forfeiture because it is not any 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 To that it was easily to be answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the Reversion by matter of Record although it doth not devest or otherwise prejudice the Inheritance yet it is a forfeiture Coke contrary Here in our Case there is not any Covin Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seised in tail at the time of the Bargain and it was lawfull for him to doe other act in the farther assurance of his bargain and it was also lawfull for him to vouch his Bargainor and although the Bargainor vouched a stranger yet it is not a forfeiture 39 E. 3. 16. Aid prayer of a stranger is a forfeiture and the reason thereof is because he acknowledgeth the Reversion to be in a stranger and that is the cause of the forfeiture See Book of Entries 254. Where upon aid prayer the party to have aid sheweth special matter but in our Case Sir William Pelham hath vouched his Bargainor and that not without cause for he hath a Warranty from him and the Demandant could not counterplead it for he had seisin by force whereof he might make a Feoffment As unto the Case of 14 E. 3. Tit. Receit 135. Lesse for life in a Praecipe against him without aid prayer pleaded to the Enquest at the first day in that case it is said that he in the Reversion may enter It is true that he may enter in the Receit but not into the Land for forfeiture for then Fitz. would have abridged the Case in title of Entry Congeable and not in the Title of Receit and the Book of 5 E. 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 lawfull act done and according to the Covenants of his purchase And although the Recovery be by agreement yet it is not therefore a forfeiture for if the Tenant for life voucheth truly it is no forfeiture Before the Statute of West 2. cap. 3. which gave Receit to the Wife and to those in the Reversion where the particular Tenant is impleaded and maketh default vel reddere noluerit there was no remedy in such cases but by Writ of Right but no entry and that was for the reason of the credit which the Law gave to Recoveries for if they might enter wherefore is Receit given but that was in two cases onely But afterwards because it was found that many particular Tenants being impleaded would plead faintly the Statute of 13 R. 2. gave receit in such cases And upon what reasons were these Acts and Statutes made if in such cases the entry was congeable But after these two Statutes another practice was devised for such particular Tenants would suffer Recoveries secretly in such sort that those in the Reversion could not have notice thereof so as they could not before Iudgement pray to be received to remedy which mischief the Statute of 32 H. 8. was made by which all Recoveries had against Tenant by the Curtesie or otherwise for life or lives by agreement of the parties of any Lands whereof such particular Tenant is seised shall be void as Tenant by the Curtesie c. should be void against him in the Reversion and yet there was an evasion to creep out of that Statute for such particular Tenants would make a Feoffment with Warranty and then the Feoffee should be impleaded in a Writ of Entry and he vouch the Tenant for life who would aver and such Recovery was holden to be out of the Statute of 32 H. 8. For the Recovery was not against such particular Tenants c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it is provided That such Recoveries had where such particular Tenants are vouched shall be void if such Recovery be by Covin betwixt them 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 is found that this Recovery was with their assent and that was lawfull as the case is for they might agree to have such a Recovery for farther 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 he had also a Remainder in tail although not immediately depending upon the Estate for life which he had cut off there it was not meerly a feigned Recovery See 5 E. 4. 2. and 24 H. 8. br Forfeit 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger the same is no Forfeiture for the same doth not disaffirm the Reversion but contrary 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 both the chief Iustices to know their Opinions upon this point 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 conceided that the Right of him in the Remainder was not bound And he said That after the Recovery was executed that he in the remainder could not enter See 24 H. 8. Br. Forfeit 87. For if Entry in such Cases should be lawfull infinite Suits would follow thereupon which would be much to the Discredit of common Recoveries which are now the Common Assurances of the Land. As to the objection of the Enfancy the same will not help the matter Br. Sav. Default 50. 6 H. 8. A Recovery had against an Infant in which he voucheth and loseth is not erroneous contrary of a Recovery upon a default And if an Infant Tenant in tail suffer a common Recovery the same is a discontinuance for in such Recoveries 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 Bendloe's Reports 5 Eliz. Tenant for life the Remainder over to a stranger in Fee Tenant for life is disseised by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who enters into warranty generally and voucheth over the common Vouchee It was adjudged That the Recovery was out of the Statute of 32 H. 8. for the Recovery was not had against the particular Tenant for he
case Tithe shall not be paid but of the other part If the most part of the Wood be Sallows c. and here and there sparsim groweth an Oak c. and the Owner cuts down all the Wood and makes Faggots as before Tithes in such case shall be paid of them CVI. The Queen and Lord Lumley 's Case Trin. 26 Eliz. In the Exchequer Hob. 304. 3 Len. 101. BEtwixt the Queen and the Lord Lumley it was moved in the Exchequer Queen Mary seised of the Rectory of D. granted advocationem Ecclesiae de D. If now by this Grant the Advowson passeth as now disappendant or the Rectory it self passeth as appropriate or nothing at all passeth was the Question And by Manwood chief Baron the Advowson doth not pass but doth remain appropriate as it was before for the Church as it was appropriate by a judicial act so without such an act it cannot be disappropriate And he said That by the Grant of the Advowson the Rectory did not pass for by the Appropriation the Advowson is gone and is not in esse and so by consequence cannot be granted And it is not within the Statute of 4 and 5 Ph. and Ma. of Confirmation of Grants of the King for the said Statute doth onely help misrecital misnaming mistaking c. but here there is no such thing in rerum natura as the Patentee pretendeth to be passed by the Patent and if it were in the case of a Subject nothing would pass Sand's Case as it was adjudged in one Sand's Case 11 Eliz. And he said that at this day a Parsonage may be disappropriated but that ought to be by a judicial act as by Presentment and not by any other private act of the Proprietor Roll. 240. Tit. Appropriat And so he said a Church was disappropriated by the Lord Dyer by Presentment which of late he made unto it CVII Herring and Badlock 's Case Trin. 26 Eliz. In the King 's Bench. 3 Len. 94. A Replevin was brought by Herring against Badlock who avowed for damage-feasant and shewed That the Lady Jerningham was seised of such a Manor whereof the place where c. and Leased the same to the Defendant for years c. The Plaintiff said That long time before King Henry the eighth was seised of the said Manor and that the place where c. is parcel of the said Manor demised and demiseable by Copy c. And that the said King by such a one his Steward demised and granted the said parcel unto the Ancestor of the Plaintiff whose Heir he is by Copy in Fee c. and upon that there was a Demurrer because that by that bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in the bar unto the Avowry ought to have concluded And so was he seised by the Custome until the Avowant praetextu of the said term for years entred And so it was adjudged CVIII Moor and Sir John Savage 's Case Trin. 28 Eliz. In the King 's Bench. IN an Action upon the Case by Moor against Sir John Savage and his Wife for that the said Lady had reported That Moor was a lying Knave and a perjured Knave The Defendant justified That where an Estate for life absolute was devised to the said Lady by her former Husband the Plaintiff had deposed that the said Land was devised to the said Lady if she kept her self sole Postea 102 103. To which the Plaintiff replicando said Of his own wrong without such cause Egerton Solicitor did demur upon it for he said The Plea goeth to all the justification before for where part of a Plea scil the justification is matter of fact and part is matter of Record there Of his own wrong c. is no good Plea but there ought to be a special Traverse absque hoc that he so deposed or absque hoc that the Devise was absolute And this Plea here Of his own wrong c. goes to matters in fact onely and such which lie in the notice of the Iury See 5 H. 7. 6. Although that divers matters are alledged in the bar yet this Plea Of his own wrong without such cause c. extends to all where no matter of Record is alledged in the Plea As in false Imprisonment a Capias is directed to the Sheriff being Defendant to arrest the Plaintiff in such case such general Plea is not good but there he may plead Nul tiel Record See also 13 H. 7. 3. 21 H. 6. 5. And here a principal matter in the justification is matter of Record and therefore such a Plea here is not good Altham contrary If the principal matter in such justification be matter of Record then such a Plea is not sufficient but if the matter of Record be but inducement then the Plea is good enough And he vouched 45 E. 3. 7. In Trespass the Defendant saith That he is Forester of the said Forest of B. and at a Swanmoot it was presented by the Foresters Verderors Regardors and Agistors That the Plaintiff had taken Deer in the said Forest upon which the Defendant came to the Plaintiff and prayed him to find Pledges to answer before Iustices in Eyre c. and he refused so to do for which cause he kept the Plaintiff until he made agreement and demanded Iudgment if any wrong c. and the Plaintiff replicando said Of his own wrong c. and the issue was accepted of by the Court yet he said the Presentment in the Swanmoot was not matter of Record but onely inducement and the Request to find Sureties which he would not for which cause he took and imprisoned him the same was the principal matter and but matter in fact and therefore he said that the Plea was good and he said that in this case the Oath is not on Record And Coke said That in the Cases put by Altham Of his own wrong without such cause is a good Plea with an absque hoc unto the matter of Record See the Book of Entries 320. see 30 H. 8. Action upon the Case 104. without that that he swore modo forma It was adjourned CIX Firrell and the hundred of B 's Case Trin. 28 Eliz. In the Common Pleas. IN an Action upon the Statute of Hue and Cry by Firrell against the Hundred of B. The Defendants pleaded Not guilty and in Evidence the Plaintiff to prove that he was robbed as he had declared offered to the Iury his oath in making good his Declaration which Anderson and Periam Iustices utterly refused But Windham affirmed That such an oath had been accepted in the Case of one Harrinton where the Plaintiff could not have other Evidence to prove his Cause in respect of secrecy For those who have occasion to travel about their business will not acquaint others what money or other things they have with them in their journies And we see that in some causes the
Statute and the penalties thereof And upon a great deliberation it was by them all resolved and agreed That notwithstanding the said Conveyance the said Lands were liable to the said Statute And as to the Iurors who against the Evidence given to them for the Queen gave their Verdict ut supra Process was awarded against them out of the Court of Exchequer for to appear before the Lord Treasurer and the Barons And for their said contempt they were committed to the Fleet and each of them fined 50 l. CLXXVI Moore and Savil 's Case Trin. 27 Eliz. In the Exchequer IN an Ejectione firmae by Moore against Savil the Case was That Tenant in tail leased the Land to the father mother and son for their lives by Indenture in which it was comprehended That forasmuch as the Lessor is but Tenant in tail and so cannot by Law limit these Estates by way of Remainder but jointly in possession and his intent was That because this Lease was procured and obtained at the special suit and costs and charges of the father That the said son should suffer his father and after him his mother to take the profits of the said Lands demised and to occupy and hold the said Lands to their onely profit without interruption of the said son notwithstanding his joint Estate in possession with them Provisum igitur est That if the said son shall challenge claim demand or take any profits of the Lands so demised or enter into the same during the life of his said father or mother That then the Estate to him limited by the said Indenture should cease and be utterly void And it was the clear opinion of the whole Court That this Condition and Proviso was utterly void for it is contrary to the Estate limited before as in the Case cited by Coke at the Bar. If I lease to you my Lands for 20 years Proviso that you shall not occupy the same the two first years the same Proviso is void and contrary and repugnant to the Estate CLXXVII Lord Cromwel and Townsend 's Case Mich. 28 Eliz. In the Star-Chamber HEnry Lord Cromwel exhibited a Bill in the Star-Chamber against Roger Townsend Esquire for that the said Roger Townsend in an Action betwixt James Taverner Plaintiff and James Cromwel Farmor of the said Lord Cromwel Defendant in Trespass in the favour and unlawfull maintenance of the said Taverner did procure a partial Iury to be retorned And upon the hearing of the Cause the matter given in Evidence was That the said Taverner was a Copiholder of the said Lord Cromwel and that the said Lord Cromwel pretending that the said Taverner had forfeited his Copihold caused the said James Cromwel to make an Entry in the right of the said Lord upon the said Taverner upon which Entry Taverner brought an Action of Trespass against the said James Cromwel in which Action the parties were at Issue upon the forfeiture And before any Venire facias issued forth Taverner hearing that one Steward who was Bailiff of the Franchize under the Earl of Arundel and who ought to make the Pannel c. was purposed to have made the said Pannel not duly viz. to retorn therein great Gentlemen of the County who were Lords of Manors in favour of the said Lord Cromwel went unto the said Roger Townsend who was then one of the principal servants and agents of the said Earl and shewed to him that if those great persons and Lords of Manors be retorned for the trial of that Issue peradventure they would not so easily appear for the expedition of the parties as people of lesser 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 where upon a conference with the said Steward for the making of an indifferent Pannel and shewing to him the making of the said Pannel was not convenient or any equal course to retorn Knights Esquires or Lords of Manors but rather such sufficient persons for the greater expedition of Iustice and indifferency of the trial And afterwards the said Taverner exhibited a Petition shewing all the special matter and praying him to give Order for the making of an indifferent Pannel for the trial of that Cause which Petition was delivered to the said Earl by the said Townsend in the name of the said Taverner Vpon which the Earl did refer the said matter to three of his chiefest agents and Counsellours i. Dicksey Townsend and Carrel and delivered to them the Book of Freeholders within the said Franchise who according to their Commission made a Pannel which was retorned and the Iury passed with the said James Cromwel in the right of the said Lord And if this intermedling of Townsend with this matter as abovesaid c. especially his conference with the Bailiff be maintenance or not was the Question And by the Lord Anderson and the Lord Wray chief Iustices It was delivered for Law That because the said Townsend was in manner a servant of the said Earl who had retorn of Writs and one of his principal Counsellours and agents and hearing Ex insinuatione of the said Taverner the misdemeanour of the Bailiff of his Lord could not do better than to shew to the Bailiff his duty for it concerned the honour of his Lord and also his Inheritance in the Franchise But if the said Townsend had been a mere stranger to the said Earl so as no such privity had been betwixt them it had been clearly maintenance in Townsend as it was lately adjudged in this Court in the Case of one Gifford Gifford's Case where the parties being at Issue and a Venire facias was to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to doe in the Cause according to his Conscience and that was adjudged Maintenance And afterwards upon the full hearing of the cause the said Townsend by the sentence of the said Court was acquitted of every Maintenance with great allowance and approbation of many Lords of the Council there present Bromley Cancellario tantum exclamante CLXXVIII Sir Moil Finch 's Case 33 Eliz. In the Exchequer 2 Roll 184. 1 Cro. 220. Poph. 25. 1 Roll 215. THE Case was this The King and Queen Philip and Mary leased for seventy years for certain Rent payable at the Feasts of Saint Michael and the Annunciation Proviso that if the Rent be behind and not paid by the space of forty days after any of the Feasts aforesaid that the Lease shall cease and be void At Mich. 9 Eliz. the Rent was not paid according to the Proviso but a Month after the said forty days it was paid and Acquittance given for it and so the Rents due after unto 30 Eliz. were duly paid and Acquittances given for the same
Covenant performed But if the words had been in consideration of the said Covenant to be performed then he had been bound to pay the money presently and he should have his remedy by Covenant CCLXV. Foster 's Case Trin. 30 Eliz. In the King's-Bench NOTE It was said and holden by the whole Court in this Case That in Debt brought against Executors If the Defendants plead That the Testator was bound in a Recognizance in such a sum beyond which they have not any thing in their hands That it is a good Replication to say That the Recognizance was entred into for performance of Covenants contained in certain Indentures of which Covenants none are yet broken CCLXVI. Partridge 's Case Trin. 30 Eliz. In the King's-Bench A Quo Warranto was brought against Partridge in which Case It was holden by all the Iustices That a man may prescribe to hold a Leet oftener than twice in one year and at other days than are set in the Statute of Magna Charta cap. 35. because the said Statute is in the Affirmative But Popham said That one cannot prescribe against a Statute See for the same Book of Entries 13 E. 3. Leet 12. and he said That the want of a Tunbrel and Pillory is a good cause of forfeiture of the Liberty which Coke denied And it was farther moved by Popham That if a general pardon be granted with general exceptions in it he that will take advantage of the same ought to plead it and shew that he is not any person excepted for otherwise the Iudges cannot allow him the benefit of it because they do not know if he be a person excepted or not But if there were special persons excepted by name and none other excepted but onely those persons there the party needs not to plead it for the Court may discern J. B. from J. D. See 8 E. 3. 7. and 26 H. 8. 7. If a man commits Felony and also Treason and afterwards comes a general pardon for the Felony but Treason is excepted and the party is arraigned of Felony by Coke he shall have the benefit of the pardon but Popham contrary for he is disabled by the Treason And it was agreed by the whole Court That in a Quo Warranto It is not sufficient for the Defendant to say That such a Subject hath lawfull interest to hold a Leet without making Title to himself for the Writ is Quo Warranto he claims c. And afterwards Iudgment was given for the Queen CCLXVII Wiggen and Arscot 's Case Trin. 30 Eliz. In the King's-Bench IN a Prohibition the surmise was That the Exposition of Statutes doth belong unto the Queen's temporal Courts and Arscot had sued in the spiritual Court for Tithes whereas in truth for not reading of the Articles according to the Statute of 13 Eliz. he was deprived ipso facto and so he was not Parson for which cause Gawdy prayed a Prohibition for he said that the surmise was good and sufficient For the Question is Parson or not Parson and that shall be tried here by the Common Law. And I do not know that it hath ever been ruled here to the contrary before Clench Iustice It hath not been ruled to the contrary yet because great inconvenience may arise upon the admitting of it The Court hath taken order That no Prohibition shall be granted upon such a surmise without great probability of the truth of the surmise Where a Prohibition is awarded upon such a surmise the party needs not to prove his surmise according to the Statute of 2 E. 6. cap. 13. for this surmise is conceived upon a cause of later time since the said Statute and was not any cause to have a Prohibition at the time of the said Statute CCLXVIII Winter and Loveday 's Case Trin. 31 Eliz. In the King's-Bench Rot. 759. IN an Action of Covenant by Winter against Loveday It was found by special Verdict That Winter by Deed indented Mortgaged to Loveday a certain Lease upon condition to pay 400 l. to Loveday at a day certain at the porch of such a Church and upon such payment Winter to have back his Lease and Loveday covenanted That upon repayment of the money he should have back all his Evidences concerning the same and it was farther found That at the day of payment one Cornwallys sent unto Loveday to know if Loveday would receive the money which Winter owed to him at his house who answered that he was content and he came there and the money was told and delivered in bags to Loveday but afterwards some contention did arise between Winter and Loveday for certain Writings for which cause Cornwallys said That if they would not agree betwixt them That they should not have his money Whereupon Winter requested Cornwallis that he might have the money to carry to the said porch of the said Parish Church who was contented and there Loveday came to receive it and Winter would not pay it Tanfield moved That the same was a good payment to discharge the Mortgage for the money was told in the house of Cornwallis and Loveday there put it up into bags and the same is a good payment and receit Coke contrary Here is not any payment for it was not the money of Winter but of Cornwallis as appeareth by the words of Cornwallis scil If they could not agree they should not have his money Also Winter requested Cornwallis that he might have the money to carry to the porch of the Parish Church aforesaid by which it appeareth that it was not Winter's money And for that cause it was also the opinion of the Court that the same was not any sufficient tender See for this 1 Len. 34 35. the Case of Watkins and Astwick Hil. 28 Eliz. CCLXIX Ordway and Parrot 's Case Trin. 30 Eliz. In the King's-Bench ORdway brought a Scire facias against Parrot and Hallsey who were Bail in a Bill of Debt for one Bennet and they pleaded That the said Bennet had payed the money recovered to the Plaintiff according to the condition of the Recognizance and it was the opinion of the whole Court that it was no Plea without alledging payment upon Record for if this should be suffered every man should be inforced twice to trie his Action wherefore the Plea was disallowed CCLXX. Coniers and Holland 's Case Trin. 30 Eliz. In the King's-Bench 3 Cro. 279. 2 Cro. 483. 620. IN an Action upon the Case upon Assumpsit by Coniers against Holland The Defendant pleaded That after the promise that the Plaintiff had discharged him of it And by Wray chief Iustice It is a good Plea and so it hath been often ruled and it was late the Case of the Lord chief Baron against whom in such an Action such a Plea was pleaded and he moved us to declare our opinions in Serjeant's-Inn and there by the greater opinion it was holden to be a good Plea for which cause The Court said to Buckley who
was but Tenant in Law because Vouchee and also that the Recovery was a good bar to him in the remainder notwithstanding that he was within age at the time of the Recovery And afterwards at another day the Case was argued by the Barons and Clark Baron conceived That the Entry of him in the remainder was congeable It hath been said That Sir William Pelham did not know that the Bargainor had an Estate but for his life or that any other person had any remainder therein the same is not to any purpose to excuse him for 42 E. 3. Every Purchasor ought at his own peril take notice of the Estates and charges which are upon the Lands of which he is Purchasor and the Law presumes that none will purchase Lands without advice of Councel and without knowing the Titles to the Lands And although divers Statutes have been made to provide against the practices of particular Tenants yet it is no argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the mere right it is a forfeiture And he held strongly That the Iudgment did not take away the Entry cause of forfeiture being given before the Iudgment See 5 Ass 3. and 22 Ass 31. to that purpose For where Tenant for life is impleaded he ought to attend upon him in the reversion and to expect instructions from him in defence of his Title c. And therefore if he maketh default or confesseth Action the same is a forfeiture And as to the supposed recompence the same shall not help this Case for this is a common recovery and nothing else but an Assurance And Recoverors they are but Assignees and they shall take advantage of Conditions by 32 H. 8. and a Recoveror shall be seised to the use of him who suffereth the Recovery if no other use be expressed And he also held That when Tenant for life bargains and sells his Lands by Deed enrolled although no Fee passeth yet it is a forfeiture and that by reason of the Enrolment which is matter of Record And he said that if an Infant Tenant for life be disseised and the Disseisor dieth and afterwards the Infant dieth that he in the Remainder might enter Gent Baron argued to the same intent and he said That if Tenant for life suffereth a Recovery the same is not simply a forfeiture for he may have a warranty upon a Release or Confirmation made to him Attornment doth not give a Right but is onely a Consent yet if he who hath not any thing in the Reversion will levy a Fine thereof unto another and afterwards the Conusee brings a Quod juris clamat against the Tenant of the Land and he attorn it is a Forfeiture Manwood Baron to the same intent this is a new Case and I have not seen nor read the Case in any Book nor seen any presidents and it is a great case and a general case and worthy to be argued And I conceive clearly That here is a direct and express forfeiture the Dignity of Iudgments in reputation of Law hath been urged which ought to stand in force until they be reversed by Error or Attaint And also Littleton 481. hath been urged where upon the Statute of West 3. he saith That before the Statute aforesaid if a Lease had been made to one for life the remainder to a stranger and afterwards a stranger by faint Action hath recovered against Tenant for life by default and afterwards the Tenant for life died he in the Remainder had not any remedy But there Littleton doth not report the same as his own Opinion but as an Opinion conceived by a Reader upon the said Statute and in truth it is but a meer conceit And as to the main point he took this difference Such Recoveries in which the title of the Demandant stands indifferent to the Court and non constat if it be good or not being suffered by Tenant for life by default or confession without aid-prayer of him in the Reversion do not make any forfeiture although that the Tenant for life hath not dealt with him in the Reversion not having prayed in aid of him And in such case if a Lease be made for life the Remainder over in Fee upon such Recovery he in the remainder shall have a Formedon in the remainder or a Writ of Right and shall not put out him who recovered without any Action and that by the common Law. Then came the Statute of West 2. c. 3. which gave unto the Wife a Gui in vita upon a Recovery had against the Husband by default where before she had not any remedy but onely Writ of Right and notwithstanding si ulterius quaeratur si necesse habet ostendere jus suum secundum formam brevis quod prius impetraverat And if his Right be not better than the right of him in the Reversion he shall lose it notwithstanding the Iudgment given before for him and that Statute gave Receipt or Writ of Entry ad terminum qui praeteriit and that Statute is to be intended of such Recoveries where a good Title or indifferent is so as non Constat Curiae if it be good or not After that Tenant for life was driven unto a new shift and would not make default or lose for not pleading but he would plead but that faintly for the remedy of which mischief the Statute of 13 R. 2. which gave Receipt in such case the particular Tenant being restrained by this Statute he jugled yet and practised to suffer a Recovery secretly without notice of him in the Reversion for the remedying of which mischief the Statute of 32 H. 8. was made and that makes such Recovery had against such a particular Tenant void against him the Reversion It hath been objected That the said Statute of 32 H. 8. did not give any forfeiture in this case but makes the Recovery void and therefore he in the Reversion ought to stay until after the death of the particular Tenant To that I shall speak after But here our case is of a common Recovery and it doth appear to the Court that the Demandant hath not right for the Tenant might have barred him Also this Recovery is not to the use of the Recoveror but to the use of him who was Tenant in it and in truth it is nothing else but an assurance and in these feigned Recoveries the Recoveror comes in under the Title of the Tenant to it and not paramount as in case of a Recovery upon a good Title A Lease for years made by him who after suffers a Recovery is good and shall not be defeated by the Recovery otherwise it is where the Recovery is upon a good Title See Statute of Glocest cap. 11. where upon default of the Tenant Receipt is given for Lessee for years yet if the Tenant vouch upon default of the Vouchee the Lessee for years shall be received and now Receipt of Lessee for
were parcel of the Crown But of Lands in Wales it was otherwise before the Statute of 27 H. 8. by which Wales is united to the Crown And although that the Capias erronice Emanavit the same is but erroneous and so voidable and not void for Error may be as well assigned in the Executione judicii as in redditione judicii 16 H. 7. 6. Outlawry without an Original Writ is not void but voidable 2 R. 2. and the reason thereof is given 11 H. 7. in Collins's Case but they are Iudges of the cause although that their proceedings be not according to Law. But the Sheriff or any other stranger shall not take advantage thereof See 8 E. 4. 21 E. 4. and he cited to this purpose 13 E. 3. Barre 253. The Iailor shall not take advantage of undue proceedings of the Auditors against an Accomptant and he insisted much upon the Vsage and Precedents and customs of Courts which are Laws in such cases And although that by strict and precise rule of Law a Capias doth not lie naturally nor properly upon a Recognizance where the suit begins by Scire facias yet because the usual practice and common experience hath allowed of it and admitted thereof from time to time It is safer to suffer a mischief to one than an inconvenience to many And although the Proverb Exempla illustrant non docent aut probant may hold place in some arts and Sciences yet in our Law Examples are good arguments 11 E. 4. 3. In the King's Bench a man in custodia Marischalli shall be put to answer a Bill but in the Common-Bench a man who is in the custody of the Guardian of the Fleet shall not be put to answer to a Bill and that is by reason of the several usages and customs in the said several Courts so as custome and usage makes a Law in such case 39 H. 6. 30. in a Writ of Mesne The Iudges were clear of opinion That the Plaintiff ought not onely to shew the Tenure betwixt him and the Tenant Peravail but also betwixt the Mesne and the Lord Paramount yet when they had conferred with the Prothonotaries and saw the Precedents of former times in such cases They would not change the former courses notwithstanding that their opinions were to the contrary So 2 H. 7. 8. The Venire facias is 12 liberos legales homines and the Sheriff retorned 24 and holden good by reason of the usual course of the Court in such cases and yet in our Law the number of persons is not material which see in the Earl of Leicester's Case 15 H. 8. but custome dispenseth with the same Atkinson argued the contrary At the Common Law for Execution in Debt within the year a Levari facias and a Fieri facias lay after the year the party was put to a new Original and there was no Capias at the Common Law but in cases of contempt force or other notable misdemeanour untill the Statute of 25 E. 3. cap. 17. which gave it in Debt Detinue c. And the Statute of West 2. cap. 18. gave Fieri Facias and Elegit but no Capias was given upon a Recognizance by any Statute and he relied much upon the Book of 48 E. 3. before cited the rule of which Book is That in a Scire facias upon an Original in which a Capias lieth the Scire facias shall follow the nature of the Original upon which it is founded but where a Capias ad respondendum doth not lie there not a Capias ad satisfaciendum 34 H. 6. 451. In Debt against Executors they appear and plead fully administred and it is found against them and Iudgment is given for the Plaintiff who after the year sueth a Scire facias against the Executors and Execution awarded by default and thereupon a Capias and Exigent And that matter being shewed to the Court a Supersedeas was granted because the Capias improvide erronice emanavit for no Capias lieth against Executors where they plead c. although it be found against them Ergo neither a Scire facias grounded thereupon And although the Stat. of 25 E. 3. gives a Capias in Debt yet if Debt be recovered in a Justicies a Capias doth not lie by the Equity of the said Statute and he relied very strongly upon Puttenham's Case 13 Eliz. cited before And as to that which hath been said That notwithstanding that the Capias was against the Law and so his imprisonment by colour thereof wrongfully yet de facto he was in Prison and the Sheriff hath taken him and he shall excuse himself in a false imprisonment brought yet I say That this erroneous Process appearing to you you will not again err by allowing these erroneous proceedings but rather reform them For the Sheriff himself who is a stranger to the Record cannot have Error to reverse these proceedings and so without remedy unless the Court doth relieve him therein And he said farther That this Capias Posito quod legitime emanavit cannot fasten or work upon Francis Woodhouse being imprisoned and convict of Felony for being imprisoned and restrained of his liberty how can he his restraint continuing be de novo restrained before that he be enlarged and restored to his liverty Nam omnis privatio praesupponit habitum and Ergo imprisonment liberty precedent And so he concluded That Francis Woodhouse Neque de facto nor de jure was in prison and that no Capias lieth in the Case especially after the year as here it was and the party being convict and in prison cannot be taken c. Manwood If within the year a Levari facias or a Fieri facias be sued forth and be retorned not served or that Vicecomes non misit Breve and so the year passeth in the default of the Sheriff yet the Plaintiff shall not be put to a Scire facias At another day it was argued by Tanfield for the Defendant That upon this Scire facias no Capias lieth and then no lawfull Execution and then no escape Where there is no Capias in the Original there is no Capias in the Execution but here in our Case there is not any Original because it is a Scire facias upon a Recovery Ergo no Capias can be where there is not any Original As to that which hath been said That the ancient Presidents and course in Cancel is against us be it so yet the course in the King's Bench and Common Pleas is with us That a Capias doth not lie in such case of Scire facias And the Chancery as to the Common Law ought not to vary from these Courts for one and the same Common Law ought to be in all the said Courts of things of the Common Law and the Presidents alledged of the other side are silent and sleeping proceedings and presidents Slips of Clarks which were never drawn into question the ancientest of which was hatcht but in the later part of
them away and that he had offered that matter by way of Plea in the Spiritual Court but they there would not allow of it And the Court was clear of opinion That the suggestion was good for if the Parishioner setteth out his Tythes and the Parson will not take them or if they be destroyed by Cattel by his Laches he shall not have Tythes again and therefore if the Ecclesiastical Court will not allow that Plea it is reason that the party have a Prohibition for after severance transit decima in Catalla But it was said by the Court That if the Parishioner doth set forth his Tythes and takes them again he may be sued for Tythes in the Spiritual Court and the setting forth shall not excuse him CXXV Walter against Pery and Springe Mich. 32 Eliz. In the King's-Bench WAlter brought a Scire facias against Pery and Springe Sureties for one Brook upon Bail in an Action of Debt The Defendants pleaded the death of Brook before Iudgment given against him And all the Iustices except Wray held that the Plea was not good for it is a surmise against the Iudgment for Iudgment cannot be given against a dead man. Wray The same is Error in fact and of such Error the party may have advantage in this Court. Gawdy The Surety cannot take advantage of Error nor plead it for he is a stranger to the Record Wray He may plead that the Defendant is dead after the Iudgment quod fuit concessum but it was ruled That the Defendants should be sworn that their Plea was true CXXVI Aldersley and Duparrie 's Case Mich. 32 Eliz. In the King's-Bench IN Debt upon an Obligation bearing date 4. Julii 30 Eliz. The Defendant pleaded that it was endorsed with condition to pay 50 li. before 15 Octob. 31 Eliz. and pleaded that he had paid it before the 15. of Octob. aforesaid scil the ninth of June 30. Eliz. which is three Weeks before the date of the Obligation upon which the Action is brought And they were at Issue That the Defendant Non solvit before 15 Octob c. And the Iury have found That the Defendant had not paid it before 15 Octob. and that matter was assigned for Error for that Plea is contrary and repugnant in it self to alledg the payment before the date of the Obligation But it was moved That here the day of payment is not material and but matter of surplusage for the Issue is Whether the Defendant paid the money before the 15. day of October and the Iury have found the negative so as the day in the Scilicet is not material and the alledging of that is matter of surplusage As 20 H. 6. 15. Trespass Quare clausum fregit herbam consumpsit continuand transgress from such a day usque ad diem impetrationis brevis praedict Scilicet 14 F. 17 H. 6. whereas the date of the Writ fuit 12. Octob. 17 H. 6. scil the October before February But it was not allowed for the day of the Writ brought is certain enough and the mistaking in the Scilicet is not to any purpose Wray Payment before the day is not a good Plea if he doth not shew the day and place It was adjourned CXXVII Parker and Burton 's Case Trin. 31 Eliz. In the King's-Bench IN an Action upon the Case for slanderous words scil That the Plaintiff was perjured The Defendant doth justifie That whereas a suit was prosecuted in the Exchequer-Chamber at Westminster betwixt the Defendant and another and from thence a Commission was awarded out of the said Court to divers persons to examine certain Witnesses at B. in Berk. and there by virtue of the said Commission the Plaintiff was deposed false deposuit praetextu cujus he spake the said words Antea 811. The Plaintiff replicando saith De injuria sua propria absque tali causa upon which Issue was joined and tried in Berk. and found for the Plaintiff And it was moved by Coke in Arrest of Iudgment That the said Issue ought not to be tried in Berks onely but by both Counties Mid. and Berks for all the matter of justification doth arise out of both Counties the Suit and the Commission which was in Midd. and the Execution of the Commission and the Oath which were in Berks all which matters is but one Case as 2 H. 7. 3. and 4. Atkinson The Trial is well for the manner for the matter of the justification is the Perjury and the Suit and Commission are but induction and conveyance to the Action Also the Defendant hath not shewed that the Exchequer-Chamber is in the County of Midd. as he ought As where a man pleads a thing done in any Court except in the Common-Pleas he ought to shew in what County the said Court was at the time that such thing was done for Communia Placita teneantur in loco certo Gawdy and Wray When the Defendant doth justifie by reason of the Perjury and the Plaintiff replies without such cause the same amounts to as much as if he had traversed the Perjury which being supposed to be committed there shall be tryed there Coke It was the Case of one Loveday 25 Eliz. In an Action upon the Case for slanderous words the Defendant did justifie by reason of a Robbery committed by the Plaintiff in another County and the Plaintiff pleaded De son tort demesne sans tiel Cause the same shall be tryed by both Counties See 2 H. 7. 3. Also it was moved that here it is not shewed in what County the Exchequer Chamber is Admit that it be in Berks yet it ought to be tryed by both Counties and that was Chelderlie's Case And although it be not shewed in what County the Exchequer Chamber is the Plaintiff had Iudgment to recover and the Tryal was held good enough CXXVIII Sir Tho. Bacon 's Case Hill. 31 Eliz. In the King 's Bench. A Writ was awarded out of the Court of Admiralty against Sir Thomas Bacon and Sir Thomas Heyden to shew cause whereas the Earl of Lincoln late High Admiral of England had granted to them by Letters Patents to be Vice-Admirals in the Counties of Norfolk and Suffolk why the said Letters Patents ought not to be repealed and adnulled and so the said Writ was in the nature of a Scire facias And now it was made by Coke Postea 114. That although the Admiral had but an Estate for life yet the Patents did continue in force after his death As the Iustices here in the Common Pleas although they have their places but for life yet they may grant Offices which shall be in force after their deaths c. And because this matter is determinable at the common Law he prayed a Prohibition for in the Admiral Court they will judge according to the Civil Law and the Court gave day unto the other side to shew cause unto the contrary or otherwise a Prohibition should be awarded CXXIX Weshbourn and Mordant
therefore by Devise the Fee-simple shall pass without the word Heirs And he said that the opinion of Wray chief Iustice was in the Case of the Dean of Pauls If I devise that my Executors shall assign my Lands to J. S. the same implicative is a Devise of the Lands themselves to my Executors for otherwise they could not assign So if I will and devise That A. shall pay yearly out of my Manour of D. to J. S. 10 l. the same is a good Devise of the Lands to A. So if in the Case at Bar this house had been devised to the Cordwaynors by the name of the Society of Cordwaynors such Devise had been good enough Cooper contrary and he said That the intent of the Devisor ought to agree with the Law otherwise the Iudges are not to regard it in point of Iudgment and he put the Case of 39 H. 6. 10. 1 Rolls 616. A. deviseth his Lands and afterwards is disseised and before any entry dieth now notwithstanding the intent of the Devisor the Devise is void and he said The defect of a Will in words in making of an Estate shall be supplied by intent but the defect in words in naming of the Devisor or Devisee shall never be supplied See 49 E. 3. 3. 4. the Case of Whitavers And he cited a Case 25 H. 8. A stranger of the Low-countries being made a Denizen in England returned into his Countrey and dwelling there became sick and in making of his Will he was advised by Council that by Devise of all his goods his lands deviseable would pass and therefore by such words he declared his Will with the intention aforesaid scil to pass his Lands and died and afterwards the States of the Low-countries wrote unto King Henry the 8. acquainting him with the intention of the Devisor and also of the opinion of their Laws there upon the said Will and all in favour of the Devisee whereupon the King referred the consideration of the matter to Norwick then Lord chief Iustice who declared his opinion to the King to be That by that Devise the Lands did not pass notwithstanding the intent of the Devisor CXCIX Crabdell 's Case Pasch 26 Eliz. In the King's-Bench CRabdell was bound by Recognizance to his good behaviour upon which the Queen brought a Scire facias and surmised that after the Recognizance acknowledged the said Crabdell was arrested and taken by the Constable for suspicion of Felony and of his own wrong escaped It was objected on the part of Crabdell because it is not alledged by matter in fact that a Felony was committed But the whole Court was of a contrary opinion For it is not material if the Felony were committed or not for if a Subject be arrested by a lawfull Officer it is not lawfull for him to escape but he ought to stand to the Law and to answer unto the matter with which he is charged And so Crabdell was forced to answer CC. Basset and Prowe 's Case Pasch 26 Eliz. In the King's-Bench IN Debt upon a Bond the Case was That Basset was bound with Prowe as his surety to one Preston in a Bond of 500 l. and that was upon a corrupt and usurious contract against the Statute and Prowe was bound unto the Plaintiff in a Bond as a counter-bond to save the Plaintiff harmless from the said Bond of 500 l. Basset is sued by Preston upon the said Bond and so damnified and thereupon sued Prowe upon the counter-bond 1 Cro. 588 642 643. 3 Len. 63. Goldsb 174. who pleaded against Basset the Statute of Vsury pretending that all assurances depending upon such usurious contract as void by the Statute but by the opinion of Wray chief Iustice the same is no Plea for the Statute is That all Bonds collateral assurances made for the payment of Money lent upon usury shall be utterly void But the Bond here upon which the Action is brought was not for the payment of the Money lent but for the indempnity of the surety CCI. The Vicountess Bindon 's Case Pasch 26 Eliz. In the Exchequer More 213. 1 Cro. 250 251 252. THE Executors of Thomas late Viscount Bindon brought Detinue in the Exchequer against the Widow of the said Viscount and declared upon the detainer of certain Iewels The Defendant did justifie the detainer of them as her Parophornalia And it was said by Manwood chief Baron That Parophorn ought to be allowed unto a Widow having regard unto her degree and here the Husband of the Defendant being a Viscount 500 Marks is a good allowance for such matter CCII. Offley and Johnson 's Case Pasch 26 Eliz. In the King's-Bench More 136. OFfley and Johnson were bound as sureties with one A. to B. who recovered against Johnson in London and had Execution against him and now Johnson sued Offley to have of him contribution to the said Execution ut uterque eorum oneretur pro rata according to the custome of London Offley removed the cause by privilege into the King's-Bench whereupon came Johnson and prayed a Procedendo and because upon this matter no Action lieth by the course of the Common Law but onely by custome in such cities The cause was remanded Hob. 264. More 135. 3 Len. 148. for otherwise the Plaintiff should be without remedy See the Book of Entries 160. CCIII Litchfield and Cage 's Case Pasch 26 Eliz. In the King 's Bench. IN an Ejectione firmae the parties were at issue 3 Len. 100. and by the order of the Court the Trial was stayed and yet the Plaintiff against the Order did privily obtain a Nisi prius of which Gawdy Iustice being informed of it after the Term awarded a Supersedeas unto the Iustices of Assise before whom c. and yet notwithstanding that the Enquest at the instance of the Plaintiff was taken and found for the Plaintiff and all this matter was shewed to the Court in the King's-Bench and there examined and proved and it was ordered by the Court that the Verdict should not be entred of Record nor any Iudgment upon it And so it was put in ure in a Case between Vernon and Fowler And then the Plaintiffs Council took exception to the Supersedeas because it was not subscribed with the hand of Gawdy but non allocatur for the Seal is sufficient CCIV. Scott 's Case Pasch 26 Eliz. In the King 's Bench. WIlliam Scott was indicted upon the Statute of 23 Eliz. of Recusants by the name of William Scott of Southwark Gent. and upon that Indictment Iudgment given for the Queen upon which Scott brought a Writ of Error and assigned for Error That in the Indictment Scott is not named of any Parish but generally of Southwark for within Southward there are divers Parishes and by the said Statute it is ordained that the penalties accruing by the said Statute ought to be divided in three parts whereof one part is to be applied to the
engrossed because that now the Divorce is avoided for Henry in his second marriage hath issue therefore there is no perpetua frigiditas c. but at the last it was engrossed because the sentence of the Divorce doth continue in its force and then Humphrey born in the second marriage is the first son of Henry lawfully begotten and so capable of the use to him limited upon the Feoffment of Henry 22 E. 4 Fitz. Consultation 51. by Catesby where my father and mother are divorced without lawfull cause and afterwards they marry themselves elsewhere and die the said Divorce as long as it is in force shall bind me in point of inheritance and I cannot have an Action as heir c. during the Divorce is in force For the Divorce being a spiritual Iudgment shall not be reformed but in the spiritual Court and therefore this sentence of Divorce Causa perpetuae frigiditatis as long as it is in force not repealed or reversed shall bind all persons But in some cases such a Divorce shall not disable the party to sue as if a man bringeth an Action De muliere abducta cum bonis viri where after the trespass committed the husband and wife are divorced yet the Action lieth for this Action is not in the right but in possession onely and in such Action Never accoupled in legal Matrimony is not any plea but the Defendant ought to answer to the possession Not his wife for although they are divorced yet the Action lieth and if Iudgment is given in the spiritual Courts the Courts of the King shall receive and admit of them as long as they are in their force The Abbat of Fountain's Case 9 H. 6. 32. the custome of the Abby was That at every vacation of the Abbat the Monks should proceed to a new Election and that he who should be chosen by the greater number of the Monks should be Abbat and the Case was That upon such avoidance one A. was elected by the greater number of voices scil 22 Monks And B. was chosen by the lesser number scil 20 Monks but notwithstanding that B. entred and carried himself as Abbat by the Institution of the Visitor and made a Deed by consent of the Covent and died it was holden That the said Deed should bind the House for here is a spiritual Act scil the Institution of the Visitor which being in force shall bind us and our Law 34 H. 6. 38. upon contention betwixt two Patrons claiming the presentment unto a Church the Bishop awarded jure Patronatus which found for one of them upon which the Bishop admitted the Clerk of him for whom it was found by the jure Patronatus and afterwards the other party brought a Quare impedit and it was found for him Now this judicial Act done by the Bishop shall excuse the Bishop from any disturbance Fenner Serjeant contrary Although that the sentence of this Divorce be set down in peremptory and final terms as matrimonium cassum irritum nullum yet our Law shall respect the cause and ground of it scil Perpetua frigiditas c. and now it appeareth by the success of the second marriage scil the issue Humphrey that the cause and matter upon which the Divorce was grounded c. was an offence of the time and not of nature for he is now recovered and in as much as the Church hath erred in the sentence of this divorce which error is now apparent this Court shall adjudge according to the truth of the matter as the spiritual Law ought to have adjudged and not as they have adjudged And he cited Fox's Case 16 Eliz. The said Fox being Parson of a Church was deprived in the Parliament time for incontinency and by the same Parliament all incontinencies were pardoned Now upon the matter we are to adjudge this deprivation meerly void without any other spiritual act At another day the Case was argued by Walmsley Serjeant That the sentence definitive of the spiritual Court in cause of divorce causa frigiditatis should stand and he argued much in what manner the Law of the Church and the Law of the Law should determine marriage and he argued that the right of marriage was determinable by the spiritual Law and he said that such sentences ought to be passed by our Law and taken notice of and therefore he who pleads a Divorce ought to shew before what Iudge the Divorce is had to the intent the Iudges may know to what persons they shall write for the trial of it and it appears in our books That our Law takes upon it the Conusance of the competency of an Ecclesiastical Iudge which see 2 E. 4. 15 and 16. The Iudges of the temporal Courts of the King have determined That the Pope is not a competent Iudge within this Realm and it is true the Common Law doth yeild unto the Law of the Church the trial and determination of the right of marriage but the trial of the possession of the marriage retains to it self As if an Infant marrieth within the age of consent and afterwards at full age of consent doth disagree now the common Law shall determine that the same is not any marriage So 11 H. 4. 167. The temporal Court shall adjudge upon marriage in fact and in possession but if the party will plead 1 Len. 53 181. 3 Len. 129. That they were never accoupled in lawfull matrimony a Writ shall go unto the Bishop to certifie the same and in trespass De muliere abducta cum bonis viri and in Cui in vita c. this issue not his Wife is to be tried by the temporal Court of the King for the right of the marriage is not in question but it is sufficient if it were a marriage in fact and in possession See 44 Ass 12. 13. and see 21 H. 7. 39. The temporal Court shall determine of the marriage if void or voidable A Deacon marrieth a Wife that marriage is not void so of a Priest but if a man marrieth a Nun the marriage is void But in our Case here is a sentence definitive in a cause of Divorce in which Case it doth not belong to us to examine the cause but be the Divorce right or wrong it shall stand c. 10 E. 3. Bar. 296. Nisi sit quoad thor tantum vel causa castitatis And see by Shelley 28 H. 8. 13. If they of the spiritual Court give Iudgment in any cause be it true or false untill it be defeated or reversed it shall bind all the world See 22 E. 4. Fitz. Consultation 5. Corbet's Case 4 H. 7. 14. by Oxenbridge 18 E. 4. 30. by Chock and 9 E. 4. 24. He who pleads a Divorce ought to shew before what Iudge the Divorce was had but that is not to examine the matter but to know to what person the Court shall write for the trial of it It is true that in case of Resignation and Deprivation but in case
Statute and it was moved If it should not be a good Indictment for the assault so as he might be fined for it and by Sands Clerk of the Crown and the whole Court The Indictment is void for the whole for the conclusion of the Indictment is contra formam Statuti and there the Iury cannot enquire at the Common Law. CCXXXV Mead and Cheney 's Case Mich. 32 Eliz. In the King's-Bench MEad brought an Action of Debt upon a Bond against Cheney Executor of one Skipwith and recovered and upon a Fieri facias the Sheriff did retorn Devastavit and it was moved to have an Elegit and the Iustices would advise of it and afterwards at another day a Precedent was shewed to the Court of 17 Eliz. and thereupon the Elegit was granted CCXXXVI Tompson and Trafford 's Case Trin. 32 Eliz. In the King's-Bench Rot. 910. Poph. 8 9. IN an Ejectione firmae the Case was That the Warden and Fellows of New College in Oxford 8 Eliz. leased a Mansion house in the Burrough of Southwark to one Standish for 21 years and afterwards 25 Octob. 21 Eliz. they demised the same Mansion house to the said Standish for 21 years to commence the Michaelmas after And the Stat. of 14 Eliz. cap. 11. and 18 Eliz. cap. 11. were also found And if this second Lease shall be said a Lease in Reversion and so be void by the Statute of 14 Eliz. was the Question Foster moved That it is a Lease in Reversion for the first Lease doth continue untill Michaelmas and so was the opinion of the Iustices of Assise at the trial Towse contrary For when Standish accepteth the second Lease the same is presently a surrender of the former Lease for he giveth power unto the Lessor for to contract for the house presently and to that purpose he cited Corbet's Case 8 Eliz. Coke It is a surrender presently for you cannot apportion the Term. It was adjourned CCXXXVII Wood and Avery 's Case Mich. 32 Eliz. In the King's-Bench DEBT upon a Bond by Wood against Avery the Condition was That where the Plaintiff had demised to the Defendant for term of years two Messuages c. If the Defendant at all times during the term shall maintain sustain and repair the said two Messuages with good and sufficient reparations that then c. And the Defendant pleaded That he had performed the Conditions in all but as to one Kitchin which was so ruinous at the time of the Demise that he could not maintain or repair and therefore he took it down and rebuilt it again in so short a time as he could possible in the same place so large and so sufficient in breadth length and heighth as the other Kitchin was and that the said Kitchin all times after the re-edifying of it he had sustained and maintained and well repaired and demanded Iudgment c. upon which Plea the Plaintiff did demurr in Law and by the Court the Plea were a good Plea if it were in an Action of Waste but here where he hath by his own Act tied himself to an inconvenience he ought at his perill to provide for it And here it was said That if the Condition be impossible the Bond is single contrary where a man is charged by an Act in Law. CCXXXVIII Bostwick and Bostwick 's Case Mich. 32 Eliz. In the Common-Pleas DOrothy Bostwick brought Dower against Bostwick an Infant Ante 59. and the Case was That the Husband of the Demandant was seised of certain Lands holden by Knight's-service of M. C. and by his last Will devised two parts of the Premisses to his Executors during the non-age of his heir and died his heir within age after whose death M. C. entred into the third part descended as Guardian in Knight's-service and the Executors into the other two parts upon which the Demandant brought one Writ of Dower against the Guardian to be endowed of the third part and another Writ of Dower against the heir within age in whom the Freehold of the two parts was The heir appearing by Attorney pleaded to issue which was found for the Demandant but the Iudgment was afterwards reversed because the heir being within age did not appear by Guardian but by Attorney for which cause she again brought a Writ of Dower against the heir and the Sheriff did retorn him summoned but the heir made default for which cause the Court was moved in the behalf of the Demandant to have the aid of the Court in this Case for if upon default of the Tenant a Grand Cape should issue forth and so a Recovery by default should follow the same would be Error which see 6 H. 8. Br. Liver Defaul 50. And therefore it was prayed that some person be appointed Guardian to the heir who may appear and plead for him for otherwise the Demandant is at great mischief for the Guardian now will not suffer the heir to appear in person And if the Widow now Demandant should stay for her Dower untill the heir should come of full age it would be a great mischief But by Walmesley Periam and Windham We cannot appoint a Guardian to the heir for his appearance here unless the heir be here in person in Court before us and he was appointed to be brought in person into Court. CCXXXIX Sir Anthony Denny 's Case Mich. 32 Eliz. In the Common-Pleas SIR Anthony Denny seised in Fee of the Manor of Chessam extending into Chessam and in the Town of Hertford and also of other Lands in Hertford by his last Will devised the Manor of Chessam to Henry Denny his son and heir in tail and his Lands in Hertford to Edward Denny his younger son c. It was holden by Walmsley Periam and Windham absent Anderson That the younger son should have that part of the Manor of Chessam which lieth in the Town of Hertford Another point in the Case was That upon the death of Sir Anthony and Office was found without any mention of this Devise for which cause the Queen seised and leased all the Lands so devised to a stranger during the minority of the heir The heir comes of full age and hath Livery of the whole and without any express entry leaseth the Lands for years rendring Rent the Lessee entreth and payeth the Rent to the heir the heir dieth the Lessee assigns over his term and the Rent is yearly paid to the right heir of Sir Anthony And how Edward Denny entred and per Curiam his entry is lawfull for if the heir entreth in this Case and many descents follow yet the Devisee may enter at any time for his entry doth not make any abatement or wrong but may well stand with the Devise for if the Devise be waved or the Devise doth defer the execution of the Devisee 1 Inst 111. a. 240. b. 3 Cro. 145. Ow. 86 87. it is reason that the heir enter and take the profits untill the Devisee entreth But if
in which was parcel demised and demiseable according to the custome of the said Manor by Copy in Fee whereof Langley was a Copiholder in Fee c. and the said Earl so seised enfeoffed divers persons of the said Manor unto the use of himself for life and afterwards to the use of the Lord Lumley and Elizabeth his wife daughter of the said Earl and the heirs of their two bodies begotten who made a Lease of the said Customary lands by Indenture unto the Plaintiff for 100 years and the question was If by this Lease the lands be so severed from the Manor that the Copihold is extinct Walmesly took exception to the pleading for that Langley pleads That the custome within the Manor is That if any Copiholder seised of Customary lands of the said Manor dieth thereof seised having many sons That the youngest son shall inherit and he sheweth That the Lord of the said Manor granted to his father and his mother the said customary lands by Copy to have to his said father and mother and the heirs of his father c. And that his father died and that his mother survived him and died and he as youngest son according to the custome entred and he said That this custome set forth by the Defendant doth not maintain his entry For the custome intendeth but a general and immediate descent upon a Copy made unto a man and to his heirs but such is not the descent here for the wife surviveth during whose life the heir cannot enter nor is there here such Estate in the father of the Defendant unto whom the custome set forth in the Avowry can extend For the custome is alledged Where a Copyholder hath a Copyhold Estate to him and his heirs And here the Title of the Defendant is That a customary Estate was granted to the father and the mother and the heirs of the father so as this Estate is not within the Letter of the custome And to that purpose he cited the Case of Sir John Savage Sir John Savage's Case ante 109. late adjudged Where one entitled himself to a Copihold in this manner That within the Manor there is such a custome that if one taketh to wife any customary Tenant of the said Manor in Fee and hath issue by her he if he over-live such wife should be Tenant by the Curtesie and the Case in truth was That he married a woman who at the time of the marriage had not any Copihold but afterwards during the coverture a Copihold descended to her In that Case it was holden That no Tenancy by the Curtesie did accrue by that custome which did not extend but where the wife is a Copiholder at the marriage and a custome shall be in construction taken strictly and shall not be extended beyond the words of it And as to the matter in Law he said That by this Lease the custome was gone and then by consequence the customary Tenancy as to that land is determined for the Estate of the Copiholder is Secundum consuetudinem Manerii ad voluntatem Dom. And now by the Lease Langley cannot hold Secundum consuetudinem Manerii for now the services reserved upon the Copy and the advantages of Waste and other forfeitures are extinct so that if notwithstanding the Lease the customary interest should endure then such a Copiholder should hold this land discharged of all services c. in better Estate than any Freeholder at the Common Law and because the services in Law are discharge and cannot be recovered for that cause the customary interest is determined For the Case is 7 E. 4. 19. by Danby That the Copiholder shall have remedy against his Lord if he put him out for he payes a Fine when he enters but here during this Lease no Fine can be paid upon any descent c. and the Fine is the cause for which the Copiholder shall maintain his possession against the Lord But here no descent or surrender can be presented for there is not any Tenant who can do it See 21 E. 4. 80. by Brian As long as the Copiholder payeth unto the Lord the customs and services If the Lord putteth him out he shall have an Action of Trespass 42 E. 3. 25. If the Copiholder will not do his services the Lord shall seize the lands Dyer 100. 1 Cro. 35. And he resembled this Case to the case where the King grants lands probis hominibus de D. the same is a good Grant and that onely in respect of the Rent and for the reason of that it is a good Corporation But if the King releaseth the Rent the Corporation is dissolved and the Grant is become void Fenner Serjeant contrary and he said That by this Lease being the act of the Lord himself the customary interest is not determined c. And the whole Court was of clear opinion with Fenner That the Copihold did remain for otherwise by such practices of the Lords all the Copiholders in England might be defeated and if any prejudice be grown to the Lord by this act it is of his own doing and against his own act he shall not be relieved And by Periam Iustice The Lord by his act i. e. the making of the Lease hath destroyed his Seignory and lost the services as to this land And Windham Iustice said That the Lord himself had destroyed the custome as to the services but not as to the customary interest of the Tenant but the Lord Anderson was of opinion That the Rents and services do remain and if the Copiholder after such Lease committeth Waste that it is a forfeiture to the Lord and that will fall in evidence upon a trial although such Waste cannot be found by an ordinary presentment and the same Law which alloweth the Copiholder his Copihold interest against this Lease will allow unto the Lord his Rents and services and he said That the Lord shall have the Rents and services and not the Lessee Quod mirum against his own Lease See 33 Eliz. between Murrel and Smith now reported by the Lord Coke in his 4 Report fol. 20. CCLVIII. Russel and Broker 's Case Trin. 29 Eliz. In the Common Pleas. RUssel brought Trespass against Broker 3 Len. 218. for cutting down of four Oakes The Defendant pleaded That the place where c. and that he is seised of a Messuage in D. And that he and all those whose Estate he hath c. Habere consuerunt rationabile estoverium suum for fuel ad libitum suum capiendum in boscis subboscis arboribus ibidem crescentibus and that in quolibet tempore anni but in fawning time The Plaintiff by Replication said That the place where is within the Forrest of c. and that the Defendant and all those whose Estate c. Habere consueverunt rationabile estoverium suum de boscis c. per liberationem Forrestarii vel ejus Deputati prout boscus pati potest non ad exigentiam
moved the Case That the Plea is good and Iudgment was entred accordingly CCLXXI. Richmond and Butcher 's Case Mich. 33 Eliz. In the Common-Pleas 1 Cro. 217. IN a Replevin the Case was this A man made a Lease for years reserving Rent to the Lessor his Executors and Assigns where the Lessor had a Fee-simple in the Lands it was holden by the Court That the Rent should go to the heir notwithstanding the special Reservation because the words of the Reservation are During the term and the other words To his Executors and Assigns shall be void and then the Rent shall go with the Reversion to the heir which see 27 H. 8. 19. by Awdley And it was said by some That a Rent reserved during the term shall go to the heir with the Reversion and 12 E. 4. was cited where a Rent reserved to the Lessor and his Assigns should not go to the heir and that these words During the term did not mend the matter for the Lessor might well overlive the term But in the principal Case it was said by Periam Iustice That the Executors should not have the Rent for they have not the Reversion but if the Lessor grants over the reversion the Grantee shall have the Rent And afterwards Iudgment was given against the Plaintiff for it was in a Replevin and Iudgment was given for the Avowant who was heir to the Lessor CCLXXII Mich. 30 Eliz. In the Common-Pleas IN an Action of Trespass brought by a poor woman for breaking of her Close she declared of a Continuando of the Trespass by six years and upon Nihil dicit pleaded she had Iudgment to recover upon which issued forth a Writ of Enquiry of Damages and now came the poor woman and shewed to the Court That the Iury had found too little damages i. e. but 10 s. whereas the Land is worth 4 l. per ann and the Trespass had continued by six years together and prayed that the said Writ might not be received and that the Court would grant her another Writ to have a Melius inquirendum of the damages but the whole Court denied to grant any such Writ for so there might be infinite enquiries But sometimes at the prayer of the Defendant when excessive damages are found or any misdemeanors alledged in the Plaintiff procuring or using such a Writ of Enquiry of damages we use to relieve the Defendant by granting and issuing forth of a new Writ but to the Plaintiff never because the suing forth of the Writ is his own act And by Rhodes Iustice The late Countess of Darby brought a Writ of Dower and had Iudgment to recover and she surmised that her husband died seised and prayed a Writ of Enquiry of damages and had it granted unto her and because too small damages were found she would have suppressed the said Writ and procured a new Writ but she could not obtain it and at last she was driven to bring in the first Writ and so it was done CCLXXIII Scrog 's and Griffin 's Case Hill. 30 Eliz. In the King 's Bench. IN an Action upon the Case upon a promise by Scrogs against Griffin The Plaintiff declared That whereas such a day one Brown and another did run for a wager from Saint-John-Street to High-gate That he of the said two that first got thither and came again should have 5 l. which wager the said Brown did win and whereas after the said match so performed the said Plaintiff affirmed that there was deceit and covin in the performance of the said match upon which the Defendant in consideration of twelve pence to him delivered by the Plaintiff promised that if the Plaintiff can prove that any deceit or covin was used or practised in the performance of the said match that then upon request he should pay to the Plaintiff 5 l. And upon Non Assumpsit pleaded it was found for the Plaintiff and it was moved by Foster in arrest of Iudgment That here is not any request set forth in the Declaration and also that this deceit is enquired of in London whereas it ought to be in Middlesex where the Race was run and it was agreed by all the Iustices That the proof ought to be made in this Action as in the common Cases of voyages and that request now is but matter of conformity and not of necessity Wray Iustice It is clear That always proof ought to be as it is here if not that the matter be referred to a special proof before a person certain And as to the trial The deceit is not in issue but onely the promise and therefore the issue is well tried in London Also this Action here includes proof and request for there cannot be made any other proof and the proof is the effect for which cause he concluded that Iudgment should be entred for the Plaintiff which was done accordingly CCLXXIV Fuller and Trimwell 's Case Pasch 29 Eliz. In the Common Pleas. IN a Replevin by Fuller against Trimwell who made Conusance 1 Roll 46. â—… as Bailiff to one house for damage fesance The Plaintiff in Bar of the Conusance shewed That one A. T. did pretend right to the land where c. and the Defendant in the right of the said A. T. took the cattel c. Absque hoc that he took them as Bailiff to the said House upon which the Defendant did demur in Law and it was argued by Shuttleworth Serjeant That the traverse is not good which see 26 H. 8. 8. 5 H. 7. 2. Not his Bailiff but if the truth of the Case be so he may plead of his own wrong without such cause c. And see also 28 H. 6. 4. The Commandment is not traverseable but in special Cases where the Commandment determines the interest of the other party which see 13 H. 7. 12 13. Antea 196. in the Case of the Earl of Suffolk in Trespass the Defendant pleaded That before the trespass the Plaintiff was seised and thereof enfeoffed one B. by whose commandment he entred to which the Plaintiff said That after the Feoffment and before the trespass the said B. leased to the Plaintiff to hold at will Absque hoc that the said B. did command him and that was holden a good traverse for the commandment determines that Lease at will and in the principal Case all the Iustices were of clear opinion That the traverse is good and they all said That the Custos Brevium had shewed to them many presidents thereof See 15 H. 7. 17. and see also 7 H. 4. 101 102. In trespass for taking of cattel the Defendant did justifie as servant to such a one for Rent arrere due to his Master The Plaintiff Replicando said That the Defendant was not Bailiff at the time of the taking where it is said by Gascoigne That if the Defendant takes the cattel claiming property as a Heriot due to himself although that afterwards the Lord agrees to the distress
did well lie and he said That this Case is not like unto the Cases which have been put of the other side For there is a great difference betwixt Contracts and this Case for in Contracts upon sale the consideration and the promise and the sale ought to meet together for a Contract is derived from con and trahere which is a drawing together so as in Contracts every thing which is requisite ought to concur and meet together viz. the consideration of the one side and the sale or the promise on the other side But to maintain an Action upon an Assumpsit the same is not requisit for it is sufficient if there be a moving cause or consideration precedent for which cause or consideration the promise was made and such is the common practice at this day For in an Action upon the Case upon a promise The Declaration is laid That the Defendant for and in consider action of 20 l. to him paid posted scil that is to say at a day after super se assumpsit and that is good and yet there the consideration is said to be Executed And he said that the Case in Dyer 10 Eliz. â—72 would prove the Case For there the Case was That the Apprentize of one Hunt was arrested when his Master Hunt was in the Country and one Baker one of the neighbours of Hunt to keep the said Apprentize out of prison became his ball and paid the Debt afterwards Hunt the Master returning out of the Country thanked Baker for his neighbourly kindness to his Apprentize and promised him that he would repay him the sum which he had paid for his servant and Apprentize And afterwards upon that promise Baker brought an Action upon the Case against Hunt and it was adjudged in that Case that the Action would not lie because the consideration was precedent to the promise because it was executed and determined long before But in that Case it was holden by all the Iustices That if Hunt had requested Baker to have been surety or bail and afterwards Hunt had made the promise for the same consideration the same had been good for that the consideration did precede and was at the instance and request of the Defendant Rhodes Iustice agreed with Periam and he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him 20 l. for his good and faith full service ended he may have and maintain an Action upon the Case upon the same promise for it is made upon a good consideration but if a servant hath wages given him and his Master ex abundanti doth promise him 10 l. more after his service ended he shall not maintain an Action for that 10 l. upon the said promise for there is not any new cause or consideration preceding the promise which difference was agreed by all the Iustices and afterwards upon good and long advice and consideration had of the principal Case Iudgment was given for the Plaintiff and they much relied upon the Case of Hunt and Baker 10 Eliz. Dyer 272. See the Case there CCLXXXVII Higham 's Case Trin. 25 Eliz. In the Common-Pleas 1 Cro. 15. More 221. 3 Len. 130. IT was found by special Verdict That Thomas Higham was seised of 100 Acres of Lands called Jacks usually occupied with a House and that he let the said House and 40 of the said 100 Acres to J. S. for life and made his Will by which he devised the said House and all his Lands called Jacks then in the occupation of the said J. S. unto his Wife for life and that after the decease of his Wife the remainder thereof and of all his other Lands belonging to Jacks should be to R. his second son c. And by Mead The Wife shall not have by implication the residue of Jacks for she had an express Estate in the House and 40 Acres of Lands and having expressed his Will concerning the same it shall not be extended by implication and he said It had been adjudged between Glover and Tracy That if Lands be devised to one and the heirs Males of his body and if he die without heirs of his body that then the Land shall remain over that the Donee hath but an Estate in tail to the heirs Males of his body Anderson 1 Roll. 839. in the time of Sir Anthony Brown it was holden that if a man seised of two Acres of Lands deviseth one of them to his Wife for life and that J. S. shall have the other Acre after the death of his Wife that the Wife hath not any Estate in the latter Acre It was also moved What thing shall pass to his second son by this Devise and by the Lord Anderson The words usually occupied with it amount to the words the Lands let with it but these 60 Acres are not let with it therefore they shall not pass Windham contrary Although they do not pass by the words occupied with it yet they shall pass by the name of Jacks or belonging to Jacks and afterwards Anderson mutata opinine agred with him A TABLE OF THE Matters in this Book A ASsise 11 55 94 Action upon the Statute of 5 Eliz. for Perjury 18 Abatement of Writs 18 64 Action upon the Statute of 13 E. 1. of Winchester 19 109 212 Actions of Slander 34 74 120 127 146 Assignment of a duty to the Queen for a Debt if good 79 Accompt 91 245 Appeal of Burglary 111 Award where good and where not 130 145 Action not good upon a Lease untill the whole term be expired 137 In Appeal of Robbery one shall not have restitution without fresh suit 183 Attaint of Felony 169 Appeal of Murther 195 Action against an Executor who refused the Executorship 221 Assumpsit upon an agreement to become bound in a Bond for the sum promised 223 Action upon the Statute of 5 Eliz. concerning Perjury 249 C COvenant 5 17 60 153 155 164 237 268 Covenant to levy a Fine 114 Custome 10 140 Costs none upon Non-suit in an Action upon an escape 12 Conversion by the Executors of the goods of the Testator 42 Challenge of Jurors 53 141 Common Recovery 61 89 169 170 275 Costs upon the Statute of 28 H. 8. not allowed 71 Copiholds and Copiholders 97 142 264 Capias ad satisfaciendum sued out and not prosecuted within a year and a day if Scire facias must be sued out 101 Condition in a Lease void if repugnant to the Demise 176 Conveyance of Lands to Feoffees with condition c. 175 Capias ad satisfaciendum sued out after a Release an Audita quaerela lies 215 Case for disturbing him of his Common 229 Case for Toll 240 Case for misusing of the Plaintiff's Horse to which the Defendant pleaded that the Horse was waved within his Manor c. 242 Case upon a promise whereas one became surety and bail to J. S. and afterwards for default of