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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	death_n	die_v	life_n	5,110	5	5.0778	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A42889	Reports of certain cases arising in the severall courts of record at Westminster in the raignes of Q. Elizabeth, K. James, and the late King Charles with the resolutions of the judges of the said courts upon debate and solemn arguments / collected by very good hands, and lately re-viewed, examined, and approved by Justice Godbolt ; and now published by W. Hughes.	Godbolt, John, d. 1648.; Hughes, William, of Gray's Inn.	1652 (1652)	Wing G911; Wing H3330_CANCELLED; ESTC R24389	404,377	461

the possession is bound by the Judgment of Attaindor and the Act of Parliament 5 H. 7. 31. 7 H. 7. 15. 16 H. 7. 8. A discent of land shall not make a title against the King or any other who hath the land by an Act of Parliament But then in our Case If there should be a Remitter yet the same is overreached by the Office 〈◊〉 part 10. before the Statute of 33 H. 8. cap. 20. there ought to have been an Office found in the Case of Attaindor of Treason Br. Cases 103. Brook Office Devant c. 17. I do not mean an Office of intitling but an Office declaratory of a conspicuous title C. 5. part 52. There are two manner of Offices One which vesteth the estate and possession of the land c. in the King Another which is an Office of Instruction and that is when the estate of the land is lawfully in the King but the particularity thereof doth not appear upon record And the Office of Instruction shall relate to the time of the Attaindor not to make Queen Elizabeth in our Case in by discent but to avoid all me●ne Incombrances And is not this Remitter an Incombrance And for that purpose the Office shall relate For in things of Continuance Nullum tempus occurrit Regi C. 7. part 28. For so the rule of Nullum tempus c. is to be understood of a thing of Continuance and not a thing unica vice v. Fitz. Entre Congeable 53. Trav. 40. where it is said Where the King hath cause to seise for the forfeiture of Tenant for life if the Tenant for life dyeth the Reversion may enter for in that case Tempus occurrit Regi and the King cannot seize after the death of the Tenant for life 35 H. 6. 57. There is no discent against the King and if there be no discent then there is no Remitter The consequence of all this is That the Office doth relate to the Right And that the Monstrans de Droit doth not lie And the want of Office found for all this time was the fault of the Kings Officers and shall not prejudice the King But if the Office should not relate then the Monstrans de Droit would lie because then the King was in but by one single matter of Record We shew in the Office 33 Eliz. That there issued forth a Commission directed to certain of the Privy-Councel to enquire of the Treason and if Francis Bigot upon the Treason were Indicted And in our Case we shew immediately another Commission was directed to the Lord Chancellor and the two Chief Justices c. to arraign Francis Bigot And all that is confessed by Ratcliffe himself viz. modo forma And therefore the Objection which Glanvile made was frivolous viz. That it did not appear that Francis Bigot was attainted by Verdict by Confession or by Outlawry And so he concluded That for these causes the Judgment given in the Court of Common-Pleas ought to be reversed George Crook argued for Ratcliffe and he prayed that the Judgment might be affirmed I will argue only these points following 1. That Francis Bigot had not so much as a right of Action at the time of his Attaindor for he had not any right at all 2. Admit that he had a right of Action If this right of Action be given to the King by the said Statutes of 26 31 H. 8. It was objected That the right being clothed with a possession that the same is given to the King But I will prove the contrary 3. When Francis Bigot being Tenant in tail and being attainted and executed for Treason and then Katherine his wife dyeth being one of the Donees in tail 21 H. 8. and the lands discend to Ratcliff If the Office afterwards found shall relate to take away the Remitter I say it doth not but that his Remitter doth remain to maintain his Monstrans de Droit and he is not put to his Petition The chief point is What right Francis Bigot had at the time of his Attaindor 1. When Ralph Bigot being Tenant in tail 6 H. 8. made a Feoffment in Fee what right remained in Francis his Son The right is in abeyance viz. in nubibus that is in custodia Legis And then Francis Bigot had no right of that entail 21 H. 8. when he made the Feoffment Com. 487. There Jus is divided viz. Jus recuperandi Jus in randi Jus habendi Jus retinendi Jus percipiendi Jus possedendi but here Francis Bigot had not any of these rights Com. 374. if the Discontinuee of Tenant in tail levieth a Fine with proclamations and five years passe and Tenant in tail dyeth the issue in tail shall have other five years because he is the first to the right 19 H. 8. 7. C. 7. part 81. If Donee in tail maketh a Feoffment in Fee in rei veritate the Donee hath not jus in re neque ad rem C. 3. part 29. Litt. 649. There it appeareth that the right to an estate tail may be in abeyance Com. 552. Walsinghams Case There the King gave land in tail to Wyat who made a Feoffment unto Walsingham Afterwards Wyat was attainted of Treason and there the estate tail of Wyat was forfeited but the cause there was because that the reversion was in the Crown and so no discontinuance by his Feoffment because that the reversion was in the Crown In our Case no right of the estate tail was in Francis Bigot after the Feoffment unto his own use but the right is in abeyance It was objected That the Writ of Formedon is Discendit jus and the Monstrans de Droit was so I answer It is so in point of form in the Writ but not in substance C. 7. part 14. Tenant in tail makes a Lease for life and Tenant for life dyeth Now he hath an ancient right and the Donor may avow upon the Tenant in tail notwithstanding his Feoffment but that is by reason of privity and not by reason of any right he hath Jus recuperandi did discend to the issue in tail viz. Francis Bigot 21 H. 8. He who hath a right of Action giveth the same away by his Livery and Feoffment as appeareth by the Cases put in C. 1. part 111. It was objected That Cestuy que use was an Attorney or Servant therefore he doth not passe his own right for he cannot make an Attorney to make Livery and 9 H. 7. 26. was cited to be adjudged so But it is adjudged to the contrary M. 25 H. 8. in the Kings Bench rot 71. betwixt the Bishop of London and Kellet as it appeareth in Dyer 283. and Bendloe's Reports and C. 9. part 75. For there it is expresse that Cestuy que use may make a Letter of Attorney to make Livery which proves that he makes not the Feoffment as a Servant but as Owner of the Land It was objected That Cuesty que use was as an Executor but that I deny 49

husband and therefore the prescription is not good that Potest ponere retes upon the land of another upon the Custome of the Sea for prescription must be in a thing done also by him the devise is not good according to the Custome for that is that she may devise and surrender and that ought to be all at one time and that in the presence of the Reeve and six other persons as well as the Surrenderer and the words of a Custome shall be so far performed as they may be Meade contrary And that these Witnesses shall be referred to the surrender onely for a devise may be without Witnesses And he said that sometimes the latter clause shall not refer to all the precedent matter but unto the latter onely as 7. H. 7. is Where a Praecipe was brought of lands in A. B. and C. in Insula de Ely the Clause in Insula de Ely is referred onely to C. And it was said That if in the principal Case the Will were good that then the husbands are Tenants in common and then the Action of Trespass is not maintainable Pasch 25. Eliz. in the Common Pleas. 23. THis Case was moved by Serjant Gawdy Thomas Heigham had an hundred Acres of lands called Jacks usually occupied with a house and he leased the house and forty Acres parcel of the said hundred Acres to I. S. for life and reserved the other to himself and made his Will by which he doth devise the house and all his lands called Jacks now in the occupation of I. S. to his wife for life and that after her decease the remainder of that and all his other lands pertaining to Jacks to R. who was his second son Whether the wife shall have that of which her husband died seised for her life or whether the eldest son should have it and what estate he shall have in it Meade The wife shall not have it for because that he hath expressed his Will that the wife shall have part it shall not be taken by implication that she shall have the whole or the other part for then he would have devised the same to her And therefore it hath been adjudged in this Court betwixt Glover and Tracy That if Lands be devised to one and his heirs males and if he die without heirs of his body that then the land shall remain over that he had no greater estate then to him and his special heirs viz. heirs Males and the reason was because the Will took effect by the first words Anderson Chief Justice It was holden in the time of Brown That if lands were devised to one after the death of his wife that the wife should have for life but if a man seised of two Acres deviseth one unto his wife and that I. S. shall have the other after the death of the wife she takes nothing in that Acre for the Cause aforesaid For the second matter If the Reversion shall pass after the death of the wife to the second son we are to consider what shall be said land usually occupied with the other and that is the land leased with it But this land is not now leased with it and therefore it cannot pass Windham The second son shall have the Reversion for although it doth not pass by these words Usualy Occupied as Anderson held yet because the devise cannot take other effect and it appeareth that his intent was to pass the land the yonger son shall have it Anderson Jacks is the intire name of the house and lands And that word when it hath reference unto an intire thing called Jacks and is known by the name of Jacks shall pass to the second son for words are as we shall construe them And therefore If a man hath land called Mannor of Dale and he deviseth his Mannor of Dale to one the land shall pass although it be not a Mannor And if I be known by the name of Edward Williamson where my name is Edward Anderson and lands are given unto me by the name of Edward Williamson the same is a good name of purchase And the opinion of the Court was that the Reversion of the land should pass to the second son Pasc 25. Eliz. in the Common Pleas. 24. The Lord MOUNTJOY and the Earle of HUNTINGTON'S Case NOte by Anderson Chief Justice and Periam Justice If a man seised of any entrie Franchises as to have goods of Felons within such a Hundred or Mannor or goods of Outlaws Waifes Strares c. which are causual There are not Inheritances deviseable by the Statute of 32. H. 8. for they are not of any yearly value and peradventure no profit shall be to the Lord for three or four years or perhaps for a longer time And such a thing which is deviseable ought to be of annual value as appeareth by the words of the Statute And also they agreed that the said Franchises could not be divided and therefore if they descend to two coparceners no partition can be made of them And the words of the Statute of 32. H. 8. are That it shall be lawful c. to divise two parts c. and then a thing which canot be divided is not diviseable And they said That if a man had three Manors and in each of the three such Liberties and every Manor is of equal value that yet he cannot devise one Mannor and the Liberties which he hath to it Causá quâ supra but by them an Advowson is deviseable because it may be of annual value But the Lord Chancellor smiling said That the Case of the three Manors may be doubted And there also it was agreed by the said two Justices upon Conference had with the other Justices That where the Lord Mountjoy by deed Indented and Inrolled did bargaine and sell the Manor of ●amford to Brown in Fee and in the Indenture this Clause is contained Provided alwayes And the said Brown Covenants and Grants to and with the Lord Mountjoy his Heirs and Assigns that the Lord Mountjoy his Heirs and Assigns may digg for Ore within the land in Camford which was a great Waste and also to digg Turffe there to make Allome and Coperess without any contradiction of the said Brown his Heirs and Assigns They agreed That the Lord Mountjoy could not devide the said Interest viz. to grant to one to digg within a parcel of the said Waste And they also agreed That notwithstanding that Grant That Brown his Heirs and Assigns owners of the Soile might digg there also like to the Case of Common Sans number The Case went further That the Lord Mountjoy had devised this Interest to one Laicott for one and twenty years and that Laicott assigned the same over to two other men And whether this Assignment were good or not was the Question forasmuch that if the Assignement might be good to them it might be to twenty and that might be a surcharge to the Tenant of the soile And as to that

because that the particular estate was determined The cause of forfeiture was because that the Copiholder had made a lease for life Pasch 8. Iacobi in the Common Pleas. 242 Dr. NEWMAN's Case IN this Case it was said by Cook Chief Justice That it had of late time been twice adjudged that if Timber trees be oftentimes topped and lopped for fuell yet the tops and lops are not Tithable for the body of the trees being by law discharged of Tithes so shall be the branches and therefore he that cutteth them may convert them to his own use if he please Pasch 8. Jacobi In the Exchequer Chamber 243 KERCHER's Case AN Action upon the Case was brought in the Common Pleas upon a simple contract made by the Testator which afterwards came into the Exchequer Chamber before all the Judges Cook in the Common Pleas was of opinion that the Action would lie Tanfield Chief Baron said That in these cases of Equitie it were most reason to enlarge and affirme the Authoritie of the Common law then to abridge it and the rather because the like Case had been oftentimes adjudged in the Kings Bench and there was no reason as he said that there should be a difference betwixt the Courts and that it would be a Scandall to the Common Law that they differed in opinion Afterwards at another day the Case was moved in this Court And Walmesley Justice doubted if as before But Foster held that the Action was maintainable And Cooke desired that Presidents might be searched And he said That he could not be perswaded but if the Executor be adverred to have Assetts in his hands sufficient to pay the specialties but that he should answer the debt Note the money demanded was for a Marriage portion promised by the Testator Pasch 8. Jacobi in the Common Pleas. 244 ADAMS and WILSONS Case Note It was said That when a false Judgement passeth against the Defendant he may pray the Court that it be entred at a day peremtory so as he may have Attaint or a Writ of Error And Cook Chief Justice said That if Judgment in the principall Action be reversed the Judgment given upon the Scire facias shall also be reversed because the one doth depend upon the other Walmesley in this Case said That it had been the usual course of this Court That if one deliver a plea unto An Aturney of the Court as the Last Terme and it is not entred that now at another Terme the Defendant might give in a new plea if he would because the first is not upon Record Pasch 8. Iacobi in the Common Pleas. 245 CULLINGWORTH's Case IF one be bounden in an Obligation That he will give to J. S. all the Goods which were devised to him by his father in Debt brought upon such an Obligation the Defendant cannot plead that he had not any Goods devised unto him for the Bond shall conclude him to say the contrary Vide 3. Eliz. Dyer 196 Rainsford Case Pasch 8. Iacobi in the Common Pleas. 246 QUOD's Case QVod had Judgement in an Action upon the case at the Assizes and damages were given him to Thirty Pound Hutton Serjeant moved in Arrest of Judgement That the Venire facias was de duodecim and that one of them did not appear so as there was one taken de circumstantibus and the entry in the Roll was That the said Jurour exactos venit but the word Juratus was omitted And for that cause the Judgement was stayed Mich. 8. Jacobi in the Common Pleas. 247 STONE 's Case STone an Atturney of the Court was in Execution in Norfolk for One thousand Pound and by practice procured himself to be removed by Habeas corpus before Cook Chief Justice at the Assizes in Lent and escaped to London and in Easter Terme the Bailiffe took him again and he brought an Action of false Imprisonment against the Bailiffe and it was holden by the Court That the fresh Suit had been good although he had not taken him in the end of the year if enquiry were made after him and so by consequence the Action was not maintainable Mich. 8. Jacobi in the Star-Chamber 248 MARRIOT's Case NOte It was agreed in this Case for Law That the Sheriffe cannot collect Fines or issues after a generall pardon by Parliament and therefore one Thorald the under Sheriffe of N. who did so was questioned and punished in the Star-Chamber Mich. 8 Jacobi in the Common Pleas. 249 JOLLY WOOLSEY's Case JOlly Woolsey of Norfolk brought an Action of Trespass against a Constable of Assault and Battery and Imprisonment the Defendant as to the Assault and Battery pleaded Not guilty and justified the imprisonment by reason of a Warrant directed unto him by a Justice of Peace for the taking and to imprison the Plaintiffe for the keeping of an Ale-house contrary to the Statute 12 Feb. 5. El. whereas the Statute was 12 Feb. 5. Ed. 6. and the matter was found by speciall Verdict And it was holden by all the Justices That the misrecitall of the Act was not materiall for it being a generall Act the Justices ought to take knowledge of it And Cook Chief Justice said That a man cannot plead Nul tiel Record against an Act of Parliament although that in truth the Record be imbezelled if the Act be generall because every man is privy to it Mich. 8. Iacobi In the Common Pleas. 250 NEWMAN and BABBINGTON's Case IT was resolved in this Case That if Debt be brought against an Executor who pleads that he hath fully administred and it is found that he hath Assets to 40l. whereas the Debt is 60l l that a Judgement shall be given for the 60l. against the Defendant and upon that Judgment if more Assets come after to the Executors hand the Plaintiffe may have a Scire facias Mich. 8. Jacobi in the Common Pleas. 251 WALLER's Case NOte It was said by Cook Chief Justice That if the King present one to a Benefice and afterwards presenteth another who is admitted instituted and inducted the same is a good repeal of the first presentation And he said That if the Lord doth present his Villain to the Church the same is no enfranchisement of him for that presentation is but his commendation And if the King will present a French man or a Spaniard they shall not hold the Benefice within this Realm for that the same is contrary to a special Act of Parliament Mich. 9. Jacobi in the Common Pleas. 252 NOte It was holden by all the Justices That Perjury cannot be commited in the Court of the Lord of Copy-holds or in any Court which is holden by Usurpation otherwise is it in a Court Leet or Court Baron which is holden by Title Trinit 8. Jacobi in the Common Pleas. 253 BURY and TAYLOR's Case IN an Ejectione firme brought upon Not guilty pleaded by the Defendant it was given in Evidence to the Jury to this effect viz. That one J. S. who did

and for these causes he prayed Judgment for the Defendant Observe Reader the Argument of Calthrope he doth not speak to the point where part of the thing or Contract is upon the Sea and part upon the Land as it was urged by Andrews who argued on the other side The Case was adjourned Pasch 3 Caroli rot 362. in the Kings Bench. 475. IT was cited to be adjudged That if a man purchase the next Avoidance of a Church with an intent to present his son and afterwards he present him that it is Symony within the Statute Pasch 3 Caroli in the Kings Bench. 476. SUTTON the Chancellor of Gloucester's Case IN the Case of Sutton who was Chancellor of Gloucester and put out of his place for insufficiency in the Ecclesiastical court Trotman moved for a Prohibition to the Spiritual Court and said that the Bishop had power to make his Chancellor and he only hath the Examination of him and the allowance of him as it is in the Case of a Parson who is presented to the Bishop and said that if his sufficiency should be afterwards reexamined it would be very perilous Doddridg Justice If an Office of Skill be granted to one for life who hath no skill to execute the Office the grant is void and he hath no Frank-tenement in it A Prohibition is for two causes First to give to us Jurisdiction of that which doth belong unto us And secondly when a thing is done against the Law and in breach of the Law then we use to grant a Prohibition Jones Justice Brook had a grant of the Office of a Herald at Arms for life and the Earl Marshal did suspend him from the execution of his Office because he was ignorant in his profession and full of Error contrary to the Records and it was the opinion of the Justices that because he was ignorant in such his Office of Skill that he had no Freehold in the Office In the Principall Case the Prohibition was denyed And afterwards Sutton was put out of his Office by Sentence in the Spiritual Court for his insufficiency Pasch 3 Caroli in the Kings Bench. 477. SYMM'S Case TWo men having speech together of John Symms and William Symms one of them said The Symmses make Half-crown peeces and John Symms did carrie a Cloak-bag full of clippings And whether the Action would lie was the Question because it was incertain in the person For he did not say these Symmses but The Symmses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Star-Chumber one having speech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lie for two causes First because the words These was uncertain in the person And secondly it was incertain in the thing For it might be that they had Authority to do it as in Mills Case 13 Jac. in the Kings Bench Thou hast Coyned Gold and art a Coyner of Gold Thirdly a Cloakbag of clippings that is also uncertain for it might be clippings of Wooll or other things or it might be clippings of Silver from the Goldsmith For the Goldsmith that maketh Plate maketh clippings And fourthly It is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lie Pasch 3 Caroli in the Kings Bench. 478. WHITTIE and WESTON'S Case AN Action of Debt was brought upon the Statute of 2 E. 6. and the Plaintiff declared That at the time of the Action brought he was Parson of Merrel and that Weston the Defendant did occupie such Lands and sowed them with corn Anno 21 Jac. and that he did not fet forth his Tythe-corn c. The Defendant pleaded in barr of the Action That W. W. Prior of the Hospital of St John of Jerusalem was of the Order of Hospitalers c. and that he held the said Lands free from the payment of Tythes and that the Priory came by the Statute of 32. H. 8. to the King By vertue of which Statute the King was seised thereof and that the same descended to Queen Elizabeth who granted the Lands unto Weston to hold as amply as the late Prior held and that he was seised of the Lands by vertue of that grant Et propriis manibus suis excolebat Upon this Plea the Plaintiff did demurr in Law Noy argued for the Plantiff There are three points in the Case First If these Lands the possessions of the Hospitalers of St John which they held in their own hands were discharged of Tythes Secondly If there be any thing in the Statute of 32 H. 8. by which the Purchasor of the King should be discharged Thirdly Admitting that it shall be a discharge if the Defendant hath well entitled himself to such discharge or Priviledg First it is not within the Statute of 31 H. 8 cap. 13. for that Statute did not extend to the Order of St John Secondly the Statute of 31 H. 8. cap. 13. doth not discharge any but what was then dissolved Thirdly The Statute of 32 H. 8 cap. 24. gives the possessions of the Hospitalers of St Johns to the King and not the Statute of 31 H. 8. Note that the Defendant did recite the branch of the Statute of 31 H. 8. cap 13. That as well the King his heirs and successors as all and every such person and persons their heirs and assignes which have or hereafter shall have any Monasterie c. or other Religious or Ecclesiastical houses or places shall hold c according to their Estates and Titles discharged and acquitted of the payment of Tythes as freely and in as large and ample manner as the said Abbots c. had or used Also he recited the Statute of 32 H. 8. cap. 7 which Enacts that none shall pay Tythes who by Law Statute or Priviledg ought to be discharged The Statute of 31 H. 8. recites that divers Abbies c. and other Religious and Ecclesiastical houses and places have been granted and given up to the King The Statute ena●ts that the King shall have in possession for ever all such late Monasteries c. and other Religious houses and places c. And also enacts that the King shal have not only the said Monasteries c. but also all other Monasteries c. and all other Religious and Ecclesiastical houses which hereafter shall happen to be dissolved suppressed renounced relinquished forfeited given up or by any other means come to the King and shall be deemed adjudged vested by Authority of this present Parliament in the very actual possession and seisin of the King for ever in the state and condition they now be Vi. The Statute And shall have all priviledges c. in as ample manner and form as the late Abbots c. had held or occupied c. The Question then is Whether the men of the Hospital of St John at Jerusalem are intended to be within the