Service Tenant Richard Hulme dyed after whose death 31 H. 8. it was found that he dyed seized of the said Mesnalty and that the same descended to Edward his Son and Heir within Age and found the Tenure aforesaid c. And during nonagâ— Robert Male dyed seized of the said Tenancy peravail and that the same descended to Richard his Son and Meir as was found by Office 25 H. 2. within age and that the said Tenancy was holden of the King as of his said Dutchy by Knights Service whereas in truth the same was holden of Edward Hulme then in Ward of the King as of his Mesnalty for which the King seized the Ward of the Heir of the Tenant And afterwards Anno quarto Jacobi Rogis nunc after the death of Richard Male the lineal Heir of Robert Male by another Office it was found that Richard dyed seized of the Tenancy and held the same of the King as of his Dutchy c. his Heir within age Whereupon Richard Hulme Cozen and Heir of the said Richard Hulme preferred a Bill to be admitted to traverse the Office found 4 Jac. Regis And the Question was Whether the Office found 35 H. 8. be any Estoppel to the said Hulme or if that the said Hulme should be first driven to Traverse that And it was objected That he ought first to traverse the Office of 35 H. 8. as in the Case 26 E. 65. And that the first Office shall stand as long as the same remaines in force To which it was Answered and Resolved by the two Chief Justices and Chief Baron and Court of Wards That the finding of an Office is not any Estoppel for that is but an Inquest of Office and the party grieved shall have a Traverse to it But when an Office is found falsly that Land is holden of the King by Knights Service in capite or of the King himself in Socage if the Heir fueâ—h a general Livery it is holden 46 Ed. 3. 12. by Mowbray and Persey that he shall not after adde that the Land is not holden of the King But that is not any Estoppel to the Heir himself and shall not conclude his Heir for so saith Mowbray himself expresly 44 Ass pl. 35. See 1 H. 4. 6. b. So 33 H. 6. 7. And there is no Book that saith that the Estoppel shall endure longer than his life but that is to be intended of a general Livery but a special Livery shall not conclude one And if a Jury find falsly in a Tenure of the King the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King in Socage c. the Heir may traverse the last Office for by that he is grieved and he shall not be driven to traverse the first Office And when the Father sues Livery and dyes the Conclusion is executed and past as is aforesaid And note there is a special Livery but that proceeds of the King's Grace and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda or to the Heir within age as appears 21 E. 3. 40. And then is general and shall not comprehend any Tenure as the several Livery doth and therefore it is not any Estoppel without question See the 33 H. 8. cap. 22. 23 Eliz. Dyer 177. It was also Resolved in this Case that the Office of 35 H. 8. was not traversable for his own Traverse shall prove that the King had cause to have Wardship by reason of Ward And when the King comes to the Possession by a false Office or otherwise if it appears the King have any other Right to have the Land there none shall traverse the Office or Title of the King because the Judgment in the Traverse is Ideo consideratum est quod manus Domini Râ—gis amoveantur c. See 4 H. 4. fol. 33. in the Earl of Kents Case c. Mich. 7 Jacobi Regis Note The Priviledge Order or Custom of Parliament either of the Upper-House or House of Commons belongs to the Determination of the Court of Parliament and this appeareth by two notable Presidents 1. The one at the Parliament holden in the 27 H. 6. There was a Controversie moved in the Upper-House between the Earles of Aâ—undel and Devonshire for their Seats Places and Pre-eminences of the same to be had in the King's Presence as well in Parliament as in Councels and elsewhere The King by the Advice of Lords Spiritual and Temporal committed the same to certain Lords of Parliament who not having leisure to examine the same by the said Lords Advice referred it to the Judges of the Land to hear see and examine the Title c. and to report what they conceive herein The Judges reported as followeth That this matter viz. of Honour and Pre-eminency between the two Earles Lords of Parliament was a matter of Parliament and belonged to the King and his Lords in Parliament to be decided Yet being so commanded they shewed what they found upon Examination and their Opinions thereon Another Parliament 31 H. 6. 6th of March begun and after some continuance was prorogued to the 14 of February and afterwards in Michaelmas Term the same 31 H. 6. Thomas Thorpe Speaker of the Commons House was condemned in the Exchequer in 1000 l. Damages at the Duke of Buckingham's Suit for a Trespass done to him The 14th of Feb. the Commons mâ—ved in the Upper-House that their Speaker might be set at liberty to exercise his Place c. The Lords refer it to the Judges and Fortâ—scue and Prisoit the two Chief Justices in the Name of all the Judges answer'd That they ought not to consider this Question c. but it belongeth to the Lords of the Parliament and not to the Justices But as to their Proceedings in the Lower-Courts in such Cases they deliver'd their Opinions See 12 E. 4. 2. Hill 7 Jac. Regis In Cam. Stâ—ll Heyward and Sir John Whitbrook's Case In the Case between Hyward and Sir John Whitbrook in the Star-Chamber the Defendant was convicted of divers Misdemeanours and Fine and Imprisonment imposed on him and Damages to the Plaintiff And it was moved that a special Process might be made out of that Court to levy the said Damages upon the Lands and Goods of the said Defendant And it was referred to the two Chief Justices whether any such Process might be made who this Term moved the Case to the Chief Baron and the rest of the Judges and Barons and it was unanimously by them all Resolved That no such Process could or ought to be made neither for the Damages nor for the Costs given to the Plaintiff the Court having no such power but onely to keep the Defendant in Prison till he pay them For for a Fine due to the King they can make no Process to levy it but they estreat it into the Exchequer which hath power by Law to write forth Process
c. But if a man be convict in the Star-Chamber for Forgery upon the Stat. 5 Eliz. In that Case for the double Costs and Damages an English Writ shall be made directed to the Sheriff c. reciting the Conviction and Statute for levying the said Costs and Damages c. and to bring the money into Star-Chamber and the Writ shall be sealed with the Great Seal and the Teste of the King The like Resolution was in Langdale's Case in that Court Hill 7 Jac. Regis In the Common-Pleas Morse and Webb's Case In a Replevin brought by John Morse against Robert Webb of the taking of two Oxen the last day of Novemb. 3 Jac. regis nunc in a place called the Downfield in Luddington in the County of Worcester The Defendant as Bayliff to William Sherington Gent. made Conuzance because the place where is an Acre of Land which is the Freehold of the said William Sherrington and for Damage feasants c. In Bar of which Avowry the Plaintiff said That the said Acre of Land is parcel of Downfield and that he himself at the time and before the taking c. was and is yet seized of two Yard-Land with the Appurtenances in Luddington and that he and all those whose Estate he hath in the said 2 Yard-Land time out of mind c. have used to have Common of Pasture per totam contentam of the said Place called the Downfield whereof c. for 4 Beasts called Rother-Beasts and two Beâ—sts called Horse-Beasts and for 60 Sheep at certain times in the Year c. And that he put in the said two Oxen to use his Common c. And the Defendant maintained his Avowry and traversed the Prescription upon which the Parties were at Issue and the Jury found a special Verdict That before the taking one Richard Morse Father of the said John Morse now Plaintiff whose Heir he is was seized of the said two Yard-Land and had Common of Pasture c. as is before alleadged and so seized the said Richard Morse 20 Eliz. demised to William Thomas and John Fisher divers parcels of the said two Yard-Land to which c. viz. the four Butts of Arable with the Common and Inter-Common to the same belonging for 400 years By force whereof the said William Thomas and John Fisher entred c. so seized dyed whereby the Possession and Reversion of the said two Yard-Land descended to John Morse now Plaintiff And if upon the whole Matter John Morse now hath and at the time of the taking c. had Common of Pasture c. for c. as to the said two Acres of Land with the Appurtenances in Law or not the Jury pray the Advice of the Court. Note This Plea began Trin. 5 Jac. Rot. 1405. and upon Argument at the Bar and Bench 1. It was Resolved by the whole Court That it ought to be found against the Defendant who had traversed the Prescription For though all the two Yard-Lands had been demised for years yet the Prescription made by the Plaintiff is true But if he would take advantage of the matter in Law he ought confessing the Common to have pleaded the said Lease but when he traverseth the Prescription he cannot give the same in Evidence 2. Resolved That if the said Lease had been pleaded that the Common during the Lease for years is not suspended or discharged for each of them shâ—ll have Common rateable and in such manner that the Land in which c. shall not be surcharged 3. Resolved That Common appendant to Land is as much as to say for Cattel leuant and couchant upon the Land in which c. 4. There is no difference when the Prescription is for Cattel leuant and couchant and for a certain numbâ—r of Cattel leuant and couchant But when the Prescription is for Common appurtenant to Land there a certain number of the Cattel ought to be expressed which are intended by the Law to be leuant and couchant Hill 7 Jac. Regis In the Common-Pleas Hughes and Crowther's Case In a Replevin between Robert Hughes Plaintiff and Richard Crowther Defendant which began Trin. 6. Jac. Rot 2220. The Case was Charles Fox was seized of 6 Acres of Meadow in Bedston in the County of Salop in Fâ—â— and 10 Octob. 9 Eliz. leased the same to Charles Hibbens and Arthur Hibbens for 60 years if the said Charles and Arthur should so long live and afterwards Charles dyed and if the Lease determine by his death was the Question And it was adjudged That by his death the Lease was determined For the life of a man is meer collaterall unto the Estate for years otherwise if a Lease be made to for the Lives of J. S. and J. N. See Brudnel's Case in the 5th Part of my Reports which Case was affirmed for good Law by the whole Court Pasch 8 Jac. Regis In Communi Banco Heydon and Smith's Case Richard Heydon brought an Action of Trespass against Michael Smith and others of breaking his Close called the Moor in Ugley in the County of Essex the 25 day of June 5 Jac. Et quandam arborem suam ad valentiam 40 s. nuper crescen succiderunt The Defendants said that the Close and at the time of the Trespass was the Freehold of Siâ— John Leventhrop Knight c. and that the said Oak was a Timber-Tree of 30 years growth and more and justifies the cutting down of the Tree by his Command The Plaintiff replyes and saith That the said Close and a House and 28 Acres of Land in ugley are Copy-hold and parcel of the Mannor of Ugley c. Of which Mannor Edward Leventhrop Esq Father of Sir John Leventhrop was seized in Fee and granted the said House Lands and Close to the said Richard Heydon and his Heirs by the Rod at the Will of the Lord according to the Custome of the said Mannor and that within the Mannor there is such a Custome Quod quilibet teneres Customar ejusdem Manerii sibi haeredibus suis ad voluntat Dom. c. a toto tempore supradicto usus fuit ad ejus libitum amputare ramos â—mnimodum arborum called Pollingers or Husbords super terris tenement suis Customar crescen pro ligno combustibili c. and also to cut down and take all manner of Trees called Pollingers and Husbords and all other Timber Trees c. for reparation of their Houses and also for Plough-boot and Cart-boot and that all the Trees c. hitherto growing upon c. were not sufficient for the necessary uses aforesaid And that the said Richard Heydon from the time of the said Grant had preserved c. all Treas c. growiâ—g upon the said Lands to him granted and that after the said Edward Leventhrops death the Mannor descended to the said Sir John and that at the time of the Trespass the aforesaid Messuage of the said Richard Heydon was in decay c. upon which the Defendant demurred in
County of Hereford in his Denâ—esne as of Free and found the other Points of the Writ and it was holden by the two Chief Justices and the Chief Baron 1. That Mâ—ssâ—agium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain Land or any thing that is holden 2. It was holden That it was void for the whole because no Town is mentioned in the Office where the Mâ—ssuage or Tenement c. lyeth and it was holden that no melius inquirendum shall issue forth because the whole Office is incertain and void Trin. 7 Jac. Regis In the Court of Wards The Attorney of the Court of Wards moved the two Chief Justices and the Chief Baron in this Case A man seized of Lands in Fee-simple covenants for the advancement of his Son and his Name Blood and Posterity that he will stand seized of them to the use of himself for life and after to the use of his eldest Son and to such Woman as he shall marry and the Heir-males of the body of the Son and afterwards the Father dyeth and after the Son takes a Wife and dyeth if the Wife shall take an Estate for Life And it was Resolved by the said two Chief Justices and Chief Baron That the Wife should take well enough being within the consideration which was for the advancement of his Posterity and without a Wife the Son cannot have Posterity Secondly It was Resolved that the Estate of the Son shall support the use to the Defendant and when the Contingent happeneth the Estate of the Son shall be changed according to the Limitation viz. to the Son and the Woman and the Heirs of the Body of the Son And so it was Resolved in the Kings-Bench by Popham Chief Justice and the whole Court in Sheffields Case in Q. Elizabeths time Trin. 7 Jac. Regis In the Court of Wards Spary's Case John Spary seized in Fee in the Right of his Wife of Lands holden by Knight-service had Issue by her and 22 Dec. 9 Eliz. alienated to Edward Lord Stafford The Wife dyed the Issue of full age the Alienee holds the Lands And 10 years after the Fathers death and 12 years after the Mothers Office is found 7 Jac. finding all the special Matter after the Mothers death The Question was Whether the mean Profits are to be answer'd to the King And it was Resolved by the two Chief Justices and Chief Baron that the King should have the mean Profits because the Alienee was in by Title and untill Entry the Heir has no Remedy for the mean Profits but that the King might seize and make Livery because the Entry of the Heir is lawful by the Stat. 32 H. 8. Trin. 7 Jac. Regis In the Court of Wards It was found by force of a Mandamus at Kendal in Westmerland 21 Dec. 6 Jac. that George Earl of Cumberland long before his death was seized in Tail to him and to the Heirs-male of his body of the Castles and Mannors of Browham Applâ—by c. the remainder to Sir Ingram Clifford with divers Remainders in Tail the remainder to the right Heirs of Henry Earl of Cumberland Father of the said George and that the said George Earl so seized by Fine and Recovery conveyed them to the use of himself and Margaret his Wife for their Lives for the Joynture of Margaret and after to the Heir-males of the body of George Earl of Cumberland and for want of such Issue to the use of Francis now Earl of Cumberland and the Heir-males of his body and for want of such Issue to the use of the right Heirs of the said George And after by another Indenture conveyed the Fee-simple to Francis Earl By force of which and of the Statute of Uses they were seized accordingly and afterwards the 30 of Octob. 3 Jac. George Earl of Cumberland dies without Heirs male of his body c. And found further that Margaret Countess of Cumberland that now is was alive and took the profits of the Premisses from the death of the said George Earl till the taking the Inquisition and further found the other Points of the Writ 1. And first it was objected Here was no dying seized found by Office and therefore the Office shall be insufficient But to that it was Resolved That by this Office the King was not intitled by the Common-Law for then a dying seized was necessary But this Office is to be maintained upon the Stat. 32 and 34 H. 8. by force of which no dying seized is necessary and so it was Resolved in Vincents Case Anno 23 Eliz. 2. The second Objection was It doth not appear that the Wives Estate continued in her till the Earles death for the Husband and Wife had aliened the same to another and then no primer seizin shall be as is agreed in Binghams Case And to that it was Resolved That the Office was sufficient prima facie for the King because it is a thing collateral and no point of the Writ And if such Alienation be the same shall come in of the other part of the Alienee by a Monstrans de droit And the Case at Bar is a stronger Case because it is found the Councess took the Profits from the death of George the Earl till the finding the Office Trin. 7 Jac. Regis In the Court of Wards Wills Case Henry Wills seized of the 4th Part of the Mannor of Wryland in the County of Dâ—von holden of Q. Eliz. iâ— Socage Tenure in capite of the said 4â—h part enfeoffed Zathary Irish and others and their Heirs to the use of the said Henry for his Life and after his Decâ—ase to Thomas Wills his second Son in Tail and after to the use of Richard Wills his youngest Son in Tail and after the said Henry so seized as aforesaid dyed All this Matter is found by Office And the Question was If the King ought to have primer seizin in this Case that Livery and Ouster le mayne should be sued by the Statutes of the 32 and 34 H. 8. And it was Resolved by the two Chief Justices and the Chief Baron that not if in this Case by the Common-Law no Livery or Ouster le main shall be sued and that was agreed by them all by the experience and couâ—se of the course See 21 Eliz. Dyer 362. and 4 Eliz. Dyer 213. And two Presidents were shâ—wed which were Decreed in the same Court by the Advice of the Justices Assistants to the Court. One in Trin. 16 Eliz. Thomas Stavely enfeoffed William Strelley and Thomas Law of the Mannor of Ryndly in Nottingh â—shire on condition that they re-enfeoffe the Feoffor and his Wife for their Lives the remainder to Thomas Stavely Sâ—n and Heir apparent of the Feoffer in Fee Which Mannor was holden of Q. Elizabeth in Socage Tenure in capite And it was Resolved That no Livery or Ouster le maine shall be sued in such Case because of the saving of the Stat. 32 H. 8.