised of an Advowson in Fee Quare Impedit by Executors the Church voided the Bishop collated wrongfully A. dyed Collation it was holden that his Executors might have a Quare Impedit upon that disturbance and that by the equity of the Statute which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Case THe Case was that the Husband seised of Land in the right of his Wife made a Lease of it for years Fine by the Husband where avoids a Lease ê contra 1 Roll. tit Charge in Marg. 389. Plow Quaer 31. 261. ib. plus and afterwards he and his Wife conveyed the Land to a stranger by Fine the Husband died Wray Chief Iustice was of opinion that the Conusee should hold the Land discharged of the Lease Gawdy contrary In case of a Rent granted or a Recognizance acknowledged by the Husband the Conusee of the Fine shall avoid any of them But in this Case the Conusee meddles with the Land it self and an Estate in the Land is conveyed by the Husband which none but the Wife or her Heirs shall avoid and if the Wife after the death of her Husband accept the Rent upon such a Lease by that the Lease is confirmed Mich. 33 Eliz. In the Kings Bench LV. Blaby and Estwicks Case IN Assumpsit It was moved in stay of Iudgment Assumpsit that one of the Defendants was dead after verdict but notwithstanding that Allegation Iudgment was given Attornment for the Court cannot take Notice of it judicially nor any of the Parties hath day in Court to plead it and therefore the Court is not to have regard to such Informations Wray It is not honourable for us upon such surmises which cannot be tryed to delay Iudgment and also the Party is not without remedy for he may have a Writ of Error 33 Eliz. In the Kings Bench. LVI Hore and Briddleworths Case HOre brought Trespass against Briddlesworth Quare clausum Domum suam fregit the Defendant pleaded and put the Plaintiff to a new Assignment i. e. a House called a Stable a Barn and another House called a Carthouse and Garnier And that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy said it was good enough for Domus in the Declaration contains all things contained in the new Assignment but if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Chief Iustice Domus est nomen collectivum and contains many Buildings as Barns Stables c. And such was the Opinion of the Court. Mich 33 Eliz. In the Kings Bench. LVII Mans Case Prohibition MAn was sued before the Commissioners in Ecclesiastical Causes for an Incestuous Marriage viz. for marrying his Wives Sisters Daughter and although it be not expresly within the Levitical degrees yet because more farther degrees are prohibited the Archbishop of Canterbury and other the Commissioners gave Sentence against him Consultation upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special that it be not within the Levitical degrees and therefore a Consultation was granted Trin. 26 Eliz. In the Kings Bench. LVIII Doylies Case Appeals IN an Appeal de Roberie against Doyly It was agreed by the Iustices that the Party robbed shall have an Appeal of Robbery 20 years after the Robbery committed and shall not be bound to bring it within a year and a day as in the Case of an Appeal of Murder Vide contr 22 Ass 97. vide Stamford 62. Trin. 26 Eliz. In the Kings Bench. LIX Ruishbrook and Pusanies Case THe Plaintiff brought Trespass for pulling down his Hurdles in his Close The Defendant justified by reason that one Beddingfield was Lord of the Mannor of D. and that the said Beddingfield and all those whose Estate he had in the said Mannor had had a free course for their sheep in the place where c. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Mannor and that the said Beddingfield let to the Defendant the said Mannor and because the Plaintiff erected Hurdles without leave c. in the said Close he cast them down as it was lawful for him to do The Plaintiff replyed of his own wrong without cause c. It was holden by the Iustices to be an ill Plea Traverse for the Plaintiff ought to have traversed the Prescription 19 Eliz. In the Common Pleas. LX. Par Marquess of Northamptons Case PAr Marquess of Northampton took to Wife the Lady Bourchier Heir of the Earl of Essex Leases by a Baron contrary to Act of Parliament void 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit c. with a Grant and Render to them for Life the remainder to the right Heirs of the body of the said Lady And afterwards by Act of Parliament â—5 H. 8. It was enacted That the said Lady should retain part of her Inheritance and dispose thereof as a Feme sole and that the said Marquess should have the residue and that he might lease the same by himself without the Wife for 21 years or lesser term yielding the ancient Rent being Land which had been usually demised c. The Marquess leased the same for 21 years and afterwards durante termino praedict he let the same Land to another for 21 years to begin after the determination of the former Lease It was moved that the last Lease was void for three Causes 1. Because the Marquess had but for Life and then it cannot be intended that the Statute would enable
King he granted the said Office of Marshal of the Kings Bench But 26 R. 2. both Offices were rejoyned by Parliament as they were in ancient time before and there was also shewed one Patent of 4 E. 4. and another of 19 H. 8. by which it appeared that the said inferiour Office had ever been part of the Grand Office Then it was moved That when the said Office is in the Kings hands and the King grants the said Vnder Office If the same was for ever severed from the Grand Office. Wray Chief Iustice It is a severance of it for the chief Office is an Office of Dignity which remains in the King but the under Office is an Office of Necessity and the King himself cannot execute it wherefore of necessity he ought to grant it Another matter was moved Recital in Grants of the King. If the Grant of the King to the Earl of Shrewsbury was good because in the Grant to Verney of the Vnder Office it is not recited according to the Statute of 6 H. 8. cap. 9. As 20 Ass 6. the King seized of the Honor of Pickering to which a Forrest was appendant The Bailywick of which Forrest he granted in Fee rendring Rent and afterwards he granted the Honor with the Appurtenances and afterwards the Baily committed a forfeiture and the same was found in Eyre for which the Office of Bailywick was forfeited the Grantee of the Honor seized it yet it was holden that the King should have the Rent And here in this Case the Earl of Shrewsbury shall have this Office in his power to grant it and so much the rather for that it was granted but for life Mich. 32 Eliz. In the Kings Bench. LXVI Conies Case Roll. Abrig 894. Sale of Goods by the Sheriff upon Execution where good where not IN Debt It was holden that if the Sheriff upon the Fieri facias makes sale of the Goods of the Party and afterwards doth not return his Writ yet the Sale is good The Case went further That upon the Fieri facias the Sheriff returned That he had seized Goods of the Party to such a value Sed non invenit Emptores and afterwards before sale of them he is discharged and afterwards a Distringas issued to the new Sheriff to cause the ancient Sheriff to sell the said Goods who did so It was holden that the said sale of them was void for the new Sheriff ought to have sold them Vide 34 H. 6. 36. A Distringas to the old Sheriff to sell and deliver the Goods to the new Sheriff Mich. 19 Eliz. In the Common Pleas. LXVII NOte by Dyer and Manwood A. leaseth to B for years Remainder where void the remainder to the right Heirs of the said B. and makes Livery That the remainder is void because there is not any person in esse who can take presently by the Livery and every Livery ought to have its operation presently But where a Lease is made to B. for life the remainder to his right Heirs there he hath a Fee executed and it shall not be in Abeyance for there he takes the Freehold by the Livery Mich. 19 Eliz. In the Common Pleas. LXVIII Hindes Case UPon an Habeas Corpus for one Hinde Habeas Corpus the Warden of the Fleet returned That Hinde was committed to the said Prison by the commandment of the Commissioners in Causes Ecclesiastical It was holden that the Warden in his return Cause of commitment where must be returned where not ought to certifie the cause for which he was committed and then upon the return the Court ought to examine the cause if it be sufficient or not But if one be committed to Prison by the commandment of the Queens Privy Council there the cause needs not to be shewed in the return because it may concern the state of the Realm which ought not to be published LXIX Hil. 31 Eliz. In the Common Pleas. IN a Writ of Dower the Demandant recovered by default Whereupon a Writ issued to Enquire if the Husband died seised and of the damages and the Sheriff took an Enquest of Office by which it was found that the Baron did not die seised prout eis constare poterit and that Inquisition was returned by the Sheriff and filed It was moved Return of the Sheriff where void That the said Inquisition and Office was not good for the Office ought to find expresly that the Husband died seised or not and not doubtfully as it is here prout eis constare poterit and for that cause the Award of the Court was That the return should be taken off the File because it was insufficient and a new Writ was awarded Mich. 19 Eliz. In the Common Pleas. LXX The Lord St. John and Sir John Grays Case Grants of Omnia bona by an Executor what passeth NOte by Dyer and Manwood upon an Evidence unto a Iury in Debt brought against the Defendant as Executor of his own wrong That if an Executor gives omnia bona sua the Goods which he hath as Executor shall not pass which vide 10 E. 4. 1. by Danby But the contrary of that was holden by Wray Chief Iustice of the Kings Bench And Plowden in the Case of Bracebridge 18 Eliz. and they said that the said Case of 10 E. 4. was not Law for by such grant made by Executors the Goods of the Testator should pass Mich. 18 Eliz. In the Common Pleas. LXXI Taylors Case Outlawry how to be avoided TAylor was Outlawed in debt where a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved if the Plea should be pleaded by Attorney or in Person to which it was said by Manwood Iustice that where Matter in Fact is pleaded in avoiding of an Outlawry it ought to be pleaded in person but a matter of Record might be by Attorney And so it was said by Ford Prothonotary it was agreed in Sir Tho. Chamberlains Case 7 Eliz. and so it was agreed in the Principal Case 18 Eliz. In the Kings Bench. LXXII Bettuans Case IN Ejectione firmae The Case was A Fine was levied to Cook and three others and by an Indenture between the Parties to the Fine it was declared that the said Fine was levied ea intentione That the Conusees should make an Estate of the said Land to such a person which the Conusor should name and in the end of the said Indenture was a Proviso that the Conusees should not be seized to any other use but to that which was specified before and that the Conusees should not incumber the said Lands And the Opinion of all the Iustices of the Kings Bench was Fines levied to uses That upon the said Indenture the Conusees are seized to their own use until the Conusor hath made nomination and if he dieth without any nomination then the use
of giving the Reversion by her Will to whom she pleased and such a Grantee shall be in by A. and his Will for A. hath given expresly to his wife for life and therefore by Implication she shall not have any further Estate But if an express Estate had not been appointed to the wife by the other words an Estate in Fee should have passed Mich. 19 Eliz. In the Common Pleas. CXI Sir Thomas Kemp and Windsors Case SIr Thomas Kemp was outlawed at the Suit of one Windsor who had against him four Capias utlagat ' and none of them were served and afterwards he sued out a fifth Capias It was moved by Mead that the said Sir Thomas keepeth open House and yet the Sheriff had not served the Capias Dyer The Sheriff may justifie to break the House to take his body and seize his Goods for the Queen for this Process is in Law at the Suit of the Queen but contrary where the Process is sued at the Suit of a Subject And the Iustices commanded Ford Prothonotary to make a special Capias for Body and Goods and a pain in the Writ of 100 l. upon the Sheriff to execute the Writ accordingly CXII Mich. 19 Eliz. In the Common Pleas. THis Case was moved by Anderson Serjeant at Law Improvement of Common if in case of Common appurtenant by Prescription without number the Lord of the waste might improve for it is not admeasurable therefore not improveable for the Common being without number the sufficiency cannot be proved Dyer and Manwood Iustices although it be without number yet it may be reduced to a certainty being by Prescription as the number of the Cattel and the best and most substantial Tenant of the said Tenement at any time within time of memory had kept upon the said waste and then the Plaintiff the Lord might improve leaving sufficient according to such Rate Mich. 19 Eliz. In the Common Pleas. CXIII The Earl of Derbys Case Debt not against the Husband upon a Contract by the Wife DEbt by a Merchant of London against the Earl of Derby and his Wife and declared upon a Contract for Silks and it appeared upon the Evidence that the Countess during the Coverture had bought of the Plaintiff certain Silks for her own wearing and for the mony which the Countess agreed to pay for the same the Action was brought It was the Opinion of Dyer Manwood and Mounion that the contract by the Wife during the Coverture should not bind the Husband but admit that the Husband should be bound yet this Action is not well brought against the Wife for she ought not to be mentioned in the Writ CXIV Mich. 19 Eliz. In the Kings Bench. Indictments ONe was indicted in the Country because he commanded J.S. to take up a Bridge being in Regia via leading from such a Town to such a Town and also the said J. S. was indicted for executing the command of the other Exception was taken to the first Indictment because no place of the commandment is alledged in the Indictment and for that cause the Indictment was taken insufficient although Mr. Plowden strongly insisted upon the contrary as in Trespass the Defendant justifies by the commandment of J. S. the same is good without any place of the commandment for in the first Case the commandment is traversable but contrary put by Mr. Plowden Vide 3 H. 7. 11. Markenfields Case Another Exception was taken to the Indictment because it is not there alledged that the Bridge was a common Bridge but because there was other words in the Indictment which supplyed the same scil in via Regia the Indictment was holden good enough CXV 19 Eliz. In the Common Pleas. IN a writ of Partition between Tenants in common upon the Statute of 20 Acres of Land the Defendant as to part scil 10 Acres pleaded Non tenet pro indiviso and as to the residue confessed the Partition and by Manwood and Ford chief Prothonotary the confession ought to be in the beginning of the Plea and Non tenet pro indiviso in the second place last so as that part of the Plea which agrees with the Demand ought to preceed the part which denies demand And the truth of the Case was that the Defendant had but 10 Acres in all and of them was sole seized Manwood If your Case be such you may safely plead to the whole Non tenet pro indiviso 20 Eliz. In the Common Pleas. CXVI Duffams Case A Man made a Lease by Deed indented for 20 years to begin after the expiration of a former Lease thereof made to one Duffam in an Action brought by the second Lessee against the Lessor the Lessor said there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam It was said that such a Plea did not lye for the Lessor Estoppel for he is estopped to say against the Indenture that no such Duffam was c. And also if no such person was then the first Lease was void and the second Lease should begin presently which Mounson and Manwood concesserunt And Manwood said that the Defendant should be estopped by the recital of the first Lease to say that no such Duffam was and although that the common ground is that a recital is not any estoppel yet where the recital is not material as it is here for the second Lease is to be begun upon the expiration of the Lease recited there is an estoppel Recital Trin. 29 Eliz. In the Common Pleas. CXVII Brown and Fulsbyes Case UPon the Statute of 5 Eliz. of Vsury the Case was this Stat. 5 Eliz. of Usury A. borrowed of B. 80 l. and was bound in an Obligation to pay to him 90 l. at the end of the year It was the Opinion of the Iustices that although the 90 l. was tendred and B. the Lender did tell the same yet if he take and except but of 80 l. it is not Vsury within the Statute to make a treble forfeiture but yet in that Case the Obligation it self is void CXVIII Trin. 29 Eliz. In the Exchequer NOte in the Case of the Tenants of Owning and Northmaston It was holden by Manwood Chief Baron That he who hath vesturam terrae cannot dig the Land. And Gent Baron said where many have Lot-Meadow to be divided every year by lot who shall have the Grass of such an Acre and who of such an Acre c. and so change every year according to Lots they have not any Freehold therein but only Vesturam terrae Trin. 32 Eliz. In the Exchequer CXIX Sir Walter Wallers Case 3 Leon. 259. Execution a Leon. 77. IN the Case of Sir Walter Waller it was moved if one hath Iudgment in Debt and thereupon within the year and day sueth a Capias ad satisfaciend although he doth not prosecute the same in two or three years yet when he pleaseth he may proceed
where the Suit is Tam pro Domina Regina quam pro seipso CXXII Trin. 32 Eliz. In the Exchequer Debt IF Rent-corn be reserved upon a Lease for years and it is behind for two or three years the Lessor may have Debt for the Corn and shall declare of so much Corn and it shall be in the Detinet but yet he shall not have Iudgment to have Corn but so much mony as the Corn was worth every several year being accompted Clark Baron doubted if he shall recover the price of the Corn as it was at the time when it was payable or it was at the time of the Action brought Manwood The Law is clear that the Lessee shall pay according to the price it was at the time of the payment and delivery limited by the Lease Clark said A is bound to pay and deliver to the Obligee 10 Bushels of Wheat and no place is appointed where the payment shall be made the Obligor is not bound to seek the Obligee in what place soever as it is in Case of payment of mony for that the importableness therefore shall excuse him which Manwood granted CXXIII Trin. 27 Eliz. In the Exchequer NOte It was holden by the Barons Fine for Alienation without Licence that for Fines for Alienation without licence not only the Land aliened but the other Lands of the Alienor shall be chargeable Mich. 30 Eliz. In the Exchequer CXXIV Prowses Case IT was holden in the Case of one Prowse by Egerton Solicitor Tythes upon the Statute of 31 H. 8. where an Abbot had a Rectory impropriate and also Land within the same Parish c. and so paid no Tythes because he could not pay them to himself and for no other cause was discharged and after the Dissolution the Rectory is granted to one and the Land to another that in such Case the King nor his Patentees should not be discharged of Tythes for the Lands were not discharged in Right but if the Lands in the hands of the Abbot were discharged in Right as by composition or lawful means there the King and his Patentee should be discharged from payment of Tythes And it was said by Burliegh Lord Treasurer that if the Composition or Custom was that the Abbot and his Successors should be discharged without extending to Farmors or Lessees if the Abbot made a Lease and the Lessee paid Tythes as he ought and after the Reversion cometh to the King the Lessee should pay Tythes during his Lease but after the Lease determined the King and his Patentee should not pay but should be discharged by the said Statute and said the like matter was in the Chancery Trin. 30 Eliz. The Abbot of Tewkesbury having the Rectory impropriate of Tewkesbury 11 H. 7. purchased Lands within the said Parish to him and his Successors Unity no discharge of Tythes after the dissolution the King granted to G. the Rectory and to W. the Lands and if W. should pay Tythes was referred to Manwood and Periam who gave their Resolution that Tythes were payable Trin. 30 Eliz. In the Kings Bench. CXXV Ropers Case ROper was robbed by Smith and within a week after the Robbery he preferred an Indictment against him and within a month after the Robbery he sued an Appeal against Smith and prosecuted it until he was out-lawed and thereupon Cook moved to have Restitution and they of the Crown Office said that the Fresh-suit was not enquired for upon an Appeal one shall not have Restitution without Fresh-suit Restitution Cook The Books are if the Defendant in the Appeal of Robbery be attainted by Verdict Fresh Suit. the Fresh-suit shall be enquired of But here he was attainted by Outlary and not by Verdict and so the Fresh-suit could not be enquired of and here the Indictment is within a week and the Appeal within a month after the Robbery is a Fresh-suit Wray Chief Iustice In our Law he is to pursue the Felon from Town to Town but the suing of the Appeal is no Fresh-suit vide 21 F. 4.16 Restitution grounded upon Outlawry and Appeal of Robbery without Fresh-suit enquired of 1 H. 4. 5. if he confess the Felony and so is 2 R. 3. 13. Trin. 30 Eliz. In the Kings Bench. CXXVI Piers and Leversuches Case IN Ejectione firmae by Piers against Leversuch It was found by Verdict that one Robert Leversuch Grandfather of the Defendant was Tenant in Tail of the Land whereof c. and made Lease for years to Purn who assigned it over to Piers the Plaintiffs Father Robert Leversuch died W. his Son entred upon Piers who re-entred W. demised the Lands without other words to P. for life the remainder to Joan his wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney to re-enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made Livery to Joan W. died Edward his Son and Heir entred upon his Wife she re-entred and let the Land to the Plaintiff who upon an Ouster brought the Action Heal Serjeant When P. entred upon W. Leversuch the Issue in Tail he was a Disseisor and by his death the Land descending to his Heir the entry was taken away of W. Leversuch Cook contrary P. by his entry was not a Disseisor but at the Election of W. for when P. accepted such a Deed of W. it appeared that his intent was not to enter as a Disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land and Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas it was Skipwiths Case Grandfather Tenant in Tail Father and Son the Grandfather died the Father entred and paid the rent to the Lessor and died in possession and it was adjudged the same was not any descent for the paying of the rent explained by what title he entred and so shall not be a Disseisor but at the Election of another Trin. 33 Eliz. In the Kings Bench. CXXVII Penhalls Case PEnhall was indicted upon the Statute of 5 E. 6. for drawing his Dagger in the Church against J. S. without saying that he drew it with intent to strike the Party and for that cause the Indictment was holden void as to the Statute It was moved if it should not bee a good Indictment for the Assault so as he should be fined for the same By Sands Clerk of the Crown and the whole Court the Indictment is void in all for the conclusion of the Indictment is contra formam Statuti and then the Iury cannot enquire at the Common Law. Trin. 33 Eliz. In the Kings Bench. CXXVIII Weshbourns Case WEshbourn and Brown were Indicted upon the Statute of 8 H. 6. and exception was
taken to it because in the Margent was written Middlesex and in the Indictment they both were named of London and afterwards in the proceedings the words are That Weshbourn and Brown entred in such manner in Com. praedict and that is incertain what County is intended Middlesex or London but the Exception was not allowed for London before is not expressed to be accounted but only implyed Another Exception was because they had not any addition but it was not allowed for it appeared to the Court. And after it was moved upon the Statute of 31 Eliz. cap. 11 that no Restitution upon such Indictment should be granted if â—he party indeed had had the Occupation or had been in quiet possession for three years next before the day of the Indictment and in the Case at Bar the Master hath been in possession by three years but the Parties indicted being his Servants had been with him but for one year it was thereby holden by the Court that upon the matter Restitution should not be granted for the possession of the Master in this Case takes away all Restitution and that by the Statute Mich. 32 Eliz. In the Common Pleas. CXXIX Canons and Osborns Case A. Seized of a Rent in Fee granted the same by Fine to B. to the use of C. It was moved to whom the Ter-tenant should attorn And by Walmesly Periam and Windham there needs not any Attornment to the Conusee because all the right of the Rent is out of the Conusor Attornment and transferred to Cestuy que use instantly And Walmesly cited this Case to have been lately adjudged A Reversion in Fee upon a Lease for years was granted by Fine to A. to the use of B. B. without Attornment brought an Action of Waste and it was adjudged that the Action did well lye CXXX Mich. 32 Eliz. In the Common Pleas. A Lease for years is made by Deed Indented rendring Rent and the Lessor covenants that the Lessee paying his Rent shall enjoy the Land demised for the whole term the Lessee did not pay the Rent and afterwards is ejected by a Title peramount By Walmesly and Windham Iustices that the Covenant is conditional and that the Lessee should not have advantage of it if he did not perform the Condition which is created by this word paying Periam Iustice was strongly to the contrary viz. that the word paying did not create a Condition Mich. 32 Eliz. In the Common Pleas. CXXXI Thetford and Thetfords Case THe Case was an Action of Debt for Rent reserved upon a Lease for years the Plaintiff declared that Land was given to A. and B. his Wife Leases and the Heirs of their Bodies and that he and his Wife leased for years to the Defendant Baron and Feme and that the Donees were dead and that the Plaintiff as Heir c. for Rent behind c. And upon Non dimiserunt the Iury found that the Husband and Wife dimiserunt by Indenture and that after the Husband died and the Wife entred and within the term died Agreement Disagreement Now upon this matter Anderson Iustice conceived clearly that the Iury have found for the Defendant scil Non dimiserunt for it is now no Lease ab initio because the Plaintiff hath not declared upon a Deed and also the Wife by her disagreement to it and Occupation of the Land after the Death of her Husband had made it to be the Lease of her Husband only Trin. 31 Eliz. In the Common Pleas. CXXXII Acton and Pitchers Case IN a Writ of second Deliverance by Acton against Pitcher Leases within 32 H. 8. It was moved if a Lease made by a Prebendary were within the Statute of 32 H. 8. cap. 28. because the said Statute speaks of men seized in the right of their Churches and a Prebendary is seized in right of his Prebend and not in right of the Church But it is the Opinion of the whole Court that he was within the Equity of the Statute Trin. 32 Eliz. In the Common Pleas. CXXXIII Curtises Case IN a Writ of Error it was holden in the Common Pleas Amendment that if a Writ of Error be brought and delivered to the Chief Iustice de Communi Banco and allowed by him under his hand that afterwards the Record cannot be amended by Prothonotary Attorney or Clerk of the Court although that no Record be entred upon the Roll upon which the Writ of Error is brought Mich. 31 Eliz. In the Common Pleas. CXXXIV Scots Case SCot brought a Formedon against A. who made default after default Resceit Anders 133. and now came B. and surmised to the Court that C. was seized of the Land in Demand and gave the same to A. in Tail the remainder to the said B. in Fee and prayed to be received and afterwards the Court upon advice ousted him of the Resceit 28 Eliz. In the Common Pleas. CXXXV Terrets and the Hundred of c. Case IN an Action upon the Statute of Huy and Cry against the Hundred of c. the Defendants pleaded Not Guilty Action upon Statute of Huy and Cry. And in Evidence the Plaintiff to prove that he was robbed offered to the Iury his Oath in verifying his Declaration which Anderson and Periam utterly refused to accept of but Windham Iustice affirmed that such an Oath had been accepted of in the Case of one Harrington Oaths where the Plaintiff could not have other Evidence to prove the Cause in respect of secresie for those who have occasion to travel about their occasions would not acquaint another what monies or other things which they have in their journey and we see that the Law doth admit of the Oath of the Party in his own cause where the Oath shall make an end of the cause as in Debt where the Defendant wageth his Law. Periam That 's an ancient Law but we will not make new Presidents for if such an Oath be accepted of us in this case by the same reason in all causes where is secrecy and no external proof whereupon would follow great inconvenience and although such an Oath hath been accepted of and allowed here yet the same doth not move us and we do not see any reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de Denariis ipsius querentis and upon the Evidence it appeareth that the Plaintiff was Receivor of the Lady Rich and had received the said mony for the use of the said Lady And Exception was taken to the same by Shuttleworth but it was not allowed of for the Plaintiff is accomptable to the Lady Rich for the said mony And it was agreed that if he which was robbed after he had made Huy and Cry doth not further pursue the Felons yet his Action lyeth Mich. 26 Eliz. In the Kings Bench. CXXXVI Townsend and Pastors Case Feoffment by Coparceners Cestuy que uses NOte It was holden in the Common Pleas by
is not punishable by the Law of the Land no more than if many conspire to indict one but do not put it in Execution it is not punishable but if A. saith that B. lyeth in wait to kill him or rob him there an Action lyeth for insidiatores viarum are punishable But the Opinion of the whole Court was that because these words sound in great discredit of the Plaintiff it is reason he have his Action and so Iudgment was given for the Plaintiff Mich. 27 Eliz. In the Kings Bench. CXL The Lord Stafford and Sir Rowland Heywoods Case THe Lord Stafford brought an Action upon the Case against Sir Rowland Heywood Kt. Abatement of Writ Exception was taken to the original Writ viz. ad respondend c. Quare colloquium quoddam habebatur inter Dominum Stafford Row. Heywood de assurando Castrum to the said Lord Stafford by the said Sir Rowland c. Dictus Rowlandus Castrum illud non assuravit c. where the said Writ said cum colloquium quoddam habebatur for the cause of the Action is not colloquium habitum but the not assurance of the Castle according to the promise made super colloquium praedictum and for that cause the Writ was abated CXLI Mich. 27 Eliz. In the Kings Bench. NOte by the Court If one who is not a common Informer be barred in any Information or Action upon a penal Statute he shall pay costs notwithstanding the Preamble of the Statute of 18 Eliz. cap. 5. be for the redressing of divers Disorders in common Informers but if pars gravata be barred in such case he shall not pay costs Trin. 32 Eliz. In the Exchequer CXLII Robinsons Case GEorge Robinson Lessee for years of the Manor of Drayton Basset the Reversion to the King devised his term to his wife as long as she should keep her self a Widow with the Remainder over if she married or died and made his Wife and his Son William his Executors the said William being within age and therefore the administration was committed to the Wife alone and she only proved the Will and afterwards the Wife granted all her Interest to the said William and dyed And by Cook nothing passed by this Grant for William had the same before for every Executor hath the whole Interest Popham contrary for at the time of the Grant the Son was within age and had not administred nor proved the Will therefore in effect the wife was sole Executrix and by Egerton Solicitor if during the said Executorship by the wife one doth trespass upon the Lands the wife only shall have the Action of Trespass without naming her Co-Executor which Cook denied and he cited the Case 10 H. 7. 4 where two Executors are and the one only is possessed of goods of the Testator and a Stranger takes them our of his Possession to whom the other Executor releaseth and after the Executor out of whose possession the goods were taken brings an Action of Trespass against the Trespasser who pleads the Release of the other Executor and it was holden a good Plea for the possession of the Plaintiff was also the possession of his Companion The Case was further that Thomas Robinson in pleading shewing that G. Robinson was possessed and the same devised to his wife who granted to William Robinson who devised it to the Defendant And the other side shewed that the said Thomas granted the said term to Paramour and upon that grant they were at Issue if now against his own pleading Thomas might give in evidence that Thomas could not grant for that he had not any thing to grant for if the gift made by the wife to William was void and he had the term as Executor then he could not devise it but his devise to Thomas was void and then Thomas could not grant it and so Ne grant pas It was also shewed that the said Thomas granted the same to Paramour by Indenture if now against that Indenture he might give in evidence such special matter ut supra and if the Party shall be concluded if the Iury shall be concluded to give the Verdict Secundum veritatem facti for they are sworn to say the truth and by Popham and Egerton as well the Iurors as the Parties are bound and concluded by the confession of the Parties on the Record and here all confess that William devised to him virtute cujus he was possessed The Queens Attorney to that said That true it is that Thomas Robinson was possessed but further said that the said Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides Therefore the Iury shall not be received to say the contrary And by Manwood Chief Baron if the Parties admit a thing by not gainsaying it Jurors where bound by confession of the parties where not the Iury is not bound by it but where upon the pleading a special matter is confessed the Iury shall be bound thereby And afterwards the Issue was found against Robinson the Defendant 33 Eliz. In the Kings Bench. CXLIII Applethwait and Nertleys Case IN an Action upon the Case the Plaintiff declared that the Defendant promised in consideration that the Plaintiff at the request of the Defendant would marry his Daughter to give to the Plaintiff 40 l. and said he had married his Daughter and yet the Defendant Licet saepius requisitus would not pay it It was moved by Cook in stay of Iudgment that the Declaration is vitious because there is not set forth the place and time when the request was made for the Assumpsit being general it is by Law to be paid upon request Fenner If the promise was expresly to be paid upon request the Declaration was not good And afterwards Iudgment was given for the Plaintiff Hil. 30 Eliz. In the Common Pleas. CXLIV Wats and Kings Case SAmuel Wats Plaintiff in Ejectione firmae against W. King upon a Special Verdict it was found that W. Wallshot was seized in Fee and he with one Oliver Shuttleworth Octab. Mich. 3 4 Phil. Mary levied a Fine Sur Conusans de droit c. to John Hooper who granted and rendred by the same Fine to Oliver for a month the remainder to the said W. Wallshot and to one Anne Cook and the heirs of their bodies c. the remainder to the right heirs of the said W. Wallshot in Fee and that with Proclamation William and Anne intermarry have issue John now alive W. Wallshot 4 5 Phil. Mary levy a Fine with Proclamation to Edward Popham Esq to the use of the said Edward and his heirs W. Wallshot 18 Eliz. died Anne took to husband Richard Stephens and they in the right of the said Anne entred and by Indenture demised the said Land to Richard Hoose the Father Richard the Son and Mary his wife for the term of their lives rendring to the said Richard Stephens and Anne his wife and to the heirs of the body
on the other side That the Estate of the Alien is so weak that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be infeoffed to anothers use and if he be such use is void For there is not a sufficient seisin in an Alien to carry an use And it hath been adjudged on Forset Case Where an Alien and the said Forset were Ioynt-Purchasers and the Alien dyed that Forset should not have the whole by Survivour but that upon Office found the Queen should have the moiety Vide 11 Eliz. Dyer 283. Mich. 30 Eliz. In the Common Pleas. CLXXVI Jermine and Arscots Case THe Case between Jermine and Arscot was this A seized of Lands in Fee had Issue six Sons and one Daughter and devised the Manor of c. parcel of his said Lands to J. S. for ninety years if the said J. S. and G. his Wife or any of them should so long live the remainder to P. his eldest Son and the Heirs males of his Body the remainder to his other Sons in tail the remainder to his Daughter Provided That if the said P. his Son or any of the Sons of the Devisor or any of the heirs males of their bodies should endeavour by any Act or Thing to alien bargain or discontinue c. that then after such attempt or endeavour and before such Bargain and Sale c. were executed that the estate of such Person attempting should cease as if he were naturally dead and that then the premises should remain and come to such person to whom the same ought to come remain or be by the intent and meaning of his Will and died P. levied a Fine of the Manor he in the next remainder entred and claimed the Land by force of the Devise This Case was this Term argued by Walmesly Serjeant that an Estate tail cannot cease for it is an Estate of Inheritance and here is not any limitation for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender but a Limitation determines the Estate utterly which is not here but here it appeareth as well by the meaning of the Devisor as by the words of the Devise that the Estate tail upon such act should be suspended and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee and that it shall cease during the Nonage of every Heir the Rent is but suspended between the Parties and Privies to the Gift as in the Case of Littleton of Re-entry and Retainer quousque but that a Stranger should re-enter and retain quousque that cannot be And in the Case of Scholastica reported by Plowden the Estate tail by such Offence is determined by the limitation But in our Case by the meaning of the Devisor only suspended so our Case is not like to that Case Shuttleworth to the contrary The purpose of the Devisor appeareth to be the continuance of the Land in the name and Family of the Caries and as to the difference of ceasing and suspending of an Estate tail the same is not to the purpose for the Tenant in tail himself may suspend his Estate tail therefore à fortiori the Donor upon the Creation of the Estate tail As by Littleton Tenant in Tail grants totum statum suum the Estate tail is thereby suspended and by Anderson if in such a Case after such a grant Tenant in tail levy a Fine in our Case If Tenant in tail offend and the party to whom the next interest is limited enters and after the Offender levies a Fine to a Stranger there although his Estate was determined by the offence yet the Estate tail is bound by the Fine Ad quod caeteri Justiciarii murmurabant Tenant in tail hath Issue two Sons the eldest in the life of his Father levieth a Fine and after the Father dieth the Estate tail is bound contrary if the Father had survived his eldest Son And afterwards in the end of this Term Iudgment was given against the Plaintiff for by the Will here is a good limitation and an estate to cease upon an act and upon another contingent to be revived is good enough Vide 30 E. 3. 7. A Lease for life rendring rent and if the rent he behind that the Lessor shall return quousque agreement be made so as a Freehold may cease and rise again according as the same is limited And all this was agreed by Rhodes Periam and Windham and afterwards Walmsley for the Plaintiff took an Exception to the Bar for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict non habet exitum and doth not say that tempore quo ipse Henricus clamabat reversionem praedict the said Peter had not Issue for he said if Peter had Issue when Henry claimed the Reversion nothing had vested on him by the said claim But all the Court besides Anderson said that needed not be but if the matter had been such the same should come on the part of the Plaintiff Also they said That the Estate was vested in Henry without claim and although after the Offence committed and before claim Peter have Issue yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation CLXXVII Mich. 30 Eliz. In the Common Pleas. Alien suffers a common Recovery 9 Co. 141. LAnd was given to an Alien in tail the Remainder over to another in Fee the Alien suffered a common Recovery and died without Issue All this matter was found by Office. It was moved That this Office should have return so as upon the matter the Alien was not Tenant of the Land at the time of the Recovery suffered But the whole Court held the contrary and that the Recovery was good and should bind him in the Remainder Mich. 30 Eliz. In the Common Pleas. CLXXVIII Seixtbark and Percies Case EJectione firmae of Lands in Knolton and Woodland the Parties were at Issue and the Venire facias was of Knolton only and it was found for the Plaintiff It was shewed in stay of Iudgment that the Venire facias was not well awarded for it ought to have been De vicineto de Knolton Woodland which was granted by the Court And that that defect was not relieved by any Statute for it is a Mis-trial and for that cause Iudgment was stayed and a Venire facias de novo granted 30 Eliz. In the Common Pleas. CLXXIX The Provost of Queens Colledge in Oxfords Case THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital and Meason de Dieu in Southampton and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of
of the body of the Husband and he said a Scire facias did lye upon the Fine well enough for the Fine is not void but only erroneous and being in its force this Writ doth well lye And he cited to this purpose 7 E. 3. Fitz. Sc. fac 136. where upon such a Fine levied and such Exception ut supra taken to it To which it was said by Herle that forasmuch as the Fine is excepted and yet in its force we ought to grant Execution and also 30 H. 6. none can take the first Estate in the Fine but he who is named in the Writ of Covenant but every Stranger may take by way of Remainder and such was the Opinion of the whole Court As to the matter in Law all the Court agreed That notwithstanding the Recovery the Demandant should have Execution for here the Land which by pretence of the said Recovery shall be Recoverd in value cannot go to the Estate which is given for the Estate given was to the Husband and Wife and the Heirs of the body of the Husband and then the Tenant against whom the Recovery was had was impleaded as sole Tenant in which Case the Vouchee when he comes in is to warrant a sole Estate but not another but now the Land to be recovered in value shall go to the Husband alone and the Wife shall have nothing so as the true Estate is not warranted and so not answered And he cited the Case of 38 E. 3. 5. in a Formedon the Tenant vouched himself for to save the tail and shewed that one A. was seized and gave the Land in Demand to the now Tenant and to E. his Wife in tail which E. is now alive and by award the Voucher was disallowed Because it was there said by Knevyt the Recovery in value cannot be according to the gift 45 E. 3. 18. Tenant in tail discontinues and takes back an Estate in Fee is impleaded and voucheth the Donor he shall be ousted of the Voucher for that he is in of another Estate and afterwards the Plaintiff had Iudgment to have Execution Mich. 33 Eliz. In the Common Pleas. CXCIII Foles and Griffins Case DEbt upon Obligation by Foles against Griffin the Condition was That if the Obligee may enjoy certain Tythes demised to him by the Defendant during his Term against all Persons paying yearly the Rent of three pound that then c. To which the Defendant said that the Plaintiff did not pay the said Rent c. Beaumont Serjeant moved that the Plea is not good but he ought to say that the Plaintiff enjoyed the Tythes until such a Feast at which time such Rent was due which Rent he did not pay for which c. Quod Curia concessit Mich. 33 Eliz. In the Kings Bench. CXCIV Young and Taylors Case IN Debt upon an Obligation upon Condition to perform the Arbitrament the Obligation was laid to be made in the Parish of Bow in London and the submission was of all things depending between them so that they made an Award of the premisses before such a day and said further that no Arbitrament was made The Plaintiff Replicando said that the Arbitrators made an Award in the Parish of Pancras in Warda praedict and layed a breach c. The Defendant rejoyned that 300 l. was depending in Controversie between them for a certain thing of which no Arbitrament was made upon which they were at Issue and tryed by a Visne of the Parish of Bow only which passed for the Plaintiff It was moved in stay of Iudgment That the Trial was not good for no place is alledged where the Controversie of 300 l. is depending for which cause it shall be tried where the Bond and Arbitrament was made to which it was said That the alledging the place where the Arbitrament was made is superfluous for which Cause the Trial is good And also the Submission being conditional the Award ought to be of all things submitted or else it is void contrary if it be no Condition Vide Cook 8 Part Baspoles Case Mich. 32 Eliz. In the Common Pleas. CXCV. The Queen and the Bishop of Lincolns Case THe Queen brought a Quare Impedit against the Bishop of Lincoln and others And the Case was That F. Bishop of Lincoln Predecessor of the Defendant was Patron of the Church and presented to the same being void one Garth who being inducted took another Benefice by which by reason of the Statute of 21 H. 8. the first Benefice became void and remained void by the space of seventeen years whereupon the Queen was entituled to present to the same by Lapse The said F. then Bishop presented to the same and afterwards was translated to Winchester and the Defendant now Bishop was suffectus And he certified into the Exchequer that the Incumbent presented by the said F refused to pay his Subsidy upon which he was deprived and if now the Queen shall present by reason of her Title by Lapse notwithstanding the plenarty after or if the Title by Lapse of that Presentment of the Bishop was c. was a great Question And the Case late adjudged between Beverly and Cornwel was cited but there the Case was that the Clark presented where the Presentment appertained to the Queen by Lapse died but here he is deprived which may be the Covin betwixt the Ordinary and him Fenner argued to the contrary and put divers Cases to prove that the Prerogative of the Queen did not alter the right of the Parties As the Queen hath a Seignory consisting of Homage Fealty and Rent and the Queen grants the Seignory to a Stranger reserving the Rent and afterwards the Tenancy Escheats the Rent is gone The Queen leases for years rendring rent to a Stranger upon Condition who enters upon the Lessee the Condition of the Queen is suspended The Queen purchaseth Lands in Borough English hath Issue a Son and dyeth seized he hath the Land now by descent afterwards a younger Son is born that Land shall be divested out of the possession of the King and the Royalty of his person doth not alter the right of descent And afterwards forasmuch as the same deprivation is the act of the Incumbent the refusal the act of the Ordinary himself the sentence and not the act of God in the case before cited It was the Opinion of the Court That Iudgment should be given for the Queen CXCVI. Windham and Meads Case WIndham brought an Action upon the Case upon the Common Law of England concerning Hostlers The Case was That the Servant of Windham brought his Masters horse to the Inn and there it was stollen To which the Defendant said That the said Servant brought the said Horse to the said Inn to be put to Pasture and thereupon the said Horse was put to grass and was there stollen it was ruled in that Case that the Inn-keeper should be excused but if the Inn-keeper of his own head without direction of the Owner
of Debt amounting to the sum of 80 l. Solubiles eidem querenti to be received by the Defendant at Roan in Normandy to his own use the Defendant promised to pay to the Plaintiff 60 l. and upon this matter Iudgment was given and now a Writ of Error was brought and assigned for Error because it is not shewed in the Declaration that the Bills were sealed or that they were made to the Plaintiff and here is not any consideration for the Defendant hath not any remedy to compel the Parties to pay the said debts if they refuse Godfrey If the mony be not paid at Roan to the Defendant he shall have an Action upon the Case for this is an Assumpsit in Law which Wray concessit for it is a mutual promise and agreement And it was argued to the contrary that here is not any sufficient consideration for it doth not appear that the Defendant hath any remedy for to recover the mony And 13 Eliz. it was holden that where the Plaintiff declared in an Action upon the Case that in consideration that he had delivered a Bill of Debt to the Defendant and hath made a Letter of Attorney upon it c. the Defendant promised to pay to the Plaintiff 20 l. and because that the Plaintiff notwithstanding that might release the debt or revoke the Letter of Attorney and so defeat the Defendant of the whole profit c. that the Action upon the matter did not lye Also for another cause the consideration is not sufficient for it is illegal because maintenance but if it was upon the consideration precedent it had been good enough As if J be indebted to A. and B. is indebted to me J. may assign to A. the debt which B. oweth me Golding Although the consideration be but of small value yet it is good enough And if A. in consideration B will assure to him the Manor of D. promise to pay to B. 100 l. although the Party hath not any interest or title to it yet it is good and also though the consideration be Executory yet it is valuable for if the mony be not paid at Roan the Defendant shall have an Action upon the Case against the Plaintiff It was also objected that upon the Declaration it doth not appear that the Defend if the two Bills be not paid may have an Action upon the Case against the Plaintiff for there is not any express Assumpsit on the Plaintiffs part that the monies due by the Bills to the Plaintiff shall be paid to the Defendant for if it had been so then it had been good for then there had been a reciprocal promise which is not here nor can be collected by any words in the Declaration Cook It doth not appear upon the Declaration by whom nor to whom the mony due by the two Bills shall be paid for it may be that they are due to the Defendant and then the delivery of the two Bills is not any consideration Quod Clench Gawdy concesserunt The Case was adjourned CCIV. Temps Roign Eliz. THe Case was A. enfeoffed B upon Condition that if he pay ten pound to the Feoffee his Executors and Assigns within three years next ensuing that then c. The Feoffee hath Issue three Sons whom he makes his Executors and dyeth before the day of payment The Ordinary commits Letters of Administration to J. S. during the minority of the Executors It was the Opinion of Dyer that it was the surest way for A. to pay the monies to the Executors no withstanding the administration committed to another for the Administrator in such Case is but a Bailiff or Receiver to the Executors and shall be accountable to them which Harper concessit And Manwood said That if in that Case the monies be paid to one of the Executors it is sufficient and the monies to be paid upon that conditional Feoffment are as a sum in gross and not in the nature of a Debt quod caeteri Justiciarii concesserunt CCV Temps Roign Eliz. A Lease is made of certain Lands for years Proviso that the Lessee shall not put his Cattel upon the Land from Michaelmass to St. Andrews Tide the Question was If this Proviso and Restraint shall reach for the whole Term or but to the first year Dyer Conditions are stricti juris and ought not to have liberal constructions therefore he conceived that the condition should be restrained to the first year and should not further extend Manwood If I be bound that I will not go to London between Easter and Michaelmas it shall not extend only to the first year after the date of the Obligation but for my whole life Hil. 32 Eliz. In the Common Pleas. CCVI. Doughty and Prideaux Case ACtion upon the Case by Doughty against Prideaux upon these words Thou art a wicked and perjured Fellow 3 Leon. 269. and art forsworn in the Court of Star-Chamber as it appeareth by an Exemplification here under the Seal of that Court The Defendant justified by reason of a Bill exhibited in the said Court by one Brooks against the now Plaintiff for conspiring with another to endite the said Brook of certain Felonies and the Defendant now Plaintiff in his answer to his said Bill denied upon Oath the said Conspiracy and Sentence was given in the said Court against the now Plaintiff ubi revera such Conspiracy was The Plaintiff by Replication said That the said Brook was arraigned and endicted upon the said Indictment and prayed his Clergy whereupon it appeared that the said Brook was not legitimo modo acquiet ' and the same can be no Conspiracy in the now Plaintiff to prove the said Brook to be indicted And by Walmesley and Periam the Replication is not good for it may be that Brook was acquitted and yet that the Plaintiff conspired upon which a Writ of Conspiracy perhaps will not lye but an Action upon the Case without doubt for the Replication doth not prove that the Plaintiff did not conspire but that the Plaintiff was not punishable for such Conspiracy CCVII. Pasc 33 Eliz. In the Common Pleas. AN Abbot made a Lease to three men for eighty years and in the end of the said Lease there was a clause Proviso That if they dyed within the said Term that then the Lessor might enter The Possessions of the Abby came to the King who granted the Reversion to J. S. who made a new Lease to J. D. for twenty and one years to begin after the Expiration Determination or Surrender of the former Lease The three Lessees dyed within the term If J. D. might enter before J. S. had entred was the Question It was the Opinion of the Iustices that he could not for it is in the Election of J. S. if he will take advantage of the Condition and defeat the Lease but that ought to be by Entry and none can make such Entry but the Lessor himself or by his express direction Trin. 31 Eliz. In
the Office. Vide Stanford Prerogat 54 55. and Vide 20 E. 4. 11. A. seized of a Mannor with an Advowson appendant is attainted of Treason the Church void the King without any Office shall have the presentment But admitting that it is not in the King without Office yet the Pardon of 23 Eliz. doth not extend to it For the words of the Pardon are Treasons Felonies Offences Contempts Trespasses Entries Wrongs Deceits Misdemeanors Forfeitures Penalties and Sums of Moneys and if by any of these words the matter be helped is to be considered and if any thing shall help it it is the word Forfeiture But I conceive that the same doth not extend to this matter for although it be an ample word yet it shall be construed to extend beyond the words accompanied with it which concern only personal things as Contempts Wrongs Trespasses as the Statute of 13 Eliz. cap. 10. which is penned by general words as Colledges Deans and Chapters Parsons Vicars and others having Spiritual Promotions that Statute doth not extend by construction to Bishops and they have Spiritual Promotion yet the Statute shall be construed to extend to the Parties named and other Inferiour Orders and Degrees and shall not be extended higher So in the Commission of the Peace ad diversas Felonias alia Malafacta c. those general words do not extend to Treason c. Vide for the Residue of this Case Venable and Harris's Case which was the same Case and is Reported in Leonard 2 Part fol. 122. Placito 169. Pasc 33 Eliz. In the Common Pleas. CCXXIX Downhall and Catesoy's Case IN a Formedon by Downhall against Catesby 3 Leon. 267. the Parties were at Issue and it was tryed by Nisi prius It was moved in Bank because that some of the Iury did eat and drink before they gave their Verdict that the Court would not receive the Postea Curia that we cannot do for we not know whether your Information be true or not and this matter ought to be examined by the Iustices of Assize or Nisi prius before whom the Trial was and they are to certifie thereof and then we shall have good cause to stay the Entry of the Postea In that Case it was said If any of the Iurors eat and drink before their Verdict at their own Costs it doth not make the Verdict void but if at the Costs of the Plaintiff or Defendant it is otherwise CCXXX Hil. 29 Eliz. In the Common Pleas. THe Sheriff took an Obligation of a Prisoner bailable upon condition that he should personally appear in the Kings Bench c. It was holden a good Condition not against the Statute of 23 H. 6. So if the Condition had been that he should appear for to answer contrary that he shall appear and answer for in the principal Case the word personally is not of substance for although he appears by Attorney yet the Condition is well performed and Iudgment was given for the Plaintiff Anderson reclamante Vide 27 Eliz. B. R. Sedford and Cutts Case 32 Eliz. In the Common Pleas. CCXXXI Haselwoods Case THe Case of Haselwood A seized of Land is indebted to the King by Obligation and enfeoffed B. of his Land And the Case of Fleetwood 15 Eliz. was vouched where it was holden That in purchase the debtor of the King was lyable But by Pigot who was of Counsel with Haselwood the Obligation in this Case was made before the Statute of 33 H. 8. or otherwise he should be charged 32 Eliz. CCXXXII Sir William Pelhams Case SIr William Pelham was Surveyor of the Ordinances and delivered of the Kings money to Painter Clerk of the Ordnance It was holden That for that money the Queen might have Account against Painter See this Case before Sect. 81. Trin. 29 Eliz. In the Common Pleas. CCXIV. Ognell and Vnderhills Case IN Replevin the Case was as appeared upon the pleading That Rob. Bouchier was seized of a certain Farm called Cruchefield Grange and leased the same to Sir William Raynsford for thirty years who dyed thereof possessed by reason of which the Interest thereof came to Raynsford as Executor of the said Sir William Raynsford who assigned the said Farm except a parcel of it called Hobbes to Sir Henry Bear for parcel of the term and afterwards assigned the said parcel called Hobbes for part of the term to Frekington and others and afterwards granted the residue of the said term not expired to the said Bear and Frekington and afterwards the said Rob. Bouchier granted a Rent-charge of 40 l. per annum percipiendum de omnibus terris renementis quibuscunque vocat the Grange of Cruchefield in the Parish of Stoneleigh in the County of Warwick nuper in tenura occupatione William Raynsford milit nunc in tenura occupatione Hen. Bear. Bouchier granted the reversion of Hobbes to Lewknor in Fee to whom Scarre releaseth all his right estate and demand in the said Land called Hobbes the Lease expired the rent behind Lewknor leased at will to R. the first Question was If the said Rent-charge shall be said issuing out of the said Lands called Hobbes for if c. then by that Release the rent is gone But the whole Court was clear of Opinion That the rent was not issuing out of Hobbes but out of the Lands then in the possession of Bear and not out of the Lands in the possession of Frekington Although it was objected by Walmesley Serjeant That the words in the Grant of the rent in tenura occupatione Bear shall be construed in the disjuncive quasi sive and then the Close called Hobbes although it was not in the Occupation yet it was in tenura of Bear. The Matter was at another day argued by Fenner Serjeant for the Plaintiff and he much relyed upon the word quibuscunque in the Grant of the Rent de omnibus terris quibuscunque commonly called Cruchefield Grange As if I grant to you all my Trees my Apple-trees shall not pass but if the Grant was omnes arbores meas quascunque they pass and that by the Emphasis of this word Quibuscunque So if I grant you Common for your Cattel in such a place none shall have Common but those which are Commonable shall have Common there contrary where the Grant is pro averiis quibuscunque And it was adjudged in the Chancery in the Case of the Bishop of Ely That where the said Bishop leased all the Demeasns of a Manor for years that by the said Lease the Park within the said Manor should not pass But perhaps if such a Lease had been Omnes singulas terras dominicales quascunque the Park would have passed And afterwards the Counsel of the Plaintiff seeing that the Court was of Opinion with the Defendant took Exception to the pleading The Defendant made Conusans ut Ballivus Administratoris of the Grantee of the Rent and doth not shew the Letters of Administration And as to
A. who is admitted he shall not hold the Land charged and so it was adjudged in the Court of Common Pleas. CCXXXVII Mich. 23 Eliz. In the Common Pleas. IT was holden by all the Iustices in the Common Pleas That the Queen might be put out of possession of an Advowson by two Vsurpations and shall be put to her Writ of Right of Advowson as a common person shall be for it is a thing transitory and if the Queen after such Vsurpations grant the Advowson the Grant is void and so it was adjudged CCXXXVIII Mich. 23 Eliz. In the Common Pleas. THe Case was Tenant in tail the remainder over to another in Fee makes a Lease for life according to the Statute and afterwards dyes without Issue and afterwards he in the Remainder grants his Remainder by Fine before any Entry and by Fenner the Conusee cannot now enter upon Tenant for life nor avoid his lease for by the Livery to the Tenant for life a Freehold passeth which cannot be avoided without an Entry As if a Parson makes a lease for life rendring rent and dyeth the Successor accepteth the rent now the lease is affirmed vide 18 E. 4. 25. and then when before any Entry he in the remainder grants his remainder the Grantee shall have it but as a remainder and so the Estate of the Tenant for life which before was voidable is now made good and so it was holden by Windham and Periam But by Mead and Dyer by the death of Tenant in tail without Issue the lease for life is become void for the Estate out of which the Estate for life is derived is determined by the dying without Issue Ergo c. Vide 21 H. 7. 12. A lease for life is made upon condition That if the Lessor pay to the Lessee at such a day 20 l. that his Estate shall cease now by the performance of the Condition the Estate is determined without any Entry CCXXXIX 32 H. 8. In the Common Pleas. NOte by all the Iustices of the Common Pleas That if a man holds of the King in chief by Knights Service and also holds of another Lord by Knights Service and dyeth his heir within age and the King seizeth the Wardship of the Body and Land and afterwards the heir cometh of full age and before Livery sued the other Lord grants over his Seignory to another and the heir Attorns It is a good Attornment and also Seisin of the Services had by such Lord by the hands of such an heir before Livery sued is good enough and shall bind him afterwards in an Avowry c. Temps H. 8. Vide 31 H. 8. Rot. 420. CCXL Sir William Hollis Case SIr William Hollis brought a Quare Impedit against the Bishop of Coventry Godfrey Fuliamb Kt. and William Waltham Clark The Case was Sir Ralph Langford Kt. was seized of the Manor of D. to which the Advowson was appendant and presented to the same Church one A. his Clark who was admitted c. And afterwards the said Sir Ralph granted the next Avoidance of the same Church to Sir Godfrey Fuliamb James Fuliamb George Fuliamb and William Walton eorum uni conjunctim divisim afterward the said Sir Ralph granted by fine the said Manor with the Advowson to Sir William Hollis in Fee the Church became void the said Sir Godfrey Fuliamb presented the said Waltham his Clark who was admitted c. And upon Argument at the Bar and Bench It was adjudged against the Plaintiff and the Presentment of Sir Godfrey sole without the others was good Notwithstanding also that Waltham the Presentee was one of the Grantees of the next Avoidance Tr. 31 H. 8. Rott 420. Vide 21 E. 4. 66. 35 H. 6. 62. See this Case lately Reported in Sir George Mores Reports by the name of Sir Godfrey Fuliambs Case CCXLI. Temps Roign Eliz. NOte by Hind and Hales the Kings Attorney Iustices of Assize in the County of Essex in the Case of the Bishop of London and one Heron Keeper of Cronden Park if the Keeper of my Park or any of his Servants without his assent of their own heads and without my commandment kill my Deers within the said Park being within his keeping or abateth or pulleth down any house within the Park or Barn for to lay Hay for the Deer there or cutteth any Trees Wood or Vnderwoods there growing and sells the same or gives it to another that in all these cases the Keeper of the Park shall forfeit his Office And it was agreed by them That such a Keeper hath not any estate or possession in the Park or in the Lodge but the possession remains always in the Owner of the Soil of the Park and the Keeper hath but the occupation and keeping and the surveying of the same for such a Keeper cannot justifie the holding of the Lodge with force in a Writ brought upon the Statute of 8 H. 6. by the Owner of the Park but it was agreed that he who hath the inheritance in such an Office shall not forfeit his Office for the causes aforesaid Hil. 29 Eliz. In the Common Pleas. CCXLII. Fitz and Pierces Case IN Ejectione firmae by Fitz against Pierce Pierce was outlawed and now came and shewed by way of Plea that the outlawry was erronious in this videlicet ad Com' meum tent ' 30 Jan. 29 Eliz. whereas the said day was Dies Dominicus and so there was no County Court It was the Opinion of Windham that the same matter did well lye in Plea for it is matter apparent within the Record as in the case of Brecket and Fish Plowd Com. 266. Rhodes and Periam were of a contrary Opinion and said the case cited is not like to the case at Bar for there it appeareth to the Court as Iudges when every Term beginneth and endeth but it is otherwise in our case si 30 die Januarii be dies Dominicus necne for it shall be tryed by the Country c. Trin. 32 Eliz. In the Kings Bench. CCXLIII Keenes Case RAlph Keene Vicar of B. was Indicted for stopping quandam viam valde necessariam Indictment Nusance for all the Kings Subjects there passing Exception was taken to it because it wanted the word Regiam and the word necessariam doth not imply any matter for a Foot way is necessary Addition Also here the Party hath not any addition It is R. K. but it is not said Clarke and for these causes the Party was discharged Trin. 32 Eliz. In the Kings Bench. CCXLIV Peake and Pollorts Case ACtion upon the Case by Peake against Pollort Words upon these words Thou art a malicious and sedicious man and movest the Queens Subjects to Sedition It was the Opinion of the Court that the words were not actionable for they were too general for it may be that the Defendant hath stirred up the Tenants of a Manor to Tumults and Sedition which is not any great Scandal And the Statute of
23 Eliz. is If any Person do any thing to move the People to Sedition the same is Felony but then it must be Sedition against the Queen and of that Opinion was the whole Court. Trin. 32 Eliz. In the Kings Bench. CCXLV Ratcliffe and Shirleys Case THe Lady Ratcliffe brought an Action upon the Case against Shirley for these words Words My Lady Ratcliffe is a beggerly Lady and giveth thread-bare Coats she bought Sheep and cosen'd men of their money and she is as very a Thief as he that robbeth by the High-way Vpon Not Guilty the Iury found that the Defendant spake these words She is a worse Thief than he that robbeth by the High-way It was holden that the words found by the Verdict were actionable as well as if the Defendant had called the Plaintiff Thief generally But it seemed to the Court that upon that Verdict the Plaintiff should not have Iudgment for it may be that the Defendant dixit utrumque at several times and so several Causes of Action And it is not like to the Case 3 Ma. 118. where part of the words is found quoad alia verba non dixit and so expresly acquit him of the remnant so it is not here for this Verdict doth not acquit him of the other words and for that Cause Iudgment was stayed Hil. 26 Eliz. In the Kings Bench. CCXLVI Herne and Crowes Case IN an Action upon the Case by Herne against Crowe and declared that whereas certain Irish Merchants had imported Furs here into England which were offered to be sold in London which Furs the Defendant desired to buy but because he was a Foreigner he could not buy them without peril of forfeiture and then the Plaintiff was in communication with the Merchants to have bought them that the Defendant in consideration that the Plaintiff promised to the Defendant that when he had bought the said Furs the Defendant should have such a quantity of the said Furs as he pleased upon equal price assumed and promised that he would speak no more with the said Merchants for the buying of the said Furs yet that notwithstanding he proceeded in the said bargain and offered to the said Merchants sixty pound more than any other by reason of which the Plaintiff could not have them for such reasonable price as he might have had them before It was holden by Wray Chief Iustice That the Declaration here was insufficient upon which the Defendant might have well demurred Mich. 26 Eliz. In the Common Pleas. CCXLVII. Bakers Case A Writ of Partition by Baker Heir of Gertrudi Marquess of Exeter who devised all his Lands to Blunt by which the third part descend to the Plaintiff Estrepement and prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ is not to be granted for the Plaintiff may have a more proper remedy upon the Statute Cum duo vel tres and in a Writ of Partition no Land is demanded CCXLVIII Mich. Eliz. In the Common Pleas. Conditions A Man was bound in an Obligation that he should release all his right in Black Acre to the Obligor and in the performance of the said Condition he made such a Lease and delivered the same to C. to the use of the Obligor The Opinion of the whose Court was That the Condition was not performed because the Obligor had not the Lease in his own hands to plead but is put to his Writ of Derinue against C. which was not the intent of the Condition Mich. 31 Eliz. In the Common Pleas. CCXLIX Seaman and Brownings Case SEaman brought Debt in an Obligation against Broshnin and others Executors of one Marshall The Condition was That whereas the said Marshall had sold certain Lands to the Plaintiff If the Plaintiff peaceably and quietly enjoyed the said Lands against the said Marshall c and assigned the breach That the said Marshall had entred upon them and cut down five Elms there upon which they were at Issue And it was found that a Servant of the said Marshall had entred and cut them and that in the presence of the said Marshall his Master and by his commandment It was the Opinion of the Court that the Condition was broken and that the Master was the principal Trespasser Trin. 30 Eliz. In the Common Pleas. CCL Babingtons Case HUmphrey Babington brought a Writ of Disceit and counted that T. S. was seized of Land and held the same of the Manor of Rodely which Manor is ancient Demeasn And that the said T. S. being so seized a Writ of Entre sur Disseisin was brought against him in which T. S. pleaded and lost and Iudgment was given against him Et quod ipse Humphridus extitit Dominus Manerii praedicti and concluded ad exhaeredationis ipsius Humphrâ—di periculum manifestum Exception was taken to the Count because the words are quod cum ipse existit Dominus Manerii praedicti where he ought to say further Amendment Et tempore Judicii praedicti existebat for if the Recovery was before he purchased the said Manor his Action doth not lye which Rhodes and Anderson concesserunt wherefore day was given to the Plaintiff to amend his Count. 32 Eliz. In the Exchequer CCLI Sir William Pelhams Case THe Case was A. Tenant for life the remainder in tall to B. c. A by Deed indented and inrolled bargained and sold the Messuage so conveyed to W. P. in fee who suffered a common recovery in which A. is vouched and so a common recovery had and executed and this was before the Statute of 14 Eliz. And if the recovery should bind B. and his remainder in tail was the question or if it be a forfeiture Altham argued that here is a forfeiture 1. It is to see if a common recovery suffered by Tenant for life which here is the Bargainee be a forfeiture or no by the common Law 1 Leon. 264. it s not forfeited 2 Leon. 60 65. if no Execution be sued upon the same Recovery 2. If it be executed then if he in the remainder may enter for the forfeiture When the Tenant for life bargains and sells the Messuage although upon it an estate in fee be limited yet nothing passeth from him but what he may lawfully pass and that was the estate for life of the Bargainor for such an estate only he might lawfully pass and here the Vendee is but Tenant for the life of another and when of his own assent he suffers a common recovery and that without right it is a forfeiture By matter in Fait a particular Tenant may commit a forfeiture as well as by matter of Record By matter in Fait he cannot commit a forfeiture if not thereby the reversion be not pulled out of him in the reversion As if a Lessee for 10 years make a Lease for 1000 years it is not a forfeiture for by that the reversion is not touched but if he by matter of Record do
Aid prayer the Party to have Aid shewed such Special matter But in our Case the Tenant for life hath vouched his Bargainor and not without cause for he hath a warranty from him and the Demandant cannot Counterplead it for he had a Seisin whereof he might make a Feoffment As to the Case 14 E. 3. Fitz. Resceit 135. Lessee for life in a Praecipe against him without Aid prayer pleadeth to the Enquest the first day he in reversion may enter It is true he may enter and enter into the Resceit but not into the Land for a Forfeiture For then Fitzherbert would have abridged that Case in the Title of Entre Congeable and not in the Title of Resceit And the Book in 5 Ass 3. is good Law for there the Tenant doth confess the reversion to be in another but in our Case the Tenant voucheth which is a lawful Act and according to the Covenants of his Purchase And although the recovery was by agreement yet it is not for that a Forfeiture for if the Tenant for life voucheth truly it is not a Forfeiture Before the Statute of West 2. cap. 3. which gave resceit to a woman and to those in reversion where the particular Tenant is impleaded and made default reddere noluerit no remedy for these Cases but a Writ of Right but no Entry and that was for the credit which the Law gave to recoveries car si puissoit then is resceit given but that only in the two Cases aforesaid But afterward because it was found that many particular Tenants being impleaded would plead faintly The Statute of 13 R. 2. gave resceit in such case And upon what reasons were these Acts made if in such cases the Entry was lawful But after these two Statutes another practise was devised for such particular Tenants would suffer recoveries secretly in such sort that those in the reversion could not have notice of it so as they could not ante judicium and prayer to be received for the remedy of which mischief the Statute of 32 H. 8. was made by which all recoveries had against the Tenant by the Curtesie or otherwise for life or lives by agreement of the Parties of any Land whereof such particular Tenant is seized should be void as Tenant by the Curtesie c. should be void against him in the reversion And yet an Evasion was found out of that Statute for such particular Tenant would make a Feoffment with warranty and then the Feoffor should be impleaded in a Writ of Entry and he vouch the Tenant for life who should vouch over and such a Recovery was out of the Statute of 32 H. 8. for the recovery was not against such particular Tenant c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it was provided that such recoveries had where such particular Tenant shall be vouched should ve void if such recovery be had between them by Covin And he conceived That the Forfeiture is not in respect of the recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it was found that the recovery was with their assent and that was lawful as this Case is for they may agree to have such recovery for further assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but had also a remainder in tail although not immediately depending upon the Estate for life which he cut off therefore it was not meerly a feigned recovery And Vide 5 E. 4.2 Br. Forfeiture 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger it is not a Forfeiture for it doth not disaffirm the reversion c. contra of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to the two chief Iustices to know their Opinions upon these Points and they were of opinion That the Voucher of a stranger was not any Forfeiture and also that after the recovery was executed he in the remainder could not enter but they conceived that the right of him in the remainder was not bound And he said That after the recovery executed he in the remainder could not enter which see Br. Forfeiture 87. 24 H. 8. For if Entry in such Case had been lawful infiniteness of Suits would follow which would be a thing against the credit of recoveries As to the Objection of the Infancy the same will not help the matter 6 H. 8. Br. Saver default 30. Recovery had against an Infant in which he voucheth and loseth is not erronious contrary upon default And if an Infant Tenant in tail suffereth a recovery it is discontinuance for in such Recovery Infancy is not respected And in a Scire Facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a Case out of Bendlowes Reports 5 Eliz. Tenant for life the remainder over to a stranger in Fee Tenant for life is disseized by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who entreth into the Warranty generally and voucheth over the common Vouchee It was adjudged that that recovery was out of 32 H. 8. for the recovery was not had against the particular Tenant but he was but Tenant in Law quia Vouchee and also the recovery is a good bar to him in the remainder notwithstanding that he was within age at the time of the recovery And at another time it was argued by the Barons and Clark said That he conceived that the Entry of him in the remainder was lawful It hath been objected that Pelham did not know that the Bargainor had but for life or that any other person had any remainder in the Land that is to no purpose to excuse him for 42 E. 3. every Purchasor ought at his own peril to take notice of the Estates and Charges upon the Lands which he purchaseth For the Law presumes that none will purchase without advice of Counsel and without knowing the Titles of the Land. And although Statutes have been made to provide against the practises of particular Tenants yet that is no Argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the meer right it is a Forfeiture And he held strongly That the Iudgment did not take away the Entry a cause of Forfeiture being given before the Iudgment 5 Ass 3. He in the Reversion after Iudgment and Execution may enter See also 22 Ass 31 to the same purpose For where Tenant for life is impleaded he ought to wait upon him in the Reversion and expect Instructions from him in
by a Writ of Right So if the Vouchee had entred and lost c. As to that Case we ought to consider That every Book reported in our Law is not Law But let us observe of what Authority the Case is truly it is the conceit of the Reporter himself for he puts the Case and resolves it but there is no Iudge or Serjeant named in the Case c. The other Case is 5 E. 4. 2. Note by Hendon clearly If my Tenant for life voucheth a stranger who entreth into the Warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the reversion of him who hath in value shall be to me in lieu of my former reversion as release to Tenant for life shall enure to him in the reversion But that is but the Opinion of one Serjeant c. But I answer to these Books If the Demandant in such recovery have a good title so as the Tenant or the Voucher as Hendon saith know not how to bar the Demandant there such a Voucher of a Stranger is not a Forfeiture nor such recovery suffered thereupon for against his will and volens nolens he suffered it But if the Tenant had good matter to bar the Demandant and no good cause of Voucher that the vouching of a stranger or suffering of a recovery is a Forfeiture of his Estate And here in our Case the Defendant had not any title The Tenant or Vouchee had not any Warranty or cause of Voucher But the Tenant might have barred the Demandant if he pleased And he said That the Voucher only doth not make the Forfeiture but much rather the Recovery for when Iudgment is given and Execution had then is the Fee plucked out of him in the reversion 6 R. 2. If Tenant for life claimeth a Fee it is a Forfeiture but here Pelham hath done more for he hath gained Fee by the Iudgment therefore à Fortiori it shall be a Forfeiture But let us a little see what medlings or attempts by the particular Tenant are causes of a Forfeiture and what not 5 Ass 3. Where A. brings an Entry against Tenant for life by collusion to oust B. of his reversion supposing that the Tenant for life held of his Lease The Tenant confesseth the Action upon which Iudgment is given B enters and his entry adjudged lawful for that recovery is adjudged in Law but an Alienation to the disinherisin of him in the reversion and here it appears That such recovery by Covin is but an Alienation and without any strength of a recovery And he cited many other Cases cited before by Altham 14 E 3. Resceit 135. Where Tenant for life pleads in chief or prays in aid of a stranger where he might bar the Demandant and will not it is a Forfeiture And also 22 E. 3. 2. 27 E. 3. where Tenant for life in a Quid juris clamat Attorns unto the Conusee upon a Fine levyed by him who hath not any thing in the Land the same is a Forfeiture and yet that Attornment doth not divert the Reversion out of the Lessor 50 E. 3.7 8. Land was given by Fine in tail the remainder over to a stranger in Fee the Donee took a Wife and dyed without Issue the Wife accepted Dower assigned by a stranger he in the Remainder brought a Scire facias against the Wife that she is Tenant in Dower of the Assignment of a stranger and pleaded to the Title the Demandant recovered she hath lost her Dower for she hath not pleaded dutifully as she ought being a particular Tenant Temps H. 4. Tenant for life loseth his Land in a Recovery against him against his will and thereupon brings Quod ei deforceat and declares upon an Estate tail and recovers the same is a Forfeiture because he hath challenged a higher Estate c. 5 H. 7. Tenant for life joyns the Mise upon the meer Right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger sur Conusans c. come ceo que il ad de son done All these are Forfeitures In our principal Case here the Tenant who suffered the Recovery did not plead at all to defend the Right but where he might have barred the Demandant he gave strength to his pretended Title and made it a perfect Title and by suffering the Recovery and Iudgment to pass had taken away the Reversion out of the Lessor to whom he owed Fealty and therefore it is a Forfeiture And without doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title for the Recoverers in such Cases are but Assignees and Purchasors which appeareth by the Statute of 7 H. 8. cap. 4. which gives Distress and Avowry to Recoverers c. As to the inventing of Recoveries it was a necessary Device for it was to take away Estate tails which were the causes of grand Mischiefs and Inconveniencies in this Realm and it was great reason for Tenant in tail might by the Common Law alien his Land post prolem suscitat and then he had an Inheritance and might commit Waste But he was so restrained by the Statute of Westm 2. all the Realm and the Subjects of it were inveigled thereby Ioyntures of Wives Leases of Farmers Mortgages to Creditors Statutes and other Assurances defeated by their deaths which was against the Common Law and all Conscience These matters tending to the knowledge of the Iustices and the Mischiefs thereupon ensuing very frequent and that Tenant in tail was become a perillous Fellow and there was no safe dealing with him Then they taking into consideration that several Warranties and Assets and collateral Warranty without Assets for that in it self implyed Assets did bar him Icil. the Entail upon that consideration they grounded the practice and usage of common Recoveries so that by that means Tenant in tail has potestatem alienandi as he had at the Common Law because his authority was restored to him and injury done to no man But as to Tenant for life he never had potestatem alienandi And as to that which hath been said That the Recovery shall stand in force till after the death of the Tenant for life and in our Case here Tenant in tail is living certainly if the Law should be such great mischief would follow for then greater Ioyntresses the Widows of great Persons having allowed unto them great and sumptuous Houses and Lands furnished with Timber of great value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit Waste and the same should be dispunishable c. which should be an intolerable Mischief And so he concluded that this suffering of a Recovery was a Forfeiture and Iudgment was given accordingly CCLII Grendon and Albanies Case JOhn Grendon brought Trespass for breaking of his Close against Tho Albany And upon the pleading the Case
as the Statute of 11 H. 8. hath ordained in case of a Lease for years where the Lessor his Heirs or Assigns have suffered the recovery and not otherwise And afterwards he argued very much upon the reputation and dignity of common Recoveries that they are the strongest and most effectual Assurances in the Law and therefore they ought to be countenanced rather by the Iudges than in any part diminished or disabled and we ought to consider of them Non ex rigore juris rigida disquisitione but according to the common use and practice what is the ground and foundation of these Recoveries And so Iudges have used heretofore to examine Matters which peradventure according to the strict Rules of the Common Law drew them away But they perceiving that a dangerous Consequence thereby would follow to an infinite number of the Kings Subjects the Law having been otherwise practised before have framed their Iudgments not according to the exact Rules of Law but to avoid the Inconvenience aforesaid according to the common and received practice c. Nam communis Error facit jus and to that purpose he cited a Case very lately adjudged in B.R. viz. A Writ of Error was brought in B. R. upon a Iudgment given in Wales and the Error was in this That the Writ was returnable coâ—am Justiciariis Domini Regis Comitatus c. where it should have been coram Justiciariis Magnae Sessionis Dominae Reginae c and such are the words of the Statute of 34 H. 8. cap 26. the which Sessions shall be called the Kings great Sessions in Wales and notwithstanding that the Iustices in strict consideration of the Law thought the same to be Error for the said Statute had given to the said Court such name yet because it was well known to the Iustices That that was the common course in the said Court ever after the erection thereof And also if the said Iudgment should be reversed for that cause many Iudgments should be also reversed which should be a great disquietness and vexation to the whole Country there they in their discretion thought it convenient to qualifie the Law in that point and so to avoid the said Inconvenience affirmed the said Iudgment So in the case at Bar If this Rent-charge should stand against the said recovery no inconvenience should be so firm but it should be impeached no Title so clear but should be incumbred therefore for the common repulse of many the strict rules of the Law ought to yield to common practice for the avoiding of a common inconvenience it hath been holden for Law when Tenant in tail maketh a feoffment in fee the Feoffee is impleaded voucheth the Tenant in tail now forasmuch as he cometh in as Vouchee it is now said that he cometh in of all his estates I do not see any reason for that but common allowance practice and experience c. It was adjourned c. Mich. 27 Eliz. In the Kings Bench. CCLXIV Baxter and Bartlets Case IN Assise of Freshforce by Baxter against Bartlet upon Null tort Null Disseisin pleaded it was found for the Plaintiff who had Iudgment upon which the Tenant brought Error for that the Assize have generally found the Disseisin but have not enquired of the force And after many motions the Iudgment was affirmed CCLXV. Sir Henry Gilfords Case IT was found upon a Special Verdict That Henry Gilford Citizen and Freeman of London 7 Feb. 6 E. 2. seized of a Capital Messuage Devised the same by these words Lego volo Quod omnes Domus reddit ' quae habeo in Villa de London ordinentur assignentur per Executores meos ad sustentationem trium Capellanorum qui pro vita celebrabunt in Ecclesia Sancti Pauli London Et ad hoc faciend ' Do eis plenam potestatem and made his Executors William Staunton and others and dyed the Will was Proved and Inrolled according to the Custom Afterwards the Executors by their Deed bearing date 7 E. 2 granted and assigned the said Capital Messuage and his other Tenements in London to the Dean and Chapter of Pauls in London and their Successors Habend ' tenend ' in forma sequenti Haec est finalis Concordia c. That the Dean and Chapter shall have the said Lands for ever to find yearly a competent Sustenance of 10 Marks to a Priest to celebrate Mass for the said Henry Gilford and all Souls and that the said Priest at all hours of Divine obsequies should give his attendance in the said Church and faithfully do his Office to say Mass and Prayers according to the Degrees and Customs of the said Church and that the Dean and Chapter should find Bread and Wine and Massing-cloaths and Torch-light and granted the residue of the profits of the Lands to celebrate an yearly Obit and for the perpetual security of the said Chauntry the said Executors granted to the Mayor and Commonalty of London 20 s yearly rent for ever Ita quod the Mayor and Chamberlain for the time being presented a meet and convenient Chaplain to the said Chauntry to the said Dean and Chapter within 15 days after the Avoidance the which Chaplain the Dean and Chapâ—er are bound to admit And the form of the said Conveyance was such We the Executors H. G. do grant and assign to the Dean and Chapter of Pauls all the Lands Tenements and Rents aforesaid to have and to hold to them and their Successors for the sustentation of a Chaplain perpetual and his Clark for the said H. G. and all Souls receiving from the said Dean and Chapter 10 Marks for the celebrating of the said Obit of the said H. G. And that the Grant and Assignment of the said 20 s. to the Commonalty in the relief of the said Chauntry is such scil To have and receive of one Shop in Cheap maintenance of the said Chauntry aforesaid And that the said Dean and Chapter oblige themselves and their Successors and the Church to pay the same to the said Priest and Clark and that it shall be lawful for the Mayor and Commonalty aforesaid to distrain for the said Rents By virtue of which Will and Indenture the Dean and Chapter enter and were thereof seized in their demesne c. and that at all times after they had taken the profits thereof until 2 E. 6. and that the Dean and Chapter of the profits of the premises had yearly paid 10 Marks for the stipend of the said Priest And further the 27 July 16 H. 8. the Dean and Chapter demised the same to F. Cole for 40 years and that afterwards 15 Maij 36 H. 8. the said Dean and Chapter leased the same to Nicholas Wilford for 50 years rendring 9 l. Rent with Clause of Distress if the Rent was behind by half a year being demanded the Lease should be void which N. W. 1 E. 6. devised the same to his Wife who devised the same to Tho. Wilford the
was given accordingly Vide Litt. 25. that Trespass lyeth but he doth not speak of vi armis See for that 12 E. 4. 8. by Fairfax and Genny 22 E. 4. 5. CCLXXII Mich. 30 Eliz. In the Common Pleas. IN Debt upon an Obligation the Defendant said that the Obligation was endorced with a Condition for the performance of Covenants contained in an Indenture c. The Plaintiff assigned the Breach in this that the Defendant himself by the same Indenture that the said House was discharged of all former Estates and Incumbrances c. And further shewed that the Defendant had made a former Lease of the said House to one A. B. in the County of Warwick to which the Defendant said that tempore dimissionis he was within age upon which they were at Issue and it was tryed in the County of Warwick where it ought to be tryed where the Writ was brought But the whole Court held the contrary Trial. that the tryal was well enough as if in an Assise the Tenant pleadeth a Release of the Plaintiff in a foreign County to which the Plaintiff pleads that at the time of the Release he was within age upon which they are at Issue the Issue shall be tryed in the County where the Release is pleaded to be made and not where the Writ is brought CCLXXIII Temps Roign Eliz. ACtion upon the Case was brought for stopping a way The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life and that the said Duke and all those whose Estate c. had used time out of mind c. to have a way over the Land of the Defendant to the Park of D. to carry and re-carry necessary wood for the said House from the said Park to the said House And further declared That the Defendant Obstupavit viam It was moved that upon the matter no Action upon the Case did lye but an Assise because that the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff had had but an Estate for years then an Action upon the Case would lye and not an Assise And it is not material if the Plaintiff have but an Estate for years in the Park Qâ—od fuit concestum per totam Curiam It was holden also that this word Obstupavit was good enough without any more scil without shewing any special matter of disturbance Nusance Obstupavit as the erection of some Gate Hedge Ditch c. for Obstupavit implyeth a Nusance continued and not a personal disturbance as Forestaller or saying upon the Land c. that he shall not go over or use that way But as to a local and real Nusance the word Obstupavit amounts to Obstruxit And although in the Declaration is set down the day and year of the stopping yet it shall not be intended that it continued but the same day for the words of the Declaration are further That he was disturbed in the way and yet is and so the continuance of the disturbance is alledged and of that Opinion was the whole Court. Action upon the Câ—se Prescription Leonard Prothonotary He hath declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omniâ—odis cariagiis and by that Prescription he cannot have a Cart-way for every Prescription is stricti juris Dyer That is well observed and I conceive that the Law is so and therefore it is good to prescribe habere viam pro omnibus cariagus without speaking of Horse or Foot-way 16 Eliz. In the Common Pleas. CCLXXIV The Archbishop of Yorks Case Toll THe King granted to the Archbishop of York the Toll of Corn sold in the Market of Rippon And afterwards the King granted to the Mayor and Citizens of York to be discharged of Toll through all the Realm and afterwards the Archbishop exchanged his Manor of Rippon with the King for another Manor It was moved If now the Citizens of York should be discharged of Toll within the Mannor of Rippon Dyer said that they are not discharged of Toll for the Grant to the Archbishop was eigne to the Grant made to the Citizens and by the exchange the King had new Right And when the King grants over the Manor of Rippon the Grantee shall have the Toll notwithstanding the Grant made to the Citizens for the Grant made to them was void as to discharge them of Toll at Rippon and the Grant of the King to the Citizens shall not take effect after the exchange for the Grant was void ab initio But if the Grant of the King to the Archbishop had been made for life then the Grant of the King made to the Citizens should take effect after the Estate for life determined And the better Opinion was That Toll should be paid Hil. 16 Eliz. In the Common Pleas. CCLXXV William Wallers Case WIlliam Waller seized in Fee 26 H. 8. made a Feoffment to the use of his last Will and by that devised his Manor of Russels to Rich. Waller his Son in Tail and dyed Rich. Waller entred and was seized by force of the Statute 27 H. 8. and afterwards 2 E. 6. by his Deed in consideration of a Marriage to be had between him and one Eliz. A. enfeoffed Worsley and others to the use of himself and the said Eliz. for their lives and after the use of the said Rich. Waller and his Heirs and dyed Eliz. took to Wife Clavell they both by Fine granted the said Mannor to Tho. Lamb Habend ' eidem Thomae haeredibus suis tota vita ipsius Eliz. Tho. Lamb entred and dyed seized Tho. his Son and Heir entred against whom Thomas Waller Son and Heir of Rich. brought a Formedon the said Eliz. being alive the Tenant said he is within age and prayed that the paroll might demur but Non allocatur for he was but as an Occupant during the life of Eliz. CCLXXVI Residuum of Sir Francis Englefields Case THe Case of Sir Francis Englefield was argued by Popham and he said That this Condition was not such a private Condition or so running in privity but that it might be transferred by 33 H. 8. or 29 Eliz. to the Queen for although that the consideration which moved and induced Sir Francis to create the Condition be private and particular yet that notwithstanding the Condition it self is general for the private cause of the Condition doth not make the Condition private but as in other Cases and he put the Cases before of Ransom But if the Condition had been conceived in these Terms scil If my Nephew shall be given to intollerable Vices then if I tender c. there it had been otherwise Vide the Statute of 33 H. 8. cap. 20. by which it is enacted That if any Subject is attainted of High Treason by the course of the
existen ' ut praefatur ad Warrantiam obligetur aut obligari debeat aut si idem Gilbertus aliquid pro nobis habeat aut dicere scivit quare Breve nostrum de Procedendo praefatae Eliz. in ea parte minime concederetur Qui quidem Gilbertus adtunc ibidem dixit quod praefat ' Tho. Norden non informavit praedict Gilbertum de aliquo per quod praedict Tristriamus in custodia nostra existen ' ullo modo obligetur ad warrantizand ' eidem nihil dixit aut dicere scivit potuit quia praedict Breve de Procedendo eidem Eliz. in ea parte concederetur Nos inde nolentes eidem Eliz. justiciam ulterius differre in hac parte Vobis Mandamus quod si coram vobis in placito praedict taliter sit processum allegat ' tunc in placito illo in redditione Judicii in eodem placito cum ea celeritate quam de jure secundum Legem Consuetudinem hujus Regni nostri Anglioe poteritis procedatis partibus praedict plenam celerem c. dicta allegatione non obstante Teste me ipsa c. Et super hoc eadem Eliz. petit Judicium Seisinam suam versus praedict Thomam Norden de tertia parte Tenementorum praedict cum pertinentiis Super quo visis c. Consideratum est c. Quod praedict Elizabetha recuperet seisinam suam versus praefatum Thomam Norden de tertia parte Tenementor ' praedictor ' Et quod idem Thomas expectet si praedict ' Tristriamus Tenementa praedict unde c. ei warrantizari debeat pro recompensatione valentiae tertiae partis praedict ' versus eundem Tristriamum ratione Warrant ' illius habend ' durant ' minore aetate sua Et donec manus dict' Dominae Reginae à possessione terrae ipsius Tristriami amoveantur Virtute Brevis istius mihi direct ' ultimo die c. habere feci infranominat ' Eliz. plenariam seisinam de tertia parte Messuagii viz. de una Aula parcell ' Messuagij praedict ac de una Camera sive Conclave in Messuagio praedict existent ' necnon de uno Solario ac de una parcell ' ambulatorij vocat ' a Gallery alia parcell ' dict' Messuagii necnon de tertia parte unius Molendini viz. de integro Molendino praedict ' per quemlibet tertium mensem quolibet anno durante vita c. occupand ' gaudend ' c. CCCXXIV Hil. 25 Eliz. In the Kings Bench. Traverse IN an Action upon the Case the Plaintiff declared upon certain Corn which came to the hands of the Defendant and that he converted it and supposed the coming to be to his hands in London The Defendant said That he was seized of certain Lands in R. in Berks and that the Plaintiff did thereof him disseise and sowed the Lands and before severance he himself re-entred and took away the Corn as was lawful for him to do absque hoc that any Corn came to his hands in London and by the Opinion of the whole Court the Traverse was holden to be good Hil. 25 Eliz. In the Common Pleas. CCCXXV Wingate and Sands Case EJectione firmae by Wingate against Sands It was moved upon Evidence That a Fine was levied and in one Term three Proclamations were made and before that the fourth Proclamation was made the Term was adjourned so as the fourth Proclamation could not be made the said Term It was agreed by the whole Court That by that adjournment the fourth Proclamation was not executed but should be supplyed the next Term in which the fifth Proclamation was to be made Trin. 29 Eliz. In the Star-Chamber CCCXXVI The Lord Cromwell and Townsends Case HEn Lord Cromwell Exhibited a Bill in the Star-Chamber against Roger Townsend Esq for that the said Townsend in an Action between James Tavernor Plaintiff and Ja. Cromwell Firmor of the said Lord Cromwell Defendant in Trespass in the favour or unlawful maintenance of the said Tavernor did procure a partial Iury to be retorned And upon the hearing of the Cause the matter given in Evidence was That the said Tavernor was a Copyholder of the said Lord Cromwell and that the said Lord pretending that the said Tavernor had forfeited Copyhold caused the said Ja. Cromwell to make an Entry in the right of the said Lord upon the said Tavernor upon which Entry Tavernor brought an Action of Trespass against the said Ja. Cromwell in which Action the parties were at Issue upon the Forfeiture and before any Venire Facias issued Tavernor hearing that one Steward who was Bayliff of the Liberty under the Earl of Arundel and who ought to have made the Pannel c. was purposed to have made the said Pannel not duly viz to have retorned in the same great Gentlemen of the Country who were Lords of Manors in favour of the said Lord Cromwell That he went to the said Roger Townsend who was then one of the principal Servants and Agents of the said Earl and shewed unto him That if those great Persons and Lords of Manors be returned for the trial of the said Issue peradventure they would not so easily appear for the Expedition of the said Parties as Gentlemen of an Vnder-Condition and also many of them being Lords of Manors and having customary Tenants and therefore not indifferent to try that Issue and prayed his Order to the said Steward for the making of an indifferent Pannel Vpon which said Conference with the said Steward for the making of an indifferent Pannel and shewing unto him that in doing and making of the same there was not convenient nor any equal course to retorn Knights Esquires or Lords but rather such sufficient Persons for the greater Expedition of Iustice and Indifference of Tryal And afterwards the said Tavernor exhibited a Petition shewing all the special matter and prayed him to give order for the making of an indifferent Pannel for the trial of that Cause which Petition was delivered to the Earl by the said Townsend in the name of the said Tavernor upon which the said Earl referred the said Matter and the ordering of the same to three of his chiefest Agents and Counsellors viz. Dicksey Townsend and Chrell and delivered to them the Book of the Freeholdry within the said Liberty who according to their Commission made a Pannel which was retorned and the Iury passed with the said James Cromwell in the right of the said Lord And if that intermedling of Townsend with the Matter ut supra c. especially his conference with the Bayliff be maintenance or not was the Question And by Anderson and Wray it was said for Law That because the said Townsend was in a manner a Servant to the said Earl who had the retorn of the Writs and one of his principal Counsellors and Agents and hearing ex insinuatione of the said Tavernor the misdemeanour of the
shall be special and shall make special recital of the Estate And so is the Case 26 H. 8. 6. where Cestuy que use makes a lease and the Lessee commits waste there the Action was brought by the Feoffees containing the special matter and it was good although there was not any such Writ in the Register cujus haeredes de Corpore and we are not to devise a new form in such case but it is sufficient to shew the special matter to the Court. And the words of the Writ are true for they are Heirs to Sir Roger Lewknor and the Count is sufficient pursuant and agreeing to their Writ for they are Heirs although they are not special Heirs of the Body and so the Court was of Opinion that the Writ was good notwithstanding that Exception And Anderson and Periam Iustices said That the Case is not to be compared to the Case in Fitz. Nat. Brevium 57. for there he cannot shew by whose demise the Tenant holdeth if he doth not shew the special Conveyance viz that the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife Nor is it like to the Case of 26 H. 8. for the same cause For always the demise of the Tenant ought to be specially shewed and certainly which it cannot be in these two Cases but by the disclosing of the title also to the reversion Another Exception was taken because that the Writ doth suppose Quod tenuerunt which as they conceived is to be meant that tenuerunt joyntly whereas in truth they were Tenants in Common Walmsley contrary because there is not any other form of Writ for there is not any Writ which doth contain two tenuerunts and the words of the Writ are true quod tenuerunt although tenuerunt in Common but although they were not true yet because there is no other form of Writ it is good enough as Littleton If a Lease be made for half a year and the Lessee doth Waste yet the Writ shall suppose Quod tenuit ad terminum annorum and the Count shall be special 40 E. 3. 41 E. 3. 18. If the Lessee doth commit Waste and granteth over his term the Writ shall be brought against the Grantor and shall suppose Quod tenet and yet in truth he doth not hold the Land and the Writ shall not contain two Tenets and such also was the Opinion of the Court. The third Exception was because that the Writ was brought by the two Coparceners and the Heir of the third Coparcener without naming of Tenant by the Courtesie And thereupon Snag cited the Case of 4 E. 3. That where a Lease is made for life the Remainder for life and the Tenant for life doth waste he in the Reversion cannot have an Action of Waste during the life of him in the Remainder So in the like case the Heir of the third Coparcener cannot have waste because there is a mean Estate for life in the Tenant by the Courtesie And to prove that the Tenant by the Courtesie ought to joyn in the Writ he cited the Case of 3 E. 3. which he had seen in the Book at large where the Reversion of a Tenant in Dower was granted to the Husband and to the Heirs of the Husband and the Tenant in Dower did waste and they did joyn in the Action of Waste and holden good And so is 17 E. 3. 37. F. N. B. 59. 22 H. 6. 25. Walmsley contrary for here in our Case there is nothing to be recovered by the Tenant by the Courtesie for he cannot recover damages because the disinherisin is not to him and the term is expired and therefore no place wasted is to be recovered and therefore it is not like to the Books which have been vouched For in all those the Tenant was in possession and the place wasted was to be recovered which ought to go to both according to their Estates in Reversion but so it is not here for in as much as the term is expired the Land is in the Tenant by Courtesie and so he hath no cause to complain And such also was the Opinion of the whole Court that the Writ was good notwithstanding the said Exception Then concerning the principal matter in Law which was whether the Writ was well brought against the second Lessee or whether it ought to have been brought against the first Lessee It was argued by Shuttleworth That it ought to have been brought against the first Lessee for when he granted over his term excepting the Trees the Exception was good ergo c. For when the Land upon which the Trees are growing is leased out to another the Trees pass with the Lease as well as the Land and the profit of them is in the Lessee during the term and therefore when he grants his term he may well except the Trees as well as the Lessor might have done And that is proved by the Statute of Marlbridge for before that Statute the Lessee was not punishable for cutting down the Trees and that Statute doth not alter the property of the Trees but only that the Lessee should render damages if he cut them down c. Also the words of the Writ of Waste proveth the same which are viz. â—n terris domibus c. sibi dimissis And the Lessee might have cut them down for Reparation and for Firewood if there were not sufficient Vnderwood which he could not have done if the Trees had not been excepted And in 23 H. 8. Br. it is holden that the excepting of the Trees is the excepting of the Soil And so is 46 E. 3. â— where one made a Lease excepting the Woods and afterwards the Lessee did cut them down and the Lessor brought an Action of Trespass Quare vi armis clausum fregâ— c. and it was good notwithstanding Exception was taken to it And it is holden 12 E. 4. 8. by Fairfax Littleton That if the Lessee cut the Trees that the Lessor cannot carry them away but he is put to his Action of Waste Fenner and Walmsley Serjeants contrary And they conceived that the Lessee hath but a special property in the Trees viz. for Fire-boot Plough-boot House-boot c. and if he pass over the Lands unto another that he cannot reserve to himself that special property in the Trees no more than he who hath Common appendant can grant the principal excepting and reserving the Common or grant the Land excepting and reserving the Common or grant the Land excepting the Foldage The grand property of the Trees doth remain in the Lessor and it is proved by 10 H. 7. 30. 27 H. 8. 13. If Tenant for life and he in the Reversion joyn in a Leafe and the Lessee doth Waste they shall joyn in an Action of Waste and the Tenant for life shall recover the Free-hold and the first Lessor the damages which proves that the property of the Trees is in him As to
guilty pleaded it was given in Evidence That time out of mind a Custom had been used and that proved by Witnesses that the eldest Heir be it Male or Female should inherit the Land and that it appeared in the Court Rolls of the said Manor of which the Land in question was parcel two Presidents to prove that the eldest Sister ought to inherit and that the youngest Sister should have nothing in the Land the one President was 8 Eliz. and the other 18 Eliz. In the other side in disaffirmance of the custom it was given in Evidence divers Court-Rolls 6 H. 4. and especially one President That both Sisters should inherit as Coparceners did by the common Law notwithstanding which the Iury found for the custom in regard they upon their own knowledge knew the usage of the Country and that in divers places it had been so used in the Hundred within which this Manor was But in this case it was agreed by the Court That if the custom had been that the eldest Sister only should inherit yet by that custom the eldest Aunt or the eldest Neece should not inherit the Land And so it is in the case of Borough English where the custom is That the youngest Son shall have the Land it doth not give it to the youngest Vncle for customs shall be taken strictly and Foster Iustice said That so it was adjudged in one Totnams case And in the Argument of this case it was said by Cook Chief Iustice That there are two Pillars of Custom one the common usage the other that it be time out of mind and therefore upon the Evidence given to the Iury the Court enforced the parties which maintained the custom to shew Presidents in the Court-Rolls to prove the usage and he said that without such proof and that it had been put in ure although it had been deemed and reported to have been the true custom yet the Court could not give credit to the promise by Witnesses Pasc 8 Jac. In the Common Pleas. CCCXCVI Arden and Goads Case IN an Action of Trespass upon the Case for divers Goods the Declaration was of Trover and Conversion of them to the Defendants use Vpon Not Guilty pleaded they were at Issue and there an Inventory of the Goods was given in Evidence to the Iury as the Goods were apprised by Vpholsterers And in this Evidence another Point did arise These Goods were taken in Execution and delivered to the Defendant by the Sheriff and afterwards the Owner of the Goods against whom the Execution was awarded made a Deed of Gift of them to the Plaintiff by these words scil He granted all those Goods which were late put in Execution Cook Chief Iustice said That Quacunque via data that Deed could not entitle the Plaintiff to the Goods for it is a Dilemma for Posito that the Goods were put in Execution then they did not pass and admit that they were not put in Execution he did not grant but only those Goods which were in Execution and so there is an opposition and afterward Iudgment was given for the Defendant Pasc 8 Jac. In the Common Pleas. CCCXCVII The Earl of Rutland and Spencers Case THe case was 8 Co. 55. The late Queen Elizabeth granted to the Earl of Rutland the Office of Parkership and Constable of c. Habendum from the time of his full age for life and also by the same Patent she granted him the Stewardship of a Manor Habend ' praedict ' Officia pro termino vitae per Deputatum suum vel Deputatos suos c. eidem Officio pertinent ' in tam amplis modo forma c. Volentes quod subditi nostri sint auxiliantes assistentes to him And after that one as Steward to that Court came and made Proclamations and also did the Deputy of the Earl of Rutland And thereupon the Earl of Rutland brought an Action upon the Case against the other In this case three Points were moved by Nicholls Serjeant 1. If a Stewardship granted by the King might be exercised by a Deputy without such authority given him in his Patent And he took a Difference between an Office of Trust and other Offices as in 28 H. 8. of a Carver c. and 11 E. 4. 1. the Office of the Chancellor of the Exchequer and such Offices cannot without special Authority be assigned over 39 H. 6. 34. Of the Office of Marshal per se vel sufficient ' Deputatum c. Nevills Case in the Commentaries Offices of trust which are inheritances may be executed by Deputy 8 Eliz. Dy. 248. A Steward may be retained by word and he said There is a difference between a Deputy and an Assignee for an Assignee can forfeit but his own Estate but a Deputy shall forfeit the Estate of his Master and therefore if a Steward grant his Office for life who hath the Office in Fee the Grantee shall forfeit no more than his Estate for life 2 E. 6. Br. If the under Steward make Admittances it is good and yet he is but a Deputy but if it be out of Court then it ought to be by a special Custom Vide 2 Eliz. Dyer The Office of Chyrographer granted for life and exercisable by a Deputy And he said That in these Letters Patents the intent shall be taken beneficially for the Subject and that for the Honour of the King if the King be not deceived in his Grant. Vide 6 E. 6. Dyer 77. Dodderidge to the contrary and he took a difference between Offices of Trust granted for life and those which are granted in Fee for he who hath it but for life cannot assign them over for the Grantor did not intend that another person should have the Office unless express mention were made in the Grant of Assignees But when the Office is granted in Fee there is no such confidence put in the person of the Grantee for his heir shall have it who is a person not known to the Grantor But in all cases the Grantee is elected for his skill I agree 10 E. 4. 10. he may make a Deputy by special words but then that Deputy by those words cannot make a Deputy That a Steward is an Officer of trust is proved for he enters Plaints in the Court and Surrenders and although he hath not a Iudicial Place yet he hath a Ministerial Place and the Lord and Tenants repose their trusts in him And it is also an Office of Skill Vide 21 E. 4. 20. That the Office of the Keeper of a Park Steward c. cannot be assigned without special words of Assignees And as to the Case which was put by Nicholls 8 Eliz. That one may make a Steward by word and therefore an Assignee for life by word it is a Non sequitur And he said That for another cause in the Patent it self no Deputy in this case could be made for although the words are Habendum Gaudendum c.
any thing which sounds to the disinheriting of him in the reversion although in truth the same doth not touch the Inheritance yet it is a forfeiture Vid. 39 E. 3. 16. If Tenant for life pleads any thing against the right of him in the reversion it is a forfeiture and by Finchden and Belknap he cannot plead in the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution The Lessor brought an Assise and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the reversion in another because it is an alienation to the disinheriting of the Plaintiff and of the Lessor 12 E. 3. Fitz Resceipt 14. where Tenant for life pleaded in chief or cannot deny or gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate But if a rent be demanded against Tenant for life and he rendreth the same it is no forfeiture 12 Ass 31. Tenant for life is impleaded by Covin between him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the reversion enters in a Juris utrum against Tenant for life who pleads feintly traversing the point of the Action he in the reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. 3 5. Default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In Scire facias to execute a Fine against Tenant for life who pleaded to the Inquest whereas in truth the Land in demand was not comprised within the Fine Iudgment is given for the Demandant in the Scire facias he in the reversion may enter In our principal case here is apparent and manifest Covin for the Tenant for life voucheth without cause and this Recovery is by assent and is to the use of the Vendee who is Tenant for the life of another and therefore by the Common Law he in the Remainder may enter before Execution sued And it is well known that these common Recoveries are used for to dock Remainders in Tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the Voucher and it is found for him he in the Reversion hath no remedy but by a Writ of Right and if the Vouchee entreth and loseth by Action tryed or default ut supra that Book is to be intended of a Recovery executed for there in such case he in the Reversion hath not an Entry but is put to his Writ of Entry by the Common Law Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded and prays in the Aid of a stranger he in the Reversion may enter but if he doth not enter until the other hath recovered then he cannot enter but is put to his Writ of Entry Ad terminum qui praeteriit vel de ingressu ad Communem Legem and therein he shall falsifie the Recovery and there by Brook Voucher of a stranger is not cause of Forfeiture for it doth not disaffirm the Reversion in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the right with aid prayer And so he argued that before Execution he in the Remainder might enter but after Execution is put to his Action But in our Case although that Execution be good yet he in the Remainder may enter for it is found by Verdict that at the time of the Recovery he was within age and that when he dyed that he in the next Remainder was within age and then no Entry shall be imputed and then he shall not be driven to his Action As if Tenant by the Courtesie makes a Feoffment with warranty and dyeth and the same descends to his Heir within age yet he shall enter although he hath not avoided the warranty in the life of his Ancestors Also he said that the Statute of 32 H. 8. extended to this Case for Sir William Pelham the Vendee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life or otherwise Tenant for life or lives Note this the words of the Statute As upon the Statute of 20 E. 1. which gives Resceipt de defensione juris the words are Cum quis aliquod breve Domini Regis impetret versus Tenentem per Legem Angliae vel feod taliat ' vel sub Nomine Dotis vel alio modo ad terminum vitae upon these words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another that upon such an Estate he in the reversion should be received by reason of these words vel alio modo ad terminum vitae c. And although he who enters at the time of the recovery was not next in remainder to the particular Estate yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery and at the time of the entry he in the immediate remainder was dead and then he the next in remainder Vide 15 E. 4. 9. by Litt. If I grant my Services to one for life and he in a Praecipe brought against him pleads in the right or grants to another the said Services in Fee it is not a Forfeiture for it is no Discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such recoveries shall be utterly void and if so then he in the reversion cannot be damnified and then no cause of Forfeiture So that it may be easily answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the reversion by matter of record although the same doth not devest or otherwise prejudice the Inheritance yet it is a Forfeiture Cook to the contrary Here in our Case is not any Covin in Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seized in tail according to the Covenant in the Indenture by which the Bargainor covenanted that he was seized in tail at the time of the Bargain and also to do any other act for assurance of the Estate of the Bargainee and it was lawful for him to Vouch his Bargainor and although he voucheth a stranger it is not a Forfeiture 39 E. 3. 16. Aid prayer of a stranger is a Forfeiture and the reason of that is because he acknowledgeth the reversion to be in a stranger and that is the cause of Forfeiture Vide Book of Entries 254. Where upon