206 Lord Cheneys case Cases of Usury fol. 208 Buttons case Claytons case fol. 208 Hoes case St. Johns case fol. 209 Williams case Case of Orphanes of London Wymarks case fol. 210 Cliftons case fol. 211 Pilkintons case Earl of Pembrooks case Pagets case fol. 212 Boothes case fol. 213 Samons case Grayes case Fitz Herberts case fol. 214 Fords case Case of of customs Snellings case fol. 215 Case of Market Overt Perimans case Sir Henery Knevits case fol. 216 Pennrins case Cases of Executions Blumfields case fol. 217 Garnons case fol. 218 Frosts case fol. 219 Hoes case fol. 220 Semaynes case fol. 221 Barwicks case fol. 223 Goodalls case Countesse of Northumberl case Buries case fol. 224 Flowers case Rookes case fol. 225 Penruddocks case fol. 226 Windsors case Hungats case fol. 227 Bakers case Boulstons case fol. 228 Aldens case Sir Henry Constables case fol. 229 Foxleyes case fol. 230 Malaries case Wades case fol. 232 Foliambs case Olands case Pynners case fol. 233 Edriches case fol. 234 Whelpdales case Longs case fol. 235 Saffins case De libellis Famosis fol. 236 Palmers case Caudreys case fol. 237 The Sixth Booke BReuertons case fol. 239 Markals case fol. 240 Sir John Molins case fol. 241 Wheelers case Ferrers case fol. 242 Spencers case fol. 243 Gentlemans case Morrices case Cases of Pardon fol. 244 Arundels case fol. 245 Treports case Edens case Colyers case fol. 246 Wildes case Sir Edward Cleers case fol. 247 Packmans case fol. 248 Gregories case Michelborns case fol. 249 Butler and Goodalls case Ambrosia Gorges case fol. 250 Marquesse of Winchester his case Reades case Helyars case fol. 251 Ruddocks case Sharps case fol. 252 The case of Souldiers Vicont Mountagues case fol. 353 Greenes case fol. 254 Boothies case Fitz Willams case fol. 255 Bishop of Baths case fol. 256 Dean and Chapter of Worcesters case fol. 257 Bellamyes case Henery Finches case fol. 257 Sir Anthony Mildmay Blakes case fol. 258 Higgins case Dowdales case fol. 259 Boswels case fol. 260 Countesse of Rutlands case fol. 261 Lord Chandows case Bredimans case fol. 262 Gatewards case fol. 263 Catesbies case fol. 264 Sir Moyle Finches case fol. 265 Lord Darcies case fol. 266 Burrels case Sir Drue Druries case fol. 267 Sir Gorge Cursons case fol. 268 Bullens case Lord Abergavennies case Sir Edward Phittons case fol. 269 The Seventh Booke CAlvins case fol. 271 Bulwers case fol. 273 Sir Miles Corbets case fol. 274 Gendils case fol. 275 Milbornes case Earle of Bedfords case Oghtreds case fol. 276 Englefields case fol. 277 Case of Swannes fol. 279 Sir Thomas Cecills case Lord Andersons case fol. 280 Butts case fol. 281 Cases of Quare Impedit Halls case fol. 282 Sir Hugh Portmans case Baskervills case fol. 283 Mauds case Discontinuance of processe by the death of the Queen fol. 284 Case of a Fine levied by the King fol. 285 Nevils case Penall Statutes fol. 286 Lillingtons case Bedels case fol. 287 Beresfoeds case Kenns case fol. 288 The Eighth Booke THe Princes case fol. 291 Calyes case Paynes case fol. 293 Barretry Greysleyes case fol. 294 Whittinghams case fol. 295 Jehu Webbs case fol. 296 Sims case fol. 297 Roger Earl of Rutlands case fol. 298 Beechers case fol. 299 Swaines case Sir William Fosters case fol. 300 Lovedayes case Crogates case fol. 301 Trollops case fol. 302 Whitlocks case Greenlyes case fol. 303 Lord Staffords case fol. 305 Wiat Weilds case fol. 306 Vinyors case Sir Richard Pexals case fol. 307 Buckmers case fol. 308 Frauncis case fol. 309 Foxes case fol. 310 Mannings case fol. 311 Baspoles case Sir Richard Lechfords case fol. 312 Talbots case fol. 313 Doctor Bonhams case fol. 314 Case of the City of London Case of Thetford Schoole fol. 316 Turnors case fol. 317 Shiplyes case Sir John Nedhams case fol. 318 Sir Francis Barringtons case fol. 319 Doctor Druries case fol. 320 Davenports case The Six Carpenters case fol. 321 Edwards Althams case fol. 323 Arthur Blackamores case fol. 324 Cases in the court of wards Myghts case fol. 326 Digbies case Earl of Cumberlands case Paris Stoughters case fol. 327 Toursons case Sir Gerard Fleetwods case fol. 328 Hales case Sir Henry Constables case fol. 329 Virgill Parkers case fol. 336 The Ninth Booke DOwmans case fol. 331 Anna Beddingfields case fol. 332 Case of Avowry fol. 333 The Abbot of Strata Marcella his case fol. 334 Bucknals case Henslowes case fol. 336 Earle of Shrewsburies case fol. 339 Hickmots case fol. 340 Batens case fol. 341 The Poulters case Aldreds case fol. 342 Lambs case fol. 343 Bradshawes case Mackallies case fol. 344 Peacocks case fol. 346 Doctor Husse case fol. 347 Combs case fol. 348 Petoes case fol. 349 Agnes Gores case Coneys case fol. 351 Pinchons case fol. 352 Banes case fol. 354 Sir George Reynels case fol. 355 Podgers case fol. 356 Treshams case fol. 357 Marys case fol. 358 Lord Sanchars case fol. 359 Cases in the Court of wards Lawes case fol. 360 Floyers case fol. 362 Sondayes case Quicks case fol. 363 Bewleys case Holts case fol. 364 Menes case fol. 365 Ascoughs case fol. 366 Thorogoods case fol. 367 Beaumonts case fol. 368 The Tenth Book THe case of Suttons Hospitall fol. 371 Portingtons case fol. 374 Lampets case fol. 375 Case of the Chancellor Masters Scholars of the University of Oxford fol. 378 Bishop of Salisburies case fol. 379 Whistlers Case Church-wardens Case of St. Saviours in Southwark fol. 381 The Case of the Marshalsea in false imprisonment fol. 382 Loveis Case in Ejectione ferme fol. 384 Doctar Leyfields Case fol. 387 Seymors Case fol. 389 Bewfages Case fol. 391 Denbawds Case in Error fol. 396 Lofields case in debt upon bond fol. 397 Legats Case fol. 398 Pilfolds Case fol. 399 Cheyneyes Case fol. 400 Case of the Major and Burgesse of Lin fol. 401 Cluns Case fol. 402 Osborns Case fol. 403 Read and Redmans case fol. 404 Richard Smiths Case fol. 405 Cases upon the Commissions of Sewers Case of Chester Mille Keighleys case fol. 406 The Case of the Isle of Elie fol. 407 Scroops Case fol. 409 The Eleventh Book THe Lord Delawares case fol. 411 Auditor Curles case fol. 412 Sir John Heydons case fol. 413 Priddle and Nappers case fol. 414 Doctor Grants Case fol. 416 Sir Henry Nevils case fol. 417 Doctor Ayrays Case fol. 417 Henry Harpurs case fol. 418 Henry Pigots case fol. 420 Alexand. Poulters case fol. 420 Metcalfes case fol. 423 Richard Godfreyes case fol. 425 Richard Lifords case fol. 426 The Taylors of Ipswich case fol. 428 Edward Savels case fol. 429 Benthams case fol. 429 Doctor Fosters case fol. 429 Magdalen Colledge case fol. 432 Lewis Bowles case fol. 34 The Case of Monopolies fol. 436 The Earle of Devonsh case fol. 437 James Bagges case fol. 438 THE FIRST BOOK The Lord Buckhursts Case 40. El. fo 1. IF a man for him and his heires do warrant Land to one and his heires this is a generall warrantie because there is not
for the intended recompence and if the wife and the issue had joyned in a Fine this had barred the taile so if the wife had surrendered the issue might have suffered a recovery H. 39. of the Queene the case was that the younger Sonne tenant in taile by devise was vouched in a recovery suffered by a woman tenant for life by the same devise and this was to the use of the vouchee and his heires who dyed and 't was adjudged that the Sister of the vouchee by the intire bloud shall have it not the elder brother that the recovery was not within 14 of the Queene though suffered by tenant for life and the Statute says that it shall be utterly voyd for 't was not the intent that the Act should extend to a recovery in which he in remainder in taile was vouched who had an estate that might continue for ever and had the power to docke all the remainders so here this Statute doth not extend to this warranty because c. Resolved when the first issue disables himselfe for to take advantage of the forfeiture and dyes his issue shall never take benefit of it because he was not in rerum natura nor had the immediate interest at the time and this was Sir George Brownes case before where the issue in taile in the life of his Mother tenant in speciall taile levied a Fine without proclamations and here if error were in the recovery the warranty barres him of his action because he himselfe by his own act hath barred his entry But here if the wife had released c. after the death of the issue his issue might have avoyed the warranty Note Reader it seemes to me if in such case a woman levies a Fine or suffers a recovery though the daughter enters or not and though she joynes in the Fine or is vouched in the recovery or by any other act disables her selfe yet the Sonne borne after shall take advantage of it for entry upon this Act of 11. H. 7. is not like entry upon the Statute of 6. R. 2. ca ' 6. For there the daughter by expresse words hath it as a perquisite but upon 11. H. 7. per formam doni Resolved if tenant in taile in of another estate suffer a common recovery and a collaterall auncestor releases with warranty to the recoveror after the recoveror makes a Feoffement to uses which are executed by the Statute of 27. H. 8. and the auncestor dyes though the estate be transferred in the post before the discent of the warranty yet it shall binde and the terr-tenants shall Rebutt See excellent learning upon this point where an estate transferred in the post before discent of the warranty shall binde where not and where there shall be Rebutter in such case where not Pennants case 38. of the Queene fo 64. LEase for yeares upon condition that the lessee shall not assigne c. without assent of the lessor he assignes c. the lessor not having notice of the assignement accepts the rent due after and enters it was adjudged for the lessor his entry lawfull for that the condition being collaterall the breach whereof may be so secretly contrived that it is not possible for the lessor to have notice thereof and notice in this case is materiall and issuable for otherwise the lessee might take advantage of his owne fraud But if a man make a Lease for yeares rendring rent upon condition if the rent be not paid to reenter In this case if the Lessor demand the rent and the same is not paid if after he accept the rent before the reentry made due at another day he hath dispensed with the condition for there the condition is annexed to the rent and he having made demand of the rent well knew the condition was broken but although in this case that he accept the rent due at that day for which he made the demand yet he may reenter for as well before as after his reentree he may have an action of debt for the rent upon the contract between the Lessor and the Lessee If the Lessor distraine for the rent for which the demand was made he hath affirmed the Lease for after the determination of the Lease he may not distraine for rent It was also resolved that as well in case of the condition annexed to the rent as in case of a condition annexed to any collaterall act if the conclusion of the condition be that then the Lease for yeares shall be voyd there no acceptance of the rent due at any day after the breach of the condition will make the voyd Lease good Resolved that as a voidable Lease cannot be affirmed by word for money c. so the acceptance of a rent which is not In esse nor due to him which accepts it doth not affirme the Lease as a gift to a Husband and Wife and to the Heires of the body of the Husband the Husband dyes the issue accepts the rent of the Lessee of the Husband during the life of the Wife the Wife dyes yet the issue shall avoyd the Lease for no rent was due And there is a diversity betweene a Lease for life and for yeares in case of a lease for life though the conclusion of the condition be that it shall be voyd yet acceptance of a rent due after the breach shall affirme it for the freehold being created by livery cannot be determined before entry If the successor accept the rent upon a Lease for yeares of a Parson Vicar Prebend 't is worth nothing for 't is voyd by death otherwise of a Lease for life But if the successor of a Bishop Abbot or Prior accept the rent upon a Lease for yeares he shall never avoyd it for 't was voydable onely Note Reader it seemes to me if upon a Lease for life the Lessor accepts the same rent which was demanded he hath affirmed the Lease for he cannot accept it as due upon any contract as upon a Lease for yeares for when he accepts it he cannot have an action of Debt for it but his remedy was by Assise if he had seisin or by distresse but after reentry he may have an action of Debt If he that hath a rent service or rent charge accepts the rent due at the last day and therfore makes an acquittance all the arrerages due before are thereby discharged and so it hath beene adjudged In Hopkins Mortons Case 10. El. Dyer A man is not bound to pay an annuity without an Acquittance but a rent service or rent charge he is If the Lord accepts the rent or service of the Feoffee he loses the arrerages in the time of the Feoffor though he makes no acquittance for after such acceptance he shall not avow upon the Feoffor at all nor upon the Feoffee but for the arrerages which incurred in his time otherwise where the Feoffor dyes and there is such an acceptance But acceptance of rent or service by
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
give to them any interest or Title eyther to the things in action or possession for they have all their title and interest by the Testament and not by the Probate Power to grant administrations was granted to the Ordinary by the act of 31. Ed. 3. ca. 11. for before that time when a man died intestate the King who is Parens patriae was accustomed by his Ministers to seize his goods to the intent they might be preserved and bestowed for the Buriall of the dead for payment of his debts for advancement of his Wife and Children if he had any otherwise to his Kindred as appeareth in Rot. Claus de 7. H. 3. in ib. bona intestatorum capi solebant in manus regis c. And after this care and trust was committed to the Ordinaries and it was resolved Per totam Cur. M. 8. and 9. Eliz. Dyer that the Ordinary himselfe hath not any authority to sell any goods of the intestate although they be in danger of perishing neither can he release any debt due unto the intestate by a statute in Ao 31. Ed. 3. ca. 11. the Ordinary shall depute the next and most lawfull friends of the dead person intestate to administer his goods And the Statute in Ao 21. H. 8. ca. 5. is that the Ordinary shall grant the administration to the widdow of the same person so deceast or to the next of his Kin or to both as by the discretion of the Ordinary shall be thought good c. Reade this latter Statute to whom administrations shall be granted The Earle of Shrewsburies Case 8. Jacobi fol. 46. 1. REsolved that the grant of the Stewardship of the Mannors of M. and B. without naming the County in which c. is good as if the K. grants all the Lands of priors aliens without naming the County but the party in pleading must name the County and upon Non concessit pleaded it will appeare by the evidence and by circumstances what Mannor was granted but if he had demanded oyer and demurred it will be adjudged against him for it is matter in fact and the acts of confirmations extend not where the County is omitted but where the County is misnamed 2. The grant from a day past is good and the intent was that the Earle shall have the fees from that day but if that cannot be it shall be good for the time to come 3. The Earle had no power to make Deputies for three offices passe by these Letters Patents severally whereof this is the middle and to the first power is annexed to make Deputies but not to the second the words are Habendum offic praed with such a contraction To that the Court answered that this Habendum shall have relation to this office for it is intended that the Earle shall excercise this base office by Deputy for if a Sheriffe shall doe it a Fortiori an Earle 2. Admitting that he cannot make a Deputy this Non user is no cause of forfeiture for true it is when an office toucheth administration of Justice Non user without request is cause of forfeiture but if he be not bound to exercise it without request otherwise it is as here he is not bound by the Letters Patents to hold Courts untill he be required if an office be private and not for administration of Justice Non user without damage or request is no forfeiture 4. Resolved that the Writ and count were good although they were Vi armis and the difference is betweene Non feasans or negligence and mis-feasance that may be Vi armis therefore if one bring an Action upon the Case Quare vi armis he hindered men from comming to his Fayre which is Causa causans whereby he lost his toll which is Causa causata and the point of the Action this is good 5. The office not being meinorable it is in his election to have an Action of the Case or an assize otherwise it is of Land See five Exceptions taken to the Verdict Falsa Orthographia Non vitiat concessionem and the difference is betweene Writs and Grants Ille numerus sensus abbreviationum accipiendus est ut concessio non sit in anis and judgement was given for the Earle of R. Hickmots Case 8 Jacobi Com. banco fol. 52. IN Debt upon an Obligation the Defendant pleads a release which is in these words The Obligee confesseth himselfe to be discharged of all bonds c. and that he will deliver all but one bond whereupon the action is brought which was made by the Plaintiffe and another 1. Resol These words that the Obligee confesseth himselfe to be discharged of all bonds is a release and amounteth to that that the bonds are discharged 2. The exception extends to all the premises and not onely to the delivery 3. The Plaintiffe by confessing that the Obligation was made by another and the Defendant against whom onely he brought the Action had abated his owne Writ and after the Plaintiffe was Non-suited Batens Case 8. Jacobi fol. 53. A Quod permittat to abate a House levyed Ad nocumentum liberi tenementi I. P. and now of the Plaintiffe and Counts that the House of the Defendant doth juttie over the House of the Plaintiffe and judgement given for the Plaintiffe 1. Resolved the Plaintiffe needs not shew how he had the estate of I. P. 2. The Writ is Ad nocumentum liberi tenementi I.P. and now of the Plaintiffe and counts to the Nusans of the Plaintiffe onely it is good for the levying in the time of I. P. imployeth a Nusans to him and he must shew a Nusans to himselfe to maintaine the action 3. If it appeare to the Court that the Nusans is to the damage of the Plaintiffe he needs not shew it specially as if the House of the Defendant hangeth over the House of the Plaintiffe as here for it appeareth that the light was stopped and that the raine discended Quod constat clare non debes Verificare and the Plaintiffe may abate the Nusans if he will the Statute of Westm 2. c. 24. which giveth the Quod permittat against the alienee of him who levyed the Nusans extends not to the alienee of the alienee The Poulters Case fol. 55. IF one were taken for the death of a man he was not bailable at the Common Law without a Writ De Odio acia which serveth not if he be appealed or indicted 2. If he be found not guilty upon the said Writ he was not bailable without a Writ De ponendo in ballivum 3. A Writ of conspiracy lyeth not before acquittall but the conspirators may be indicted or censured in the Starre-Chamber Confedracies punishable by Law before Execution ought to have 4. incidents 1. They must be declared by some manner of prosecution as was in this Case 2. They ought to be malicious and for revenge 3. They ought to be false against an innocent 4. They ought to be out of
a restraint against any particular person in certeine Vpon a Feoffement without warranty the Feoffee shall have all the Charters which comprize warranty and others though they be not given to him because hee is to defend the Title at his perill Upon a Feoffement with warranty without expresse grant the Feoffee shall not have any Charters which serve for to deraigne the warranty paramount Also the Feoffer shall have all Charters which serve for maintenance of the Title but the Feoffee shall have all which maintaine the possession as Court Rolls and which are concomitant and incident to the possession If A. be seized of a Segniorie rent advowson or other thing that lyeth in grant and grant the same over unto B. with warranty and B. grant that to C. with warranty In this case C. shall have the first deed although B. be bound to warrantie for without that he cannot make any Defence against A. or any claiming by him Pelhams Case 32. El. fo 14. A Tenant for life the remainder in Taile the remainder in fee bargaines and sells the Land to one who before the Statute of 14. El. ca. 8. suffers a recoverie in which A. is vouched and voucheth over and he in remainder enters and the entry is adjudged lawfull for the Recovery is a Forfeiture and the remainder may enter for it is the common Assurance As if Tenant for life had levied a Fine c. and suing of execution doth not toll the entry of the remainder and a Writ of error was sued and the plaintiffe release the errors Porters Case 35. El. fo 22. 32. H. 8. P. devised a house to his wife and her heires upon condition that she by advise c. with all convenient speed after his death should assure it c. for maintenance of a Free School c. for ever and dyes 32. H. 8. the wife enters and 3. E. 6. leases to A. for yeares the heire of P. enters and his entry adjudged lawfull because 23. H. 8. extends not to good uses nor doth it make the conveyance voyd or give entry but makes the use voyd and admit the use voyd yet the condition is not for Counsell may devise c. as to have a Corporation by Pattent and licence to assure and therefore the wife ought to have performed it Any man at this day may give Lands Tenements or hereditaments to any person or persons for the finding of a Preacher maintenance of a Schoole maimed Soulders poore people reparation of Churches High-wayes Bridges marriage of poore maids or any other charitable uses But it is good policy in every such Feoffment or estate to reserve to the Feoffor and his heires any small rent or to expresse some small summe of money for the consideration of the cause before recited Altonwoods Case 42. Eliz. fo 41. H. 8. seised of an estate Taile to him and the heires males of his body and of a Fee expectant grants in Taile and dyes without issue male adjuded that the grant is voyd for the King had an estate Taile in possession by which he might grant a lawfull estate for his own life and a Fee by which he might grant an estate Taile by speciall recitall And these words ex speciali gratia c. shall not produce a strainable construction against the rules of Law or in deceptionem regis Capells Case 23. Eliz. fo 62. A Tenant in Taile the remainder to B. in Taile B. grants a rent charge A. suffers a common recovery and dyes without issue the grantee distraines the Alienee of A. brings a Replevin adjudged for the alienee by all the Justices of England that a common recoverie against a Tenant in Tayle shall binde not onely the remainder and all Leases charges c. granted or made by him in remainder but also the Reversion and all Leases charges c. granted by him in reversion Archers Case 39. 40. Eliz. fo 66. LAnd was devised to the Father for life the remainder to the next heire male of the Father and to the heires males of his body the devisor dyes the Father infeoffes J. S. with warranty First it was resolved by Anderson and Walmeslowe et tot Cur. that the Father had but onely an estate for life for that he had an expresse estate for life demised unto him and the remainder is limitted to his next heire male in the singular number and his right heire male may not enter for the forfeiture in his life for he cannot be heire so long as he liveth Secondly It was resolved that the remainder to his right heire is a good remainder although he cannot have a right heire during his life but it sufficeth that it vesteth eo instanti that the particular estate determineth Dyer 14. Eliz. fo 309. Thirdly it was resolved which was the principall poynt in this case per tot Curiam that by the Feoffment of the Tenant for life the remainder was destroyed for every contingent remainder ought to vest either during the particular estate or at the least eo instanti that the particular estate determineth for if the particular estate be ended or determined in Deed or in Law before the contingency fall the remainder is voyd And in this case by the Feoffment of the Father his estate for life was determined by condition in Law which cannot be revived by any possibilitie for this cause the contingent remainder is voyd for by the Feoffment no right of the particular estate remaineth and the better opinion was that the warranty bindes the remainder though in Abeyance Bredons Case 39 40. Eliz Fol. 76. TEnant for life and the remainder in Taile joyne in a fine Come ceo c. to A. who renders a Rent charge of 40. l. a yeare to Tenant for life the remainder dies without issue the second remainder in taile enters Tenant for life distraines for the Rent adjudged he may and that the rent remaines after the death of Tenant in taile without issue during the life of Tenant for life the fine was no discontinuance for every one gave that which he might lawfully give and t is no forfeiture by Tenant for life for the Law construes this First to be a grant of him in remainder and after the grant of Tenant for life Vt res magis valeat c. If Tenant for life and the first remainder in Taile make a feoffement t is no discontinuance though the first remainder in taile dies without issue nor is it a forfeiture but the feoffee shall hold it during the life of Tenant for life but if it be without deed then t is a surrender of Tenant for life and the feoffement of the remainder Vt res magis valeat c. Corbets Case 42. Eliz Fol. 84. of Perpetuities C. Covenants to stand seised to the use of himselfe for life and after to the use of A. his Eldest Son and the Heires Males of his body the remainder to the use of B. his second Son and the
had and after B. and A. levie a Fine to Perkins and he renders a rent of 42. pounds to B. and the Mannor with the Advowson to A. A. dyes without granting the Advowson and B. did not request it B. enters for condition broken and by Indenture inrolled bargained c. to the Lord Cromwell by which he entered and upon the reentry of the Sonne and heire of A. brought an Assise In this Case is shewed when this word proviso or provided maketh a condition and when not which upon long debate was judged by all the Justices of England It was adjudged that the Law hath not appointed any place in a deed or instrument proper or particular to a condition but in what place it pleaseth the parties and this word proviso or provided is as apt a word to make an estate conditionall as Sub conditione or any other word of condition but notwithstanding when this word proviso maketh an Estate or interest conditionall three things are to be observed First that the proviso doe not depend upon another sentence nor participate thereof but stand originally of it selfe Secondly that the proviso be the word of the bargainor Feoffor Donor Lessor c. Thirdly that it be compulsory to enforce the barganee Feoffee Donee Lessee c. to doe an act and where these concurre it was resolved that it was a condition in what place soever it be placed for Cujus est dare ejus est disponere And although words of Covenant be contained in the same clause of the proviso it selfe yet the proviso being in judgement of Law a word of condition it shall not loose his force and so it hath beene judged In Symson et Titterell 26. El. Serjeant Bendlowes demysed to Titterell certaine Lands in Essex for forty yeares provided alwayes and it is Covenanted and agreed betweene the said Parties That the Lessee c. should not alien and this was adjudged a condition by force of the proviso and a Covenant also by force of th' other words Also it was adjudged in Banco Regis 36. El. betweene the Earle of Pembrooke Plaintiffe and Sir Henry Barkely Defendant The Earle granted the Office of the Lievtenant-ship of the West part of the Forrest of Fronslewood in Com. Somerset to Sir Mawrice Barkely Father of the said Sir Henry in Taile provided alwayes and the said Sir Mawrice Barkeley for him c. doth Covenant to and with the said Earle that neyther he the said Earle nor any of his Heires Males c. shall cut downe any Wood growing upon any part of the premises And it was resolved by all the Justices of England upon argument before them at Serjants Inne that although the proviso was coupled with the expresse Covenant of the Grantee and every condition ought to be created by the words of the Grantor Donor Feoffor c. yet in judgement of Law this word provided was a condition created by the Grantor although all the residue of the sentence be the words of the Grantee for proviso being an apt word of a condition the same sentence containeth the words of the Grantor purporting a condition and the words of the Grantee comprehending a Covenant This word proviso when it dependeth upon another sentence or hath reference to another part of the deed doth not make a condition but a qualification or limitation of the sentence or part of the deed to which it is referred As in a Lease without impeachment of wast provided that he shall not doe voluntary wast grant of a Rent charge provided that the Grantee shall not charge the Grantor c. Resolved that B. shall have the Rent notwithstanding that before the Reddendum the use in Fee was vested by the recovery in A. and notwithstanding 't was objected that the Rent ought to be limitted out of the Estate of the Recoverors for 27 H. 8. hath an expresse clause Where diverse be seised to the intent that one shall have an annuall Rent the same person be adjudged in possession and seisin of the same rent as if a sufficient grant had beene made and so here the intent being that B. should have the Rent construction shall be made Vt res magis valeat quam pereat Resolved that the fine leavyed by B. and A. to P. hath not extinct the condition and this was the great doubt of the Case 1. Because by the generall Covenant 't is declared that all assurances afterwards to be made should be to the uses and intents in the same Indenture and to no other and the Indenture intends that the condition should be saved as the Lord releases all his right in the Land saving his Rent Putnams Case 4. 5. P. and M. Dyer Feoffement of a Mannor rendring Rent and a reentry and a Covenant by any Indenture to Leavy a fine which should be to the uses and intents of the first Indenture and to no other use which was leavyed according with the usuall words of release of all his right yet resolved that neither the Rent nor the condition was destroyed and 23. of the Queene Tussers Case a rent reserved by a fine before was not destroyed by a common recovery and generall entry into warranty and 34. of the Queene in Clever and Childs Case adjudged according to Putnams Case for the same reason t was adjudged in this Case 14. of the Queene for the Advouson of Alexton for Modus et conventio vincunt legem and Covenant and agreement of the parties hath power First to raise a use Secondly to declare uses upon fines recoveries c. Thirdly for to preserve Rents and conditions and for to direct recoveries fines c. and the saving may be contained in another deed delivered at the same time And these common assurances as fines and recoveries are to be construed according to the intent and common usage without prying into them with Eagles eyes Also here the Bargaine c. recovery c fine c. though made at severall times yet all by mutuall agreement are but one assurance and tend for to perfect a bargaine c. and therefore the one shall not destroy the other resolved that except in speciall cases a fine Sur grant render cannot be averred by word to another use then is in the fine feoffement c. yet in some cases it may be ruled in part by averrement by word when the originall contract is by deed but a man may by word averre another consideration which stands with the consideration expressed but not against it Reade the Booke at large for this purpose Resolved that by the death of A. the condition was broken for when the Feoffee or Grantee is to doe an act to the Feoffor c. upon condition and no time is limitted regularly the Feoffee may doe it at any time during his life If the Feoffor or Grantor doe not hasten the same by request and upon request and day or time limitted the Feoffee or Grantee ought to doe it
accordingly and if no request be made and the Feoffee or Grantee that ought to performe the condition dye the condition is broken Yet this generall rule admits an exception for here in case of an advowson he hath not time during his life though no request be made but upon contingency to wit if no avoydance fallin the meane time for if the Grantee stay till the avoydance fall Ipso facto the condition is broken for B. cannot have all the presentations during his life which was the effect of the grant and the Advowson is come into another plight then t was But where the day is certaine for the performance and the party dye before the condition is discharged because the performance is become impossible by the Act of God and therefore when a day certaine is appointed t is good that the Heire of the feoffee be named in the condition Another diversity was also agreed when t is to be performed to a stranger he ought to request the stranger in convenient time for to limit a time when it shall be done but if it be to the Feoffor himselfe he ought not to performe it before request Another diversity was taken by some when the feoffee dyes and when the feoffor dyes for in the one case the condition is broken in the other not Binghams Case 43. of the Queene fo 91. R. Bingham the Grandfather held the Mannor of B. M. of Sir Jo Horseley as of his Mannor of H. and levyed a fine to the use of him and his Wife for life and after of R. the Father his Sonne and Heire in taile and after to the right Heires of the Grand father R. the Father dyed the remainder in taile discended to R. his Sonne within age Sir I. H. suffered a recovery of the Mannor of H. to the use of himselfe and his Wife in taile and after to Sir R. H. his Sonne and Heire in taile after to the Heires of Sir I. Sir I. and his Wife dyed without issue Sir R. enters R. B. the Grandfather dyes by which the reversion in Fee discended to R. B. the Wife of Robert dyes R. within age enters and Leases c. Resolved that the use limitted to the right Heires of the Grandfather upon the fine is a reversion in the Grandfather expectant upon the taile not a Remainder so t was resolved in Fenwick and Mitfords Case and so t was resolved in the Earle of Bedfords Case Resolved that Sir R. H. shall not have the ward of the Land for the reversion in Fee is holden of him and not the Taile though both discend from the same Ancestor for the taile cannot be drowned and if Tenant in taile grant over the reversion he shall hold the Taile of his Grantee and though the Seigniory of the taile be suspended yet the Donee hath two distinct estates and the reversion is as a Mesne betwixt the Donee and the Lord and the Lord is not defeated for the Law gives no wardship in such cases and if it were admitted that by the unity of Tenure betwixt the Donee and reversion t was determined yet nothing shall be holden of the Lord but the reversion and in some cases the Donee in taile shall hold of no body as a gift in taile the remainder to the King Resolved if the Grandfather were Tenant for life the remainder to the Father in taile the remainder to the Father in fee the Father dyes his Heire within age and Sir I. H. grants the Seigniory to Sir R. H. and the Grandfather dyes that Sir R. H. shall not have the ward of the Heire because R. the Father did not hold of him nor any of his Ancestors the day of his death nor the Taile was not within the see and Seignory of Sir Ra. or any of his Ancestors at the death of R. the Father and the Writ saith Praecipe c. Eo quod terram illam de eo tenuit die quo obijt And though that during the life of Tenant for life the Heire of the remainder shall not be in ward because Tenant for life is Tenant to the Lord yet the death of Tenant for life is not the cause of ward but the removing of an impediment as in Paget and Caries Case Tenant for life commits wast and after Tenant for life in remainder dyes he in remainder in fee shall have wast T was said when two accidents are required to the consummation of a thing and the one happens in the time of one and the other in the time of another neither the one nor the other shall have benefit by it as the Tenant ceases for a yeare the Lord grants his seigniory and then the Tenant ceases for another yeare neither shall have a Cessavit which was agreed So Lacies Case Trin. 25. of the Queene who gave a mortall wound upon the sea of which the party dyed upon the Land yet he was discharged because the stroake was upon the Sea the death upon the Land so that neither the Admirall nor a Jury can inquire of it and t was said when diverse accidents are required to the consummation of a thing the Law more respects the Originall cause then any other A man presents to a Church in time of Warre notwithstanding the party be instituted and inducted Tempore pacis all is voyd So the Law more respects the death of him in the remainder the Originall cause of wardship then the death of Tenant for life which is but Causa sine qua non and rather a removing of an impediment then a cause so t was resolved that neyther the one nor the other shall have the ward Resolved that Sir Ra. should not have the third part of the Land by 32. 34. H. 8. for though R. the Grandfather had limitted the use to the Father which is within the Statute yet when R. the Father dyes in the life of the Grandfather the Statute extends no further for the Heire of the Father who is in by discent shall be in ward by the common Law not by the Statute and if the Statute should extend to the Son and Heire of him in remainder by the same reason it should extend to all the Heires of him in remainder In infinitum THE THIRD BOOK The Marques of Winchesters Case 25. of the Queene fo 1. LIonell Norris and Anne Mills were seised of the Mannor of M. and to the heires of the body of L. a common Recovery is had against L. without naming Anne H. Norris being in remainder in taile is executed for Treason and 't is enacted that he shall forfeit Mannors c. uses possessions offices rights conditions and all other hereditaments L. dyed without issue Anne dyed the Queene brought error against the Marques of Winchester heire of the survivor of the recoverors the error was that the originall Writt of entry wants the defendant pleaded that 14. of the Queene shee gave and restored to the Lord Norris Sonne and heire of H. Norris
be divided For he had not the Mannor of H. for his Wife had it joyntly with him See many excellent Cases in the Booke at large adjudged upon this word Having in the Statutes the Initium of a Will ought to be full and perfect which is the writing and therefore if the devisor command one to write his Will and he devises white Acre to A. and his Heires and black Acre to B. and his Heires and dyes before the devise to B. is written yet the devise to A. is good But if he devises to A. c. upon condition and he writes the devise and the Testator dyes before the Writing of the condition t is voyd for in the one case the devises are severall and the one is perfect in the other Case t is maimed and imperfect for the intire devise was not fully put in writing so t was resolved in the Case at Barre that neither the commencement nor the end of the Will was full or perfect for at the time of writing of it and at the death of the devisor he had no power in respect of the joynt estate in H. to dispose all the Mannor of T. which amounts to the value of two parts of all Also upon the first Branch he ought to have a sole estate and here his Wife is joyntly seised with him and shee cannot disagree during coverture The Statute gives liberty to him for to devise two parts by will but this is to be intended of such Land which he might convey by act executed but here by reason of the undivided estate of the Wife he cannot dispose it but during coverture Also the third part of cleere yearly value is saved to the King and the intent of the Statute was that the King shall have the equall benefit at least for his third part as the devisee hath for two parts but here the devisee had two parts absolutely and the King but a possibility Viz. If the Wife would disagree which is at her pleasure and this Statute hath been constru'd that equality should be observed A man which held three Mannors of three Lords could not devise two of them but two parts of every one upon these words Cleere yearly value 't was said that of Inheritances which are not of any yearly value some are devisable some not as Bona et catalla felonum fugit or utlagat Fines amerciaments within such a Mannor or Towne these cannot be devised nor left to discend but a Leete Waife or Stray or other hereditament appendant or appurtenant to a Mannor passe by devise of the Mannor with th' appurtenances as incidents and the Statute had no intent for to dismember these things which by lawfull prescription had beene united But if a hundred with goods of Fellons Outlaws Fines Amerciaments returne of Writts and such other casuall hereditaments within the same hundred have beene accustomably demised for a yearely rent they may be devised within the purview of the said Act. 'T was said upon the words of the Statute which says that he may devise a rent common c. Out of two parts that a devise of a rent of the full value out of all is voyd but out of two parts 't is good And 't was observed that upon 32. H. 8. a devile of all his land had beene good for two parts as adjudged in Vntons Case for Land is severable but a rent is a thing intire and 34. H. 8. onely gives authority for to devise it The second branch which speakes of division cannot be satisfied for during his life he himselfe could not Set it out and after his death it survives to the Wife The third and fourth branch is not satisfied in this word immediatly for till disagreement without question the Mannor of H. survived to the Wife and if an Office had beene found before disagreement without doubt the Queene should have a third part of the Mannor of T. and the devise being voyd at the death of the devisor the third part lawfully vested in the Heire by discent it cannot be made good and devested by a subsequent disagreement Littleton discent to the Heire of Tenant by the courtesy of a disseissoresse doth not take away entry for the Heire comes not in immediatly 't was agreed if a man devises two acres holden by Knights service and a reversion upon a Lease for life discends to the heire this is no immediate discent within the Statute but the third part of the two ought to discend see many excellent Cases of devises adjudged upon the Statute Another good Case of relations Jennings and Braggs Case a disseisee makes an Indenture purporting a Lease for yeares and delivers it to a stranger out of the Land as an Escroule and commands him for to enter and deliver this as his deed to the Lessee who doth it and adjudged a good Lease and this diversity agreed First When the person at the first delivery hath not ability to make the contract and before the second delivery hath 't is voyd as an Infant and a Fème covert otherwise when at first delivery the person hath ability but cannot perfect it till an impediment removed which is done before the second delivery there 't is good as at Barre Resolved secondly that to some intent the second delivery shall have relation to the former by fiction of Law Vt res magis valeat quam pereat as if a Feme sole deliver a Lease as an escroule and after takes Husband or dyes yet by the second delivery 't is a good deed Ab initio and to some intent Vt res magis valeat c. it shall not relate yet in truth the second delivery hath all its force by the first and is but an execution and consummation of the former as at Barre for if it should relate to the first delivery then it would avoyd the lease for it should be made by one who was out of possession fictio legis inique operatur alicui damnum vel injuriam Thirdly 't was resolved that as to collaterall acts that there shall be no relation Omninò as if the Obligee release before the second delivery such release is voyd Ratcliffes case 34. of the Queene fo 37. A. Feme sole devises Socage land to the sonne of her daughter in taile the remainder to two Sisters of the devisee and to the heires of their two bodies by equall portions to be divided the remainder in fee to the Mother of the daughters and dyes the sonne dyes without issue Martha one of the daughters dwelling in her Mothers house daughter of the devisor within the age of 16. and above 14. departed at the second houre in the night with the consent of the husband of her Mother in whose house she was 8. miles and there married E. R. the issue was whether E.R. the Mother had the custody of the said M. at the time of the contract and marriage aforesaid for if she had then the
the Donor was in possession and used them and fraud is alwayes apparelled with trust and trust is the cover of fraud Sixthly it was contained in the deed that it was honesty truely and bona fide Et clausulae inconsuetae semper juducunt suspitionem and it was resolved although it was a due debt to Twyne and a good consideration of the deed yet it was not within the proviso of the said Act of 13. Eliz. By which it is provided that the said Act doth not extend to any estate or interest in Lands c. goods and chattells made upon good consideration and Bona fide for although it be upon good and true consideration yet it is not Bona fide for no deed shall be deemed to be made Bona fide within the said proviso that is accompanied with any trust for the proviso saith upon good consideration and Bona fide so as good consideration doth not serve if it be not also Bona fide Therefore good Reader if any deed be made to thee in satisfaction of any debt by one that is indebted unto others also First let it be in publick manner before Neighbours Secondly valued-by good men to a true value Thirdly take them out of the possession of the Donor presently for continuance of possession in the Donor is a marke of trust There are two considerations Viz. Consideration of blood or nature and valuable consideration And if one that is indebted to five severall persons every one 20. l. in consideration of naturall affection doth give all his goods unto his Sonne or Cosen The intention of the Statute was that the consideration in this case should be valuable for equity requires that this deed that defeates others shall be made of as high a consideration as the things are that are so defeated thereby for it is to be presumed that the Father if he had not beene indebted unto others would not dispossesse himselfe of all his goods and subject himselfe to his Cradle And therefore it shall be intended that it was to defeate his Creditors And if a consideration of nature or blood should be a good consideration within this proviso the Statute would serve for little or nothing and no creditor should be sure of his Debt A feoffment made solely in consideration of nature or blood shall not take away the use raysed upon valuable consideration but it shall take away a use raised in consideration of nature for both considerations are in Equali jure and of the same nature Many men marvaile the reason that so many acts and Statutes are dayly made this Verse answereth Queritur ut crèscunt tot magna volumina legis In promptu causa crescit in orbe dolus And because fraud abounds in these dayes more then in former times it was resolved that all Statutes made against fraud shall be liberally expounded for to suppresse the fraud and according to this see severall resolutions in the Booke at large It was resolved that no purchasor may avoyd a precedent conveyance made by fraud but he that is a purchasor for money or other valuable consideration paid for consideration of blood is a good consideration but not such a consideration as is intended by the Statute 27. El. ca 4. for valuable consideration is onely good consideration by the same act Anderson chiefe Justice of the common banck said That a man who is of small capacity and not able to governe his Lands that discends unto him and being disposed to ryot and disorder by the mediation of his friends by open Act conveyes his Lands to them upon trust and confidence that he shall take the profits for his maintainance and that he shall have no power to wast or consume them And after he being seduced by deceitfull and covetous persons bargained for small summes his Lands of great value this bargaine although it were for money was holden to be out of this Statute for this act was made against all fraud and deceit and shall not ayd any purchasor that commeth not to the Lands for good considerations lawfully without fraud or deceit And in this case Twyne was convicted of fraud and he and all the others of a ryot Resolutions P. 44. of the Queene upon the Statutes of Fines fo 84. A. Tenant for life the remainder to B. in taile the remainder to B. and his heires B. levies a Fine hath issue and dyes before all the Proclamations passed the issue then beyond the Sea the Proclamations are made the issue retournes and upon the land claimes the remainder Resolved that the estate which passed was not determined by the death of tenant in taile so if tenant in taile of a rent Advowson Tythes Common c. grants by Deed and dyes for if the issue brings a Formedon for the rent he makes the grant voidable if he distraines or claimes it upon the land he by this determines his election And there is no diversity betwixt tenant in taile of a rent c. and tenant in taile of a reversion or a remainder upon an estate for life though in the first case the issue may have a Formedon presently after the death of tenant in taile Holden by Popham and divers other Justices that the Statute of 32. H. 8. hath inforced the case that the estate which passes by the Fine of tenant in taile shall not be determined by his death for by this 't is provided that Fines levied of any lands c. intailed immediatly after the Fine ingrossed and Proclamations made shall be a barre if the Fine cannot be a barre without continuance the Statute hath provided that the estate shall continue for it provides for all necessary incidents to the perfection and consummation of it Every Fine shall be intended with Proclamations for 't is most beneficiall for the conusee and all Fines being the generall assurance of land are levied according Resolved that though by the death of tenant in taile a right of the estate taile descends to the issue for that the tenant in taile dyed before all the Proclamations passed yet when they are passed without claime this right is barred by the Statute of 32. H. 8. Resolved by all the Judges and Barons but three that the issue in this case being heire and privy cannot by any claime save the right of the taile which is descended to him but that after the Proclamations he shall be barred for 't is provided that every Fine after the ingrossing of it and Proclamation had and made shall be a finall end and conclude as well privies as strangers And if no saving had been all strangers had been barred also and all the exceptions extend onely to Strangers but the issue is privy To the objection if by the equity of the Statutes the issue cannot claime c. to what purpose are the Proclamations with such solemnities Answered 32. H. 8. being an Act of explanaiton of 4. H. 7. as to the Fine by tenant in taile shall
of the intire blood shall have it not the younger sonne Resolved though a Copy-holder in judgement of Law hath but an estate at will yet custome hath so established and fixed his estate that by the custome of the Mannor 't is descendable to his heires and is not meerely ad voluntatem Domini but c. secundum consuetudinem manerij so the custome is the soule and life of Copy-holds See the booke at large of what antiquity Copy-holds are and some generall learning concerning them Resolved when custome hath created such inheritances the Law shall direct the descent according to the Maximes and rules of the common Law as incident to every estate descendable When uses had gained a reputation of inheritances the Law directed the descent and of them there shall be a possessio fratris But resolved that such customary inheritances shall not have any collaterall qualities which doe not concerne descent of inheritance which other inheritances have and therefore they shall not be assets to the heire upon an obligation nor there shall not be Dower nor tenancy by the Curtesie nor a descent shall toll entry c. For as without custome they cannot descend so without custome they cannot have a collaterall quality for Copy-holders have inheritances secundum quid viz. to descend to the heires and not to be determined by the will of the Lord not simplicitèr to a collaterall quality Resolved that the heire before admittance may take the profits and may surrender to the use of another before admittance but this shall not prejudice the Lord for his Fine upon the descent and he is a tenant by Copy of Court-roll for the roll made to his auncestor belongs to him and admittance of tenant for life shall serve for the remainder yet it shall not prejudice the Lord for his Fine And though 't was objected that every admittance amounts to a grant and so may be pleaded and therefore nothing vests before admittance yet 't was resolved that as after admittance the heire may in pleading alledge this as a grant and this to avoyde inconveniences for if he should be compelled to shew the first grant it was before time of memory and so not pleadable or if within memory then the custome failes yet he may alledge the admittance of his auncestor as a grant and shew the descent to him and that he enterd and this without admittance but he cannot plead that his Father was seised c. by Copy c. and dyed seised and that this descended c. For in truth 't is but a particular estate at will in judgement of Law though descendable by custome Ryvets case 24. of the Queene fo 22. A Greed that a husband shall not be tenant by the Curtesie of a Copy-hold without speciall custome Deale and Rigdens case 36. of the Queene fo 23. ADjudged that if a recovery be in plaint in nature of a reall action against tenant in taile admitting Copy-hold may be intailed that this is a discontinuance for in as much as plaints are warranted by custome 't is incident that it should make a discontinuance The like judgement was between Clun and Pease Bullock and Dibleys case 35. of the Queene fo 23. REsolved that a surrender by the husband is no discontinuance to the wife nor her heires And if a Copy-holder for life surrender to the use of another in fee this is no forfeiture for it doth not passe by livery And Copy-holders have not such quality without speciall custome so also adjudged in severall cases Gravenus and Teds case 35. of the Queene fo 23. REsolved that the descent of a Copyhold doth not toll entry and that where the custome was that he may grant in fee simple that he may by the same custome grant to a man and the heires of his body for be it a fee simple conditionall or a taile 't is within the custome so of a grant for life or yeares for fee simple includes them Fitch and Huckleys case 36. of the Queene fo 23. REsolved that admittance of a Copyholder for life is an admittance of him in remainder but not to prejudice the Lord for his Fine And that upon a surrender to the use of himselfe for life and after to the use of his last will that the fee remaines in the Copy-holder not in the Lord. Clarke and Pennifathers case 26. of the Queene of 23. REsolved that the heire of a Copyholder may enter and have trespas before admission and if the heire as the principall case was dye before admission his heire may take the profits and have trespas And Wray said that 't was adjudged that there shall be possessio fratris of it Resolved that where H. 8. granted a Mannor to the Queene for life that the Queene was a sole person exempted by common law and may make a lease or grant without the King and may plead and be impleaded and that 32. H. 8. is but a declaration of the common Law Adjudged that a grant of a Copyhold in fee escheated to her by the Queene tenant for life bindes the King his heires and successors for she was domina pro tempore and the custome of the Mannor bindes the King And that every one who hath a lawfull interest in a Mannor c. though but at will may grant Copyholds escheated c. rendring the auncient rent customes and services and this shall binde the Lord for he is dominus pro tempore For a Copyholder derives not his interest out of the estate of the Lord onely but out of the custome and the grantee is in by that without regard to the estate or person of the grantor and therefore such a grant by the husband shall binde the wife so of Infants non compos mentis Bishop Prebend Parson shall binde for ever for the custome is that the tenements are parcell of the Mannor and demised and demisable c. But the Lord must have a lawfull estate for if a disseisor or Feoffee of a disseisor c. makes such grants this shall not binde him that hath right after a recontinuance of the Mannor but admittances by such upon a surrender or of the heire shall binde c. for they are lawfull quodam modo judiciall acts which to doe he may be compelled in a Court of equity P. 26. of the Queene fo 24. ADjudged if a Lord takes wife and a Copyholder for life according to the custome dyes and the Lord regrants for lives and dyes that the wife in Dower shall not avoyde these grants for though the grant were after the title of Dower yet the custome was before If a Feoffee upon condition makes a voluntary grant the condition is broken the Feoffor reenters the grant shall stand Rous and Arters case 29. of the Queene fo 24. ADjudged that if tenant pur auter vie of a Mannor after the death of cestuy que vie continues in and holds Courts and makes voluntary grants this shall not
offence but here his life was not in jeopardy So if a man be convicted by verdict or confession upon an insufficient indictment and no judgement given he may be againe indicted and arraigned for the law wants its end but if upon such insufficient indictment the felon hath judgement quod suspendatur per collum and so attainted which is the end of the Law he cannot be indicted againe c. till this judgement be reversed and upon such acquittall no conspiracy lyes Wrote and Wigges case 33. 34 of the Queene fo 45. THe defendant in an appeale of murder pleads that auter foits by inquisition taken before the Coronor of the Queenes houshold and B. one of the Coronors of M. he was indicted of Manslaughter which inquisition was certified to N. at the Goale delivery and the defendant upon this was arraigned confessed the felony and had his Clergy and it appeares the arraignement c. was after the purchase of the Writ of appeale and before the retourne Resolved that auter foits convict of man-slaughter and Clergy is a good barre in an appeale of murder as 't was adjudged in Holcrofts case In which it was likewise resolved that an inquisition taken before B. Coronor of the houshold c. and one of the Coronors of M. is well taken and within the Statute of articuli super chartas though the Statute requires two persons for the intent of the Act was performed and the mischiefe recited avoyded for though the Court removes yet he may proceed as Coronor of the County Resolved also upon the Statute of 3. H 7. ca ' 1. that this case was out of the Statute for if the defendant had his Clergy the appeale lyes not a fortiori when he is convicted onely and prayes his Clergy and the Act of the Court to be advised as to the allowance of Clergy so the case was shall not prejudice the party in case of life And 't was resolved that attaint of murder in the Act extends to a person convicted by confession or verdict as to a person attaint for he which is attainted is convicted and more And Agnes Gainsfords case adjudged that where 3. H. 7. is That the wife or heire of him so slaine shall have appeale that the heire of a woman c. shall have it against him who was acquitted of the same murder So resolved here an indictment and conviction or acquittance of manslaughter is a barre to an indictment of the same death for all is the same felony though the circumstance alter it Resolved that at common law the Coronor of the houshold had an exempt jurisdiction within the Verge and the Coronor of the County could not meddle as appeares by Articuli super Chartas and Swifts case adjudged where a Coronor of the County tooke an inquisition within the Verge 't was avoyded by plea the one cannot meddle within the power of the other But Justices of the Kings Bench of oyer and terminer c. may inquire heare and determine all murders c. within the Verge for their authority is generall through all the County so resolved in Holcrofts case Resolved that the indictment was insufficient for it doth not appeare that D where the stroke and death was was within the Verge and though in truth it were within yet it ought to be found by the oath of the indictors and cannot be supplied by nude averrement and it shall not be voyd coram non judice as to the Coronor of the houshold and good before the Coronor of the County for the Record is intire and taken intirely before them c. And the defendant in his plea hath averred that D. was within the Verge so the Coronor of the County could not take the indictment onely Resolved for that the indictment upon which he was convicted was insufficient that he may be newly indicted c. for his life never was in jeopardy Resolved that where the stroke was one day the death another the conclusion ought to be that he was murdered the day of his death otherwise 't is nought for 't was not murder before and 't was resolved that the finding of the stroke and the death were not sufficient of it selfe without conclusion and so T. W murdered the said R. W. Resolved that though the conviction were pending the appeale yet if it had been lawfull and before that the defendant was compelled to plead it had been a good barre Waits case 45. of the Queene fo 47. REsolved that where a woman brought seaven severall appeales against severall persons as principalls all ought to abate but the first for all the principalls and the accessories before the murder and after and before the Writ purchased against whom the plaintiffe will bring an appeale ought to be named in the Writ for if all make default except one yet the plaintiffe ought to count against all therefore he ought to bring the appeale against all And the defendant shall not have damages by the Statute of W. 2. for it is out of it because the Writ abated And the Statute of Magna Charta says appellum in the singular number Hill ' 30. of the Queene fo 48. AN indictment upon 8. H. 6. was quashed Quia fuit inquisitio capta ad sessionem pacis in Com' S. tent ' die Martis die Mercurij though the sessions may indure two or three dayes yet the Record ought to mention that they were holden at a day certaine as also for that the Statute was misrecited in a point materiall Note because misrecitall is fatall the sure way is to draw the indictment with conclusion contra formam statuti and with no recitall of the Act. Ognels case 29. of the Queene fo 48. AN Executor possessed of a grange consisting of divers parcels demises all the grange except H. to A. for 23. yeares and H. to F. for 23. yeares and grants all the residue of his terme in the intire grange to A. F. B. the revertion or grants a rent charge in fee out of all his lands c. called C. grange quondam in tenura B. the testator and now in tenura occupatione de A. The rent is areare the intire terme expires the reversionor makes a Feoffement the grantee dyes the Feoffee leases at will the Executors distraine for arrearages Resolved that at common law in some case debt lyes for arrearages of an Annuity in fee though it continues as if a Parson or Prebend resigne or dyes because the Parson is chargeable otherwise of a rent service charge or secke when the Freehold continues and for a rent there is a diversity when a rent in fee is extinct by the act of the party and when of the Law and when particular estates expire see the booke at large But 't was resolved in the case at barre that the arrerages due in the life of the grantee were lost at common Law Resolved that H. was not charged with the
Clergy in an appeale 1. Because it is but to notifie to the Judges that he hath once had his Clergy and that he shall not have it againe by the Statute of 4. H. 7. c. 13. 2. Because it is no part of the judgement and the party shall goe at large although he be not burned by good construction of the Statute of 18. Eliz. c. 7. which provideth that after Clergy allowed and Burning he shall goe at large for otherwise when he is pardoned he shall be imprisoned for ever In the Starre-Chamber the King may Pardon corporall punishment for forgery c. but not if attainted at the common Law in an Action of forgery of false deeds Halls Case 2. Jacobi com banco fo 51. A. C. Libelled for defamation in the Court Christian against H. and had sentence and costs taxed at a day to be paid H. sueth an appeale and obtaines a Pardon from the King and brings a prohibition 1. Resolved all Suites in the Court Christian Pro salute animae or reformatione morum are for the King as suits in the Starr-chamber he may pardon them before or after the Suite comenced but he cannot Pardon where the party sueth for a thing in which he had interest as Tythes 2. All proceedings in the Court Christian Ex officio are for the King and he may pardon them 3. Although the suite may be pardoned yet he cannot pardon the costs which are taxed 4. Although the sentence by the appeale is suspended to many purposes yet untill reversall the party had interest in the costs not pardonable and after a consultation was granted for the costs Pages case 30. Eliz. in the Exchequer fol. 52. I. Demiseth to his wife who is an Alien and before the death of the Testator indenized the date of the Letters Patents is corrupted so that they bore date after his death shee obtaines an exemplification by Commission under the Exchequer Seale it is found that she was an alien and an Information is brought against her and she pleads the exemplification 1. Resol This office is voyde for every office of Intitling as this is ought to be by Commission under the Great Seale but an office of Instruction may be under the Exchequer Seale 2. It appeared not what authority the Commissioners had but Inquisitio capta virtute Cujusdam Commissionis c. 2. That the Exemplification was pleadable by the Statute of 13. Eliz. c. 6. which extends to all Patents whatsoever without any restraint An Exemplification and an Inspeximus as an Innotescimus and a Vidimus are all one A Constat cannot be had without Affidavit and it is when Letters are casually lost An Innotescimus or a Vidimus are alwayes of a Charter of Feoffment or other Instrument not of Record Knights case 31. Eliz. Communi Banco fol. 54. THe Prior of St. John of Je 29. H. 8. Leased divers houses reserving 5. li. 10. s. 11. d. per annum at the foure usuall feasts in L. viz. for one house 3. li. 11. d. and so severally of the others with condition of re-entry for non payment and after surrenders to H. 8. who in Anno 36. grants one house to the lessee and another in fee the lessee dyeth It is found by Inquisition in the Com' of Mid ' by Commission under the Exchequer Seale that 37. s. 5. d. parcell of the said rent was arreare at M. for a quarter of a yeare before the returne of the office or seisure the King grants the residue of the houses to one who leaseth to the Plaintiffe who upon entry of the Executors of the first lessee brings Trespas and the Court being divided it was argued in the Exchequer Chamber by all the Judges 1. Resol This is an intire Lease and the viz. is but a declaration of the severall values of the houses and no severance of the reservation but by apt words divers parcells may be severally leased by one demise and severall rents reserved 2. Admitting them severall rents yet the condition is intire and in case of a common person by severance of any part of the reversion will be extinct 3. This being in case of the King his patentee of part shall not take advantage of the condition but the King himselfe may and the Patentee to whom he grants the residue although the Lease originally made by a Subject 4. Although it be found that more was arreare then was reserved quarterly yet it sufficeth that the office had matter of substance and the Jury in M. may finde which are the usuall feasts in L. 5. The grant after office and before the returne of it is good and by entry without other seisure the Lease is voyde 6. This office under the Exchequer Seale is sufficient to intitle the King to a Chattell Specots case 32. Eliz. Banco Regis in Error fol. 57. S. sa feme bring a Qu impedit against the Bishop of E. and declare that J. A. was seised of a Mannor to which an advowson was appendant and demised it to the feme for life and they presented D. W. who dyed and so it belongs to them to present the defendant pleads that the plaintiffe presented one who is schismaticus inveteratus whereof he gave notice to the plaintiffe It was adjudged for the plaintiffe in the Common place and Error brought thereupon 1. Error Because no presentment alledged in J. A. but over ruled for the presentment of the plaintiffe is sufficient for themselves 2. The Bishop ought not to shew any particular schisme for the Court of the King cannot judge of it but the Bishop is Judge also it is cause to remove a Coroner quia minus Idoneus It was answered that he ought to shew the heresie in certaine and although the Bishop is Judge yet because his Act is not of Record it is traversable and although it belongs not to the Kings Court to judge of Heresies yet the generall cause of suite being in their conusance they shall determine of it by advise of Divines and the cause of removing a Coroner is not traversable 3. The Bishop is twice amerced and a man can be amerced but once towards one man c. It was answered that he was but once amerced for the Judgement in the Kings Bench was but a rehersall of the former yet admitting the second Judgement thereby voyde neverthelesse the first Judgement is good by the Common Law without damages Quod fuit concessum per totam Curiam Fostar 32. El. in Banco le roy fol. 59. IT was resolved that the Constable having a warrant to bring one coram aliquo Justiciar ' c. it is at the election of the Officer to bring the party so attached to what Justice he will For it is greater reason to give the election to the Officer who in presumption of Law is a person indifferent and sworne to execute his Office duly then to the Delinquent Wray chiefe Justice said that a Justice of Peace may make
Deed to the Court the plaintiffe may pray it to be entred in haec verba the same Terme but not after Pagetts case 35. El. in communi banco fol. 76. IT was resolved that if tenant for life the remainder for life the remainder in fee if tenant for life maketh wast in trees and after he in remainder for life dye an action of wast is maintainable for the wast done in the life of him in remainder for life because it was to the disinheritance of him in remainder in fee. And now the impediment which was the meane estate for life is taken away Et remoto impedimento emergit actio It was resolved that when the trees are cut downe the property thereof belongeth to him in remainder in fee. And where it is said in some Bookes That he in remainder or reversion in fee shall not have an action of wast it is to be intended during the continuance of the meane remainder And in other Bookes is said in this case that an action of wast doth lie it is intended after the death of him in remainder for life Boothes case 36. Eliz. in communi Banco fol. 77. GEeorge Booth brought an action of wast against Skevington and declared that Sir William Booth demised for yeares to Ensor who assigned to Skevington The defendant pleaded an assignement to Elizabeth Cave before which assignement no wast was made the plaintiffe replyed and shewed the Statute 11. H. 6. ca. 5. and that the grant to Elizabeth Cave was made to the intent he should not know against whom to bring his action and averred that Skevington did take the profits the defendant rejoyned that Elizabeth Cave granted her estate to A. who demised to the defendant at will and traversed the fraud c. the plaintiffe demurred it was resolved that every assignee of every Lessee mediatly or immediatly is within the said act for the Statute was made to suppresse fraud and deceipt and therefore it should be taken most beneficially Secondly that he in remainder is within the said act as well as he in reversion Thirdly the intent of fraud aforesaid is not traversable but the taking of the profits which is a thing notorious whereof the Country may have knowledge In a formedon the tenant pleaded Non tenure the demandant said that he made a Feoffment to persons unknowne to defraud him of his tenancy and to keepe the profits the pernancy of the profits and not the Feoffment is traversable Samons case 36. Eliz. Banco Regis fol. 77. THe plaintiffe and defendant referred all controversies to the Arbitrement of J. S. who did arbitrate that the defendant shall enter into an obligation to the plaintiffe that the plaintiffe and his wife shall injoy certeine lands which he had not done this is voyde for the incerteinty of what summe the obligation shall be for the award ought to be certeine like a Judgement Also the award was voyde as to the feme for she was a stranger to the submission Grayes case 37. Eliz. Banco Regis fol. 78. Replevin THe plaintiffe intitles himselfe in barre to the avowry to Common c. which was traversed the Jury found that every c. time of minde have used to pay for the Common a henne and five egges the plaintiffe had Judgement for he needs not shew more then makes for him for this is not Modus Communiae paying so much nor parcell of the issue but a collaterall recompence to be paid for the Common for which the Terretenant had remedy but if the Terretenant had no remedy then the Commoner shall have the Common sub modo and may be disturbed by the Terretenant Fitz-Herberts case 37. Eliz. Banco Regis fol. 79. THe father tenant for life the remainder to the sonne in taile leaseth for yeares to A. to the intent to barre the sonne A. infeoffeth J. S. to whom the father releaseth with warranty and dyeth this doth not barre the sonne for although that the disseisin which is made by the feoffment precedes the warranty yet because it was to that intent the Law will adjudge upon the intire act and so a warranty by disseisin 2. Although the disseisin was made to the father yet because he consented unto it the warranty commenceth by disseisin but if the father had made a feoffment in fee and dyed this shall binde the sonne if it be with warranty Foordes case 37. Eliz. Com' Banco fol. 81. A Prebend leaseth for 70. an Patron Deane and Chapter confirme dimissionem praedictam in forma praedicta fact ' for 51. yeares non ultra this is a confirmation for all the Terme for when they confirme dimissionem c. for 51. yeares it is repugnant but if they had recited the Lease and confirmed the land for 51. yeares this had been good for they have an authority coupled with an interest otherwise if onely a bare authority but by what words soever they confirme a lease for life or a gift in taile for part this is a confirmation of all because they are intire so if the estate of the disseisor or his lessee for life be confirmed for an houre yet all is confirmed Cases of Customes Snellings case 37. Eliz. Com' Banco fol. 82. S. Brings Debt upon an Obligation against an Administrator who pleads there is a custome in L. that an Administrator shall pay debts upon contract to a Citizen as well as upon Obligation and that J. S. upon a Contract had recovered and good 1. Resol Although that debt is given against an Administrator by the Statute of 31. E. 3. yet because they were charged as Executors before so that onely the name is changed the custome generally alledged is good 2. The ordinary by taking the goods was chargeable at the Common Law 3. This custome bindeth strangers The case of Markett overt 38. Eliz. fo 83. SHopps in L. are Marketts overt for things to be sold there by the trade of the owner therefore if plate be sold there in a Scriveners shop the property is not altered otherwise if in a Goldsmiths shop if he who passeth in the street may see it Nota the reason of this case extends to all Marketts overt in England Perimans case 41. Eliz. Com. Banco fol. 84. IT is a good Custome of a mannor that all sales of lands within that mannor be presented at the Court of the Mannor Obj. What remedy if the Steward will not accept the presentment Resp What remedy if the Clerke will not Inrolle a deede of bargaine and sale and therefore Caveat Emptor 2. Obj. That Interest is by the feoffment vested in the feoffee which shall not be devested by the Custome Resp That livery was ordained to give notice and a Custome which addeth more solemnity and notice is good Sir Henry Knivets case 38. Eliz. Banco Regis fol. 85. TEnant for life the remainder in fee leaseth for yeares the Termor is ousted the disseisor leaseth for yeares his lessee sowes the land tenant for life dyes he
tender more then he is bound to pay it is good Omne majus continet in se minus That the tendring of 250. li. in bags without shewing or numbering the same is good tender if the truth be that there was so much vide Winters case if there be any counterfeit money in the same yet if the partie then accept the same he cannot compell the partie to change it or if it be a rent or for non-payment a reentree yet the once acceptance is good and the lessor may not reenter Foliambes Case 43. Eliz. fo 115. IN a writ of Estrepement the Sheriffe may resist them that will make wast or cut downe Trees and if he cannot otherwise he may Imprison them and may make warrants to others and he may take Posse comitatus for his aide A writ of Estrepement lyeth in an Action of wast as well before judgement as after Olands Case 44. Eliz. Banco regis fo 116. A Feme Copy holder Durante viduitate sowes the Land and taketh Husband the Lord shall have the Corne for although her estate was incertaine yet it was determined by her owne act so if Lessee at will sowe the Land and determine the will but if Baron and Feme are Lessees during the coverture and the Baron sowe the Land and they are after Divorsed Causa praecontractus the Baron shall have the Emblements because this is the Act of the Court. Pynnells Case 44. Eliz. fo 117. com banco PYnnell brought an Action of Debt upon an Obligation against Cole of 16. l. for payment of 8. l. 10. s. on the 11. of Nov. 1600. The Defendant pleaded that at the instance of the Plaintiffe before the sayd day he paid him 5. l 10. s. and it was resolved by all the Court that the payment of a lesser summe in satisfaction of a greater summe cannot be satisfaction for all so that by no possibility a meaner summe may satisfie the Plaintiffe of a greater but the Gift of an Horse Cowe Robe c. in satisfaction is good But in this case it was resolved That the payment of a parcell and acceptance thereof before the day in satisfaction of all is a good satisfaction in respect of the circumstance of time for paradventure parcell of that before the day may be more beneficiall unto him then the whose summe of money at the day and the value of satisfaction is not materiall for if I be bound to pay you 10. l. at Westminster and you request me to pay 5. l. at Yorke and you will accept the same in full satisfaction of the 10. l. this is a good satisfaction in respect of the place but in this case the Plaintiffe had judgement for the insufficient pleading for he did not pleade that he had paid 5. l. 10 s in full satisfaction as by Law he ought but pleaded the payment of part generally and the Plaintiffe accepted the same in full satisfaction and alwayes the manner of the tender and of the payment shall be directed by him that maketh the tender and payment and not by him that accepteth it Edriches Case 1. Jacobi com banco fo 118. A Rent charge is granted to B. for the life of C. the Grantor leaseth for life to D. the remainder in Fee to E. C. and D. dyes B. distraines E. for all arreares this is good by the Statute of 32. H. 8. cap. 37. Whelpdales Case 2. Jacobi com banco fo 119. IN Debt brought against one joint Obligor the Defendant pleads Non est factum adjudged for the Plaintiffe 1. Resolved he may pleade in abatement of the Writ but not Non est factum for every one is obliged in the intirety therefore if Debt be brought against both and one is outlawed the other who appeares shall be charged with all 2. If a Deede be avoidable by plea he shall not pleade Non est factum 3. If a Deede be made voyd by Statute he shall not pleade Non est factum but shall avoide it by plea but if a deede by matter Ex post facto become not his deede he may pleade Non est factum as if one deliver a deede to deliver over to I. S. who refuseth c. Longs Case 2. Jacobi banco regis fo 120. EXception to the Inditement of Murder the Inditement was taken Infra libertatem villae de C. and C. where the Torte is done is not said to be within the Liberty Response that to Inditements certainty to a certaine intent in generall sufficeth and not to every particular intent for that is Nimia subtilitas and it shall be intended that the Ville of C. is within the liberty of C. the Indictment is Quod dedit vulnus super anteriorem partem corporis subter mamillam where it should be Mammillam Resolved that false Latine shall not quash an Indictment if the word be sensible and these two words are good Latine also this is superfluous for Super anteriorem partem corporis is sufficient and shall be intended the Trunke betwixt the Neck and Thighs 3. Vulnus where it should be Plaga over-ruled because Synonima 4. Le depthe is not shewed it was said that it did penetrate all his body whereby it appeareth that it was mortall 5. It is said that the wound did penetrate his body and not the Bullet this is significant enough 6. Percussit wanteth and for this cause the Indictment was quashed for in all cases of death this ought to be except in case of poysoning and for this last error the Outlary was reversed and H. D. was discharged Saffins Case 3. Jacob. fo 123. com banco A Man maketh a Lease for yeares to commence after the end or determination of a former Lease In esse The first Lease endeth the second Lessee doth not enter but he in reversion entereth and maketh a Feoffement and levyeth a fine with Proclamations and five yeares passe without entry or claime of the second Lessee If this fine be a Bar was the Question and it was resolved to be a Bar for the Statute of 4. H. 7. c. 24. speakes of interest and a Lease for yeares is an interest within the Statute so oâ— tenant by Elegit c. De Libellis famosis 3. Jac. fo 125. A Libell may be made as well against a private man as against a Magistrate Non refert whither the Libell be true or whither the party be of good fame or ill fame for it inciteth all the same Family Kindred or Society to revenge and so tendeth by consequence to the effusion of blood It was resolved in the Starre-Chamber 44. Eliz. Hallywoods Case that if any finde a Libell and would preserve himselfe out of danger if it be against a private man the finder may eyther burne it or presently deliver it to a Magistrate but if it concerne a Magistrate or publick person then he ought to give it to a Magistrate A Libell may be as well by words Verbis aut cantilenis as Writings and by Pictures
taile with crosse remainders to J. and K. M. discontinueth and dyeth without issue J. dyeth without issue K. dyeth and her issue brings a Formedon in the remainder and good although severall remainders for they depend upon one estate and commence by gift at one time In actions reall in which title is expressed a man shall not have one Writ for Lands to which he had severall Titles as in escheate cessavit Writ of Mesne c. but he may have a Writ of ward of Land onely although it be by severall Tenures nor one formedon upon two distinct gifts where the foundation is severall but he shall have it if there be one gift although it take effect at severall times because the foundation was joynt and single as upon a gift in taile to Brother and Sister who dye without issue or if the Brother dye without issue and the Sister dye having issue who dyes without issue he to whom the remainder limitted shall have one formedon although it vest at severall times so in an estate taile to Father and Sonne and so here In actions reall founded upon Torte a man shall have one Writ to recover Lands to which he had severall Titles as in an assize a Writ of entry c. but in a Writ of entry upon disseisin made to my Mother and her Sister Coperceners because there title is in the Writ it appeareth he ought to have severall actions but in personall actions one may comprehend severall torts and causes of actions as trespasse for trespasse made at severall dayes and places wast upon severall Leases and so of Debt Nota if a remainder be executed issue in remainder shall not have a formedon in remainder but in the discender and Count of an immediate gift but if there be a Lease for life to one the remainder in taile to A. the remainder in taile to B. A. dyes without issue if B. be chased to his formedon he shall not count of an immediate remainder but shall shew the first remainder to A. and that he is dead without issue 2. In formedon in the remainder or reverter omission of issue inheritable in the pedigree of the demandant abates the Writ but not upon the part of the perticular Tenant 3. The Demandant must make mention of the Sonne who survived the Father to which Son the Land discended but was not seised by force of the taile but he shall name him Sonne but not heire 4. The Demandant in a formedon in the Discender must make himselfe heire to him that was last seised and he to the Donee Note here because K. was never seised the Writ shall say Remanere not descendere and the Writ was Remansit jus because a discontinuance otherwise it should be Tenementa remanserunt Fraunces Case 7. Jac. fo 89. THe Plaintiffe pleads in barre of avowry that R. F. devised to I. his Sonne who leased to him the avowant replyeth that after the devise R. F. made a Feoffement to the use of the said I. upon condition that he shall suffer his Executors to take away his goods and the estate limitted to him was for sixty yeares if he should so long live with diverse remainders over and that after the death of F. I. hindered the Executors to carry away the goods whereupon T. in remainder entered and judgement given for the Plaintiffe 1. Resolv Although the condition be taken strictly the uses to I. onely and to his Heires are onely avoided by it 2. A disturbance by paroll is no Breach of the condition and because the avowant did not shew a speciall disturbance his replication was void 3. I. ought to have notice of the condition being a Stranger to it or otherwise he cannot breake it as a Copy-holder shall not forfeite for denyall of rent to him to whose use a Mannor is transferred before notice but he who bindes himselfe to doe any thing must take notice at his perill because he hath taken it upon him 4. Although that the Title which the Plaintiffe had made in barre to the avowry be destroyed yet he shall have judgement because his count is good and another Title that is to have the Land for sixty yeares by force of the uses declared upon the feoffement is given unto him by the Replication although that the title which he made for himselfe be destroyed yet the Court must adjudge upon all the record and judgement was entered for him accordingly Edward Foxes Case 7. Jacobi fo 93. A Revertioner upon a Lease for life the remainder for life in consideration of 50. l. demiseth granteth c. his reversion for 99. yeares rendering rent this is a bargaine and sale and there needs no attornement for the words of bargaine and sale are not necessary if there are words which tantamount as if at the common Law one had sould his Land an use had beene raised to the Vendee because their intent so appeared so here but if it appeare that their intent was to passe it at the common Law as if a Letter of Attorney be made to make livery the use had not risen and here appeareth their intent to passe it as a bargaine and sale because rent is reserved presently therefore it is reason that he shall have the rents of the particular Tenants presently which cannot be if it passe not by bargaine and sale and inrollment is not necessary because a tearme for yeares onely passeth in this case and â—o freehold See Sir Rowland Heywards Case 2. Report fo 35. Matthew Mannings Case 7. Jacobi fo 94. LEssee for yeares is bound in 200. Markes to W. C. and deviseth to his Wife for life and after her death to M. M and makes his Wife Executrix who agrees and dyeth intestate M. M. enters and takes administration of the goods not administred W. C. brings Debt against him Resolved that M. M. takes by Executory devise and not as a remainder and the estate limmitted to him in construction precedeth the limittation to the Wife as if he had devised that if the Wife die within the terme that then M. M. shall have the residue and also devised it to his Wife for life 2. This case is most strong because a Chattell which may vest and revest at pleasure of the Devisor without mischiefe to the Praecipe 2. A devise of the Terme and Occupation thereof all one Viz. So many yeares as the Feme shall live the remainder to M. M. 4. After the Executrix had agreed the first devisee cannot barre the Executory devise 5. A man may devise an estate which he cannot convey by act executed as to his Executors untill his Debts shall be paid the remainder over they have a Chattell determinable upon payment of the Debts which cannot be at the common Law If a Sheriffe sell a Terme upon a Fieri facias and judgement is reversed the sale shall stand otherwise none will buy any thing upon Execution and judgement was given for the Plaintiffe and affirmed in Error
Baspoles Case 7. Jac. fo 97. F. And B. put themselves in Arbitrament for all demands Suites so as the aforesaid award be delivered in Writing c. at the Feast of Saint James the Arbitrator awards that B. shall pay 22. l. to F. B. refuseth to pay F. brings Debt upon the bond to stand to the award and good 1. Resolved that the award was of both parts for the one was to pay money and the other to discharge the Debt 2. Resolved that whereas the Plaintiffe saith that the award was made De premissis which untill the contrary be shewed shall be intended of all when the submission is generall an award of part is good for otherwise the parties may conceale one thing and make the award void but if it be of diverse things in speciall Ita quod arbitrium fiat de premissis an award of part is voyd but good without such conclusion so if two of one part and one of the other part submit themselves arbitrament betweene one of the one part and another of the other part is good Sir Richard Lechfords Case fo 99. TEnant by copy in fee where there is a custome that the heire after the death of his auncestor within three Courts and Proclamations made shall be barred if he claimed not dyes his heire beyond the Seas untill three Courts and Proclamations passe and returnes and claimeth to be admitted he is not barred no more then by Non-claime upon a fine Ergo this custome shall be construed if he be within the realm of full age c. but if he goe over the seas after the death of his auncestor he shall be barred as in case of a fine 2. Resolved although he was not in the Kings service this is not to the purpose because by intendment he cannot have notice But a Mulier puisne over the Seas shall be barred by the dying seised of the Bastard Eigne for the right of the Mulier is barred and the Bastard is made Mulier although that a discent of the disseisor of a rent or thing which lyeth in grant barreth not the disseisee yet if a Bastard eigne dye seised of it this barres the Mulier If two Daughters whereof one is a Bastard eigne enters and dyes before or after partition the Mulier is barred Otherwise if two Daughters and one of them had no collour of partition if Bastard eigne dye in the life of his Father having issue who enters after the death of the Father and dyeth seised having issue Quaere if the Mulier be barred mulier is barred by discent before entry of the Sonne of the Bastard eigne as if issue be in Ventre sa mere or the Wife of the Bastard indowed John Talbots Case 7. Jaco in Second deliverance fo 102. LOrd and Tenant by Homage Fealty and Herriot service of 50. acres the Tenant infeoffeth the Lord of three acres and after infeoffeth the Plaintiffs father of three other acres parcell c. who dieth the Lord distreineth for Herriot the Plaintiffe brings replevin and good 1. All intire services to render an intire Chattell of profit or pleasure by alienation of part shall be multiplied and by purchase of part by the Lord extinct 2. Personall services for the publique good which are intire as Chivalry Homage and Fealty shall be multiplyed and not extinct 3. Other personall services as Butler Sewer c. shall not be multiplied but shall be exinct So of a personall office and mannuall labour 2. There is no diversity betweene an intire Chattell be it annuall or not as if it be to render a Horse every five yeare by purchase of part it shall be extinct 3. If the Father of the Plaintiffe had been first infeoffed and then the Lord the Herriot had remained because there the Father of the Plaintiffe held by a severall Herriot before the Lord was infeoffed 4. But Herriot custome by purchase of part is not extinct Doctor Bonhams Case 7. Jacobi fo 114. THe President and Censors of the Colledge of Physitians in L. by colour of Letters Patents of H. 8. and the Statutes of 14. H. 8. and 1. Mar. fined and Imprisoned Doctor Bonham for practising of Physicke in L without their allowance the fine to be paid to them and also for contempt made to the Colledge whereupon he brings false imprisonment and adjudged for the Plaintiffe 1. Whither a Doctor of one University or other be within the act 2. Admitting that he is whither he be within the exception in 14. H. 8. Justice Daniell held that such a Doctor was not within the body of the Act and if he were yet he is within the Exception but Warburton econtra for both points Cooke spake not to them but they all agreed that the Action was maintainable for two other points 1. Whither the Censors have power to fine and imprison 2. Admitting that if they have pursued it The Censors have no power in this case to imprison the Defendant for they have no power to punish by fine and Imprisonment those who practise without their license but those practisers who misadminister physick 1. Because the clause that none shall practise without their License and the clause which giveth to them the said power are distinct clauses 2. The first clause imposeth another penalty and 5. l. every moneth that he practiseth but leaveth the evill administration of Physick to be punished by the Colledge because this is uncerteine 3. To make one punishable by the first Branch he ought to practise by a moneth otherwise it is by the second 4. By this way they shall be both Judges and parties in one cause 5. If Doctor B. shall be punished by 5. l. by the moneth and also at their pleasure he will be often punished for one offence 2. Admitting that they had power yet they have not pursued it 1. Because the President who hath no power joyned with them 2. The fine was imposed for not appearing before the President and Censors and the President had no power 3. Halfe of the fine belongs to the King and here all is to be paid to them 4. The Imprisonment ought to be presently as upon the Statute of W. 2. cap. 12. 5. their authority being by Patent and Statute their proceedings ought not to be by Paroll and the rather because they claime authority to fine and imprison 6. It shall be taken strict because against the liberty of the Subject therefore before 1. Mar. the Gaoler was not bound to receive them and this doth not inlarge their power but that the Gaoler shall forfeite double the Amerciament if he refuse Admitting the replication void although that the Colledge demurre upon it yet the Plaintiffe shall have judgement because in the barre the Defendants have shewed that they have imprisoned him without cause for upon all the pleading it appeareth that he had cause of action but if a barre be insufficient and by the replication it appeares that the Plaintiffe had no cause
shall abate against all but if it be for matter in fact onely as for misnaming one Defendant it shall abate onely against him omission or addition which doth not alter the forme is amendable as if Dei gratia be omitted Voluntary or negligent keeping of Records by the Clerke is amendable by other parts of the Record or by exemplification Count or plea in barr c. which wanteth substance shall not be amended in another Terme but default in the colour because this is the default of the Clerke shall be a Record shall be amended in another Terme by the paper Booke and a thing apparent to be the fault of the Clerke shall be amended in another Terme as rien luydoit de hoc c. predictus defend pro quaerent Nisi prius shall be amended by this Statute if power be given to the Justices to proceed otherwise not as if issue joyned in the Record be mistaken in the Nisi prius it shall not be amended but misprision of dammages shall be because this is not materiall to the issue and it is the default of the Clerke Warrant of attorney and returnes are amendable by this Statute but if there be none at all it is out of the Statute and because this Statute leaveth many cases without remedy the Statutes of 32. H. 8. cap. 30. and 18. Eliz. cap. 14. were made Ten misprisions as yet not remedied 1. Variance materiall betweene the originall and the Count. 2. Want of substance in the originall or Count. 3. Insufficient tryalls 4. If a Coroner returnes the Jury where the Sheriffe ought 5. Lack of name of the Sheriffe to the returne 6. Where no returne is indorced upon the Venire facias 7. When one who is not returned giveth a Verdict 8. Pleas of the Crowne 9. If it appeare to the Court that he who hath a Verdict had no cause of action 10. Errour in Law Cases in the Court of Wardes Myghts Case 7. Jacobi fol. 163. 1. REsolved if J. M. purchase Lands to him and an Infant in fee it cannot be averred that this was to take away the wardship because he never was sole Tenant to the King 2. No feoffement that I. M. can make of his moity can be aver'd to be by collusion c. because without feoffement no wardship shall be and also the Statute speakes of sole seisin 3. A feoffement to the wife or younger Child cannot be averred to be by covin c. upon construction of the Statute of 32. 34. H. 8. where collusion cannot be averred by the Statute of Marlebridge it cannot be now to seize all the Land but it may be for the third part which belongs to the King If a third part be left to the King no averrement of covin may be for the other two parts the Father makes a feoffement to diverse uses the remainder to his second Sonne and dyeth his Eldest Sonne dyes the second Sonne shall not be in ward by averment of covin Digbies Case 7. Jacobi fo 165. TEnant of the King conveys his Lands to the use of himselfe for life the remainder to his Sonne and Heire in taile and after is attainted of Treason the King shall have no wardship of any part of the Land by 32. 34. H. 8. because there is no Heire and livery must be sued in the name of the Heire but the King shall have wardship in such a case before 26. H. 8. because there was an Heire The Earle of Cumberlands Case 7. Jacobi fol. 166. E. 2. granted the Castle and Mannor of S. in taile to R. C. H. 6. granted the reversion to T. C. if the taile be good if not he grants it in possession this is good one way or other and so are many Patents from time to time Paris Stoughters Case 7. Jacobi fol. 168. BY Mandamus it was found that P. S. dyed seised 40. El. and held of the Queen in common socage 7. Jacobi a Melius inquirendum was awarded whither he held of the King by common socage or in chivalry and it is found that he held of the Queene by chivalry This Writ of Melius c. is repugnant and giveth no authority to find this office because a Tenure cannot be of the King in the time of Queene Elizabeth and therefore a new Writ shall be awarded but if the first Melius be good no other shall issue 1. For avoiding Infinitnesse 2. A Diem clausit c. shall not issue upon a Diem c. Nor Mandamus upon a Mandamus so a Melius c. shall not issue upon a Melius 3. If an Office be found against a Subject he shall have a traverse and if upon that it be found against him he hath no remedie So the King shall have but one office and a Melius and no more although that a Tenure be found of two Subjects or one hath an Ouster le maine the King shall not reseise without a Scire facias Toursons Case 8. Jacobi fol. 170. IF Tenant of the King commit Fellony Ao 1. Jaco and after is attainted Ao 3. for the same and after in Ao 4. all is found by office Now this office shall have relation to the time of the Fellony to avoid all meane alienations and incumbrencies but for the meane profits it shall have relation to the time of the Attendor for their the Kings Title appeared of Record and the like Law is of an Ideot But in case of a ward within age the King shall have the meane profits from the death of the Auncestor because he hath it by reason of his Seigniory and he looseth the rent and services in the meane time the difference is when the King seiseth jure protectionis regae or Nomine destrictionis and when Ratione Prioris recti seu tituli Sir Gerrard Fleetewoods Case 8. Jacobi fol. 171. SIr William Fleetewood receiver of the Revennues of the Court of Wards in Anno. 35. Eliz. was possessed of a Messuage and certaine Lands in Harrow in Com Mid for a tearme of yeares in Anno. 36. Eliz. he became Receiver generall and was bound in 20. Obligations of 200. l. a peece to make true account c. And after upon severall accounts he became indebted in great Summes of money to the Queene and being so indebted in consideration of 1100. l. did bargaine and sell the said Lease to James Pemberton which by meane conveyance came to Sir Gertard Fleetwood Question Whither this Lease c. was extendable and lyable to the Kings Debt c. and it was resolved that the said sale of the tearme was good against the King because the tearme was but a Chattell and the sale of Chattells after judgement Bona fide is good but not after Execution awarded And Cooke Chiefe Justice said that a Receiver or other accomptant which is indebted shall not be in worse case then a Fellon or a Traytor that may after Fellony or Treason and before conviction sell Bona fide for his
in this Case the obligor by accord betweene the parties may give any Horse or other thing in satisfaction of the money in the defeasance for the Contract originally was for money But if a man by Contract or assumpsit without Deede be to deliver an Horse or to build an House or to doe any collaterall thing money may be paid by accord in satisfaction of such contract for as a contract in consideration may commence by word so by accord by words for any valuable consideration the same may be dissolved Agnes Gores Case 9. Jacobi fol 81. WHerein was resolved that if A. put poyson into a Pot to the intent to poyson B. and set the same in a place where he supposeth B. will come and drinke thereof and by accident one C. unto whom A. had no malice commeth and of his owne will taketh the Pot and drinketh thereof of which poyson he dyeth this is murther in A. for the Law coupleth the event with the intention and the end with the cause But if one prepare Rats-Bane to kill Rats or Mice and lay the same in certaine hidden places to this purpose and with no ill intent and another person finding the same doth eat thereof and dyeth this is no Fellony But when one prepareth poison with a Fellonious intent to kill any reasonable Creature whatsoever reasonable Creature is killed thereby he that had the fellonious intent shall be punished Resolved by all the Justices of England Coneys Case 9. Jacobi fol. 84. in banco THe Lord of a Mannor and Tenant within the age of 21. yeares by Fealty and rent the Lord infeoffeth a Stranger to which feoffement the Tenant attourneth Question whither the attournement of an Infant will binde him to the payment of the services or not and by Cooke Walmsley Warberton and Foster it shall binde for he is compellable in a Per quae servitia and shall not have his age but he may avoide any prejudice thereby at his full age and if a fine here had beene levyed he had beene compellable and the rather because it is but a bare assent Pinchons Case 9. Jacobi fol. 86. IT was adjudged that an Action of the Case will lye against Executors for a Debt due by the Testator upon a simple contract An Action upon assumpsit made by the Testator was maintainable against the Executors upon a contract for Corne. Norwood Reades Case plow com 181. Debts upon simple contracts ought to be paid before Legacies and reasonable part of the goods of the Wife or Infant which proveth that they still remaine the Spirituall Court doth give remedy for payment of Legacies and the reason of all this is for that the Testator in his life time upon his action of the case upon the assumpsit might not wage his Law as he might have done upon his action of debt for no action is maintainable against Executors where the Testator might have waged his Law in his life time If a Prisoner doe eate and drinke with his Goaler and dye the Goaler shall have an action of debt against his Executors for the meate and drinke of the Testator and the reason is for that in this case the Testator might not wage his Law as is adjudged 27. H. 6. fol. 46. in Thomas Bodulgates Case and the reason that no wager of Law in this Case is because that every Goaler ought to keep his Prisoner in salva arcta custodia and thereby the Goaler is in a manner compelled to finde Victualls for his prisoners and therefore the Prisoner may not wage his Law but if A. contract with B. for his commons for a moneth c. there in an action of debt brought against A. he may wage Law If a Victualer or common Innkeeper bring an action of debt for victualls delivered to his Guest the Guest may wage his Law for the Victualler or Host is not compellable to deliver Victualls untill he be paid for them in hand 10. H. 7 8. in Anno. 4. H. 6. R. G. brought an Action of Debt for 10. Markes against Thomas Timberhull and others Executors of William Webb and declared that the Testator had detein'd the Plaintiffe to be with him for a yeare in the Art of Limming of Books paying per annum 10. Markes And Martin did hold opinion that the Action was not maintainable against Executors and he tooke diversity between this Case of a Limmer and of a common Labourer for the Labourer may be compelled in spight of his head to serve and his wage is put in certeinty by the Statute and it is no reason the Servant should loose his wages by the death of their Master whom he was bound by the Law to serve but in case of a Limmer he is not bound by the Law to serve so when he makes a Covenant it is his owne Act and folly and not the Act of the Law for he might have taken a specialty and the opinion of Martin in this Case is good Law But the true reason of this diversity is because that in this Case of the common Labourer the Testator might not wage his Law as he might against the Lymmer and this appeareth in 11. H. 6. fol. 48. where the Gardian of Freres Minors in Coventry brought an Action of Debt against John Burton of Coventry Executor of John Goate and declared that the said John Goate retain'd at Coventry Frere John Bredon a Brother of the said House by License of the said Gardian to Sing for him Masses for one whole yeare and to say Saint Gregories Trentalls in the next yeare after and shewed in certainty upon what services Saint Gregories Trentall did consist taking for this xl s. per annum and within foure dayes John Goate dyed and the Defendant his Executor and the said John Burton granted to the said Frere to pay him the said Summe for doing the said services according to the Reteinor of the Testator which Divine services the Frere did performe according to the reteinor and all his wages were Arr. And in this Case the diversity was taken that a Labourer may have an Action of Debt against Executors without specialty because that he may be compelled to serve by the Statute and the Testator shall not wage his Law in this Case But the Priest or Frere is not bound to Sing Masses by the Law against his will And in every Case where the Testator might have waged his Law the Action is not maintainable against his Executors without specialty for Executors may not wage the Law upon the contract of another In 2. H. 4. fol. 16. Lawr. Saint Martin retained one for Tearme of his life in the time of peace and Warres for 100 s. per annum which service hee as his Servant did doe for two yeares for which he brought his Action of Debt against John Belton and others Executors of the said Lawr. And judgement was given against the Plaintiffe for the reason and upon the same diversity as is
aforesaid an Assumpsit without specialty is no more personall then a Covenant by specialty and therefore dyeth not with the person William Banes Case in banco regis 9. Jacobi fol. 93. UPon an Action of Assumpsit against Executors the Plaintiffe needeth not to averr that the Executors have assets in their hands of the goods of the Testator to the value of the said Debt for it shall be intended Prima facie that they have Assets for the Law doth presume that the Testator will not leave a greater charge upon his Executors then he will leave benefit to discharge If a Stranger doe say unto a man to whom a Debt is owing I pray â—ou forbeare your Debt and doe not sue the Partie untill Michaelmas c. and then I will pay you the Debt This is a good consideration although it be no benefit to him that made the promise for it It is a damage to the Creditor to forbeare his Suite or debt hee may have his Action of assumpsit against such a Stran-ger after the day Sir George Reynells Case 9. Jacobi fol. 95. In Chancery IT was found by Office by Commission under the great Seale That the Marshall of the Kings Bench had committed diverse Forfeitures of his Office by suffering voluntary escapes of Prisoners That Office and such like may not be granted for yeares because it is an Office of trust and personall and he must continually attend and be Sworne in Court Two matters of record amount to an Office as in the Case of Sir John Savage who was Sheriffe of the County of Worcester for life by Letters Patents under the Great Seale and was Indicted of two voluntary escapes of Fellons and the King may seize his Office into his owne hands without suing forth any Scire facias 5. Mar. Dyer The Abbot of Saint Albones had a Gaole and detained Prisoners therein and because he would not be at charges to sue forth a Commission for the Gaole delivery the King caused his Franchise and Liberty thereof to be seised into his owne hands The Abbey of Crowland had a Gaole and Prisoners and for that hee once deteined men that were quit of Fellony the King reseised the Gaole for ever If a man grant an Office to another for life or for yeares and he will not doe his Office or otherwise misuse his Office the Grantor may reseize the said Office 39. H. 6. fo 34. If a Gaoler commit voluntary escapes or permit them this is a forfeiture of his Office Cooke Lib. 9. in the Countee of Salops Case The King may grant the custody of the Gaole to one in fee and also to the Sheriffe of a County to one and his Heires which estate in fee simple includes all other estates and it is true that these grants may be made by Law for in these Cases there is not any intermission for presently after the death of the Ancestor the Office discends to the Heire 2. This Office cannot be forfeited by Outlary as if it were granted for yeares it might grants of these Offices in fee or for life have beene allowed and approved but such grants for yeares were never allowed or approved Et periculosum existimo quod bonorum virorum non comprobatur exemplo He that hath the custody of the Gaole whither by right or wrong shall be charged with escapes of Prisoners untill he be actually removed Margaret Podgers Case 10. Jacobi fol. 104. I. P. Copy-holder for life the remainder for life the Lord bargained and sould and levyed a fine to I. P. this discended to M. P. who levyed a fine five yeares passe without claime of them in remainder adjudged no barre 1. Resolved that Copy-hold estates are within 4. H. 7. by the word Interest but if the Fine be by covin this barreth not the issue if Lessee for yeares or Copy-holder be ousted the Lord shall not have five yeares after a fine levyed by the disseissor after their estate determined because he may presently have an assize otherwise where Lessor for life is ousted A meer Stranger cannot enter to avoyd a fine without Commandement or assent of the party who hath right but a Gardian in socage or Lessor for life or Lord of a Copyholder may for the privity betweene them and the Infant or Lessees 2. A Fine barreth not any by Non-claime who is not put to a right therefore here they in remainder are not barred because the bargaine and sale and Fine to the Tenant in possession putteth them not to a right 1. Because it is a lawfull act 2. Tenant in possession devesteth not the remainder by acceptance as if Lessee for life accept a fine Corne ceo although it be a forfeiture 3. Because he is in by 27. H. 8. of uses which doth no wrong 3. After the bargaine and sale he in the next remainder shall not enter for by the custome his estate was to commence after the death of the Tenant in possession so if Tenant in possession forfeite the Lord and not he in remainder shall enter but thereby without a speciall custome the remainder is not destroyed If a Copy-holder in fee surrenders to the use of one for life no more passeth then serveth the estate limitted and he shall pay no fine for admittance after the death of Tenant for life It seemed to the Chiefe Justice that if the Lord here had charged the Land I. P. shall not hold it charged for the estates in remainder preserve him from incumbrances of the Lord. Meriel Treshams Case 10. Jacobi Communi Banco fol. 108. AN Administratrix Defendant in Debt pleads that the Testator and his Sonne acknowledged a recognizance to the King of a hundred pound and another of 800. l. to B. and another of a 1000. l. to M. and diverse others over and about which she had not assets and after said she had not sufficient assets the Plaintiffe replieth that the recognizance to B. was for payment of 400. l. which is paid and the other to M. is to performe Covenants whereof none is broken and the recognizance remaineth in force by Covin of the Defendant 1. Resolved that the barre is insufficient for shee first confesseth that shee had sufficient assets to pay the said recognizances and after denyeth it 2. She saith she had assets but not sufficient this is too generall but shee must confesse how much she had because she had knowledge thereof 3. The pleading by the Plaintiffe that the Obligation was made to performe Covenants is good without more certainty because he is a Stranger 4. The generall allegation of Covin is good without shewing of refusall to release c. and fraud may be in one onely also the barre is insufficient because the intestate was bound in the recognizances with another and the Defendant had not averred that the other had not satisfied them Robert Marys Case 10. Jacobi fol. 111. A Commoner being Copy-holder brings an Action of the Case for putting Beasts into the Common whereby
inqure of the value if they finde for the Plaintiffe as in an Assize if issue be joyned upon a release and found for the Plaintiffe yet the recognitors must inquire of the seisin and disseisin and this defect shall not be supplyed with a Writ of inquiry because then the Defendant would be prevented of his Writ of attaint But if the Court ought to inquire of things whereof no attaint lyeth this being but of Office it may be supplyed by a Writ of inquiry as the foure points in a Quare impedit Viz. De plenitudine ex cujus praesentatione si tempus semestre transierit and the value of the Church per annum and in the case at Barr by the rule of the Court a new Venire facias was awarded The Case of the Maior and Burgesses of Lynn Regis touching misnaming of Corporations 11. Jacobi fol. 122. Communi Banco H. 8. in the 29. yeare of his Reigne did incorporate that Towne by the name of Majoris Burgensium burgi domini Regis de Lynn Regis and one made an Obligation to them by the name of Maior and Burgesses of Lynn Regis omitting these words Burgi Regis this is good because it is the same name in substance and doth not vary in materiall words and though it be not Idem nomen sillabis yet it is Re sensu for Burgesses that implyes it is a Burrough for Burroughs and Burgesses are conjugata and by Lynn Regis it appeares that it is Burgus suus i. Regis a fortiori because there is no other Corporation of the same name Apices juris non sunt jura there may be a difference betweene ancient Corporations and new for ancient Corporations may by usage have severall names and the Maior and Burgesses notwithstanding Non est factum pleaded had judgment to recover William Cluns Case 11. Jacobi fol. 127. Banco Regis A Lease for yeares if the Lessor should so long live rendring Rent at the foure Feasts or within thirteen weeks after after one of the Feasts the Lessor dyeth and before the thirteene weekes be past the Executor brings debt against the Lessee and the Defendant demurreth upon the Count and it was adjudged a good demurrer and that the action did not lye 1. Because the disjun ive is added for the benefit of the Lessee and the first day was but for voluntary payment but the legall time of payment was the end of the thirteene weeks before which when the Lessor dyeth the Lessee is discharged by act of God for that Quarter if Lessee before the day pay the Rent this is voluntary and not satisfactory but it is good to give seisin if payment be in the morning and the Lessor dyeth at noon this is voluntary and satisfactory against the heire but not against the King Payment the last instant of the day is satisfactory and after the day it is coercive and satisfactory 2. When the first day is past it is as if the Rent had been onely reserved the second day for the election is good 3. The rent is to he payd out of the profits of the Land Ergo in regard of time it shall not be apportioned and if the Lessor dye betwixt the first day and the last day his heire and not the Executor shall have the rent because it was not then due if a man lease for yeares rendring Rent at M. or within a moneth after with a condition of re-entry and the Lessee tenders it at the last instant of M. the Lessor shall not re-enter upon demand the last day of the moneth because the Lessee had liberty to pay it then and the difference was taken betwixt the sayd disjunctive Reservation and when the reservation is at a certaine Feast and a condition is added that if it be arrere by the space of a moneth after the Feast that then the Lessor c. there the Lessee for salvation of his Lease cannot tender it at the last instant of the Feast because he had no such liberty as in the other Case A Lease for yeares rendring Rent at M. or within twelve dayes after upon condition to re-enter if it be arreare by the space of twelve dayes after any of the sayd Feasts or dayes the Lessee shall have twenty foure dayes in safegard of his Lease after the Feast of M. and in the Case at Barr judgement given Quod quaerens nil capiat per billam James Osbornes Case 11. Jacobi fol. 130. Banco Regis IN an action upon the Case for that the Plaintiffe had bought of the Defendant diverse goods which he refused to deliver whereof one was unum fulchrum lecti Anglice a Feild Bedstead with a Testerne and Curtaines of Saye the Plaintiffe recovers and damages assessed intirely where none ought to be given for the Testerne c. for Fulchrum signifieth a Bedstead onely upon errour brought therefore judgement was affirmed for one thing onely is here put in issue for the other things are not alleadged Positive sed expositive and are nugation but when two things are put in issue or Obliqué inquired of by the Jury there it is not good and it shall not be intended that damages were given for that onely for which the action was brought but in an action upon the Case for words spoken at one time whereof some are actionable and some not there damages may be assessed intirely and shall be intended to be given for the words actionable onely 1. Because the Plaintiffe must declare as the words were 2. Because the words not actionable aggravate the damages otherwise if spoken at severall times but here damages shall be intended to be for that which is actionable onely and the rest as if never alleadged and in Writs or Pleas English words are not admitted by 36. E. 3. cap. 15. except they be parcell of a name as Jo. in the Hall 2. words which passe under the name of Latine are 1. Good Grammaticall Latine 2. Words significant in Law and not in Grammar 3. Incongruous Latine which doth not vitiate a Plea or Grant nor judiciall Writ 4. Words insensible having no countenance of Latine and are rejected but fained words as Velnetum Stapedia c. are good Read and Redmans Case 10. Jacobi fol. 134. THe Defendant in debt brought by two Executors pleads the death of him who was summoned and severed Resolved The Writ shall not abate if two purchase an originall reall action and one dyeth pending the Writ this shall abate in all as in case of joyntenants or parceners where one dyeth having issue or no issue because that shee may have a Writ for the whole and shall not recover a moity and one shall not recover upon a false reall Writ or unapt for his Case in respect hee may have an apt Writ although it happen after by act of God but if two purchase a judicial Writ and one is summoned and severed and dyes without issue the Writ shal not abate the same law where jointenants