or Ignominious Signes as Gallowes c. The Punishment is by Indictment as in the Starre-Chamber Palmers Case 8. Jac. fo 126. banco regis THe Gardian in Chivalry shall have the single value of the Marriage of the Heire without tender otherwise the Heire may defeate the Lord by Marriage or goe beyond the Sea and so prevent the Lord of any tender if it were requisite Caudreyes Case 33. Eliz. in Trespasse THe Jury found the Statute of 1. Eliz. cap. 1. and cap 2. and that the Plaintiffe was deprived for Preaching against the Booke of Common Prayer by the Bishop of London una cum assensu c. Resolv 1 The deprivation was good for the first offence because the Act of 1. Eliz. for uniformity of Common Prayer doth not abrogate 1. Eliz. for Ecclesiasticall Jurisdiction without negative words and by an expresse proviso the Jurisdiction of the Bishop is saved Resolv 2. That sentence given by the Bishop by assent of his Collegues ought to be allowed by our Law Resolv 3. The Commissioners shall be intended Subjects borne c. Stabitur praesumptionj c. Also it is found that the King authorized them Secundum formam Statuti Resolv 4. The Act of 1. Eliz. for Ecclesiasticall Jurisdiction was onely declaratory for the King being an absolute Monarch and head of the body politick had plenary power to minister justice to his Subjects in Causes Ecclesiasticall and temporall See Circumspecte agatis 13. E. 1. and Articulj Clerj 9. E. 2. Reges sacro oleo uncti sunt spiritualis jurisdictionis capaces See there diverse judgements Lawes and Acts of Parliament cited to prove the Kings supremacy in Causes Ecclesiasticall The End of the Fifth Booke THE SIXTH BOOK Where Services intire shall be Apportioned Bruertons Case 36. Eliz. In the Court of Wards Fol. 1. LORD and Tenant of three Acres by Homage Fealty a hawke and Suite of Court the Tenant makes a Feoffement of one Acre the Feoffee by the common Law shall hold by all intire services annuall and casuall and the Statute of Quia emptores Terrarum doth not extend to intire services but by the Statute of Marlebr c. 9. the Feoffees shall make but one Suite and he who doth it shall have Contribution against the others if they are severally infeoffed otherwise if jointly 2. Intire services shall be multiplied by the Act of the Tenant and extinct by the Act of the Lord as if he purchase part 3. By Act of the Lord intire service for his private benefite is extinct otherwise if it be for the publick good for works of Charity Devotion or administration of Justice 4. If part comes to the Lord by act in Law yet the intire service remaines except in Case where Contribution is to be made for the Lord shall not contribute 5. If part comes to the Lord by Act in Law and of himselfe as by recovery in a Cessavit all the intire services are gone Where the Paroll shall demurre for the nonage of the Demandant and where the Tenant shall have his Age. Markals case 35. Eliz. com banco fo 3. IN a Formedon in the remainder by an Infant of a remainder limitted to his Father and his heirs the tenant cannot pray that the parol may demur but in a Formedon in the reverter he may In actions auncestrell the Tenant may pray that the parol may demurre because a right onely discends to the Infant and the Law will not suffer him to sue for feare that he may loose for want of understanding but in possessory Actions he cannot because then every one will put Infants out of possession and it would be mischevious if they should not regaine their possession untill full age So it is in all Writs where the cause of action happens in the time of the Infant And as to Actions auncestrell they are of two sorts Droiturell and possessory the first is where a right onely discends from the Auncestor and the Infant ought to lay the explees in the Auncestor and there the Tenant without plea pleaded may pray that the paroll may demurre but if the Auncestor were never in possession as in this case he was not and the Infant himselfe is the first in whom it vests there without plea pleaded hee shall not pray that the Parol may demurre but if a right discend from an auncester who was in possession although the Action doth not discend the Tenant may pray that the parol may demurre as if Non compos mentis alien and dye In actions auncestrell possessory the parol shall not demurre without plea but if at the common Law the Tenant had pleaded a feoffement of the auncestor then he may pray c. but the Statute of Gloucester cap. 2. aideth that in writs of Cosinage Besaiell and aiell but this extends not to other actions in a Formedon in the discender where an Infant recovers but a limitted estate the Parol shall not demurre without plea in an Assize or assize of Mortdauncester the Parol shall not demurr because the Jury is to appeare the first day and try all things The Statute of Westm 1. cap. 46. Age is taken away in entry upon disseisin where fresh suite is made but an Infant shall have his age in all reall Actions where he is in by discent and the Action is not founded upon his owne wrong except in Nuper obijt and Partitione facienda where both are in possession or attaint for the mischiefe of the death of the Petty Jury The Statute of West 2. cap. 40. Ousteth the age of the Vouchee in cuj in vita and Sur cuj in vita although that the Tenant will answer if the parol ought to demurre yet the Court ought to award that the parol shall demurre Sir John Molyns Case 40. Eliz. in Scaccar fo 5. KIng Edward the third Lord Abbot of Westminster Mesne and C. Tenant C is attainted of Treason the King grants to Sir Jo. Mo. Tenendum de nobis álijs capitalibus dominis feodi illius per servitia c. the Mesnalty is revived Obj. 1. That the tenure shall be Per servitia inde debita at which time no service was due to the Mesne 2. An expresse tenure of the King is limitted and it cannot be immediatly holden but of one To the first it was answered that there are sufficient words to renew the Mesnalty because the intention of the King appeares to be so and it is reasonable that the Mesne who offended not should not suffer losse 2. It shall be holden imediatly of the Abbot and mediatly of the King Wheelers Case 43. Eliz. in Scaccario fo 6. THe King grants Land Tenendum by a Rose Pro omnibus servitijs this is Socage in chiefe and the tenure shall be by fealty and a Rose and Pro omnibus is to be intended of other services which the Law doth not implie Resolutions and Diversities when a barre in one action shall be a barre in another Ferrers Case 41. Eliz. Com.
grant after Office and before the retorne is good ib. The Bishop must shew the cause of refusing a Clerke Page 203 The Constable may bring an Offendor to what Justice he will ib. Vpon refusall to find surety the Constable may commit him ib. Where a man shall avoid a fraudulent deed by 27. Eliz. Page 204 The Defendant pleads another Action depending for the same Page 205 Cases of By-laws Where the Inhabitants of a Towne may make By-laws and where the consent of the greater part shall bind all ib. Who are liable towards the repaires of a Church Page 207 Against a devise of Lands by writing no averrment can be received Page 208 Cases of Usury What manner of contract is Vsury Page 208 209 A demurrer is a confession of all matters in fact well pleaded Page 208 What things may be released before the day Page 209 Daggs Pistolls c. are within the Statute of 33. H. 8. c. 6. ib. The Sheriffe or his officers may carry Weapons invasive or defensive ib. One man cannot have an Action for a common nusance Page 210 If an Orphan sue for goods in the Court Christian a prohibition lyeth ib. A Deed shewed in Court remaineth there all that Terme Page 211 In the K. B. imparlances in barre are entered but not to reply ib. The Wife Tenant for life dyes the Baron is not liable for wast ib. When amends may be tendered after a distresse but not after impounding tender to the Bailiffe is not good Page 212 The Plaintiffe may pray a Deed to be entered In haec verba the same Tearme but not after ib. An action of wast lies after the death of him in remainder for life ib. Every assignee of every Lessee mediate or immediate is within 11. H. 6. c. 5. Page 213 An award must be certaine and binds none but parties Page 214 A prescription for common where it is good ib. Where a warrāty comenceth by disseissin Page 214 215 A confirmation of the Land and of the terme a diversity Page 215 Cases of Customes Where a custome binds Strangers Page 216 Where property is altered by sale in a Market Overt ib. A custome which addeth more solemnity to the Law is good ib. Who shall have the Corne upon the ground Page 216 217 Where judgement finall shall be given in Wales Page 217 Cases of Executions One in execution escapeth yet the other is liable Page 218 VVhere the Defendant is in Execution for the King he shall be also for the Plaintiffe Page 219 If a Man be in custody and another VVrit commeth to the Sheriffe he is in custody of force of the second VVrit also Page 220 A judiciall VVrit needs no returne but not so of an Elegit ib. VVhere restitution shall be after reversall of Outlarly or judgement Page 221 VVhere the Sheriffe may breake the House to make Execution Page 222 That a House is not a defence of Strangers ib. A false consideration is void as to the Queene Page 223 224 The Law findeth not an assignee in Law where one in Fact Page 224 Foure bring a Quare impedit and one releaseth it barreth onely him ib. After a Divorce issue by the second Husband legitimate Page 225 False evidence to the Grand Inquest is not within 5 Eliz. ib. Commissioners of Sewers must tax all who are in danger ib. A Quod permittat for a Nusance where it lyeth without request Page 226 227 And where against a Feoffee or assignee Page 227 Two have Title to present by turne one presents I. S. who is deprived or Merè laicus it is a turne not if the admission be void ib. Vterque taken sometimes discretive sometimes collective Page 228 The Plaintiffe cannot refuse to joine in demurrer but the King may ib. A man cannot have an Action for damage by Coines ib. None may erect a Dovehouse but the Lord of a Mannor ib. Ancient demesne is a good plea in Ejectione sirmae not in Trespasse Page 229 Excellent diversity of Learning touching Wrecke ib. When the high Admirall shall have jurisdiction Page 230 Plentifull matter touching goods wayved goods of Fellons Deodands c. Page 231 What things may be gained by usage without matter of Record ib. Rendring rent to one and his heires and to one or his heires is all one Page 232 The King by his Proclamation may make forreigne Coine currant ib. A Tender of money in bagges is a good tender Page 233 In a writ of Estrepement the Sheriffe may take posse com ib. Estrepement lyeth in wast as well before judgment as after ib. Feme Copiholder durante viduitate soweth the Lord shall have it ib. Payment of parcell before the day is satisfaction for all Page 234 Grantee of a remainder liable for arreares of a rent charge ib. Debt against one joint obligor hee cannot plead Non est factum Page 235 But hee may if the deed become void by matter Ex-post facto ib. In Indictments certainty to a certaine in generall is good ib. False Latine shall not quash an Indictment ib. In Indictments of death Percussit must be except in case of poisoning Page 236 A lense for yeares is an interest within 4 H. 7. c. 25. ib. A libell may be as well against a private man as a Magistrate ib. Non refert whether it be true or the party of good fame ib. If a man finde a Libell advise how to to preserve himselfe Page 237 Gardian in chivalrie shall have the single value of the marriage without Tender ib. The great Case De jure regis Ecclesiastico upon the Statutes of 1 Eliz. c. 1. p. 2. Touching a Deprivation by the Bishop and the Kings supremacy in Causes Ecclesiasticall Page 237 238 THE SIXTH BOOKE VVHere services shall be multiplyed apportioned or extinct Page 239 Where the parole shall demurre for nonage of the demandant and where the Tenant shall have his age much good learning Page 240 The King grants the tenancy by attainder the mesnalty is revived Page 241 The K. grants land Tenendum by a rose pro omnibus c. what Tenure Page 242 Resolutions and Diversities when a barre in one action shall be a barre in another ib. Where a Writt shall be brought by Journeyes accounts Page 243 Who are Judges in Inferiour Courts Page 244 Jointenants cannot make partition by words after 28. H. 8. c. 1. ib. A Parson deprived for Adultery which is pardoned he is restored Page 245 A Visne must be from the most certain place ib. Tenant for life and hee in remainder joyne in a lease how it inureth Page 246 Riens passa tryed where the land is not where the patent dated ib. A devise to his brother paying 20. s. he hath fee ib. A devise to Baron and Feme and their children what estate it is Page 247 Where the will is directory and where declaratory without reference to power ib. A diversity betweene a suite by Citation and an Appeale Page 248 If a Statute speaks
House and Tenant at will of Land and Tenant by coppy of other Land within the Mannor of S. to Fermor leased all for life to I. S. and also seised of other Land there in Fee levyed a fine with Proclamations of all Messuages and Lands which comprehends all those leases and also his inheritance by covin to dissinherit his lessor and after the fine alwayes continues in possession and payes the severall rents to F. The lessee for life dyes the yeares expire S. claimes the inheritance Resolved that the Lord of the Mannor was not barred by the said fine 1. The makers of the Statute of 4. H. 7. never intended that a fine levyed by Tenant at will yeares or Coppy which pretend no Inheritance nor title to it but intend the disherison of the Lord c. should barre them of their inheritance and where the Statute sayth That Fines ought to be of greatest strength to avoyd strife and debate This Feoffement and fine by the Lessee shall be the cause of strife where none was before 2. The Statute doth not intend that those who of themselves without such fraud could not levy a fine to barre those which had the freehold and inheritance should be inabled to levy a fine by making of an estate to another by practise and fraud 3. If doubt be conceived upon an act of Parliament 't is to be construed by the reason of the common Law and that so abhorres fraud and covin that all acts as well judiciall as others and which of themselves are lawfull and just yet being mixt with fraud and deceit are tortious and illegall If a Woman intituled to have Dower which is favoured in Law by covin causes a stranger to disseise the terretenant to the intent to bring Dower against him and recovers accordingly 't is all voyd So if a Feme covert or Infant much favoured in Law of covin causes another to disseise the discontinuee and infeoffe them they are not remitted Sale in Market overt shall not binde if the Vendee had notice that the property was to another or if the Sale be by covin the Law hath ordained the common Bench as a Market overt for assurance of Land by fine for it sayth Finis finem litibus imponit yet covin shall avoyd them A Vacat was made in Banco of a recovery had by covin 33 34. of the Queene adjudged where Tenant for life levyed a fine with Proclamations and five yeares passed and he dyed that the Lessor shall have five yeares after his death for though the Statute saves the right which First shall grow and the right first accrued to the Lessor by the forfeiture yet because the Lessor by covin of the Lessee might be barred for he expected not to enter till after the death of the Lessee 't is no barre and namely when the Lessee hath Land of Inheritance in the same Towne as in this case so 't was agreed in the same case if the Feoffee of the Lessee for life hath Lands in the same Towne and levys a fine c. the Lessor shall have five yeares after the death of the Lessee for he knew not of what land the fine was levyed not being party to the Indenture or agreement c. So the Judges have construed the act against the Letter for Salvation of the Inheritance of him in reversion And 't was said if the Feoffee of a Lessee for yeares who made a feoffement by practise hath Land in the same Ville and levy a fine and the Lessee payes the rent to the Lessor it shall not binde and in the principall case the payment of the rent after the fine makes the fraud apparant for by this the Lessor was secure and not cause of any doubt of fraud But 't was resolved if the Bargainee or Feoffee of A. perceiving that C. hath right levies a fine or takes a fine of a Stranger to the intent to barre C. this fine levyed by consent shall binde for nothing was done in this that was not lawfull and the intent of the act was to avoyd strife So if A. pretending title disseise B. and to the intent to barre the disseissee levies a fine for the desseisor Venit tanquam in arena and 't is not possible but the disseisee had knowledge of it and if he doth not enter 't is his folly But in the case at barre every one will presume that the fine is levyed of his owne Land because that he might lawfully doe and though this conteines more acres then his owne Land this is usuall almost in all fines and the covin of the Lessee is the cause of non-claime of the Lessor and a man shall not take advantage of his owne covin and here the fraud is the more odious because of the great trust viz. Fealty To the objection that it should be mischievous to avoyd fines upon such nude averments 't was answered that it should be a greater mischiefe principally if fines levyed by such covin should binde And an averrment of fraud may be taken by the Statute of 27. of the Queene against a fine leavyed to secret uses by fraud for to deceive Purchasors So by the Statute of 13. of the Queene an averrment may be taken against a fine levyed upon an usurious contract Twynes Case 44. Eliz in Cam. Stel. fo 80. IN an Information per Cooke Atturney Generall against Twyne of Hampshire for contriving and publishing of a fraudulent Deed made of goods The case upon the Statute 13. Eliz. ca. 5. was thus Pierce was indebted unto Twyne in 400. l. and to one C. in 200. l. C. brought an action of Debt against Pierce and hanging the Writ Pierce being possessed of goods and Chattells to the value of 300. l. in secret made a deed of all his goods and Chattells to Twyne in satisfaction of his Debt yet Pierce continued in possession of the same some of them he sold and his Sheepe he marked with his owne marke after C. had judgement a Fier fac to the Sheriff by vertue thereof Bayliffs came to make execution of the goods and divers persons by the commandement of Twyne with force resisted them claiming them to be the goods of Twyne by vertue of the same deed and whether this deed was fraudulent or no was the Question and 't was resolved by Sir Thomas Egerton Keeper of the Great Seale of England and by the chiefe Justices Popham and Anderson and all the Court of Star-chamber that this deed was fraudulent and within the Statute of 13. El. And in this Case divers things were resolved First That this Deed had the markes of fraud it was generall and without exception of his apparell or any thing of necessitie for dolosus versatur in generalibus Secondly The Donor continueth in the possession Thirdly It was made in secret Et dona clandestina semper sunt suspiciosa Fourthly it was made hanging the Writ Fifthly there was trust betweene the parties for
Execution thereupon by Elegit Page 152 153 How long the Conisee shall hold the Land Page 153 Concerning Deeds inrolled and levying of fines of Land the Common Law preferred before the Statute Law the excellency and antiquity of Records Page 154 155 Rent must be demanded at the place limitted although out of the Land before advantage of a condition taken Page 155 Vpon a Lease by the Q it must be paid at the Exchequer ib. By vertue of a Fieri facias the Sheriffe may sell a Lease but the beginning and ending must be expressed Page 156 If the first benefice be of 8. l. per annum upon acceptance of another with cure the Patron must take notice upon 21. H. 8. c. 13. Page 157 Touching Corporations and their Elections and Ordinances ib. The effect of institution and also of induction and of Letters of dispensation Page 158 Touching Covenants and warranties in Law and when broken Page 159 Touching Strangers occupying Lands without notice of the Devisee Page 160 Goods delivered to one to keep or carry and they are purloyned Page 160 161 Estovers appendant to a house by grant or prescription and when destroyed and of suite to the Lords Milne Page 161 162 Touching reteining of Chaplaines by a Countesse within 21. H. 8. c. 13. Page 162 Of Contracts executory and Actions of the case upon Assumpsit and wager of Law Page 163 An ample and exact explanation of 1. E. 6. c. 14. of Chanteries Page 164 165 Touching reteining Chaplaines and dispensations Page 166 167 That the Lessee shall not alien without License and where a condition may be apportioned Page 167 Concerning Exchanges and what the word Excambium imports and of the warranty thereunto annexed and the nature of it Page 168 Arts done by a man Non compos mentis some binde himselfe and some others and how many sorts of them Page 169 THE FIFTH BOOKE A Lease to begin from henceforth and delivered after when it beginneth Page 171 What power the Bishop hath to make Leases by the private act of 1. Eliz. ib. A Lease of a Faire rendring rent is void by 1. Eliz. Page 172 What rent shall be said to be the true and ancient rent ib. Joint words taken severally in six respects Page 173 A Lease to A. during the life of B. and C. how long it lasteth ib. Therein is a difference betweene a limittation and condition Page 174 An Administrator hath judgement and dyes who shall sue execution thereupon ib. By what act an estate at will is determined ib. By exception of Wood the soile is excepted ib. Acceptance of a new Lease is a surrender of the first Page 175 If the Lessee of Lands may dig for Coles ib. A Lease to A. for his life and the life of B. and C. when it endeth ib. No Action of wast for permissive wast Page 176 Where there is a confidence an Action of the Case for negligence ib. Leases made to the Q. by Colledges Deanes c. are restrained by 13. Eliz Page 177 When a Covenant extends to a thing In esse of the demise it shall bind the Assignee otherwise when to a thing not in essence Page 178 If the thing to be done be meerly collaterall the assignee shall not be charged Page 178 Concessi or demisi import a Covenant Page 179 If any Covenantor breake the Covenant all the Covenantees must joine otherwise when severall interests passe Page 180 A diversity betweene a power and an authority ib. The Covenantee himselfe cannot devise the assurance ib. The Counsell must be given to the Purchasor Page 181 An Indenture void without a manuall act of indenting ib. Where a Condition or Covenant once broken may be salved after Page 181 A condition of two parts and both possible and one becometh impossible Page 182 An estate to be made at the costs of the Covenantee the Covenantor must doe the first act i. give notice what assurance he will have ib. The Seale of one Covenantor is broken it is void against him onely Page 182 183 A. is bound to give such a release as by the Judge of c A. must procure him Page 183 Terror of Suite is a damification upon a Counterbond ib. An action for reparations lyeth against the assignee Page 184 What interest is assignable over Page 185 Where an Indenture precedent to declare uses is only directory Page 186 Where an averment may be against a matter in writing Page 187 Cases of Executors Where a release by an Infant Executor is a barre Page 188 An Executor may release before probate but not have an action ib. A judgement for Debt shall be paid before a Statute Page 188 189 Administration during minority ceaseth at 17. yeares of age Page 189 Such an administration may not sell goods but for necessity ib. Where an administration is void and where voidable ib. Where an Executor of his owne wrong may retaine goods Page 190 An action against an Executor or by him where it must be in the Debet and where in the Detinet tantum ib. What retorne the Sheriffe must make upon a Devastavit Page 191 Administrator brings Debt barred because Executor ib. What act maketh a man Executor of his owne wrong ib. Constructions of the Statutes of Jeofails c. Amendment of Records Fines c. In Trespasse the nature of the Fishes must be shewed Page 192 Where a Debt against Baron Feme must be in the Debet Page 193 An ejectment of Lands out of A. B. and C. tried by a visne out of A. onely it is insufficient ib. 23. Jurors are returned and 12. appeare and find for the Plaintiffe it is good ib. Variance betweene the Writ and Count is not aided by 18. Eliz. ib. Five parts of a fine and where the Conisor may assigne Error Page 194 A common recovery not like other assurances more favoured Page 195 A pannell is annexed to the Venire facias without returne not good ib. A difference where a man is misnamed in the Venire and where in the pannell Page 196 Issue joined upon a point not materiall aided by the Statute ib. An amendment good after the transcript removed Page 196 197 Error in the Originall matter of Substance Page 197 A writ of Covenant upon a fine dated after the returne is there amendable but not in other actions ib. A common recovery taken by intendment Page 197 198 Cases of Pardons When a Writ shall be said to be depending Page 198 VVhere an Amerciament is pardoned the Statutes of Jeofailes extend to VVALES Page 199 Debts to the Q are excepted but not Originally due to the Subject ib. VVhere the K. may pardon corporall punishment Page 200 The K. may pardon the Suite in the Court Christian but not costs ib. An Office of intitling but not of Instruction may be under the great Seale Page 201 VVhere the rents are severall and where joint and where the Patentee of part may take advantage of a condition Page 202 A