the wrong but that the said Bill shall remaine alwayes of record to their infamy and here no murther or piracy can be punished upon any Bill exhibited in English but he ought to have beene indicted and therefore he hath not onely mistaken the Court but also the nature of exhibiting the Bill hath not appearance of any ordinary course of justice but no action lyes upon an appeale of murder returnable in the Common Bench for though the Writ is not returned before competent Judges who may doe justice yet 't is in nature of a lawfull Suite namely by Writ of appeale wherefore judgement was given for the Plaintiffe And in a Writ of error in the Chequer Chamber brought by Wood 't was resolved that Sir R. B. might have had a good action but here because the action was not upon the Bill exhibited at Westminster but because he said in the County of S. that his Bill was true In auditu quamplurimorum without expressing the said matters in particular so that it was not any Slaunder judgement was reversed Stanhopp and Bliths Case 27. of the Queene fo 15. MAster Stanhopp who was a surveyor of the Dutchy and had divers Offices and was a justice of peace Hath but one Mannor and that he hath gotten by swearing and forswearing Resolved that the action doth not lye for they are too generall and words which charge any one in an action in which damages shall be recovered ought to have convenient certainty and he doth not charge the Plaintiffe with swearing c. and he may recover a Mannor by swearing c. yet not procuring or assenting to it Resolved if one charge another that he hath forsworne himselfe no action lyes First because he may be forsworne in usuall communication Quia benignior sensus in verbis generalibus seu dubijs est praeferenda Secondly it is an usuall word of passion and choller as also to call another a Villaine a Rogue or Varlet these and such like will not mayntaine Action Boni judicis interest lites derimere But if one say to another that he is perjured or that he hath forsworne himselfe in such a Court c. For these words an Action will lye Hext Justice of Peace against Yeomans 27. of the Queene fo 15. FOr my ground in H. Hext seekes my life and if I could finde one J. H. I doe not doubt but within two dayes to arrest Hext for suspicion of felony Adjudged that no action lyes for the first words 1. Because he may seeke his life lawfully upon just cause and his land may be holden of him 2. 'T is too generall and the Law inflicts no punishment for seeking of his life but adjudged that the action lyes for the last words for for suspicion of felony he shall be imprisoned and his life in question Birchleys case 27. 28. of the Queene fo 16. THe Defendant said to B. Clerke of the Kings Bench and sworne to deale duely without corruption you are well knowne to be a corrupt man and to deale corruptly Adjudged that the action lyes 1. Because the words Ex causa dicendi imply that he hath dealt corruptly in his profession Et sermo relatus ad personam intelligi debet de conditione personae 1. This touches the Plaintiffe in his oath 2. The words Scandalize him in the duty of his profession by which he gets his living Skinner of London said that Manwood was a corrupt Judge adjudged actionable Resolved in this case that if the precedent parlance had beene that B. was a usurer or executor of another and would not performe the will and upon this the Defendant had spoken the words following no action would lye Weaver and Caridens case 37. of the Queene fo 16. AAjudged that no action lyes for saying that the Plaintiffe was detected for perjury in the Starre-chamber for an honest man may be detected but not convicted Stuckley and Bulheads case 44. and 45. of the Queene fo 16. ADjudged that an action lyes for saying Master St. he was a Justice of peace covereth and hideth felonies and is not worthy to be a Justice of peace for this is against his oath and his office and a good cause to put him out of Commission and for that he may be indicted and fined Snagg and Gees case 39. of the Queene fo 16. THou hast killed my wife and art a traytor Adjudged that the action will not lye for the wife was in life as appeared in the Declaration and so the words vaine and no scandall otherwise if shee had beene dead Eaton and Allens case 40. of the Queene fo 16. HE is a brabler and a quarreller for he gave his Champion counsell to make a Deed of gift of his goods to kill me and then to fly out of the Country but God preserved me Resolved that the action will not lye for the purpose without act is not punishable and though he may be punished for such conspiracy in the Star-chamber yet this is by the absolute power of the Court not by ordinary course of Law Observe well this case and the cause and reason of this Judgement Anne Davies case 35. of the Queene fo 16. THe Defendant said to B. a Suitor to the Plaintiffe and with whom there was neare an agreement of marriage I know Davies daughter well she did dwell in Cheapside and a Grocer did get her with childe and the Plaintiffe declared that by reason thereof the said B. refused to take her to wife Resolved the action lyes for a woman is punishable for a Bastard by 18. of the Queene ca. 3. And though that fornication c. is not examinable by our Law because done in secret and uncomely openly to be examined yet the having a Bastard is apparant and examinable by the said Act. Resolved if the Plaintiffe had been charged with nude incontinency onely the action lyes for the ground of the action is temporall viz. the defeating of her advancement in marriage By Popham an action lyes for saying that a woman Inholder had a great infectious disease by which shee loses her guests Banister and Banisters case 25. of the Queene Resolved that an action lyes for saying to the sonne and heire that he was a Bastard for this tends to his disinherison but resolved if the Defendant pretend that the Plaintiffe is a Bastard and he himselfe right heire no action lyes and this the Defendant may shew by way of barre Jeames case 41. 42. of the Queene fo 17. THe Defendant said to B. Hang him innuendo praedict J he is full of the pox innuendo the French pox c. Resolved two things are requisite to have an action for slander 1. That the person scandalized be certaine 2. That the scandall be apparent by the words themselves And therefore if a man says that one of the servants of B. is a notorious felon or traytor an action lyes not if he have more servants and innuendo cannot make it certain
in the remainder enters J. S. takes the Corne he in remainder brings Trespas The right of the Corne is not in the plaintiffe or defendant but in the lessee for yeares of lessee for life but the lessee of the disseisor had right against the plaintiffe by reason of the possession and for that if he had pleaded that he had entred to take the Corne this had been good but because he pleaded Non culp the plaintiffe had judgement for the Entry and was barred for the residue Penrins case 38. Eliz. Banco Regis fol. 85. W. P. Brings a Quod ei deforceat in nature of a Writt of Right in Wales and after the mise joyned is nonsute Judgement finall is given he brings the like Writt and the first Judgement is pleaded in barre the demandant demurres and adjudged against him and he brings Error 1. Although by the Statute of 12. E. 1. Triall of right in Wales shall be by Common Jury yet Judgement finall shall be given 2. Erroneous Judgement finall in right shall binde untill it be reversed 3. Judgement finall shall not be given upon default of the Tenant in a Writt of right but a Petit Cape shall issue for peradventure he may save his default Cases of Executions Blumfeilds Case in banco le roy 39. Eliz. fo 86. TWo men were bound joyntly and severally in an Obligation the one was sued condemned and taken in Execution and after the other was sued condemned and taken in Execution and after the first escaped and the other brought an Audita quaerela and although the Plaintiffe might have his Action against the Sheriffe upon the escape yet untill he be satisfied indeed the other cannot have his Audita quaerela for if the Defendant be sued by one Writ or severall Proces although the entry be Quod unica fiat executio This is to be understood of one Execution with satisfaction for he may have three bodies in Execution In communi banco inter Lynacre Rodes Case Hill 33. Eliz. It was adjudged that notwithstanding the Conusor in a Statute Staple was taken and escaped yet his goods and Lands upon the same Statute may be extended for the Escape and the Action which the Plaintiffe might have against the Sheriffe is not a satisfaction of the Debt And if so the Conusor be taken and dye in Execution the Conusee shall have Execution of his goods and Lands And it was adjudged 24. Eliz. in t Joanes Williams that where two men were condemned in a Debt and the one taken and dyed in Execution yet the taking of the other was lawfull and then it was resolved Per. tot Cur. that if a Defendant dye in Execution yet the Plaintiffe may have a new Execution by Elegit or Fieri facias c. The Execution of the body is an Execution but not a satisfaction as appeareth in 4. H. 7. 8. and 33. H. 6. 47. in Hillaryes Case adjudged but a gage for the Debt for the words of the Writ are Capias I. S. Ita quod habeas corpus ejus coram Justic nostris c. ad satisfaciendum G. L. de debito damnis c. and so his body is taken to the intent he should satisfie and when the Defendant hath paid the money he shall be discharged out of Prison Garnons Case 40. Eliz. fo 88. LAyton recovered against Wallwyn in an Action of Debt and Outlawed the Defendant after judgement and sued a Cap. Vtlag and delivered the same to Garnon the Sheriffe who did take the Party and before the returne of the Writ the Defendant escaped and thus it was resolved that if one at the common Law have judgement in an Action of Debt and after judgement Outlaw the Defendant then the Plaintiffe is at the end of the Suite for any processe to be sued in his name Yet if the Defendant be taken by Vtlary at the Suite of the King no Laches being in the Plaintiffe in continuance of his Processe he shall be in Execution for the Plaintiffe if he will for reason requireth that if the King shall have benefite by the Suite of the party So the Plaintiffe shall have benefite by the Suite of the King if judgement in error be affirmed within the yeare a Capias or Fieri facias lyeth without any Scire facias although in another Court Frosts Case In communi banco 41. Eliz. fo 89. FRost recovered Debt and damages against B. who was Outlawed after judgement and a Cap. Vtlagatum delivered to the Sheriffe of London Laborne a Serjeant arrested the said B. in Fleete-streete Ad respondendum A. Laborne kept B. in his House and then Frost came to Laborne with the Sheriffes Warrant to Arrest B. upon the said Cap. Vtlagat the which to doe Laborne refused and afterwards the Sheriffe suffered the said B. to goe at large and upon this matter Frost brought his Action upon the case against the Sheriffe and supposed that the Sheriffe did arrest the said B. by vertue of the said Cap. Vtlagat and that he suffered him to goe at large and the Defendant pleaded Non permisit eum ire ad largum The Jury found all the said speciall matter and judgement was given for the Plaintiffe For first it was resolved That when a man is in custody of the Sheriffe by Processe of the Law and after another Writ is delivered unto him to apprehend the body of him who is in his custody immediately he is in his custody by force of the second writ by judgement of Law although he make no actuall arrest of him for to what purpose should he arrest the party that is already in his custody Et lex non precipit inutilia quia inutilis labor stultus the words of the writ are not onely Capias c. but also Salvo custodias c. Ita quod habeas corpus coram c. and so he ought safely to keepe him Vide 7. H. 4. 30. And the Defendant ought not to be discharged untill he had found surety to satisfie the Plaintiffe by 5. E. 3. cap. 12. Hoes Case 42. Eliz. fo 89. In the Exchequer EXecution of a writ of Execution as well at the Suite of a common person as at the Kings suite is good without returne of the writ for if a man be arrested upon a Cap. ad satisfaciendum the Execution is good although the Sheriffe doe not returne the writ and so in all writs of Execution where the Sheriffe doth onely execute the same as Cap ad satisfaciendum habere fac seisinam vel possessionem Fieri Facias Liberat. If the Execution be duely made it is good but if Cap. in Processe be not returned the Arrest is not lawfull for there the intent of the writ is to bring the party to answer the Plaintiffe and in case of an Elegit for there the extent is to be made by Inquest and not by the Sheriffe onely and the writ ought to be returned otherwise it is of none effect In this case
of Action he shall not have judgement a Count may be made good by barre and a barre by replication in matters of circumstance but not of substance See there seaven things observed by Cooke for the better direction of the President and Comminalty of the said Colledge hereafter The Case of the City of London 7. Jac. fol. 121. IT is a good custome within a Citty that a Forreinor within the said Citty shall not sell things by retaile and it is good also upon paine of 5. l. but it is not good by Charter therefore Citties which are incorporate within time of memory cannot have such priviledges without Parliament so of a custome that goods forreigne bought and forreigne sould shall be forfeited So one may prescribe to have a Bake-house in a Towne and that no other shall have one there and the Statutes which provide that every one may sell in retaile or in grosse extend onely to Merchands aliens and demisens who export and import things vendible Three inconveniences by confluence of people to London c. The Case of Thetford Schoole fol. 130. 8. Jac. LAnds of the yearely value of 35. l. in ao 9. El. was devised by the will of Thomas Fulmerston to certeine persons and their Heires for maintainance of a Preacher four dayes in the yeare of the Master and Usher of a free Grammar-Schoole and foure poore People Viz. Two men and two women and the Defendant delayed to accept a Release to defraud the Plaintiffe adjudged for the Plaintiffe 1. Although that two recoveries are without covin yet the composition so operates that nothing shall be accounted administred but onely so much as he hath paid by composition and the converting of any part to his owne use and the deferring to accept a Release is against the office of an Executor and shall not aide him 2. The barre is insufficient because he hath not shewed that the Court of C. had power to hold plea of debt 2. Because he hath not shewed that the Testator was bound in an Obligation and if it were onely upon contract the administrators were not chargable in Debt 3. Be the replication evill yet because the Barre is insufficient the Plaintiffe shall have judgement because he had not shewed any thing against himselfe but if it appeare by the replication that he had no cause of Action he shall be barred Mary Shipleys Case 8. Jac. fol. 134. AN action of Debt against an Executor of 200. l. the Defendant pleaded Plene administravit the Plaintiffe replies that the Executor had assets the Jury found assets to the value of 172. l. judgement was given to recover the whole Debt of 200. l. and damages and costs of the goods of the Testator S. c. Et si non then the damages of the proper goods of the Defendant Sir John Nedhams Case 8. Jacobi Communi Banco fol. 135. IN debt as administratrix upon administration committed by the Bishop of R. the Defendant pleads administration committed unto him by the Deane and Chapter of C. sede vacante because the Intestate had bona notabilia c. the Plaintiffe replyes that that administration was repealed adi for the Plaintiffe 1. Resol Because it is not shewed that the Intestate had bona notabilia c. it shall be intended that he had not and yet the administration is not voyde but voydable 2. Before the repeale of administration committed by the Metropolitan the inferior Ordinary may commit administration because this is by the repeale declared voyd ab initio and an administration is but an authority which may well commence in futuro 3. The committing of administration to the obligor hath not extinguished the bebt because it is in anothers right otherwise it is if the obligee himself make the Obligor his executor because this is his owne act De bonis defuncti trina dispositio 1. Necessitatis ut funeralia 2 Vtilitatis that every one shall be payd in due order 3. Voluntatis as Legacies Sir Francis Barringtons Case 8. Jacobi Communi Banco fol. 136. THe Lord R. granted wood within a Forrest in which the Plaintiffe had common which grant is confirmed by Statute the grantee cuts wood and inclose it the commoner shall loose his common for seven yeares 1. Resol The grantee had an inheritance to take in another soyle and the soyle is to the Lord R. 2. Although the grantee had not the inheritance yet the Statute extends to him and he may inclose for the Statute is or any other person to whom wood is sould 3. 22. E. 4. cap. 7. extends to wood which one had in severalty and not where another had common there for at the common Law one who had wood in a Forrest cannot incloser against a commoner but if it be his severall wood he might inclose parvo fossato c. for three yeares 4. The sayd Statute is as a conveyance betweene the King and his Subjects which taketh not away the right of third persons as the commoner here is 5. In the sayd Statute there is a clause that hee may inclose without suing to the King or other owner so that power is given against them and not against a commoner Beasts of Forrest are Hart Hinde Hare wilde Boare and Wolfe of chase Buck Doe Fox Martin and Roe 6. By the Statute of 35. H. 8. cap. 17. he is barred of his common which provideth that no Beasts shall be suffered to come there for seven yeares 7. The Statutes which concerne Forrests are generall because they concerne the King and the Court shall take notice of them Doctor Druries Case 8. Jacob. fol. 141. DOctor Drury recovers against B. who is outlawed and taken by Capias ut-legatum and escapeth the Utlary is reversed Doctor Drury sueth execution B. brings an Audita quaerela adjudged that it lyeth not It was resolved that if A. be in execution at the suit of B. upon an erroneous judgement and after escape and after the judgement is reversed by a Writ of error the action against the Sheriffe is extinct for hee may plead Nul tiel record But untill it be reversed it remaines in force be it never so erroneous and if the partie have judgement and execution upon the escape against the Sheriffe or Goaler and after the first judgement is reversed yet for as much as judgement upon this collaterall thing is executed it shall remaine in force notwithstanding the reversall of the first 7. H. 6. 4. Yet it seemeth to me he may have remedy by Audita quaerela for that the ground and cause of the collaterall action is disproved by the reversall of the first judgement a difference betweene meane acts compulsatory and voluntary and betweene a recovery by eigne title and reversall of a recovery Davenports Case 8. Jacobi fol 144. TEnant for yeares of an advowson granteth proximam advocationem donationem si eadem Ecclesia contingerit vacua fore durante termino c. And afterward surrenders his terme yet if
them and after Judgement was given for the Plaintiffs Whistlers Case 10. Jacobi fol. 62. Vpon a speciall Verdict BEfore the Statute of Praerogativa Regis cap. 15. by the grant of the King of a Mannor all appendants without naming them passe and the Statute excepteth Knights Fees Advowsons and Indowments but all other appendants now passe without naming them and so doe Advowsons passe in case of restitution for the Statute speaketh of Grants and in Grants also without expresse mention by the words Adeo plené integré c. See other good matter there touching this Subject The Church Wardens Case of Saint Saviours in Southwark fol. 66. QUeene Elizabeth leased the rectory to the Church-Wardens of St S. for 21. yeares and after leased to them for 50. yeares in consideration of the payment of 20. l. and surrender of the Letters Patents by the Church-Wardens Modo habentes ad presens possidentes and the speciall Verdict found that they paid the 20. l. and that they delivered the Charter in Court to be cancell'd and that they paid the Fees but that no Vacat was made yet the grant is good for it appeares that the intent was not to make a surrender in deed because he saith Modo possidentes but a surrender in Law by acceptance of the second Letters Patents and although a Corporation cannot make a surrender in deed yet they may make a surrender in Law 2. Although an actuall surrender is requisit they have done all which belongs to them by delivery of the Chartar and payment of the fees and the Cancelling belongs to the Court. 3. Although it was recited that 20. l. was paid yet it needs not to be found for it is but in the personalty and is affirmed by the King to be paid and is also executed See Barwicks Case 5. Report 93. The Case of the Marshalsea 10. Jacobi fol. 68. In false Imprisonment AN Action upon the Case upon an assumpsit is brought in the Marshalsea whereas no party was of the Kings House the Plaintiffe recovered the Defendants arrested the Plaintiffe by a precept in the nature of a Capias ad satisfaciendum and he brings false Imprisonment and judgement given against the Defendants 1. Resolved the Steward and Marshall at the Common Law hath two Authorities One generall as Vicegerents of the Chiefe Justice in his absence within the Verge Another as Judges of the Marshalsea This last was limitted to Debt and Covenant where both are of the House and to trespasse Vi armis where one is but not if it concerne Land and because they have the generall authority at will and the other for life they draw many cases to the Marshalsea which ought to be in other Courts Their Jurisdiction by Fleta Lib. 2. cap. 2. Infra metas hospitij continentes 12. Leucas in circuitu And the Statute of 13. R. 2. c. 3. limits the 12. miles to be accounted about the Kings Tonnell 2. The reasons wherefore this speciall authority was given them were 1. Because the Suite there is by Bill by reason of their Priviledge which cannot be elsewhere 2. In respect of the necessity of attendance of the Kings Servants 3. If Strangers shall be suffered to sue there one Carman would sue another Carman there In aula Regis which were undecent but the generall authority vanished by the Act of 28. E. 1. c. 5. which Ordained that the Chancellour and Justices of the King should follow him therefore in Praesentia Majoris cessat c. and about 4. E. 3. the Court of K. Bench became Resident 3. The Statute of Articuli super Chartas is as much as an explanation of the great Charter and the Charter of the Forrest and not introductory of a new Law and the third Chapter of that act explaines the Jurisdiction of the Marshalsea as before and if he hold plea otherwise a prohibition lyeth and the party shall have an Action upon the Case as a consequent upon the Statute 4. That part of the Statute which giveth them Jurisdiction in trespasse shall be intended trespasse Vi armis 5. This action lyeth against the Defendants because the Court had not Jurisdiction and so have not done it by command of the Judge otherwise if the Court had Jurisdiction but proceedeth Inverso ordine or erroneously as if a Capias be awarded against an Earle c. one who is Indicted before Justices of the Peace cannot approve 1. Because he cannot assigne a Coroner 2. Because it is out of their Commission if a Court Leete be holden at another day then it ought to be the proceeding is Coram non judice otherwise it is of a Court Baron 6. R. 2. Action upon the Statute Plac. ultimo in the point that judgement in the Marshalsea when none of the parties is of the K. house may be avoided by plea without any Writ of Error which proveth that it is void Leonard Loveis Case 11. Jacobi fol. 78. In ejectione firmae for 8. acres c. L. L. seised of diverse Mannors in socage and in chivalry In Capite maketh a feoffement to diverse uses in an Indenture precedent whereby he limits to himselfe for life without impeachment of wast and to the use of his Lessees and devisees the remainder to his second Sonne in taile c. the reversion to himselfe with power of revocation after he purchaseth 8. acres in socage and revoketh as to certaine Mannors holden in socage and deviseth them and the 8. acres to his Eldest Sonne and the heires Males of his body for 500. yeares provided that if he alien otherwise then for yeares determinable upon the deaths of three persons or lesse number rendring the old rent or die without issue Male then to his second Sonne in taile with proviso to make Leases according to 32. H. 8. onely L.L. dyeth the Eldest Sonne enters into the 8. acres and dyeth leaving one Daughter who Marrieth R.D. who enters into the 8. acres c. second Sonne dyeth having L. L. who enters upon R. D. and leaseth to the Plaintiffe who enters upon whom the Defendant enters and ejecteth c. and if the entry of L L. the Lessor was congeable or not was the Question and it was adjudged that his entry was not lawfull and judgement was given against the Plaintiffe in this Case diverse points resolved some at the common Law and some upon 32 and 34. H. 8. of Wills 1. Resolv if a man seised of three acres of equall value one holden in Capite and giveth that and one of the other to his younger Sonne in taile he cannot devise any part of the third Acre because he had executed his power and if he purchase other Land in socage he can devise but two parts of that by reason of his reversion in Capite expectant upon the estate taile Object that the K. was once satisfied of the wardship by the Statute in respect of the Acre holden and the reversion thereupon shall not hinder the
in the Kings Bench betweene Frampton and Frampton Tr 2. Jacobi Quia non refert an quis intentionem suam declaret verbis an rebus ipsis vel factis and when he limits new uses he signifieth his purpose to determine the uses before The End of the Tenth Booke THE ELEAVENTH BOOK The Lord de la Wares Case 39. Eliz. in Parliament fol. 1. THOMAS la Ware great Grandfather of the now Lord in 3. H. 8. was summoned to the Parliament by Writ and by 3. E. 6. it was enacted that William the Father of the now Lord Thomas shall be disabled to claime any dignity during his life notwithstanding W. was called to Parliament by Q. Elizabeth and sat as Puisne Lord and dyed and Thomas now Lord sued in Parliament to the Q. to be restored to the place of his Great-Grandfather that is betwixt the Lord Barkly and the Lord Willoughby of Eresby and resolved that he should be restored for his Fathers disability was not absolute by attainder but onely temporary and personall during his life and the acceptance of the new Dignity shall not hurt the Petitioner the Father being then disabled and an Esquire onely so that when the old and new Dignity descend together the old shall be preferred which resolutions by the Judges was well approved of by the Lords Committees and after confirmed by the Queene Auditor Curles Case 7. Jacobi fol. 2. QUeene Elizabeth grants Officium unius Auditorum Curiae Wardorum to W. T. and W. C. for life eorum diutius viventi the K. grants it in reversion to I. C. I. T. I. C. dyeth the K. grants it in reversion to R. P. W. T. dyeth 1. Resolved the grant of the Office Vnjus auditorum c. is good to two and the survivor of them for 32. H. 8. c. 46. maketh the two Auditors one Officer and the word Vnjus is not numerative but denoteth the unity of the Office 2. In such a grant the words eorum diutius viventi are not void for otherwise by the death of one of them the interest of both would be ended but now the survivor remaines auditor and another shall be added to him and till another is added to him his voice in Court is suspended because by the Statute there must be two so if the K. grant by a Patent to one and by another to another this is good and untill the second is added the first hath no voice in Court 3. The Nomination of Auditors ought to be under the Great Seale 4. This Office cannot be granted in reversion 1. Because it is judiciall and one cannot be Judge in futuro and perhaps he was sufficient at the time of the grant but not when it takes effect 2. Although it be in part judiciall and in part ministeriall yet it is intire and although ministeriall Offices may be granted in futuro yet this cannot because it is inseparably judiciall also for the K. cannot grant the judiciall part to one or two and the ministeriall to others 3. If the grant be good as to the ministeriall part yet it shall not take effect now because one of the ancient Officers is living and if he should exercise the ministeriall part with the survivor there would be three Offices 5. He who surviveth remaines Auditor yet had no voice in Court untill the King add another to him 6. The grant to P. is void 1. Because in reversion 2. Because it reciteth a void grant to I. C. and I. T. as good and so the K. is deceived in his grant Sir John Heydons Case 10. Jacobi fol. 5. SIr J. H. brings trespasse against F. C. T. C. I. C. F. C. appeareth against whom the Plaintiffe declareth with Simul cum c. who pleads Non culp so doth T. C. which issues were tried severally and the issue betweene the Plaintiffe and F. C. was first tried and damages assessed to 200. l. and the other against T. C. 50. l. I. C. appeares and confesseth the Action a Writ of inquiry of damages is awarded but none issued judgement for the Plaintiffe and affirmed in Error 1. Resolved in trespasse against diverse who plead Non cul or severall Pleas which are found in all for the Plaintiffe damages shall not be assessed severally although one did more wrong then another because the trespasse is intire and the Act of one is the Act of all but if they be found guilty at severall times they may and if the Plaintiffe confesse the trespasse to be at severall times the Writ shall abate 2. If two trespassors pleade severally both shall be bound with the damages taxed by the first Jury and the other shall have an attaint although he be a Stranger to the issue because he is privy to the charge if one of them after appearance make default a Writ of inquiry shall be awarded to save a discontinuance but none shall issue because he shall be contributory to the damages taxed by the Jury who tryed the other issue and the other shall not be charged in damages assessed upon a Writ whereupon he can have no attaint but if the other issue be found against the Plaintiffe then it shall issue 3. Although there was a discontinuance against I. C. because in the common place where the Action was brought there is no continuance after a Writ of inquiry otherwise it is in the Kings Bench yet it is aided by the Statute of 32. H. 8. c. 30. 4. If two Juries give a Verdict at one time the Plaintiffe shall have judgement De melioribus damnis if he will but fiat nisi unica executio in trespasse against diverse who plead severall pleas triable by the same Jury if the Jury sever the damages all is vitious Priddle and Nappers Case 10. Jacobi fol. 8. THe Plaintiffe in a prohibition declareth that the Prior of M. was seised of 22. acres and of a rectory time out of mind c. untill the dissolution c. and so for all that time held them discharged of Tithes and conveys the said 22. acres from the King to himselfe and that the Defendant Proprietarius rectoriae praedict sued the Plaintiffe for Tithes the Defendant traverseth the prescription of discharge the Jury found that the Prior time out of c. was seised of the said 22. acres and of the advowson of the Rectory and did appropriate it by License 20. H. 8. the Incumbent then being living who dyeth and that the Prior held it united to the dissolution judgement for the Plaintiffe 1. Resolved although that every Church parochiall is supposed to be presentative yet the Plaintiffe may plead that the Prior c. time out of c. were Rectors of it for this amounts to so much that it was impropriated but he needs not shew how because before time of memory but the conclusion of the prescription of unity Viz. Ratione cujus he was discharged of tithes was not good for Land is not discharged of Tithes by unity
a Stranger be not in another part of the House but this was before 39. Eliz. cap. 15. whereby clergy is taken away without putting any feare if he rob any man of above the value of five shillings Accessory before in robbing a House in the day is ousted of Clergy by 4. 5. Phiâ— Mary Accessory in robbing a Booth in the night or day or out House upon 39. Eliz. shall have his Clergy Nota Although a Statute takes away Clergy from the principall yet the accessory before or after shall have it and where by statute for any offence a man is ousted of his Clergy the indictment must containe the offence with the circumstances in the Statute Dyer 99. and 183. And A. P. was ordered to be hanged in Chaines c. Metcalfs Case 12. Jacobi fol. 38. In Accompt IUdgement is given against M. Quod computet ideo in misericordia quia prius non computavit and before finall Judgement Error is brought 1. Resol It lyeth not 1. Because the Writ of Error saith Si juditium inde redditum sit which shall be intended of the principall Judgement as the Feast of St. M. shall be intended the principall Feast and the Feme shall be received upon default of her Baron after judgement of admeasurement before the principall judgement 2. It shall be intended an intire judgement therfore in an action against two if one plead to the issue and the other confesseth and judgement given against him he shall not have error before the Plea determined against the other for otherwise there would be a failer of right for the Kings Bench cannot proceed upon the Record nor the Common place because it is removed 3. The first judgement is not ad grave damnum for by that he looseth nothing but judgement of the arrearages and damages is the end of the originall 4. This is not properly a Judgement but an Award of the Court as ouster of ayde in partitione facienda an awarde quod partitio fiat c. which are but interlocutory and not definitive 5. They have day by the Roll untill the last judgment but if a Felon dye after the exigent awarded and before attainder a Writ of Error lyeth for necessity for otherwise his goods are forfeited by awarding of the exigent without remedy if diverse are sued by severall Praecipes and Judgement given against one he shall have error before judgement given against the other and if error be in the originall the tenor onely shall be certified for otherwise the Court cannot proceede against the others 2. It was Resolved That the Record is not removed because untill finall Judgement be given the Chiefe Justice of the Common place hath no authority to send it and they may proceed notwithstanding the Roll be marked Mittitur Richard Godfreys Case 12. Jacobi fol. 42. TWelve chiefe pledges according to the custome of the Mannor to present at the Leet that every one of themselves ought to pay for themselves 10 s. pro certo letae the Stewart imposeth a Fine of 6 l. upon them the Lord distreineth for the Fine and certainty of Leet one of the pledges brings Replevin and judgement was given for the Plaintiffe 1. Resol The Fine is not well assessed for it ought to be severall and not joynt as it is because the offence is severall and although that the offence be joynt yet the Fine shall be severall as in disseisin and trespasse But for the incertainty of the persons and infinitenesse of the number many may be fined together as a Towne for the escape of a Felon and the reasonablenesse and excessivenesse of the Fine shall be determined by the Judges Excessus in re qualibet jure reprobatur communi as excessive distresse excessive ayde and excessive amerciament are against the Common Law 2. If the Fine be imposed erroneously it may be avoyded by Plea for he had no other remedy 3. The Lord cannot distraine pro certo Letae without prescription because it is against common right but he may for a Fine or amercement but for an amercement in a Court Baron the Lord must prescribe a Fine because it is assessed by the Court needs not to be affered but an amercement must be affered by the Countrey 4 Admitting that he may distraine pro certo Letae he shall have a returne although hee had not cause to distraine for the Fine for where one brings an Action for two things and it will not lie for one of them it shall abate onely for that if he cannot have a better action for it but if he may it shall abate for the whole as in a Formedon of Land and of an advowson the Writ shall stand for the Land so if a man avow for diverse Rents arreare and it appeareth that parcell is not yet due yet the avowry is good for the residue but if a man bring a Writ of Entry in nature of an Assize of two Acres where it appeareth that for one Acre he ought to have a Writ of Entry in the per there all shall abate for this extends not to the action but to the Writ onely Richard Lifords Case 12. Jacobi fol 46. IN trespasse the Defendant pleads that J. L. was seized in fee and demised to T. S. and M. P. excepting Trees above twenty one yeares growth if not decayed for their lives and covenanted to stand seized de tenementis predictis cum pertinentijs superius dimissis to the use of R. L. in taile c. and the Defendant as Servant to the sayd R. L. entered and sold Trees and Judgement was given against the Plaintiffe 1. Resol That the Trees notwithstanding the exception remaine parcell of the inheritance and are not Chattels but shall descend to the Heire for the Law doth not favour severance of the Trees from the Land therefore if one bargaine and sell Land upon which there are Trees they shall not passe without inrolement 2. If there had not been such an exception the generall interest of them is in the Lessor and the Lessee had but a particular interest in them and the Lessor may sell them without license of the Lessee to take effect after the Lease determined and tithes shall not be payd for them because they are parcell of the inheritance 2. By the exception of them the soile is not excepted but onely so much as sustaineth the Tree and if he by licence of the lessee root them up the lessee shall have the soile but by exception of Wood the Land it selfe is excepted if an Acre or an advowson be severed from the Mannor by exception upon a Lease for life it shall not be parcell of the Mannor againe otherwise of trees for they were not severed in facto because they grow out of the Land 3. A thing in possession cannot be parcell of a reversion upon an estate for life but Trees which grow out of the Land and Fish or Deer in the Land may and shall passe with it
the Mannor ex speciali gratia c. and all her right estate title claime c. Resolved that the Record was well removed by the Writt of Error which was for to remove the recovery of the Mannor of M. in M. cum pertinentiis and the Recovery was of the Mannor of M. cum pertinentiis Resolved that this Writt of Error was not given to the King by any of the words of the Statute of 28. H. 8. because the terrtenant is in by title and the entry of the person attainted taken away and such a right for which the party hath no remedy but by action is a thing consists in privity which cannot Escheate nor be forfeited by the common law and this word right in the Act shall be satisfied with a right of entry and 't was observed by the Court that by no Act of attainder a right of action was ever given Note a diversitie betwixt inheritances and chattells for Obligations Statutes Recognisances c. are forfeited by attainder or Outlawry By the Court if L. had made a Feoffement without warranty this had been a discontinuance of the moity for the joynture was severed Resolved that H. N. had no right to a moity of the Mannor for though the recovery were erronious for 't was agreed 't was not void yet the recovery being in force the remainder hath no right for the intended recompence if tenant in taile suffers an erronious recovery and disseise the recoveror and dye his issue shall not be remitted for the taile is barred as long as the recovery stands in force and the Court agreed that neither an action without a right with a discent shall make a Remitter as in the principall case nor a right without an action for a man shall never be remitted but when an action lyes if the right and possession were in severall persons Resolved for the one moity the Recovery shall be a barre to the taile and remainder for though that as well L. as the vouchee might have abated the Writt because Anne was joyntly seised not named yet when the vouchee without demanding any Line enters generally into warranty and admits the Writt good and L. recovers in value which shall inure according to his estate with the remainder over 't is barred for by the recovery against L. the joynture was severed but for the other moity the recovery was not a barre to the taile or remainder because for that L. was not tenant to the Praecipe but the recovery is by Estoppell onely Agreed that H. N. at the time of the attainder was not intitled to have error yet 't was agreed that the remainder upon a taile shall have error upon a judgement given against tenant in taile for when W. 2. inables the donor for to limit a remainder over upon the taile all actions which the common Law gave to privies in estate are by the same Act as incident given also as a reversion or a remainder shall have Error upon a judgement given against tenant for life though not privie by aide voucher or receiver But agreed that by the common Law Error doth not lye by c during the life of tenant for life except he were privy to the first Record by aide voucher or receiver for remedy whereof 9. R. 2. ca ' 3. was made which gives an attaint or error during life upon which Statute the Court resolved 1. that though the Statute speakes onely of reversions yet remainders are within the purview 2. That a reversion expectant upon a taile is out for the Statute enumerates these foure estates Life Dowor Courtesie and Tenant in taile after possibility which declares their intentions to exclude reversions upon tailes and this upon great reason for the taile by possibility may continue for ever and here L. survived H. N. and so his possibility of error destroyed and no word of the Act extends to give a possibility Resolved admitting the Writ of Error had been given to the Queene that by this generall grant of the Queene it did not passe for a common person cannot grant it and therefore it ought to passe by Prerogative and ought to have precise words adjudged in Cromers case 8. of the Queene the Queene having a right of a disseisee attainted grants de speciali gratia c. all lands c. The right doth not passe without speciall recitall and words Owen and Morgans case Trin. 27. of the Queene Baron and Feme are seised and to the heires of the body of the husband a recovery is had against the Baron sole without naming of the wife and after the wife dyed Resolved that though the wife were not party to the Writ nor the Conisance for the estate of the husband and wife was by render upon a Fine levied by the husband and though it does appeare within the same Record that she was a stranger yet the render to her is voidable onely Resolved that this recovery against the husband onely shall not binde the remainder for betwixt husband and wife there are no moities and the husband hath no power to sever the joynture or dispose any part and he during the life of the wife is not seised by force of the taile and he can by no Act execute any part so the Praecipe being brought against him onely the recompence cannot enure to the taile or remainder for to all it cannot for the wife hath a joynt estate in possession and for a moity it cannot for there are no moities and the remainder depends upon the entire estate and recompence recovered by the husband onely cannot inure to him who hath a remainder depending upon the undevided estate of the husband and wife and the joyn-tenancy cannot be severed by the judgement against the husband onely and though the husband hath all the inheritance yet because by no possibility it can be executed 't is all one as if the husband had a remainder depending upon an estate for life and then a common recovery shall not binde because not tenant to the Praecipe nor seised by force of the taile but tooke effect by Estoppell onely The issue may say his auncestor was not tenant tempore brevis and though here the husband survived the wife this is not materiall for the Law adjudges as 't was then Copledikes Case 44. of the Queene fo 5. C. And his wife were seised and to the heires males of the body of the husband the husband levies a Fine to A. B. recovers in a Writ of entry against A. who vouches the husband onely the wife living who vouches the common vouchee Resolved that this recovery shall binde the remainder for here was a lawfull tenant to the Praecipe and though the husband were onely vouched and not his wife who had a joynt estate with him yet the husband coming in as vouchee he came in in privity of the estate taile and not of another estate and the recovery in value gives recompence to the taile which
limitation of any estate Resolved that when the Lord admits Cestuy que use for life the reversion is in him that surrendered not in the Lord for he is but an instrument Resolved that a man may surrender to the use of his Wife though that Cestuy que use is in by him that surrendered because the Husband did not doe this immediatly to the Wife but by a second meanes Viz. By surrender to the Lord and by admittance of the Lord. Resolved that when B. surrendered out of Court and before that 't was presented in Court he dyes yet after being presented according to the custome 't is good otherwise if it had not beene presented according to custome so if the Tenants in whose hands c. dyes yet if it be proved 't is good enough so Queintons Case before if Cestuy que use c. dyes before admittance his Heires shall be admitted Downe and Hopkins Case 36. of the Queene fo 29. REsolved that where the custome of a Mannor was to grant Coppies for one two or three lives that a grant to a Woman during her viduity is within the custome for 't is an estate for life but every grant for life is not Durante viduitate issue was whether the custome was that the Wife of a Copy-holder after the death of the Husband should have for life and 't was given in evidence that she should have during her viduity and adjudged that the evidence did not maintaine such custome for 't is a lesse estate then for life But in the principall Case 't is a greater estate which is warranted by the custome and therefore a lesse is within it according to Graveners Case before 'T was said that a Lord may retaine a Steward by word to hold Courts c. as a Bayliffe and this retainer shall serve till he be discharged Harris and Jayes Case 41. of the Queene fo 30. REsolved that a Lord may retaine one to be Steward of his Mannor and to hold Courts by word as in the Case before Resolved that where a Copy-hold escheates by attainder of felony of a Copy-holder of the Queene that the Steward may grant it over Ex officio without speciall warrant for the custome warrants the Steward to grant it and this shall binde the Queene and her Heires c. But yet his duty is before to informe the Lord Treasurer Chancellor or Barons of the Exchequer or any of them for his better direction Resolved that the Auditor or Receiver of the Queene hath no power to retaine a Steward to hold courts c. But it behooves that the Steward who makes such voluntary grants upon escheats or forfeitures to be good to have Letters Pattents of the Stewardship of the same Mannor And 't was said that 't was adjudged in the Lady Holcrofts Case that where one was retained generally by word to be Steward of a Mannor and to hold Courts that he may take surrenders of customary tenants out of Court Shaw and Thompsons Case 33. of the Queene fo 30. REsolved that a Woman shall not be indowed of Copy-hold without speciall custome and that when a Woman is to be indowed by custome she shall have all incidents to Dower and shall recover damages by the Statute of Merton because her Husband dyed seised and therefore the recovery of damage of 50. l. in the Court of the Mannor was allowed though this exceeded 40 s Resolved that no Action of Debt lyes for these damages at common Law for upon such judgement no error or false judgement lyes but the remedy is in the Court of the Mannor or Chancery Fenner Justice said That he had seene a Record 36. H. 8. where the Lord by Petition to him had for certaine errors in the proceeding reversed such a judgement and upon this the Defendant maintained an Audita quaerela to be restored to the damages recovered against him See 14. H. 4. cited before in Brownes Case And 7. E 4. 29. Hoe and Taylors Case 37. of the Queene fo 30. REsolved that Underwood growing upon parcell of the Mannor may by custome be granted by Copy of Court roll and 't is a thing of perpetuity to which a custome may extend for after every cutting the underwood growes Ex stipitibus So 't was resolved that Herbage or any profit of any parcell of the Mannor may by custome be granted by Copy and 't was said that a faire appendant to the Mannor of C. in S. is granted by Copy and this explaines the reason of the first pillar in Murrels Case Frenches Case 18. 19. of the Queene fo 31. REsolved if the Lord Lease for yeares life or make any other estate by deed or without deed of Copy-hold Land forfeited escheated c. to him that this Land can never be granted againe by Copy for the custome is destroyed for during these estates the Land was not demised nor demisable by Coppy So if the Lord make a feoffement and enter for condition broken but if the Lord keepe it in his hands a long time or leases it at will he his heires or assignes may regrant it So if the interruption be tortious as by disseisin and discent false verdict or erroneous judgement for Non valet impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur But if it be extended upon a Statute or recognizance acknowledged by the Lord or if the Wife of the Lord hath this Land assigned to her in Dower though these impediments are by act in Law yet for that the interruptions are lawfull the Land cannot be after granted by Copy If a Copy-holder accept a Lease for yeares of the Lord of his Copy-hold 't is destroyed for ever If a Copy-holder take a Lease for yeares of the Mannor his Copy-hold hath not continuance Hides Case adjudged 17. of the Queene But there 't was resolved that such Lessee might regrant the Copy to whom he would for the Land was alwayes demised or demisable If a Coppy-hold be surrendered to the Lessee his Executors or assignes may regrant it If a Copy-hold escheate to the Lord his alienee by fine feoffement c. may regrant it Foiston and Crachroodes Case 29. and 30 of the Queene fo 31. ADjudged that where a Copy-holder in pleading alledges Quod infra Man praed talis habetur nec non a toto tempore cujus c. habebatur consuetudo Viz. quod quilibet tenentes praedictorum tenement vocat C. have used to have common in such a place parcell of the Mannor and that he is a Copy-holder of the said Tenement that this custome as well for the matter as the forme was good for the Copy-holder cannot prescribe in his owne name for the exility and basenes of his estate and if he had claimed common in the soile of another he ought to prescribe in the name of the Lord Viz. That the Lord and all his ancestors and all those whose estate c. have
but a labour to the Obligor or a stranger there he had time during his Life Fitz-Williams Case 2. Jacobi banco regis fol. 32. BAron and Feme Tenants for life and to the heires of the body of the Baron the Baron sole is vouched in a common recovery the taile is barred Copledicks Case 3. Report 2. Resol If Tenant in taile suffer a recovery to his owne use the remainder to his wife with diverse remainders over with power of revocation and limittation of new uses by any such writing he revoketh all the remainders except that to his Wife and by the same deede limits new uses this is good for by any such writing shal be intended the same or any such and it may be by the same deede for first it takes effect as a revocation 2. By limittation of new uses and there are not more instances then one in it See there Leaper Wroths Case cited 30. El. to prove that powers whereby the interest of Strangers shall be changed shall be taken strictly as a power to make leases for twenty one yeares he cannot make a Lease for 21. yeares to commence in Futuro The Bishop of Bathes Case 3. Jacobi com banco fo 34. THe B. 18. H. 8. Leaseth to E. and R. for sixty yeares proviso if they dye within the terme that the B. and his Successors shall reenter E. dyes the B. dyes the Successor Leases to C. Cum post sive per mortem c. praedict R. acciderit vacare for sixty yeares with confirmation R. dyeth Resolv every Lease ought to have a certaine beginning and the continuance ought also to be certaine eyther by expresse number of yeares or by reference to an expresse certeinty or where a Lease may be reduced to a certeinty by matter Ex post facto Agreed the second Lease vests presently in poynt of interest to take effect in possession at the end of the first Terme if by none of the accidents the first Lease become voyd in the meane time and then the Lease shall commence at the first accident which doth happen and the Lessee hath no Election The Deane and Chapter of Worcesters Case 3. Jacobi fo 37. THe D. and Ch. seised of a Mannor in Fee in which were Copy-holds grantable for three lives for 8. s. 8. d payable quarterly and herriotable grant a copy-hold for the Life of three reserving the old rent halfe yearely this is not voyd by 13. Eliz. cap. 1. Resolved the grant of a copy-hold for the life of 3. is good for although there may be an occupancy yet it is not inconvenient for an occupant shall be punished in wast 2. Grant of a Copy-hold is a demise by the intent of the Statute for in Law it is a Lease at will 3. The omission of Herriot doth not make it voyd because the annuall rent is reserved 4. It is sufficient that the yearely rent be reserved twice in the yeare for the Statute saith yearly which maketh a difference betweene this Case and the Lord Mountjoyes Case in the fifth Report Bellamyes case 3. Jacobi com banco fol. 38. A Lease upon condition that the Lessee shall not alien without License Assignee of the Lessee pleads that the Assignement was with License and shewed not forth the Deede of License 1. Because he did not claime by it 2. Because the License was Ex provisione hominis and not Ex institutione legis 3. Because it was executed and good Henry Finches Case 3. Jacobi banco regis fol. 39. A Grant of a rent charge out of diverse Mannors c. in the Parishes of E. and W. Aut alibi dictis marerijs spectantur and out of Lands which is not parcell of any of the Mannors these are not charged with the distresse for Alibi doth not charge more Land then is parcell of those Mannors but all parcells of the said Mannors out of the said Parishes Sir Anthony Mildmayes Case 3. Jacob. banco regis fol. 40. 1. REsolved a perpetuity is against the rules and pollicy of the common Law 2. It is impossible that an estate tayle shall cease before that Tenant in taile dyes without issue and an estate cannot be made to continue as to one and determine as to another except by Statute 3. A gift in taile upon condition that he shall not suffer a common recovery is voyd because he had power by the Law 4. It is a voyd saying that his estate shall cease if he goe about c. for Non officit conatus nisi sequatur effectus Also many ambiguities will arise thereupon because the Law doth not define it and it is so uncertaine that is not traversable Blakes Case 3. Jacobi com banco fo 43. AN accord with satisfaction is a good barre in a Writ of Covenant because the duty accrueth not meerly by the deede but by a torte subsequent together with the deed and it is a good barre in an attaint because this is not founded upon the record onely but upon the false Oath also In all cases where an arbitrament is a good Plea an accord with satisfaction is also and so generally in all Actions where damages onely are to be recovered Higgins Case 3. Jacob. com banco fo 44. IF a man have judgement upon an Obligation so long as this judgement is in force he may not have a new action upon the same Obligation For Interest reipublicae ut sit finis litium infinitum in jure reprobatur A Statute Staple is but an Obligation recorded and one Obligation cannot drowne another although they be both for one Debt and the Obligee may choose upon whither he will bring his Action 11. H. 4. and 2. Jac. Sir William Cornewalles Case and Branthwaytes Case and in every judgement the Defendant is amerced and so he shall be amerced in Infinitum Dowdales Case 3. Jac. com banco fol. 46. IN Debt against an Executor the Defendant pleads fully administred the Plaintiffe saith that he hath assets at E. the Jury found assets in Ireland 1. Resol when the place is materiall the poynt in issue cannot be found in another place 2. Where the place is named but for conformity assets may be found in another County 3. In a generall issue the Jury shall finde all materiall locall things in another County 4. The Jury by a meane shall trie locall things in another County as a release in a forreigne County the Jurors shall assesse damages for the profits of the Land in the other County Multa conceduntur per obliquum quae non c. but in case of felony the Tryall shall be where the offence was done 5. The finding of assets is the substance and that it is in Ireland is surplusage A thing done beyond the Sea shall be tryed here if the foundation of the Action be here Boswells Case 3. Jac. banco regis fol. 48. IN a Quare impedit judgement was given to remove the incumbent of the Queene not party to the Writ who was presented
make a Lease for yeares and after enter into the Land and make wast and the Lessor recover in an Action of wast against the Lessee for life he shall avoid the Lease for yeares made before the wast committed But if a Lessee for life make a Lease for yeares and after enter and make a feoffement in fee the Lessor shall not avoid the Lease for yeares and so if a Tenant make a Lease for yeares and after is attainted of felony or dyeth without heire the Lord by escheate shall not avoide the tearme But because the feoffement in the case at barre was executed by Letter of Attourney it was resolved to be void and the Land escheated to the Queene Jehu Webbes Case 6. Jacobi com banco fo 45. THe King grants the office of the Kings Tennis plaies at W. to one who being disseised brings an assize The Patent shall have a reasonable construction not onely when the King himselfe playes but when any of his Houshould As if a Commission be made to take Singing-Boys in a Cathedrall-Church for the Kings Chappell those that Sing there for their pleasure cannot be taken but such as get their living by it There were but two manner of assizes at the common Law assizes De libero tenemento and De communia pasturae but for no other common but for this onely there is a Writ in the Register But the Statute of W. 2. c. 25. giveth it De proficuo in certo loco capiendo in lieu of a Quod permittat and although that there offices amongst other things are named yet an assize lay of an office at the common Law and although that no Tenant for life may have a Quod permittat yet an assize did lye for him but that is to be understood of an office of profit for it lyeth not of an office of charge Originall Writs made by Statute cannot be altered without Statute In an assize of a new office it ought to be shewed what profit belongs to it but not for an ancient office because that is sufficiently knowne Syms Case 6. Jacobi fo 51. TEnant in taile levyeth a fine with warranty and dyeth the warranty discends upon the issue of him in the remainder inheritable to the taile and another the issue in taile brings a formedon and is barred for all for the warranty is intire and barreth every one upon whom it discends of all his right as if one seised of three acres maketh a feoffement of one with warranty and dyes having issue two Daughters who make partition the Mother purchaseth the part of one brings dower against the feoffee who Vouches the Daughters shee shall recover all the other acre of the other Daughter if Tenant by the curtesie make a feoffement with warranty and dyes and his Sonne heire of the Feme recovers and assets discends after the feoffee shall have a Scire facias to have the Land first recovered by the Statute of Glouc. c. 3. but if assets descend to the Heire in taile bound with a lyneall warranty after recovery in formedon the Feoffee shall have a Scire facias to have the assets for otherwise if the recoverer alien the assets the issue of him will recover the Land in taile againe but in these cases the discontinuee ought to confesse the title of the Demandant and pray that if assets descend after they may discend unto him for if he plead a warranty and assets this is peremptory unto him if it be found that assets did not discend for the Statute is that a Scire facias shall issue out of the rolls of the Justices and in this case there is no ground for the Scire facias in the Record but in this case if the issue in taile pleads no assets and assets are found but not to the value the tenant shall have a Scire facias to recover the assets discended after for that false plea of the Vouchee Warranty and estoppell discend upon the heire generall and warranty barreth although that he upon whom it discends claimeth not by him that made it but so doth not an estoppell but estoppells with recompence binde the right of one who claimeth not by him that made it Roger Earle of Rutlands Case 6. Jacobi fo 55. THe King grants the pannage and herbage of a Park to M. for life and reciting this grants it to the Earle of Rutland for his life 1. Resolved the King hath three manner of inheritances 1. Some which he cannot excercise himselfe and cannot grant them in reversion or remainder as Corodies and Churches of which he is Patron 2. Others which he cannot excercise himselfe but may grant them in reversion or remainder as offices 3. Others which he may excercise himselfe and may grant as Lands Houses c. 2. The King here is not deceived for when he reciteth here that M. had for life and grants for life this inureth as by Law it may that is as a grant in reversion 3. In this case the grant to the Earle shall commence after the determination of the estate of M. and if the King grants Land to one and his Heires Habendum to him and his Assignes it is good and the Habendum shall be rejected for the honour of the King See the Lord Chandos case in the sixth Booke and when a Charter of the King may be taken to two intents good in many cases it shall be taken to such intent as is most beneficiall for the King but if it may be taken to one intent good and to another void then for the honour of the King and benefit of the Subject then it shall be taken so that it may take effect Beechers Case 6. Jacobi fo 58. B. Plaintiffe in Debt Se retraxit by attourney and by the judgement is not amerced he brings eror 1. Resolved a Retraxit ought to be in proper person for at the common Law every one who appeared ought to come in proper person and make his attorney after by license of the Court but if it be without writ he cannot without a writ of Attornato faciendo In cases where one may make an attourney but for contempt is bound to appeare in person if he appeare by attourney this is not error because the court may dispens with the contempt otherwise where he cannot appeare by Law by attorney as here for if he appeare by attourny this is error 2. B. ought to be amerced if upon a Nonsuite a Fortiori upon a Retraxit and although it is for his advantage yet he may assigne it for error because the judgement is not perfect and because it is for the advantage of the King and it shall not be amended because the act of the Court. 3. Where one disclaimes he shall not have a Writ of error because he hath confessed that he had no right otherwise it is upon a Retraxit for this is but a barre of the action à fortiori here where it wat void done by an attourney
or some such inconvenience but a Copy of a record is good evidence if a release be made to Tenant for life this inureth to the reversioner yet he cannot pleade it without shewing a Fortiori here because the Lessee may contract with the Lessor to suffer him to have the deed to shew but Strangers who claime not the thing granted nor interest out of it need not to shew the deed otherwise if he claimes the thing granted or interest out of it Ergo the second grantee of a rent charge must shew the first grant but he who claimes as Gardian or meerly by the Law without privity or power of providing the deed need not to shew it But Tenant by the courtesie must shew it because the deed was in his power living the Wife otherwise of Tenant by Statute c. 3. The not shewing of the deed is matter of substance therefore judgement shall be given against the Plaintiffe in the Writ of Error although it was not shewed as Cause of Demurrer And judgement was affirmed Nota when a plea amounts to a generall issue if the Plaintiffe demurre specially upon 27. Eliz. and the Defendant joyne judgement shall be given for the Plaintiffe Edward Seymors Case 10. Jacobi fol. 95. THe Lord Cheyny Tenant in taile the remainder in taile to I. C. the reversion to the Lord C. bargaines and sells and levyes a fine to the bargainee with warranty to him and his Heires the bargainee nfeoffeth the Lord S. who infeoffeth E. S. I. C. dyes having issue T. the Lord C. dyeth without issue Edward Lord S. leaseth to the Plaintiffe the Defendant by the command of T. ejected him and judgement was given for the Defendant and affirmed in Error 1. Resolved the bargainee had an estate discendible during the life of the bargainor whereof his Wife shall have Dower and also the reversion in fee expectant upon the remainder in taile 2. The fine after bargaine and sale is not discontinuance of the remainder for this operates upon the estate passed by bargaine and sale and corroborateth that and maketh it determinable onely upon the death of the bargainor without issue otherwise if the fine had preceded the bargaine and sale 3. It was Objected that the feoffement of the bargainee displaceth the remainder so that the warranty which discends upon him barreth him But resolv that the warranty doth not bind him 1. Because it was annexed to an estate determinable by the death of Tenant in taile without issue and to the reversion in fee granted by bargaine and sale and fine and not to the remainder in taile and the Conisee by his owne Act cannot make it to extend any further therefore the estate taile being determined the warranty ceaseth 2. A warranty barreth not an estate which is not displaced at the time of the warranty annexed as if the Father maketh a feoffement of Land out of which his Sonne hath a rent with warranty this binds not the Sonne as to the rent 3. The feoffement was lawfull because he had fee therefore he cannot make discontinuance 4. A warranty cannot enlarge an estate the remainder in taile to I. C. was not discontinued for the feoffor was not then seised by force of the taile 5. A collaterall warranty may be given in evidence if it be not pleaded for although it giveth not a right yet it barreth anothers right and the rather in an Ejectione firmae and other personall actions because in them it cannot be pleaded by way of barre Note there are some Titles to which a warranty extendeth not as in case of Mortgage Mortmaine consent to a Ravishor for in these cases no Action lyeth in which Voucher or Rebutter can be neither shall a discent take away an entry Bewfages Case 10 Jacobi Common Pleas. fol. 99. THe Sheriffe upon a Fieri facias executed did take an Obligation of the Defendant to pay the money in Court at the returne of the Writ and this was adjudged good notwithstanding the Statute of 23. H. 6. Before this Statute the Sheriffe could not let any person to baile which was taken Ad respondend as may appeare Fitz. Na. br 25. a b. and in 34. Eliz. in Debt by Dawson Sheriffe of B. against Burnam upon an Obligation the Defendant pleaded the Statute 23. H. 6. and shewed that one K. recovered Debt and damages against him and pursued one Writ of Fieri facias against him directed to the Sheriffe of B. and that he made the Obligation to the Plaintiffe for the Execution and that the Obligation was void by the Statute whereupon the Plaintiffe demurred and it was resolved First that the Obligation was not within the Statute because that the Statute extended onely to such Obligations which any who is in their ward did make unto him Secondly that the same Obligation was not void at the Common Law whereupon the Plaintiffe had judgment and another judgement 28 El. Inter Burwey Kett upon an Obligation taken by the Sheriffe Pro solutione pecuniae debitae dominae reginae upon extent out of the Exchequer Now it is said in the later clause of the Act that if any of the Sheriffs or other Officers or Ministers aforesaid take any Obligation in other forme by colour of their Offices that it should be void c. There are two manner of formes Viz. Forma verbalis forma legalis for Verbalis stands upon the Letters and Sillables of the Act Forma legalis is Forma essentialis and stands upon the substance of the thing to be done and upon the sence of the Statute Quia notitia ramorum hujus Statuti non in sermonum folijs sed in rationis radice posita est and according to this distinction this Branch of this Statute is to be expounded and therefore in 37. H. 6. 1. If the Sheriffe take a single Obligation of one in his ward that was bailable this was void for this Obligation wants essentiall forme prescribed by the Statute for the condition prescribes the fault which is part of the substance And there Moyle said that if the Sheriffe let one to Baile or Mainprise that is excepted in the Statute and not mainpernable and take a simple Obligation that the same is void Quod alij Justiciarij concesserunt for by the exception it appeareth that it was not the intention of the Statute that such should be let to Baile and therefore the Obligation is taken in another sence then the Statute intends And it seemeth to me that as well in the same Case of 37. H. 6. as in the principall Case of Dive and Manningham plow 67. the Obligation which hath the condition to save the Sheriffe harmelesse when the Sheriffe against the Law letteth one to Baile who is not Baileable is against the Law and void by the Common Law And with this accordeth William Wishams Case 15. Eliz. Dyer 324. in 7. E. 4. One was in custody of the Sheriffe by force of a Capias upon an
land of M. was lost by the Statute of 4. and 5. P. and M. ca ' 8. Resolved that there were two manners of custodies or Gardianships the one by the common law the other by the Statute at common Law foure manner of Gardians viz Gardian in Chivalry Socage Nature by Nurture The first two are fully described in our Bookes but great controversie was at barre for Gardian by Nature Some held that the Father onely shall have the custody of his sonne and heire apparent within age not the Mother Grandfather c. Also that the Father shall not have the custody of his daughter and heire for it ought to be such an heire as shall continue sole and apparent heire as the Father shall not have the custody of the youngest sonne in Borough English for tenure in Chivalry Others affirme that not onely the Father but every auncestor male or female shall have the custody of his heire apparent male or female Trespas quare 〈◊〉 consanguinium haeredem of the plaintiffe cujus maritagium ad ipsum pertinet c. rapuit c. lyes The Mother though she had no land brought ravishment of ward of J. her Sonne and heire against the grandfather who had land that might descend By the Court both erre for 't is true that every auncestor shall have trespas or ravishment of ward against a stranger for his heire male or female and the Writ shall say Cujus maritagium ad ipsum pertinet and good reason for the establishment of his house consists upon providing of a convenient marriage for his heire apparant and it matters not of what age such heire is but such action lyes not against gardian in chivalry by any of his auncestors but the Father So the Court resolved here the Mother could not be gardian in Socage if the land had descended to the daughter nor by nurture because she was above 14. but the common Law gives remedy against a Stranger as aforesaid Resolved here the Mother shall have the custody within the provision of the Act which hath ordained two new manners of custodies 1. By reason of nature 2. By assignation the first the Father after his death the Mother the second by assignation of the Father by his will or any act in his life See the Booke at large for the exposition of this Statute Resolved that the assent of the husband was not materiall for the Statute hath annexed the custody to the person of the Mother jure naturae which is inseperable and by marriage cannot be transferred to the husband the Father shall not forfeit the wardship by outlawry nor shall his Executors have it Resolved though she departed out of the house sixe houres before the contract yet in judgement of Law the Mother had the custody at the time of the contract for 't is inseperably annexed to the person of the Mother Resolved that by this devise the two daughters wete tenants in common in taile by these words equally to be divided though they never make partition in facto and so it hath been often adjudged Resolved that the husband and wife damsell had good title upon this verdict against the other daughter for by these words to the next of kin to whom the inheritance should c. come after her decease during the life of such person who shall so contract c. it seemes the daughter shall not have the forfeiture for though she be of the blood yet if M. dye her issue shall have the land if without issue the Mother in the remainder To the objection that the Mother cannot have it for she is not of the blood of the daughter but econtra Father or Mother are not next to whom administration shall be granted and land shall escheate rather then it shall goe to Father or Mother Resolved often against 5. E. 6. that the Father or Mother are next to whom administration may be granted and Littleton says that the Father is neerer of blood then the Uncle and therefore the Father shall have a remainder limitted to the next of blood of the Sonne but he shall not have an inheritance by discent from the Sonne for a Maxime prohibits it And 't was said at barre if he in reversion had been brother of the halfe blood he might have entered as Proximus de sanguine yet none of the halfe blood could inherit See the Booke at large where is excellent learning of discents as also the learning of Possessio fratris c. Resolved by the Court that it doth not come in question who shall enter for the forfeiture by the Statute for the issue was joyned upon a collaterall point whether the Mother had the custody at the time of the contract and the finding of the Jury is not materiall and therefore though the Plaintiffe who was lessee of the husband of the damsell as appeared had good title against the defendant being lessee of the husband of the other Sister yet because the issue was found against him judgement was given Quod nihil capiat c. Boytons case 35. Eliz. in Banco regis fo 43. A Writ of cap ad satisfaciendum is retornable at Westminster die Lunae prox post Crastin Animarū the partie is arrested the Sheriffe is not bound to bring the prisoner in recta Linea from the place where he was arrested or from the Countie But if he have the prisoner in Court at the day of the returne being never out of his custody in the meane season it is good But if a Sheriffe or a Bayliffe assent that one who is in execution and under their custody to goe out of the Gaole for a time and then to returne yet although he returne at the time it is an escape And so it is likewise if a Sheriffe suffer him to goe with a Bayliffe or a Keeper for the Sheriffe ought to have him in arcta custodia the Statute of Westminster 2. cap. 11. says Quod carceri manucipentur in ferris So as the Sheriffe may keepe him in yron and fetters to the intent that they may sooner satisfie their Creditors The Sheriffe upon a Habeas corpus for one in execution may bring the partie what way he will so as he have his bodie at the day according to the Writ If one in execution escape out of the Gaole and fly into another Countie the Sheriffe upon fresh suite taketh him again before any action brought against the Sheriffe the Judges have adjudged this no escape and if one in execution escape de son tort and be taken againe he shall never have an audita querela because a man shall not take advantage of his own wrong Sir George Brownes case 36. of the Queene fo 50. ISsue in speciall taile the remainder to himselfe in fee in the life of his Mother tenant in speciall taile levies a Fine in truth with Proclamations though they were not found to Sir G. B. the Mother living the Sonne leased for three lives
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
A Man leaseth S. for 10. yeares and C. for 20. yeares and both to another for 40. yeares after the end of the said severall demises ten yeares expire the last Lessee enters into S. and upon ouster brings trespasse and recovereth for the joynt words of the parties shall be taken Respective and the leases shall commence severally upon the severall determination of the said leases Joynt words shall be taken severally 1. In respect of the severall interest of the grantors as if two Tenants in common grant a rent charge 2. In respect of the severall interest of the grantees as a joynt warranty to two severall Tenants 3. In respect that the grant cannot commence at one time as a remainder limitted to the right heires of I. S. and I. N. 4. In respect of the incapacity of the grantees to take joyntly 5. Ratione subjectae materiae as rent granted to two copartners for equality of partition 6. Ne res destruatur ut evitetur absurdum as in Cessavit the tenure is alleadged by homage fealty and rent and quod in faciendo servitia praedicta cessavit it shall be construed to such services onely as of which a man may cease Brudenells Case 34. Eliz. banco regis fo 9. IF a lease be made to A. during the life of B. and C. without saying during the life of the survivor of them if one of them die yet the estate is not determined But A. shall have the land during the life of the survivor for if a man make a lease of Land to two persons during their lives they assigne over their estate now the assignee hath estate for life of them too and if one dye he shall have the land during the life of the Survivor Note two diversities th one a limitation in this Case aforesaid th' other a condition for if a man demyse Land for 100. yeares if A. and B. live so long in this case if th' one of them dye the Lease is determined for the Lease is conditionall and not Determinable by limmitation of estate and the life of a man is collaterall to the Lease which is but onely a Chattle If an administrator have judgement and dye his Executors cannot sue execution of that judgement but he that shall be subject to the payment of the Debts of the first intestate and that are not the Executors of the administrator vide 26. H. 8. fo 7. Hensteads Case 36. 37. Eliz. com banco fo 10. A Feme lessor or lessee at will taketh Husband the will is not determined for it may be prejudiciall to the Husband to have it determined So if one of the Lessees or Lessors at will dye but in case where one of the joynt Lessees at will dyeth nothing surviveth but the others shall pay all the rent Jues Case 39 40. Eliz. com banco fo 11. I. Leaseth a Mannor to S. for thirty yeares excepting Woode and underwood growing upon it and after Leased to him the Woode for 62. yeares without impeachment of wast and leaseth to him the Mannor for thirty yeares after expiration of the first thirty yeares thirty yeares expire S. maketh wast I bringeth an action of wast 1. Resolved by the exception of Wood and Underwood the soile is excepted and the woods growing c. are of abundance 2. The Wood remaines parcell of the Mannor because the Lessor had the intire freehold otherwise if he had leased for life with such an exception so if one lease a Mannor excepting the advowson for life the advowson is in grosse for life but if he grant the advowson for life it remaines appendant 3. By the acceptance of the third lease the said Lease of the Wood for 62. yeares was presently surrendered because the Lessee hath affirmed the Lessor to be able to Lease Saunders Case fo 12.41 Eliz. com banco In an Action of wast IF a man have Land in part whereof there is a Cole-myne appearing and he demise the Land to another for life or yeares the Lessee may dig for cole c. And the reason is for that the Myne is open at the time of the demyse c. and when he demyseth all his Lands it shall be intended that his meaning was that all the profit of the Land should passe c. but if the Myne be not open but within the Bowels of the Earth at the time of the demise 't is otherwise Also if a man have in his Lands hidden or unknowne Mynes and Lease the same Lands and all Mynes therein the Lessee may dig for them Rosses case 41. 42. Eliz. A Lease is made to A. and his Assignes for his life and the life of B. and C. this is a Lease for three lives and the Survivor of them Countesse de Salops Case fo 13.42 43. Eliz. banco regis SHe brought an action of the Case against Crompton and declared that shee demised to him a House at will Et quod ille tam negligenter improvide custodivit ignemsuum quod domus illa combusta fuit the defendant pleaded Non culpa and it was found not guilty And 't was adjudged that for the permissive wast no Action lyeth against the opinion of Brooke in Title wast 52. And the reason of this judgement was for that at the common Law no remedy lyeth for wast either voluntary or permissive against the Lessee for life or yeares because the Lessee hath interest in the Land by the act of the Lessor and it was his folly to make such a Lease and not to restraine him by Covenant condition c. And by the same reason Tenant at will shall not be punished for permissive wast But if Tenant at will commit voluntary wast as pulling downe of houses cutting of Trees a generall action of trespasse lyeth against him for that these doe amount to the determination of the will without the entry of the Lessor but it was agreed that in some Cases where there is confidence put in the party an action of the Case lyeth for negligence although the Defendant commeth to the possession by the act of the Plaintiffe as 12. E. 4.13 If one doe commit his Horse to one to keepe safely the Defendant Equum illum tam negligenter custodivit quod ob defectum bonae custodiae interijt an action upon the Case lyeth for this Breach of trust also 2. H. 7.11 If my Shepheard which I trust with my Sheepe and by his negligence they be drowned or otherwise perish an action upon the case lyeth against him but in this case at the Barre there was a demise at will made to the Defendant and no confidence repos'd in him wherefore it was ordered that the Plaintiffe should not recover by her Bill Case of Ecclesiasticall Persons 43. Eliz. fo 14. In the High Court of Parliament AT a Parliament holden in this Michaelmasterme it was resolved by the two chiefe Justices Popham and Anderson and diverse other Justices Assistants to the Lord of the
Parliament in the upper House that Leases made to the Queene by Colledges Deans and Chapters or any other having spirituall or Ecclesiasticall Livings against the provision of the Act 13. Eliz. ca ' 10. are restrained by the same Act as well as Leases made to common persons for they are disabled by Parliament to make estates the King being the head of the Common-wealth may not be an Instrument to defeate the provision of an Act of Parliament made Pro bono publico For though the Queene by the common Law had ability to take it yet insomuch the Parliament had dissabled them to make states estates made to the Queene against the Act are voyd Covenants c. Concerning Leases Assurances c. Spencers Case 25. Eliz. fo 16. Banco Regis A Lessee doth Covenant for himselfe his Executors and Administrators with the Lessor that he his Executors or Assignes shall build a Brick Wall upon parcell of the Land demised c. afterwards the Lessee assignes over his tearme to B. in this Case B. is not bound to build the Wall When the Covenant extends to a thing In esse parcell of the demise then the thing to be done by force of the Covenant is Quodammodo annexed and appurtenant to the thing demised and shall run with the Land and binde the Assignee although he be not bound by expresse Covenant But when the Covenant extends to a thing which had not essence at the time of the demise made that cannot be appurtenant or annexed to a thing which had not essence As if a Lessee Covenant to repaire the housses to him demised during the tearme this is parcel of the contract c. and shall bind the Assignee although he be not bound expresly by the Covenant But in this Case the Covenant concernes a thing which had not essence at the time of the demise but to be made after and therefore it shall binde the Covenantor his Executors and administrators and not the assignee for the Law will not annexe the Covenant to a thing which had not essence It was resolved in this Case if the Lessee had Covenanted for him and his assignes c. that in as much as it was to be builded upon the thing demised it should binde the assignee by expresse words Also if a warranty be to one his Heires and assignes by expresse words the assignee shall take benefite thereof and have a Warrantia cartae But although the Covenant be for him and his Assignes yet if the thing to be done be meerly collaterall to the Land demised and doe not concerne the same the Assignee shall not be charged as if the Lessee Covenant for him and his Assignes to build a house upon the Land of the Lessor which is not parcell of the demise or to pay any collaterall Summe of money to the Lessor or to a stranger this shall not binde the Assignee Also in a case of goods as Sheepe Chattell c. there is not any privity or reversion in the Assignee but meerely a thing in action in the personalty which cannot binde any but the Covenantor his Executors or administrators which doe represent him The same Law is if a man demise Lands for yeares with a stock of Cattle or Summe of money rendring rent and the Lessee Covenants for him his Executors Administrators and Assignes to deliver the Stock of Cattle or the Summe of money at the end of the Terme yet the Assignee shall not be charged with the Covenant This word Concessi or Demisi imports a Covenant and if an Assignee of a Lessee be evicted he may have a Writ of Covenant so shall Tenant by Statute or Elegit of a Terme or he to whom the Lease is sould by force of any Execution c. If a man grant to a Lessee for yeares that he shall have so many estovers as shall serve to repaire his House or that he shall burne within his House or such like during the Tearme that is appurtenant to the Land and shall run with the same as a thing appurtenant in whose hands soever the same commeth Assignee of an Assignee Executors of an Assignee ASSIGNES of Executors or Administrators of every Assignee may have Action of Covenant for all are comprised within this word Assignees for the same right that was in the Testator or intestate shall goe to the Executors or administrators It was resolved That the Act of 32. H. 8. c. 24. extendeth onely to Covenants which touch the thing demised and not to collaterall Covenants Slingsbyes Case 29. Eliz. fo 18. Vpon error in the Exchequer Chamber IF any party Covenantor in a Tripertite Indenture breake Covenant all the rest of the parties Covenantees are to maintaine the Action notwithstanding the words of the Covenant are Et ad cum quolibet eoâ—um But if a man demise to A black Acre to B. white acre to C. greene Acre and Covenant with them and every of them in this Case in respect of the severall interest by these words And every of them the Covenant is made severall but if the demise be made to them joyntly then these words in the Covenant And every of them are made voyd A man cannot binde himselfe to three and to every of them to make that joynt or severall at the Election of severall persons for one selfe same cause for the Court will be in doubt for which of them to give judgement It was resolved that an interest cannot be granted joyntly and severally as if a man grant Prox imam advocationem or make a Lease for Terme of yeares of Land to two joyntly and severally these words severally are voyd and they are joyntenants but a power and authority may be joyntly and severally as to make livery or to sell for they have no interest or Action but are as servants to others And judgement was reversed Rosewells Case 35. Eliz. fo 19. BArgainor of Land covenanteth to make to the Bargainee such assurance as his Councell shall advise the Bargainee himselfe cannot devise it although he be Learned in the Law for then it would be no good plea to say Quod consilium non dedit advisamentum Higginbottoms Case 35. Eliz. Banco regis fo 19. A Parson assumeth to I. S. to make him such an estate in a Rectory as the Counsell of the said I. S. shall devise the Counsell shall be given to I. S. and he shall notifie it to the Parson Stiles Case 38. Eliz. Banco regis fo 20. A Charter with the words Haec indentura without a manuall Act of indenting of the paper or parchment is not an Indenture Sir Anthony Maynes Case 38. Eliz. fo 20. Error in Banco regis SIr A. M. Leaseth to S. for twenty one yeares and bindeth himselfe to make a new Lease unto him upon surrender of the old and Leaseth to another for 80. yeares by fine Scott the first Lessee bringeth debt and had judgement If you be bound to enfeoffee one in the Mannor of D. before
such a Feast if you make a Feoffement to another of this Mannor before the same Feast you have forfeited the obligation although that you purchase the Land againe before the said Feast because that you were once disabled to make the feoffement If a man Lease a Mannor for yeares and the Lessee covenanteth to uphold the Houses and to leave the same Mannor in as good an estate as he found it and during the terme the Lessee maketh wast in Houses and cutting of Tymber c. the Lessor may have a Writ of Covenant before the end of the Tearme for cutting the Timber for it was impossible that the Covenant should be performed after for the Timber but otherwise of the Houses Fitz Na. br fo 145 K. It was also resolved that if a man seised of Lands in Fee covenant to infeoffee I. S. upon request and after he maketh a feoffement of the same to a Stranger in this Case I. S. may have an Action of Covenant without request Laughters Case 37. Eliz. fo 21. Banco regis WHere a condition of an obligation consisteth upon two parts in the disjunctive and both possible at the time of the obligation made and after one of them becomes impossible by the Act of God the obligor is not bound to performe the other part for the condition is made for the benefite of the obligor and shall be taken most beneficiall for him and he had an Election eyther to performe the one or the other for the saving of his Obligation but now Impotentia excusat legem Hallings Case 38. Eliz. Com. banco fo 22. ONe Covenanteth to make an estate in Fee at the costs of the Covenantee the Covenantor is to doe the first Act Idest to Notifie what assurance he will make that the Covenantee may know what summe to tender Mathewsons Case 39 Eliz. fo 23. Com. banco SEverall persons make severall Covenants in one Indenture or Writing the Seale of one of them is broken away that shall not avoyd the Covenant of the rest but onely the Covenant of him whose Seale is so debrused or defaced Vide Piggots Case in the 11th Report because severall Covenants otherwise if joynt Lambes case 41. Eliz. fo 23. com banco A. Is bound unto B. to give unto B. such a release c. before the 22. day of October next as by the Judge of the Prerogative Court is thought fit In this Case A. must procure the Judge to doe it or devise it for the Judge is a stranger to the condition and the condition is for the benefite of the Obligor and he hath taken upon him to performe the same at his perill but it is otherwise if the Obligee or his Councell should devise it Broughtons case 43. Eliz. fo 24. Banco regis IN an Action of Debt by Broughton Plaintiffe against Pretty upon an Obligation with condition where the Plaintiffe was bound in an obligation of 200. l. for the Defendant for the payment of 100. l. to C. if therefore the Defendant should save and keepe harmlesse the said Broughton from all Suites quarrells and Demands touching the said Obligation c. that then the Obligation to be void c. at the day of payment of the 100. l. the Plaintiffe commeth to the place where the 100 l. ought to be paid and perceiving there not any person present to pay the 100. l. for the Defendant Broughton to save the penalty of the Obligation paid the money to C. and brought his Action upon the Counter-bond and it was adjudged that the Plaintiffe should recover for the payment of the 100. l. is damage and harme And it is not necessary whither the Plaintiff was arrested or sued c. Terror of suite so as he dare not goe about his businesse is Damnification although he be not arrested Deane Chapter de Winsors Case 44. Eliz. fo 24. Banco regis A Man Leased a House by Indenture for yeares the Lessee Covenants and grants for him and his Executors with the Lessor to repaire the house at all times necessary the Lessee Assignes over and the Assignee suffereth the house to decay the Lessor brought an Action of Covenant against the Assignee and it was adjudged per Popham and all the Court that the Action lyeth although the Lessee had not Covenanted for his Assignes because in respect thereof the rent is the lesse which is for the benefite of the Assignee Qui sentit commodum sentire debet onus If a man grant one Estovers to repaire his house this is appurtenant to the house Fitz H. nat br 181.28 H. 8.28 Sir Thomas Palmers Case 43. El. fo 24. banco regis SIr Thomas Palmer seised in Fee of a great Wood. Did bargaine and sell to one Cornford and his Assignes 600. cords of Wood to be taken by Assignement of Sir Thomas Cornford assignes his interest to one Basset and afterward Sir Thomas sells to one Maynard such quantity of Wood as will make 4000. cords at Election of the Vendee and afterwards Sir Thomas assignes to Basset 600. cords of Wood to be taken by him who doth fall the same and Maynard did take them away and converted them c. an Action upon the case was brought by Basset and iudgement was given for him for Corneford had an interest which he might assigne over and not a thing in action or a possibility for it was resolved if Sir Thomas did not assigne them to Cornford upon request Cornford might take them without assignment for the Grantor cannot by his owne act or default eyther subvert or derogate from his owne grant Therefore it ensueth that Cornford had an interest that he might assigne over If A. have a house and Land and reasonable estovers in the Woods of another by view and livery of the Bayliffe c. if A. take estovers without view or livery c. he is a trespassor although he take lesse then he ought to have by livery But if A. demand his estovers and the Owner or his Bayliffe will not deliver to him he may have an Assize 2. If the Assignement were voyd yet the Defendant cannot take Trees cut by another but out of the residue of the Wood. The Earle of Rutlands case 2. Ja. fo 25. banco regis EDward Earle of Rutland seised of the Mannor of Eykering by Indenure dated 10. March Anno. 21. El. for augmentation of the joynture of Issabell his Countesse did Covenant with Sir Gilb. Gerrard and Thomas Houlcroft his Brother that before the end of Trinity terme then next following he would assure by fine or other conveyance the said Mannor to the said Sir Gilb. Gerrard and Thomas in Fee which syne or other conveyance should be to the use of the said Earle and Issabell his Wife and the Heires of the said Earle which Indenture was acknowledged and inrolled in the Chancery the 28. of the same Moneth of March by another Indenture betweene the said Earle on the one part and the Lord Burleigh on the other
part and Sir Gilb. Ger. and others on the same part for the advancement of the Heires Males of the said Earle the Earle did covenant c. to convey the said Mannor amongst others to the said Lord Burgleigh Sir Gilb. Gerrard and others or to any of them before the Feast of the Annunciation of our Lady next ensuing which Assurance should be to the use of the said Earle Edward and the Heires Males of his body and for want of such issue to the use of the Heires Males of Thomas Earle of Rutland with divers remainders over and in the same Indenture the said Earle Edward did Covenant c. to stand seised to the uses contained in the second Indenture No fine or other assurance was leavyed or made by the said Earle Edward before the end of Trinity Tearme Afterwards Viz. 17. Septemb. next following the said Earle Edward acknowledged a note of a fine of the said Mannor of Eikering onely to Sir Gilb. Gerrard and Thomas Ho and the Heires of Sir Gilb. And the 18. day of the said Moneth acknowledged another â—ote of a fine of the said Mannor of Eckering amongst many other Mannors mentioned in the later Indenture to the Lord Burghley Sir Gil. Gerrard and other parties to the later Indenture and both fines were entered in Octabis Mich. next after And it was proved by diverse testimonies that the said Earle Edward as well before the Indentures as after the fine leavyed said that the said Countesse should have the Mannor of Eckering And it was resolved by Popham chiefe Justice and all the Court. First although the Indenture being made for declaring of uses of a subsequent fine recovery or other conveyance to certaine persons and within a certaine time and to certaine uses yet they are but onely directory and doe not binde the estate or inerest of the Land yet if the fine recovery or other assurance be persued according to the Indenture there cannot be any averrment made against the Indentures taken in this Case that after the making of the Indentures and before the assurance by mutuall agreement of the parties was concluded and agreed that the assurance should be to other uses but if other agreement or limitation of uses be made by writing or by other matter of as high or higher nature then the later agreement should stand for every contract or agreement ought to be dissolved by matter of as high nature as the first was Nil tamconveniens est naturali aequitati quam unum quodq dissolui eo ligamine quo ligatum est Also it was very inconvenient that matters in writing should be controuled by averrment of parties to be proved by incertaine testimony of slippery memory and should be perillous to purchasors Farmers c. 2. It was resolved that if the forme of the Indentures be not pursued as for quantity of Land the time within which the fine should be leavyed c. Averrment without writing may be taken that the fine c was to other use then was contained in the Indenture by reason of a new agreement subsequent which in this case may be as well by word as writing 3. It was resolved that although the indentures be not pursued in circumstance of time quantity person c. yet if no other meanes new agreement be proved the fine c. in judgement of Law shall be to the use named in the Indenture The fines cannot be directed by both the Indentures although perhaps it was the meaning of the parties because the directions and declarations of the first Indenturs were controuled and frustrated by the said second Indentures Cases of Executors Russells Case 26. Eliz. fo 27. banco regis A Release by an Infant Executor under the Age of 21. yeares is no bar but upon payment or satisfaction to an Infant Executor he may acquite and discharge the Debt for so much as he receiveth All things that he doth according to the Office and duty of an Executor shall binde him an Executor may release before probate of Testament for although he may not have an Action yet the Interest of the Action is in Law in him at the time of the release Middletons Case 1. Ja. in com banco fo 28. IT was adjudged betweene Middleton and Rymot that an Executor before probate may release action although that before the probate he may not have action for the right of the Action is in him but if A. release and after take administration that shall not barr him for the right of the Action was not in him at the time of the release Two Executors prove the Testament the third refuseth yet he may release Littlet 117. if one be bound to pay a summe of money at a day to come a release of actions before the day is a Bar and yet before the day he could have no action Harrisons Case 40. Eliz. fo 28. com banco IT was adjudged that a judgement upon Debt due by obligation shall be paid before a Statute made for performance of Covenants which are things in contingency and in future or other Statutes or recognizances for Debt vide Sadlers Case in the Fourth Booke although the judgement be after the acknowledgment of the Statute Piggots Case 40. Eliz. com banco fo 29. ONe bringeth Debt as administrator Durante minore aetate of one whhom he averr'd to be within age and he doth not say that he was within the age of 17. yeares and the Plaintiffe was barred because at that age the Administration ceaseth Princes Case 41 42. Eliz. com banco fo 29. AN Infant is made Executor Administration durante minori etate may be committed to the Mother or other Friend of the Infant which shall cease and be voyd when the Infant is at the age of 17. yeares and this administrator may not sell any goods of the Decest unlesse it be for necessity of payment of Debts for he hath his Office of administrator Pro bono commodo Infantis and not for his prejudice also he cannot assent to pay legacies unlesse there be assents to pay Debts c. and if it be a Woman under the age of 17. yeares and take a Husband of full age the Administration ceaseth Where one hath goods solely in an inferior Dioces yet the Metropolitan of that Province pretending that he had Bona notabilia in diverse Diocesses committed the Administration c. this Administration is not voyd but voidable by sentence because the Metropolitan hath Jurisdiction in all places within his Province but if the ordinary of one Diocesse commit the administration of goods when the party hath Bona notabilia in diverse Diocesse this administration is meerly voyd as well for his goods within the Diocesse as without vide Vere Jeffrays Case 22. Eliz. in banck le roy there cited and so adjudged Caulters Cose fo 30. 40. 41. Eliz. banco regis AN Executor in his owne wrong ought not to retaine goods in his owne hands to satisfie
his owne just Debt for every Creditor by such meanes when the goods be not sufficient would strive to make himselfe Executor De son tort to satisfie himselfe and barr others c. And it is not reasonable that one should take advantage of his owne wrong Non facies malum ut inde fiat bonum melius est omnia mala pati quod malo consentire It is also cleere that all lawfull acts that such an Executor doth or disseisor or an abator c. are good Hargraves Case 41. and 42. Eliz. banco regis fo 31. LEssor bringeth Debt against the Administrator of the Lessee for yeares for rent due after the Administration committed in the Debet and so it ought to be because he himselfe tooke the profits and nothing is assets in his hands but the profits besides the rent but in all Actions brought by Executors as Executors the Writ shall be alwaies in the Detinet tantum although the duty accrew in their owne time Pettifers Case 45. Eliz. banco regis fo 32. UPon a fieri facias de bonis testatoris the Sheriffe returneth Nulla bona a Writ issueth to the Sheriffe to inquire by inquest if the Executors have wasted and how much who returneth that they have and judgement given against them De bonis proprijs they bring error in redditione Executionis and the Execution was reversed for the course is upon Nulla bona to have a speciall Fieri Facias to make Execution De bonis proprijs if they have wasted and if the Sheriffe so doth where they have not wasted they have remedy against him but if he taketh an inquest and returneth it although it be false there is no remedy against the Sheriffe or any other Robinsons Case 1. Jac com banco fo 32. EXecutor brings Debt as Administrator and is barred by Plea that he is Executor he may bring Debt as Executor for he was barred as to the Action of the Writ to have Debt as Administrator but not to the Action Reades Case fo 33. 2. Jac. com banco WHen a man dyeth intestate and a strange person taketh the goods of the intestate and useth them or sells them this maketh him an Executor of his owne wrong for when none assumeth to be Executor nor takes Letters of administration there the using of the goods is sufficient to charge one as Executor De son torte for those to whom the Deceast was indebted unto have not any other in this case against whom they may bring their actions for recovery of their Debts When an Executor is made and he proveth the Testament or assumeth upon him the charge and doth administer in this case if a stranger take any of the goods and claime them for his owne this doth not make him an Executor of his owne wrong because there is another lawfull Executor A lawfull Executor shall not be charged but with the goods that come to his hands after that he assumes upon him the charge of the Will c. but if another man first take the goods c. before the lawfull Executor hath assumed the Execution or proved the Testament in this case he may be charged as an Executor of his owne wrong Constructeon of the Statutes of Jeofails c. Amendment of Records Fines Recoveries c. Playters Case 25. 26. Eliz. Banco regis fo 34. THe Defendant was found guilty in trespasse Quare clausum fregit pisces suos cepit and damages assessed intirely it was moved in arrest of judgement because in the Count neither the nature nor the number of Fishes was shewed It was answered by the Plaintiffe That the Defendant is found guilty to damages and so Non refert of what nature or number they are 2. That the Fishes themselves are not to be recovered but damages for them therefore no need to shew the certainty 3. All the damages shall be intended to be given for the close broken which is laid in the Declaration 4. It is matter of forme ayded by the Statute of 18. Eliz cap. 14. But judgement was stayd for the Office of the Declaration is to reduce the Writ to certainty for otherwise upon such a generall Issue if the Jury give a false Verdict they cannot be attainted and damages shall be intended to be given for all because they are intire but if they had beene severed the Plaintiffe shall recover for so much as is well pleaded and this is matter of substance and not of forme because it is no default of the Clerke but of the Plaintiffe and therefore not aided by the Statute Walcots Case 30. Eliz. banco regis fo 36. DEbt was brought against Baron and Feme in the Detinet tantum upon an Obligation by the Feme before Marriage it ought to be in the Debet and Detinet because the Baron had the goods of the wife in his owne right and for that reason debt is brought against the Heire in the Debet and this is matter of substance and point of the Action not remedied by the Statute of 18. Eliz. c. 14. Baynehams Case 30. Eliz. in Scaccar fo 36. AN Ejectione firmae of Lands in A. B. and C. tryed for the Plaintiffe by a Visne out of A. onely this is insufficient and not remedied by any Statute Gardiners Case 21. Eliz. Banco regis fo 37. 23. Jurors are returned 12. appeare and finde for the Plaintiffe this is remedied by 18. Elizabeth cap. 14. Bishops Case 34. Eliz. banco regis fo 37. VAriance is betweene the Writ and count in name the Plaintiffe recovers the Defendant bringeth Error the Writ was remov'd into the Kings Bench and the judgement was reversed because the Statute remedieth where there is no Originall but not where the Originall is vitious and although it were removed after pleading c. yet because the fault appeared to the Court the judgement was reversed Teys Case 34. Eliz. Banco regis fo 38. BAron and Feme levy a fine to one who grants and renders to them two and to the Heires of the Baron and after renders part to the Feme in taile the remainder over the Heire of the Husband brings a Writ of Error and assignes for error the said Variance 1. Resolved that there needeth not a precise forme in render upon a fine but it shall be in this case construed as a grant by Charter for it is but a grant of record 2. There are five parts of a fine 1. The Originall 2. The License to accord for which the Kings Silver is due and ought to be entered upon the Writ of Covenant and the summe and he who payeth it that is he in whom the fee reposeth the Plea and betwixt whom c. and the Land ought to be mentioned 3. The concord which is the substance of the fine for if upon that the Kings silver be paid although the party dye the fine is good 4. The Note which is many times taken for the Concord And lastly the Foote of the
fine after delivery of the Indentures of the fine the fine is said to be ingrossed 3. The Conusor shall not assigne error in the render because it is to his advantage and none shall assigne Error except it be to his disadvantage Dormers Case 35. Eliz. Banco regis fo 40. A Common recovery is had in a Writ of Entry in the Post de uno annuali redditu sive pensione quatuor marcarum and of an advowson whereupon a Writ of Error is brought 1. Because every Praecipe ought to be certaine but here it is in the Disjunctive 2. A Writ of entry in the Post lyeth not of an advowson But judgement was affirmed and thereby 't was resolved 1. That a common recovery is not like to other recoveries for it may be averred to an use 2. It is by mutuall consent consensus tollit errorem 3. A Writ of entry in the Post lyeth of an advowson common c. to suffer a common recovery and not otherwise for no other assurance can be had to barre the remainders 2. The demand of the rent is good for one of two things is not demanded but one thing by two names for rent and pension are Synonima and the rather here because it is said to issue out of Land which a Pension properly cannot 3. Common recoveries are so usuall that the Court shall take notice that they are common recoveries Rowlands Case 35. Eliz. Banco regis fo 41. A Pannell of a Jury is annexed to the Venire facias without returne this is vicious and not remedied by 18. Eliz. cap. 14. for that remedieth insufficient returnes but not where no returne The Countesse of Rutlands Case 36. Eliz. fo 42. RObert Moore is returned upon the Venire facias but in the panell before the Justices of Nisi prius and in the Postea he was named Robert Mawre if it appeare that Moore is his right name and that it is he who was sworne it is good for by the common Law this was a discontinuance against all the Jurors and discontinuances are ayded by the Statute otherwise if he were misnamed in the Venire facias and had his right name in the Panell and Postea Codwells Case 36. Eliz. Banco regis fo 42. A Juror who gave verdict was misnam'd in the Venire facias and had his right name in the Distringas and Postea and for that the judgement was arrested Nicholls Case 38. Eliz. Banco regis fo 43. C. Brings Debt upon a single Bill against N. who pleaded Payment without Acquittance which was found for the Plaintiffe although issue was joyned upon a point not materiall yet after Verdict this is aided by 32. H. 8. and 18. Eliz. Bohuns Case 39. Eliz. fo 43. A Fine was levyed of a Mannor and other Lands to the value of twenty Marks per annum so that the Kings silver is 40 s which was paid but in entering of it upon the Writ of Covenant the Mannor was omitted and thereupon error was brought but after that the transcript of the fine was remov'd into the Kings Bench the Judges of the common place amended the Record because it appeares to them that the Kings silver was payd for the Mannor and where the Writ of Covenant was Dede meipso for Teste meipso they amended that also and certified it into the Kings Bench upon dimunution and allowed Freemans Case fo 45. 41. Eliz. Banco regis IN an original Writ c. Quod nullus faciat vastum venditionem et destrictionem where it should be destructionem the fault was onely in one Letter the Court resolved upon good Consideration that it was matter of substance for Destrictio is a Latine word and altereth the sence of the Statute and matter of Substance in an Originall Writ is not remedied but matter of forme onely Vide Statute 32. H. 8. ca. 30. 18. Eliz. ca. 14. If an Originall at this day want forme or containe false Latine or vary from the Register in matter of forme after Verdict no judgement shall be stayed or reversed But if it want substance although it be the misprision of the Clerke this is not remedied by any Statute Gages Case 41. Eliz. Banco regis fo 45. A Writ of Covenant to levy a fine boare Date after the returne this is amendable because a common assurance but in other actions no amendment c. Cookes Case 41. Eliz. com banco fo 46. A Common recovery of the Mannor of Isfeild by the name of Iffeld is amendable because it appeared to the Court by collaterall things shewed unto them that Isfield was intended to passe Cases of Pardons Francklyns Case 36. Eliz. fo 46. In the Starr-Chamber A Bill was exhibited for a Ryot in the Starre-Chamber five yeares before the generall Pardon 35. Eliz. and it was resolved that the Kings fine was excepted but not the corporall Punishment but if it were exhibited within foure yeares all shall be accepted In this Case the Kings attourney may proceede for the fine Guilbert Littletons Case 39. Eliz. fo 47. Starre-Chamber A Bill exhibited in the Starre-Chamber before the Parliament 35. Eliz. and returned after this is excepted out of the generall pardon for it was depending before the returne but if an Originall Writ issueth out of the Chancery returnable in the common place this is not depending before the returne because out of another Court but after the returne it shall be said depending by relation from the day of the Teste and if the Tenant alien before the returne and after the Teste this shall be said an alienation pending the Writ Drywoods Case 42. Eliz. Starre Chamber fo 48. A Bill in the Starre-Chamber more then foure yeares and within 8. yeares before the Parliament in 39. Eliz. the Plaintiffe dyeth before the generall pardon this is pardoned for this doth not depend now and the words remaining to be prosecuted shall be intended for the party and not for the Kings Atturney Vaughans Case 40. Eliz. Banco regis fo 49. A Writ of entry in the Quibus depends in Wales before the generall Pardon and after the Demandant had judgement but the Tenant was not amerced 1. Resolved the Amercement is pardoned because the Torte was pardoned which together with the delay was the ground thereof 2. The Statutes of Jeofailes extend to Wales because it is made parcell of England by the Act of 27. H. 8. Wyrrells Case 41. Eliz. In the Exchequer fo 49. THe Queene brings debt upon an Obligation made by the Defendant to one who was Outlawed the Defendant pleads the generall Pardon and although that Debts due to the Queene are excepted yet Debts Originally due to the Subject and after came to the Queene are not excepted also the genetall pardon is to be taken beneficially for the subject and most strong against the King Biggens case 41. Eliz. Banco regis fo 50. THe King may pardon burning in the hand where the Defendant is found guilty of Man-slaughter and hath his
his warrant to bring the party before himselfe and it is good and sufficient in Law for it is most like that he hath the best knowledge of the matter and therefore most fit to doe Justice in that matter upon refusall to finde surety the Constable may commit him without a new warrant Gooches case 32. El. in banco le roy fol. 60. WRay chiefe Justice said that if A. make a fraudulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and continueth in possession and is reputed as owner B entereth in communication with A. for the purchase and by accident B. hath notice of this fraudulent conveyance Notwithstanding he concludes with A. and takes his assurance In this case B. shall avoide the said fraudulent conveyance by the said Act notwithstanding the notice for the Act by expresse words hath made the fraudulent conveyance voyde as to the purchasor And for as much as that is within the expresse provision of the Statute it ought to be taken and expounded in suppression of fraud Resolved that fraud may be given in Evidence because the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret in arbore cava opaca And according to this opinion it was resolved Per tot ' Cur ' in communi banco Pasche 3o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and after offred to sell the same to one Standen and before the assurance by Bullock Standen had notice thereof and notwithstanding proceeded and tooke the assurance from Bullock Standen avoyded the former assurance of fraud by the said act for the notice of the purchasor cannot make that good which an Act of Parliament hath made voyde as to him And it is true Quod non decipitur qui scit se decipi But in this case the purchasor is not deceived for the fraudulent conveyance whereof he had notice is made voyde as to him by the Statute and therefore he knew it could not hurt him Sparries case 33. Eliz. in Scaccar fol. 61. IN action of Trover and convertion the defendant pleads that there is another action depending in the Kings Bench for the same Trover and good for in actions which comprehend no certeinty as assize or trespas this is no plea before a Count because thereby it is made certeine and then it is a good plea and not before but in this action and debt and detinue it is a good plea at the first because they are certeine that an action is depending in an inferiour Court is no plea. Cases of By-Lawes Chamberlaine de Londons case 32. El. in Banco le roy fol. 66. THe Inhabitants of a village without any custome may make Ordinances or By-Lawes for reparation of the Church or of high-wayes or any such thing which is for the publicke weale generally and in this case the consent of the greater part shall binde all without any custome vide 44. E. 3.19 But if it be for their owne private profit for that Towne as for their well ordering of their common of pasture or such like then without custome they cannot make by-Lawes And if it be a custome yet the greater part shall not binde all if it be not warranted by the custome for as custome hath created them so they ought to be warranted by the custome 8. E. 2. tit ass As pontage murage Tolle and such like as appeareth in 13. H. 4.14 In which cases the summes for reparations of the Bridge walls c. ought to be so reasonable that the Subject may have more benefit thereby then charge Clerks case 38. Eliz in communi banco fol. 64. KIng Edward 6. did incorporate the Towne of St. Albones and granted them to make Lawes and Ordinances c. The Tearme was kept there and the Major c. by assent of the plaintiffe assessed every Inhabitant for the charges in erecting of the Courts there and if any did refuse to pay c. to be imprisoned c. the plaintiffe being Burges refused to pay c. and the Major justified c and it was adjudged no plea c. For this Ordinance is against Magna Charta ca. 29. Nullus liber homo imprisonetur which act hath been confirmed divers times viz. thirty times and the assent of the plaintiffe cannot alter the Law in this case But it was resolved that the Major c. might inflict reasonable penaltie but not imprisonment which penaltie ought to be Levied by Distresse for which offence an action of Debt lyeth and the plaintiffe in this case had judgement Jeffrays case Michaelis 31 32. en Bank le Roy. fol. 66. WIlliam Jeffray Gent. brought a prohibition against Abraham Kenshley and Thomas Forster Churchwardens of Haylesham in Com' Sussex for that they sued him in Court Christian before Doctor Drury for certaine money imposed upon him without his assent for repaire of the Church That the Church-wardens with the assent of the greatest part of the Parishioners juxta quantitatem qualitatem possessionum reddit ' infra dict' parochiam existent Determined and agreed to make a taxation for repaire of the said Church and that notice of such assembly was given in the Church at which day the Church-wardens and greater part of the Parish which were there assembled made a taxation viz. every occupier of Land for every acre 4. d. c. Geffray dwelt in another Parish and declared that the Parishioners of every Parish ought to repaire their Church and not the Church of another Parish Cooke of councell with the defendant demurred in Law and after many arguments a Writ of consultation was granted And it was resolved that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae Britton who writ in 5. E. 1. And in the Statute of Circumspecte agatis but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda It was also resolved that although Geffray did dwell in another Parish yet for that he had Lands in the said Parish in his proper possession he is in the Law Parochianus de Haylesham But it was resolved that where there was a Farmor of the same Lands the Lessor that receiveth the rent shall not be charged but the Inhabitant is the Parishioner and the receipte of the rent doth not make the Lessor a Parishioner Diverse of the civill Lawyers certified the Court that the Church Wardens and a greater part of the Parishioners upon a generall warning assembled may make a Taxation by their Law and the same shall not charge the Land but the Person in respect of the Land for equality and indifferency and this was the first leading case that was adjudg'd reported in Our Bookes touching these matters and many causes after were adjudged thus and now it is generally received for Law The Lord Cheneys Case 33. Eliz.
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
Banco fol. 7. IF one be barred by plea to the Writte hee may have the same Writte againe if by plea to the action of the Writte he may have his right action If the plea be to the action and he be barred by Judgement upon demurrer confession or verdict in personall actions it is a barre for ever and in reall actions he is put to a Writte of higher nature as barre in assize barreth one in Entry in nature of an assize but he may have an assize of Mortdaumester c. But barre is not perpetuall if those who are barred have not the meere right therefore the heire in taile who is barred shall have the same action so of the successor of a Parson if he doth not pray in ayde of the Patron and Ordinary He who lost by default before the Statute of Westminster 2. cap. 4. was put to a Writte of right and if he could not have this Writte he was without remedy In case where a Writte of Entry in the post lyeth now no remedy was before the Statute of Marlebridge cap. 29. but a Writte of right See there divers inconveniences which insue upon the breach or alteration of the auncient and fundamentall rules of the Common Law Interest Reipublicae ut sit finis litium Where a Writte shall be brought by Journeys accounts Spencers case 45. Eliz. Com. Banco fol. 9. IF a formedon abate for undue summons the demandant may have another by Journeys accompts 1. Resol If a Writte abate by default of the demandant himselfe he shall not have another Writte by Journeys accompts otherwise it is if by default of the Clerke or Sheriffe as in this case If a Writte abate for nontenure of all he shall not have c. but if a Praecipe abate for non-tenure of parcell he shall have another so if it abate for joyntenancy of part of the demandant he shall not have a new Writte because he had notice otherwise it is of the part of the tenant And this Writte shall be alwayes betwixt the parties to the first Writte and of the same quantity of acres A Judiciall Writte shall never be sued by Journeys accompts because it shall never abate for forme 2. The second Writte is quasi a continuance of the first Writte therefore all pleas which relate to the purchase of the Writte shall be pleaded from the purchase of the first Writte and costs of the first Writte shall be recovered 32. E. 3. Journeys accompts 16. 15. dayes were allowed Jentlemans case 25. Eliz. concerning Judges of Courts fol. 11 IN the Hundred Courts the Sutors are Judges in the Court of Pypowders the Steward is Judge In a Leet the Steward is Judge In a Court Baron the Sutors which are by the common Law are Judges Rex sectatoribus Curiae c. Vobis mandamus c. ad judicium reddendum c. procedatis but in Redisseisin the Sheriffe is Judge by the Statute of Merton cap. 3. and in the Tourne Morrices case 27. Eliz. Com. Banco fol. 12. IT was adjudged that after the act of 28. H. 8. ca. 1. although joyntenants be compellable to make partition by Writte as well as Copartners yet they may not make partition by words as Copartners may doe by the common Law If two joyntenants make partition by Writte the warranty remaineth otherwise it is if it be by deed by Consent Cases of pardon 29. Eliz. fol. 13. BVrton Parson of Isbock in Leic was deprived Anno 12. El. for committing Adulterie and after by the generall pardon 2. Apr. 13. El. the offence of adulterie in t alia was pardoned before the 14. of February then last past And it was said that before the pardon that crimen adulterij praed transivit in rem judicatam and therefore the sentence should remaine in force And therefore untill the sentence were reversed the deprivation was in force But it was resolved that Burton by vertue of the said pardon is become Parson againe without any sentence declaring the said deprivation to be voyde For by the pardon the adultery which was the cause of the sentence is discharged and by consequence all that which did stand or depend upon the same foundation is also discharged vide 20. El. Dier A. was bound in a Statute of 20. li. to B. B. sued Execution and the Lands of A. were delivered in Execution and after B. maketh Defeasance to A. by Indenture that if A. doe pay to B. 8. li. at a certaine day that then the Statute to be voyde And it was adjudged that although the Statute was executed yet the Defeasance of the Statute was sufficient in Law to defeate as well the Statute as the Execution thereof For the Statute is the foundation of all and if that be defeated all that is builded on the same shall be defeated also 20. ass pla 7. Burglary was excepted out of the generall pardon of 28. Eliz. by that the attainder of burglary is excepted for the offence remaines after judgement and is the foundation of it Arundells case 36. Eliz. Banco Regis fol. 14. AN Inditement of murther in King-streete in W. and the visne from W. and it was vitious for it ought to be from the most certaine place that is the Parish for W. being a Citie it shall be intended that it is greater then the Parish and therefore a new Venire facias was awarded Treports case 36. El. Banco Regis fol. 14. A. Tenant for life remainder in fee to B. both by Deed indented joyne in a Lease to Treport the question was whether the same shall be adjudged in Law the Lease of both of them or not And it was resolved that it was the Lease of A. during his life and the confirmation of B. And after the death of A. it was the Lease of B. and the confirmation of A. and because the plaintiffe had declared of a joynt demise of A. and B. it was adjudged against the plaintiffe in an Ejectione firmae If tenant for life and he in remainder joyne in a Lease rendring rent tenant for life shall have the rent during his life Edens case 37. Eliz. Banco Regis fol. 15. RIens passa by Letters patents shall be tryed where the Land is not where the patent beares date for the Patent is not traversed but the effect of the issue is whether the Queene had the said Land to grant or not Colyers case 37. Eliz. Com. Banco fol. 16. ONe demiseth to his daughter for life and after to his brother paying 20. s. to J. S. the brother had fee for the summe to be paid by him for otherwise he may pay the 20. s. and die without satisfaction but if the payment be to be made out of the profits of the Land he shall have but for life for there he can be at no prejudice Wyldes case 41. Eliz. Banco Regis fol. 16. A Man deviseth Lands to the husband and the wife and to the children of their bodies
none will buy their Wardships 5. After Tender and refusall if the heire be made Knight and marry he shall not forfeite the double value because he is out of Ward but immediatly the Lord shall have a Writte de valore maritagij This was the last Case that Sir John Popham chiefe Justice of England c. ever Argued Sir George Cursons case 7. Jac. Cur. Wardor fol. 75. SIr W. L. seised of a reversion expectant upon taile made to his sonne of land in Capite Covenants to stand seised to the use of his neece the sonne dyeth the King shall not have primier seisin 1. Resol It was Collusion apparent within the Statute of Marlebr cap. 6. to infeoffe the heire apparent and if he infeoffe others upon Collusion averrable but no averrement shall be where the remainder or reversion is left in a stranger or upon a Devise 2. Or otherwise to dispose in the Statute of 32. H. 8. have relation to wills onely for before the Statute every man might dispose of his lands by act executed 3. The Clause in the said Statute which saveth primier seisin to the King hath relation onely to acts executed for the King shall have without that primier seisin of the third part not devised but without that he shall not have it of any part conveyed by act executed 4. If the grandfather convey land to the sonne living the father this is out of the Statute otherwise if the father be dead and so a gift to a Collaterall Kinsman who is not heire apparent is out of the Statute for none will by intendment disinherit his heire to defeate the King of the Wardship or primer seisin and so is the experience of the Court of Wards Bullens case 5. Jacobi Com. Banco fol. 77. THe Lord may have a certeine summe pro certo letae for it shall be intended it was granted at the first by purchase of the Leete for the ease of the Tenants and in consideration of the Lords claiming of it at his owne costs every Eyre The issue was if the plaintiffe was a chiefe pledge and by speciall verdict he was found a Resiant and certified by the chiefe pledges to be a chiefe pledge and was amerced for his default It seemeth he was not Sed materia praedicta consopita fuit in arbitrio See 30. E. 3.23 of franke pledges Lord Abergavenies case Com. Banco fol. 78. A Judgement in an action of Debt is had against a joyntenant for life who afterwards releaseth to his companion all the right c. yet that moytie is liable to the Judgement and so it is of a rent charge during the life of the Releasor Sir Edward Phyttons case Com. Banco fol. 79. EXecutors may take benefit of the Kings generall pardon by which is enacted that all Subjects of the King their heires Successors Executors and Administrators shall be acquitted and discharged of all offences contempts c. and that shall be expounded most beneficially for the Subject And further doth give and grant all goods Chattells Debts c. forfeited And prohibiteth any Clerke to make out any Writte c. Provided that every Clerke may make forth cap. ut at the suite of the plaintiffe against persons outlawed to the intent to compell them to answer and that the partie shall sue forth a scir fac before the pardon in that behalfe shall be allowed which is as much to say having regard onely to the plaintiffe But in regard of the King it is an absolute pardon and grant of his goods and he is a person inabled against the King but not against the partie plaintiffe And every person by himselfe or his Atturney may plead this act for discharge Executors shall have restitution upon the Statute 21. H. 8. Also Administrators shall have a Writt of error upon the Statute 27. El as was adjudged in the Lord Mordants case 36. El. And yet these Statutes speake onely of the partie and not of the Executors or Administrators because no Writt can be against Executors they may plead it without Processe The End of the Sixth Booke THE SEAVENTH BOOK Postnati Calvins case 6. Jacobi Banco Regis fol. 1. R C. By his gardian bringeth an assize the defendants say the plaintiffe ought not to be answered Quia est alienigena natus 5o. Novembris Anno Domini Regis Angliae c. tertio apud E. infra regnum Scotiae ac infra ligeanciam Domini Regis Regni sui S. ac extra ligeanciam Regni sui Angl. c. the plaintiffe demurreth The Case was Adjourned into the Exchequer Chamber and was argued by two Justices every day and by the Chancellour and resolved by the Chancellour and all the Justices except Walmesley and Foster that the plaintiffe ought to be answered For these six demonstrative Conclusions drawne from the Law of Nature the Law of the Land Reasons of State and Authorities of Records and Booke Cases 1 Every one that is an Alien by birth may be or might have been an Enemy by accident but C. could never be an Enemy by any accident whatsoever ergo no Alien by birth 2. Whosoever are borne under one naturall ligeance due by the Law 〈◊〉 nature to one Soveraigne are naturall borne Subjects But C. was borne under one c. ergo a naturall borne Subject 3. Whosoever is borne within the Kings protection is no Alien But C. was borne under c ergo he is no Alien 4. Every stranger borne must at his birth be either amicus or inimicus but C. at his birth could neither be amicus nor inimicus because he was subditus ergo no stranger borne 5. Whatsoever is due by the Law of man may be altered but naturall legeance of the Subject to the Soveraigne cannot be altered ergo not due by mans Law Lastly whosoever at his birth cannot be an alien to the King of E. cannot be an alien to any of his Subjects of E. but C. at his birth could be no alien to the King of E. Ergo he cannot be an alien to any of the Subjects of E. the Maior and Minor both be Propositiones perspicuè verae and although Alienigena dicitur ab aliena gente yet that is all one as Alienae ligeantiae and arguments drawne from Etymologie are feeble for Saepenemero ubi proprietas verborum attenditur sensus veritatis amittitur yet when they agree with Law Judges may use them for Ornament and dâ—verse inconveniences would follow if the Plea against the Plaintiffe should be allowed For first it maketh legeance locall wereupon should follow first that legeance which is universall should be confined within locall limits 2. That the Subject should not be bound to serve the King in Peace or in Warre out of those bounds 3. It should illegitimate many which were borne in Gascayne Guyan Normandy c. and diverse others of his Majesties Dominions whilst the same were in actuall obedience And lastly this strange and new devised Plea inclineth too much to
to the King by any of the said foure wayes mentioned in the Act. Butts Case 42. Eliz. in com banco fo 23. A. Seised of black acre in fee and of white acre for yeares grants a rent charge to B. for life with distresse in both B. distreines and avowes in white acre and good 1. Resol white acre is charged during the terme and life of B. 2. All the rent issueth out of black acre for as an estate of freehold it cannot issue out of white acre nor as freehold out of black acre and a chattell out of white acre because intire it cannot be construed to be two rents contrary to the intent of the parties and therefore an acceptance of a Lease of white acre doth not suspend it and in an assize black acre onely shall be put in view 3. Although the rent issueth onely out of black acre yet white acre is charged with a distresse If a rent be granted out of three acres with clause of distresse in one this is a rent seck for all yet the grantee shall distreine in the third acre for it so if a rent be granted to two with clause of distresse to one of them but a rent may be seck and charge at severall times and therefore if a rent be granted in fee with distresse for life it is a rent charge for life and seck after but if the Clause of distresse be for yeares it is a rent seck for all because the freehold is seck The avowry was insufficient 1. Because he said the rent issued out of white acre where it issued out of black acre and although the Plaintiffe had disclosed the truth in his plea in barre this doth not salve the matter in substance vitious in the avowry 2. He deriveth the rent but of white acre Virtute cujus he was seised for life which is repugnant to have a freehold out of a Chattell and so judgement given against him for insufficient pleading Cases of Quare Impedit Halls Case 31. Eliz. fo 25. A Quare impedit against the Bishop and incumbent without naming the Patron the writ shall abate 1. It is not reason the Patron shall loose his Patronage without being named in case where he may be named as here 2. The incumbent at the common Law could not pleade to the Patronage and therefore it is no reason that he who cannot pleade be named and he who can omitted but now the incumbent may pleade to the patronage by the Statute of 25. E. 3. cap. 7. which inableth the possessor to counterpleade the title of the King and by equity against a common person in the one case after induction in the other after institution But in case where the Patronage shall not be recovered or that the Patron cannot be named as in the Kings Case a Quare impedit shall be against the incumbent sole or against him and the ordinary so if a Bishop disturbe and die it shall be against the incumbent sole if a Patron be named and die if the writ shall not abate he shall be out of possession and if it shall abate the torte shall not be punished but if the Patron be put out of possession he hath remedy by writ of right and if it shall abate the Plaintiffe is without remedy therefore the writ shall stand Sir Hugh Portmans Case 40. Eliz. fol. 27. IF the Plaintiffe in a Quare impedit after appearance be non-suite or discontinue or be made a Knight pending the writ this is peremptory because it is his owne act otherwise if the writ abate for default of forme or by misnosmer for this may be the default of the Clerke Baskervills Case 27. Eliz. fo 28. TItle devolveth to the King to present by lapse the Patron presents one who dyeth the King hath lost the presentation for he having the first presentation he shall not have the second otherwise the King may suffer Strangers to present one after another and take his turne when he pleaseth and by that meanes the Patron shall be in a manner disinherited and the Statute of Praerogativa Regis nullum tempus occurit Regi is to be intended when the King hath a permanent Title and not transitory when time is the substance of his Title Maunds Case 43. Eliz. fo 28. IN case of a reentry for non-payment of rent or when any summe Nomine penae is to be forfeite in both the cases demand ought to be made precisely on the day a convenient time before the setting of the Sunne in the one case in respect of a condition and in the other in respect of the penalty but in case of a distresse he that hath the rent may demand the same at what time pleaseth him for no Losse or penalty insueth thereupon but onely a remedy to come by his rent and if demand be made any time after the day and before the distresse it sufficeth Discontinuance of Processe c. by the Death of the Queene Trin. 〈◊〉 Jacobi fol. 29. UPon a generall resummons the originall and the issue are revived and not the meane processed or Voucher nor Garnishment but all the Processe is revived upon a speciall resummons but not in ayde prayer or if a Verdict be given and the King dieth before the day in banck because there summons lyeth not therefore he shall not have resummons but in case of Verdict he for whom it is given may have his judgement upon Scire facias But now by the Statute of 1. E. 6. an action suite bill or plaint shall not be discontinued if they are returned otherwise if not because the Statute saith Depending If one deliver an appeale to the Sheriffe within the yeare and the King dyeth for necessity the Plaintiffe shall have a Certiorari and reattachment so if a formedon be brought within a yeare against the pernor of the profits offices of Sheriffes not being of inheritance or by Charter are determined by the death of the King Suites depending in inferiour Courts are out of the Statute if the King dye after information preferred by him all the proceeding is lost but the information shall stand 1. Because this is a record for the King which shall not abate 2. Because informations upon certeine Statutes are to be preferred within certeine time but if the King bring an originall and dye this is lost if one plead to an Indictment and the King dye he shall plead De novo but if he be convicted judgement may be given in the time of another King by the said Statute and noâ—… Case of a Fine levyed by the King tenant in taile fo 32 Michaelmas 2. Jacobi A Fine levyed by the King tenant in taile by gift of his auncestor who was a subject barreth the taile 1. It is reason that as the King is bound by the Statute of W. 2. De donis that he should have benefit of the Acts of 4. H. 7. 32. H. 8. 2. A generall Statute bindeth the King of Lands discended
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
Court voluntarily Aldreds Case 8. Jacobi fol. 57. WHen a man hath lawfull profit by prescription of time whereof the memory of man is not to the contrary other custome of the like time also cannot take the former away for the one custome is as ancient as the other As if a man have a way over the Lands of B. to his freehold Land by prescription of time B cannot alledge prescription or custome to stop the said way for it may be that before the time of memory the owner of the said Lands had granted such away without any stopping and so the prescription might have a lawfull beginning 29. Eliz. Banco regis Thomas Brand prescribed time out of memory to have the light of 7. Windowes towards a peece of Land of Thomas Mosely in the Citty of York but Mosely erected a new building upon the said peece of Land so neere c. as the light of the Windowes were stopped Brand brought his action on the Case and judgement was given for the Plaintiffe for it might be that before the time of memory the owner of that peece of Land did grant License to the owner of the Messuage to have the said 7. Windowes without stopping them and so the prescription might have a lawfull beginning If a man have a watercourse to his House for necessary uses if a Glover make a Lime-pit for Calf-skins so neere the said Course that the corruption doth corrupt the same an Action of the Case lyeth 13. H. 7. 26. 6. Likewise a man shall not make or erect a Swyne-sty so neere his Neighbours House as to annoy him with the contagion thereof John Lambs Case 8. Jacobi Starre-Chamber fol. 59. IT was resolved that every one that shall be convicted in case of Libelling ought to be eyther a contriver of the Libell or a procurer of the contriver or a malicious publisher thereof knowing it to be a Libell For if one read a Libell or heare the same read it is no publication for before he heare or read the same he cannot know the same to be a Libell or if he read or heare the same and laugh thereat this is no publication but if after he hath read or heard the same read he repeate the same or any part thereof in the hearing of others or if he write a Coppy thereof and doe not publish the same to others this is no publication of the Libell but it is good for him after he hath so written the same to deliver it to a Magistrate for then the act subsequent doth declare his intention precedent Robert Bradshawes Case 10. Jacobi fol. 60. LEssor for six yeares during the life of R. Covenants that he had power to make this Lease the Lessee brings Covenant and sheweth not that R. was in life nor what person had right and yet good because if R. were not in life at the time of the Lease made the Lease was absolute if he died after yet the Action lyeth and he needs not shew who had right for he had pursued the words of the Covenant and it lyeth not properly in his notice Mackallies Case In killing of a Serjeant c. 9. Jacobi fol. 65. FIve exceptions to the Indictment 1. The Arrest was in the night betweene five and six of the Clock in November at the suite of a Subject which being tortious the killing of the Serjeant is but Man-slaughter Non alloc 1. Because the Arrest may be at the Suite of a Subject in the night 2. Although that betweene five and six in November be in the night yet the Court is not bound to take notice of it without the shewing of the party as in case of Burglary 2. The Sunday is not Dies juridicus therefore the arrest that wast made upon it was Tortious c. Resol that judiciall acts shall not be done this day but ministeriall may for necessity 3. The Indictment is in Computat in parochia S. M. in W. emitting the Ward yet good as if one name the Towne he is not bound to say in what Hundered it is 4. and 5 the precept was to arrest him Infra liberiates L. and the arrest was in L. yet good because the Liberties of L. includes the City of L. it selfe 1. Exception to the verdict that the Indictment and the Verdict vary for the Indictment is that the arrest was by precept and by Verdict it is found that it was by custome without precept Answered that the precept is but circumstance and varience in it is not materiall having found the substance as if the Indictment be that he killed him with a Daggar and it is found that it was with a Sword so if he be indicted of murder and it is found man-slaughter this is good for Ex malitia is but circumstance 2. The Indictment may be generall Ex malitia c. because the Law imployeth malice and so the precept not materiall 2. The custome is not good to arrest one without summons it is good and if the processe be erroneous yet killing of him who did execute it is murder because he is not to dispute whether it be good or not and if any officer in doing his office be slaine this is murder and in such a case an officer is not bound to flie to the Wall as another is 3. The Arrest cannot be before the plaint entered of record before the Sheriffe Resp it may by the custome after entry of it in the Porters Booke 4. The Serjeant ought to shew at whose Suite the Arrest is and in what Court and for what cause true it is if the party submit himselfe but here he was killed before he could speake and if they kill him before the Arrest knowing that he came for that purpose this is murder 5. It is not found that the killing was fellony Resp It is sufficient for the Jurors to find the killing which is the substance and leave it to the Judgement of the Court if it be fellony 6. The Serjeant did not shew his Mace He ought not 1. Because he was commonly knowne 2. The party arrested is to obey at his perill and if shewing of the Mace be requisite it will be a warning to the party to flie 7. The arrest ought to be upon request after the plaint entered the request may be before or after 8. The verdict is repugnant for they find that the plaint was entered of record 17. Nov. and after they found that it was 19. Nov. this is more strong against the Prisoners because the entry was before the Arrest 18. Nov. 9. The Plaint is without forme this is not to the purpose for it is but a remembrance to draw the count by at large after And Mackalley and the other prisoners were Executed at Tyborne Peacocks Case 9. Jacobi in Camera Stellata fol. 70. SIr George Reynell Plaintiffe Richard Peacock and others Defendants J.H. J.B. Commissioners to examine Peacock upon Interr and Peacock being examined would have declared all the
truth but J.H. a Commissioner for the Plaintiffe held him strictly to the Interr so as the truth could not appeare and this was holden by the Lord Chancellour and the two Chiefe Justices the Chiefe Baron and all the Court of Starre-Chamber a great Misdemeanour c. as the Statute of Exceter saith Per quod institia veritas suffocantur and Commissioners to examine ought to be indifferent and by all meanes to express the Truth And they are not bound strictly to the Letter of the Interr but to every thing also that ariseth necessarily for manifestation of the truth Also the said J. H. when he was in Examination of Peacock went forth of the place to the Plaintiffe being in another Roome and had secret conference with him And it was holden by all the Court that a Commissioner before publication of the depositions ought not to discover to any of the parties the matter thereof nor after that he beginneth to examine Interr to conferre with the parties to take new instructions to examine further then he knew before and if he did they were great misdemeanours and punishable by Fine and Imprisonment for if such things should be suffered perjury would abound I. H. was put forth of the Commission of the Peace and the Attourney generall was required to prefer an Information against him for the said misdemeanours Doctor Husseys Case 9. Jacobi fol. 71. IN Ravishment of Ward against a Feme Covert and others they were found guilty and the Baron Non culp and the Age of the Infant above sixteene and Married Foster and Warberton a Feme Covert is within the Statute because the Action lay at the common Law and the Statute gives but greater punishment and so shee is within the Statute of Merton cap. 6. De Malefactoribus in parcis of forcible entry and redesseissin Cooke and Walmsley to the contrary the Statute of Westm 2. c. 35. hath made these alterations this extends to Heires Females which the Statute of Merton did not 2. It extends to Heires Ravished after yeares of consent so doth not the Statute of Merton 3. It extends to the Clergy the Statute of M. doth not 4. M. giveth a light of Ward this giveth ravishment of Ward 5. This giveth more speedy processe and the death of the Plaintiffe or Defendant abateth not the Writ 6. It giveth greater punishment 2. A Feme Covert is not within this Statute for it is Si haeredem maritaverit satisfacere non potuerit abjuret regnum or be perpetually imprisoned and because the Law disableth the Feme to satisfy shee shall not therefore be exiled nor perpetually imprisoned and the Baron being innocent shall not be punished for the punishment is personall and he shall not have judgement at the Common Law the Action being brought upon the Statute nor judgement upon the Statute where the Action is brought at the Common Law 3. The Verdict is insufficient because no Case is within the Statute except the Ravishor marry the Infant so that if the Infant Marry himselfe or be Married by another it is out of the Statute and the Verdict found that he was Married and did not say by whom 4. Damages shall be recovered upon this Statute and where the Statute saith that he shall be banished or perpetually imprisoned the Election is in the Court Combes Case 9. Jacobi fol. 75. Vpon a speciall Verdict A Copy-holder in fee where there is no custome to that purpose maketh two his Attorneys to surrender to the use of I. N. in fee they in Court shew the Letter of Attorney and by the said Letter of Attorney surrender 1. Resolved surrender by Letter of Attorney is good for a surrender may be by the common Law without custome and may be by Attorney as incident to it If one have a bare authority coupled with a confidence he cannot doe it by Attorney as Executors cannot sell by Attorney but if he had authority to dispose as owner of the Land he may as Cestuy que use by the Statute of 1. R. 3. but if one had particular personall power to dispose as owner of the Land he cannot doe it by Attorney as if Lessee for life had power to make Leases for 21. yeares There are personall things which cannot be done by Attorney as homage Fealty beating his Villeine admittance of him to whose use the surrender is made may be by Attorney if the Lord will and yet he may upon the admittance compell the Tenant to doe fealty A fortiori here and otherwise it would be a mischiefe for it may be he is beyond the Sea or sick and cannot be present to surrender for payment of his debts or preferment of his Children but if a custome be that an Infant may make a feoffement at 15. yeares he cannot doe it by attorney 2. The Attorneys have pursued their authority although they have not done it in the name of the Authorizor for they did shew the Letter of Attorney and surrendered by authority thereof which is all one but if it be to make a Lease by Indenture this shall be in the name of him who gave the authority but Executors must sell Land in their owne name for necessity and yet the Vendee is in by the Devisor Henry Peytoes Case 9. Jacobi Com. banco IT was resolved Per tot curiam that accord in all Actions wherein is supposed the Tort to be made Vi armis where cap. and the exigent lyeth at the Common Law is a good plea as in Trespasse and Ejectione firmae detinue of Charters house or other goods for where the certainty is to be recovered an Action is a good plea when the condition in a Deede by the Originall contracts of the parties is to pay money yet by accord and agreement betweene the parties any other thing may be given in satisfaction of the money Res per pecuniam estimatur non pecuniae per rem And in this sense the saying is true Quod pecuniae obediunt omnia Every Accord ought to be plaine perfect and compleat for if diverse things are to be observed and performed by the accord the performance of part is not sufficient 17. E. 4. 2. 6. H. 7. 10. Pl. com 5. If a man be bound in an Obligation in one hundred Quarters of Wheate upon condition to pay 58. Quarters he cannot give money or other thing in satisfaction thereof because the contract Originally was not for money but for a collaterall thing Also if the things to be performed be at a day to come tender and refusall is not sufficient without actuall satisfaction and acceptance If a man be bound in a Statute Recognizance or Obligation and after a defeasance is made to pay a lesse Summe now this Summe in the defeasance is collaterall and therefore if the Obligor render the same at the day and it be refused the Obligee shall loose the same for ever as is holden in 33. H. 6. fol. 2. and yet
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
the Lord Dyer made a Quaere of that if one of the Jurors die before Verdict be given a Tales shall be granted he who is meerly a Defendant cannot pray a Tales untill default be made by the Plaintiffe the number ought to be under the number in the principall pannell except in an appeale because there the Defendant may challenge peremptorily the number shall be diminished in every new Tales and they ought to be of the same quality with the former as if the principall pannell were Per medietatem linguae so shall the Tales be Justices of Assize shall not award a Tales de circumstantibus in an Assize for the Statute of 35. H. 8. c. 6. speaketh where the Triall is Habeas corpora distringas or Nisi prius for an Assize cannot be taken by Nisi prius but must be taken in the proper County and after by advice of all the Justices of the common place and Barons of the Exchequer the judgement was affirmed Humphrey Lofields Case 10. Jacobi fol. 106. In debt upon Bond. D. Leased for a yeare to H. L. and if the parties shall please to renue the terme at the end of that yeare that he shall have for three yeares rendring 40 l. per annum H. L. bindeth himselfe to performe Covenants and faileth of payment of 20 l. at Christmas Quarter D. bringeth debt It was resolved for the Plaintiffe It was objected against the action 1. That the reservation was upon a contingency if the terme shall revive 2. Because the reservation is durante termino praedicto Viz. the last terme 3. The reservation shall be taken strictly because the words of the Lessor But it was resolved that the reservation extendeth to the first yeare for the proper place of a reservation is after the limitation of the estate as if a Lease be made with diverse remainders over reserving Rent this goeth to all and although the second terme be in contingency yet the first is certaine and Termino praedicto signifieth both the termes for it is Nomen collectivum and the reservation shall be taken reasonably according to the intent of the parties Tenant in taile of an Acre in borough English and of another by the Common Law by an Oxe dyeth having issue two Sons the service shall not be increased And Increase is onely betweene very Lord and very Tenant for there may be an increaser but not where there is a reservation or if the Seigniory be by Deed and services are reserved within time of memory for he shall have no more then he himselfe reserved In the Case at Barre in respect the obligation was forfeited the Court moved the Plaintiffe to take his arrerages costs and damages with which he was contented and so no judgement was given Arthur Legats Case in subversion of pestilent Patents of theevish Concealors 10. Jacobi fol. 109. in Communi Banco THe King ex certa scientia c. grants fifteene Acres as concealed which were parcell of a Mannor of the profits whereof the King was answered Nothing passeth 1. Resol If the King were answered of the old Rent of the Mannor and the Fermors c. suffer one to intrude in part this is not concealed 2. The grant is voyd for quae quidem c. is the suggestion of the party 2. This is a clause of restraint and nothing passeth which is not concealed 3. The King did not intend to diminish his Revenue which will be if the grant be good 4. The clause quae quidem hath a double conjunctive concelata detenta and Land cannot be detained from the King 3. Ex mero motu c. aydeth it not 4. If the Officers of the King may by matter of Record have notice of putting the Land in charge in Court of Record and doe it not yet this is not concealed and if the clause quae quidem be added for more certainty the grant shall not be vicious by it if it be false as if a Mannor be granted quod quidem was in the tenure of I. S. where it was not this is good If one substract or take the Kings Rents this is not concealed for the King may charge him as Baily and the Law will make a privity See the Statute of 4. H. 4 cap. 4. called in the Rolle Brangwyn in English White Crow And it was sayd that Perpetuities Monopolies and Patents of concealement were borne under one unfortunate constellation for as soone as they came in question judgement was ever given against them and none ever for them and they have all two inseperable qualities Viz. to be troublesome and fruitlesse Robert Pilfolds Case 10. Jacobi fol. 115. THe Plaintiffe in trespasse counts to damages of 40 l. and at the Nisi prius the Jury assessed for damages 49 l. and 20 s. costs at the day in banke hee released 9 l. parcell of the damages and had judgement of 40 l. and 10 l. for costs de incremento the defendant brings error because the damages and costs surmount the summ in the Count but judgement was affirmed for in reall actions before the Statute of Glocester 6. E. 1. cap. 1. no damages were recoverable but in personall actions and mixt they were and by that Statute a man shall have costs in all cases where he recovers damages Viz. before or by the same Statute therefore if after this damages are given where they were not at the Common Law costs shall not be recovered as in a Quare impedit but if a Statute after this give double or treble damages where damages and costs were by the common Law there the Plaintiffe shall recover the damages increased and costs also but in waste against tenant for life costs shall not be recovered for although that this Statute was at the same Parliament yet it was an act of Creation and therefore no costs And true it is that damages include costs in a generall sense but in the count it is taken for damages before the action brought in a relative signification therefore expensae litis may be added to it although he count not of them as a man shall doe in reall actions without counting of them because he shall recover them pending the Writ In entrie sur disseisin the Plaintiffe shall recover damages from the disseisin to the Writ of Inquiry c. and if the issue be tryable by verdict c. to the verdict but in a Praecipe of Rent of his owne possession hee shall recover all arreares to the judgement Judgement affirmed by all Cheyneyes Case 10. Jacobi fol. 118. IN a Valore maritagij issue is joyned upon the tenure and found for the Plaintiffe but the Jury did not inquire of the value Adjudged the verdict is insufficient and shall not be supplyed by a Writ of Inquiry 1. In this Writ three things are to be recovered the value damages and costs and although the issue be joyned upon the tenure yet as a consequent upon the issue and their charge they ought to
4. In this Case by grant of the reversion generally or of the Tenements the Trees passe for the inheritance of all the Land passeth and thereby the Trees annexed to it the disseisee by his entry shall have the Corne upon the ground as well as the Grasse by relation of continuance of possession but this relation is not of effect to have a trespasse against any but the first disseisor for in fictione juris semper aequitas existit and the emblements shall be recovered in damages 5. In the Case at Barr by exception of the Trees power is reserved to the lessor or his servants to enter and show the Trees to the Vendee Cuicunque aliquis quid concedit concedere videtur id c. 6. The plea in Barr is insufficient for he showeth that there was another joyntenant for life not named in the Writ and demands Judgement if action which is an unapt conclusion 2. The Plea is double one to the Writ another to the Action 3. He pleads the entry of the lessees for life which is surplusage 4. Hee averreth not that the Trees which were sold were nor Dotards which are excluded out of the exception but that they de jure pertinebant to R. L. which is not formall but upon all the matter there appeared sufficient cause to give Judgement against the Plaintiffe and therefore by the rule of the Court Quaerens nil capiat per billam The Case of the Taylors of Cloaths c. of Ipswich 12. Jacobi fol. 53. THe Taylors of I. make an Ordinance that none shall exercise the Trade in I. if he have not been an Apprentice for seven yeares and if hee doe not appeare before them to be approved upon forfeiture of five Marks and for breach of it bring debt the Defendant pleads that he was reteined by A. P. to be a domestick Servant and that he made Garments by his command 1. Resol At the Common Law none may be prohibited to exercise any Trade although he hath never been an Apprentice and be ignorant but if he misdoe any thing an action of the Case lyeth 2. This Ordinance for so much as is not prohibited by the Statute of 5. Eliz. is against Law for after seven yeares Apprentiship he may exercise his Trade without allowance of any 3. The Statute of 5. Eliz. doth not prohibite the private exercise of any Trade in a Family therefore this is out of the said Ordinance 4. The Statute of 19. H. 7. cap. 7. doth not corroborate any Ordinance against Law if it be allowed but the allowance dischargeth the penalty of 40 l. for putting in use any ordinances which are against the Prerogative of the King or the common profit of the people and Judgement was given Quod querentes nil caperent per billam Edward Savells Case 12. Jacobi fol. 55. AN Ejectione firmae lyeth not of a Close but it must be of a certaine number of Acres and the nature of them must be shewed A Writ shall not abate for want of order Viz. Of a House before Land c. and judgement was stayed Benthams Case 12. Jacobi fol. 56. IF damages or costs are omitted or not well assessed by the Jury if the Plaintiffe release them he may have his judgement and it shall not for that be reversed Insufficient assessement of damages and no assessing is all one Doctor Fosters Case concerning Recusants 12. Jacobi fol. 56. AN Information was preferred against a Recusant by an Informer Tam pro domino rege quam pro seipso before the recusant was convicted for 220. l. that is 20. l. a Moneth for a 11. Moneths absence from the Church c. And judgement given against the Defendant 1. Resolved that he may be convicted to satisfie the Statute of 23. Eliz. in this same Suite and convicted shall be taken for attainted for he shall forfeit nothing before judgement 2. The Branch of distribution in the Act of 23. Eliz. extendeth as well to the clause of penalty for recusancy as to that of hearing or saying Masses for it is all one to say shall forfeite and shall forfeite to the King 2. Diverse acts of Parliament give the penalty to the King and yet after make a distribution thereof to another who will sue as 3. H. 6. cap. 3. 3. H. 7.3 3. He against whom judgement is given upon demurrer or default or otherwise is convicted within the Statute for he is attainted which implieth it for it is so found by the Judges so by the Statute of 8. H. 6. treble damages are given where a disseisin is found to be with force this extends to a judgement by Nihil dicit or default 4. The Statute of 28. Eliz. doth not take away the Statute of 23. which giveth liberty to the informer c. for 1. It is made for more speedy execution of it 2. It doth not alter the suite of the party but of the King and leaveth the Informer as he was before 3. The Act of 28. giveth not the penalty to any new person for it was given to the K. by 23. Eliz. 4. The Statute of 28. extends onely to Indictments and toucheth not informations 5. The Defendant is not within 28. Eliz. if he be not convicted at the suite of the K. Ergo this is left as before 6. Because the Statute is in the affirmative and they may stand together but the Statute of 28. alters the Statute of 23 in this that it confineth Suites against Recusants in the K. Bench or Assizes c. which clause extends as well to the suite of the informer as of the Queene and the Statute of 35. Eliz. and 3. Jacobi inlarge the Jurisdiction as to Suites of the K. and touch not the suite of the party 5. The Statute of 35. taketh not away the Action popular given by 23. for it was made to give more speedy remedy and not to take it away a feme Covert is within the Statute of 23. and 1. Eliz. but before the Statute 35. Eliz. if a Feme Covert had been indicted of recusancy the forfeiture should not have been levyed of the goods of the Husband because he was not party thereunto otherwise in an Information or Debt brought by the informer and in that that the Statute of 35. is that the K. shall recover all the paines c. in such sort c. this alters the remedy onely as to the Queene for now shee may proceede by action as for recovery of any other Debt by the Common Law in such manner as 1. H. 7. c. 1. giveth a Formedon against Parnor of the profits c. also 35. Eliz. is in the affirmative and although it giveth the penalty of 20. l. by the Moneth yet it taketh not away 1. Eliz. which giveth 12. d. for every Sonday and Holy day and where this Statute saith that the conviction shall be in the K. B. or at the Assizes yet the Justices of Peace and others authorized by 23. may take
Indictments The Statute of 3. Jacobi inflicteth Imprisonment upon a feme Covert yet it taketh not away the forfeiture before where a new person is designed by a new Statute this taketh away the ancient Statute if they cannot stand together and although there are exclusive words concerning Courts yet the Court of K. Bench is not excluded because it is Coram Rege 6. A Recusant may pleade Auterfoits convict or other collaterall barre as pardon submission c. out of the Indictment for 3. Jacobi c. 4. extends onely to defects within the Indictment or other proceedings and the informer cannot charge any who is convicted before at the suite of the Queene upon 23. or 35. Eliz. or 3. Jacobi and upon 23. the Informer must sue within a yeare and a day Nota if after a popular action comenced the K. Attorney will not prosecute the Informer may for his part and condemnation or acquittall at his suite is a barre against the K. and all others yet the K. may pardon it before an Action commenced and if the informer die the Attorney may prosecute the suite and the Information shall serve for the King The Case of the Maisters and Fellowes of Magdalen Colledge in Cambridge 13. Jacobi fol. 66. DOctor K. Master of M. Colledge and the Fellows 17. Eliz. grant to the Queene reserving rent upon condition to grant over which is done accordingly the Jury find 13. Eliz. of Deanes and Chapters and 18. Eliz of Confirmations a fine with Proclamations is levyed and five yeares passe Doctor K. dyeth the successor accepts the rent and within five yeares after his Election enters and he and the Fellowes demise to the Defendant And judgement given for the Defendant 1. Resolved the Master and Fellowes are restrained by the Statute of 13. Eliz. to grant to the Queen for the Q. is a Parson within the letter of the Statute and if he should be exempted this should be by construction of Law which cannot be 1. Because a generall Statute for maintainance of Religion and good literature and releife of the poore binds the K. although he be not named and it appeareth by the Statute of 1. Eliz. that the K. is included within the words Person or Persons for there he is exempted 2. Because the Statute is made to suppresse a tort therefore the Statute of Donis binds him 3. A Statute made to performe the intent of the Donor binds the K. without being named as the Statute of Donis 4. The Master and Fellowes are disabled to grant therefore the K. cannot purchase of them 5. The intent is to be observed which was to convey by the Queene to a Subject and so to make her an instrument of wrong as one who holdeth of the Bishop grants to the Queene to regrant to a Corporation by Covin to take away the Seigniory of the Bishop by extinguishment and to make an evasion out of the Statute of Mortmaine this Patent shall be repealed Jure regio so here and this Act extends to a Corporation not incorporate by such names as are in the Statute 2. The Statute of 18. Eliz. c. 2. doth not confirme this grant for it is out of the words of the Statutes because it is not made upon consideration and here the reversion of the rent is not considered because the Queene was to grant it before the rent be due 2. grants to the E. may be void or voidable 1. In respect of the Grantor as if an infant grant unto him 2. In respect of the thing granted as if a Foundership be granted 3. In respect of the estate as taile 4. In respect of the grant if it agree not with the rules of Law 5. In respect of omission of any circumstance as Inrollment this Statute aideth not grants of the first sort for it doth not inable persons disabled by the Law to grant as here nor of the second sort but confirmeth grants of Tenant in taile because he was able to grant but aides not grants of the fourth sort For Quae malo sunt inchoata principio vix est c. but it aideth grants of the fifth sort 3. At the time of the said Statute this grant needed no confirmation because Doctor K. the Master was living 3. The fine and Non-claime doth not barre them 1. Because although it was not a conveyance made by them yet it was suffered by them within the words of the Statute 2. Doctor K. nor any in his time cannot make his claime and claime was made within 5. yeares after his death 4. Acceptance of the rent doth not barre them because it is a body agregate of many and acceptance by the Master sole doth not barre all and the rather being without deed And judgement given Quod querens nil caperet per billam Lewis Bowles Case 13. Jacobi fol. 79. in Trover and Conversion T.B. Covenants to stand seised to the use of himselfe and his Wife for life without impeachment of wast the remainder to their first second and third Sonne successively in taile the remainder to the heires of their two bodies the remainder over they have issue I. T. B. dyes the issue dyes the Winde bloweth downe a Barne parcell of c. and the Timber in the Count mentioned was parcell of that Barne the Feme carryeth the Timber out of the Mannor he in remainder assignes by fine to the Plaintiffe the Feme dyeth the Plaintiffe brings an Action of trover and conversion against the Executors of the Feme and judgement given against the Plaintiffe 1. Resolved untill the birth of the issue T. B. and his Wife have an estate taile executed but after this it is divided and they have for life the remainder to the issue in taile 2. Tenant in taile after possibility had a greater estate as to the quallity then Tenant for life Therefore 1. He shall not be punished for wast 2. He shall not be compelled to attorne 3. He shall not have aide 4. Upon his alienation a Consimili casu lyeth not 5. After his death intrusion lyeth not 6. He may joine the mise upon the meere right 7. He shall not be named in an Action for or against him Tenant for life but not as to the quantity therefore his feoffement is a forfeiture resceit lyeth upon his default and exchange by him and Tenant for life is good 3. The Feme is not Tenant in taile after possibility c. for this must be a remainder of an estate taile by act of God and not by limitation of the party and although she be Tenant in taile after possibility of the remainder this doth not extinguish the estate for life because it is not a greater estate 4. She shall have the priviledges of Tenant in taile after possibility for the inheritance which was in her and because she is Tenant in taile after possibility of the remainder although she cannot claime it in possession 5. If Tenant for life or yeares cut Trees or prostrate Houses the
nor body were lyable to Execution in Debt or damages recovered but Execution was to be done by Fieri facias or Levari facias of his Goods and Chattells and profits growing upon his Land but in debt brought against one as heire his Land was liable to Execution because the Plaintiffe had no other remedy for the goods belong to the Executors but the body goods and Lands of the K. Debtor or accomptant were ever liable to Execution but such Levari facias or Fieri facias ought to have beene sued within the yeare or otherwise he was chased to his Writ of Debt and now by Westm 2. c. 45. he may have a Scire facias and by the 18º Chapter of that Statute an Elegiâ— is given of the moity of the Land which was the first Act that subjected Land to Execution for Debt or Recognizance and by the Statute of 13. E. 1. de Mercatoribus 27. E. 3. c. 9. 23. H. 8. c. 6. In Statute Merchant and Statute Staple all the Lands of the Conusor at the day of acknowledgement shall be extended into whose hands soever they shall after come But in all Actions Vi armis where a Capias lyeth in Processe there after judgement a capias ad satisfaciendum lyeth the K. shall have a Capias pro fine and in such cases the Law the preserver of peace subjecteth the body to Imprisonment and by Marlebridge c. 23. West 2. c. 11. a Capias was given in an accompt the proces before being a distresse infinite and by 25. E. 3. c. 17. the same proces given in Debt as in account for before this Act the body was not liable to Execution for Debt as aforesaid 2. If Land of the heire be seised in Execution upon a recognizance of his auncestor he shall not have contribution against a purchasor of his Auncestor although he come in without consideration and although the Heire be not charged as Heire but partly as Terretenant but one purchasor shall have contribution against another purchasor and one Heire against another Heire because they are in Aequali jure and therefore the Writ here which issued against the Heires without naming the purchasor is good although he be charged as Terretenant The Heire shall have an Audita quaerela as well as the Conusor himselfe before Execution sued and a Supersedeas but a Stranger shall not If diverse acknowledge a recognizance the charge doth not survive and the Land of one shall not be put in Execution but all their Lands equally so if two are bound to warranty both or their Heires and the survivor and the Heire of the other shall be jointly vouched and the Land of both shall be rendered in value But if Baron and Feme and the Heires of the Feme are bound to warranty and the Feme dye the Land of the Baron may be solely taken in Execution because there are no Moities betweene Baron and Feme So that when Land shall be charged by any Lien the charge ought to be equall but in a Lien personall otherwise it is as if two are bound in an Obligation there the charge shall survive But a Purchasor Bona fide before any Action brought shall not be subject to any charge And three Errors were moved in the record 1. The Scire facias was Haerediterrarum c. which is improper for he is not Heire to the Land but to his auncestor 2. The Writ is Scire facias haeredi terrarum c. and the Retorne is Scire fecit W. H. militi haeredi praedicti M. and every Retorne must answer the point of the Writ 3. The judgement is generall against Sir W. H. where it ought to be speciall for otherwise his owne Land shall be liable where by the Law the Land onely which came to him by his Father ought to be charged and he is charged as Terrtenant as aforesaid but these poynts were not resolved by the Court. Nota the new Writ of Error after entry of the first was not brought Quod coram vobis residet because the Record is not removed out of the keeping of him who had the custody thereof before A Perfect Table of the Principall matters contained in every Case in this Booke WHAT words doe make a generall warranty and to whom the custody of evidences doth belong Page 1 Tenant for life commeth in as Vouchee in a common recovery it is a forfeiture Page 1 2 23. H. 8. Extends not to suppresse good uses the conveyance good and the bad use void any man may give Lands to Charitable uses Page 2 Touching the Exposition of the Kings grants and how the words Ex speciali gratia mero motu c. therein shall be construed Page 3 A common Recovery by Tenant in taile binds them in remainder and reversion and all Leases and charges granted by them ib. A feoffement by Tenant for life destroyeth a contingent remainder Page 4 Conusee of Tenant for life and him in remainder in taile renders a rent to Tenant for life it is good during his life ib. Tenant for life and he in remainder in taile infeoffe I. S. it is no discontinuance or forfeiture otherwise if without deede Page 5 Perpetuities are against Law but the Parliament or Law may make an estate as to one and good to another Page 5 6 Tenant in taile suffers a recovery and dyes before Execution it may be sued against the issuâ— and when a man may enter or claime the Law will not put things in him till entry or claime Page 7 A man may be in by discent and yet not have his â—…ge ib. A future power of revocation may be released Page 8 When any thing Executory is created by consent of all it may be voided Page 8 A feoffement by feoffees devesteth all future uses contingent Page 9 27. H. 8. Transferreth the possession to uses onely In esse ib. When a remainder ought to vest ib. 27. H. 8. Of uses shall not be taken by equity ib. A diversity when Tenant for life infeoffeth the reversioner mediate and when imediate there it is no forfeiture ib. A disseissor may make admittances but not voluntary grants Page 11 A difference when a confirmation is made to one that is in upon an expresse condition and when not there the estate is absolute ib. Every fee simple may be charged one way or other Page 12 A difference betweene Terminus annorum Tempus annorum Page 13 A Termor grants to B. so many yeares as shall be behind Tempore mortis suae it is void otherwise if for a certeine number of yeares ib. A lease cannot comence upon a double contingency Page 14 He who hath a power of revocation may doe it part at one time and part at another time till he hath revoked all Page 15 By the same conveyance the old uses may be revoked and new raised Page 16 Vpon what conveyances uses may be raised upon a generall consideration Page 16 17 An Action of
Execution thereupon by Elegit Page 152 153 How long the Conisee shall hold the Land Page 153 Concerning Deeds inrolled and levying of fines of Land the Common Law preferred before the Statute Law the excellency and antiquity of Records Page 154 155 Rent must be demanded at the place limitted although out of the Land before advantage of a condition taken Page 155 Vpon a Lease by the Q it must be paid at the Exchequer ib. By vertue of a Fieri facias the Sheriffe may sell a Lease but the beginning and ending must be expressed Page 156 If the first benefice be of 8. l. per annum upon acceptance of another with cure the Patron must take notice upon 21. H. 8. c. 13. Page 157 Touching Corporations and their Elections and Ordinances ib. The effect of institution and also of induction and of Letters of dispensation Page 158 Touching Covenants and warranties in Law and when broken Page 159 Touching Strangers occupying Lands without notice of the Devisee Page 160 Goods delivered to one to keep or carry and they are purloyned Page 160 161 Estovers appendant to a house by grant or prescription and when destroyed and of suite to the Lords Milne Page 161 162 Touching reteining of Chaplaines by a Countesse within 21. H. 8. c. 13. Page 162 Of Contracts executory and Actions of the case upon Assumpsit and wager of Law Page 163 An ample and exact explanation of 1. E. 6. c. 14. of Chanteries Page 164 165 Touching reteining Chaplaines and dispensations Page 166 167 That the Lessee shall not alien without License and where a condition may be apportioned Page 167 Concerning Exchanges and what the word Excambium imports and of the warranty thereunto annexed and the nature of it Page 168 Arts done by a man Non compos mentis some binde himselfe and some others and how many sorts of them Page 169 THE FIFTH BOOKE A Lease to begin from henceforth and delivered after when it beginneth Page 171 What power the Bishop hath to make Leases by the private act of 1. Eliz. ib. A Lease of a Faire rendring rent is void by 1. Eliz. Page 172 What rent shall be said to be the true and ancient rent ib. Joint words taken severally in six respects Page 173 A Lease to A. during the life of B. and C. how long it lasteth ib. Therein is a difference betweene a limittation and condition Page 174 An Administrator hath judgement and dyes who shall sue execution thereupon ib. By what act an estate at will is determined ib. By exception of Wood the soile is excepted ib. Acceptance of a new Lease is a surrender of the first Page 175 If the Lessee of Lands may dig for Coles ib. A Lease to A. for his life and the life of B. and C. when it endeth ib. No Action of wast for permissive wast Page 176 Where there is a confidence an Action of the Case for negligence ib. Leases made to the Q. by Colledges Deanes c. are restrained by 13. Eliz Page 177 When a Covenant extends to a thing In esse of the demise it shall bind the Assignee otherwise when to a thing not in essence Page 178 If the thing to be done be meerly collaterall the assignee shall not be charged Page 178 Concessi or demisi import a Covenant Page 179 If any Covenantor breake the Covenant all the Covenantees must joine otherwise when severall interests passe Page 180 A diversity betweene a power and an authority ib. The Covenantee himselfe cannot devise the assurance ib. The Counsell must be given to the Purchasor Page 181 An Indenture void without a manuall act of indenting ib. Where a Condition or Covenant once broken may be salved after Page 181 A condition of two parts and both possible and one becometh impossible Page 182 An estate to be made at the costs of the Covenantee the Covenantor must doe the first act i. give notice what assurance he will have ib. The Seale of one Covenantor is broken it is void against him onely Page 182 183 A. is bound to give such a release as by the Judge of c A. must procure him Page 183 Terror of Suite is a damification upon a Counterbond ib. An action for reparations lyeth against the assignee Page 184 What interest is assignable over Page 185 Where an Indenture precedent to declare uses is only directory Page 186 Where an averment may be against a matter in writing Page 187 Cases of Executors Where a release by an Infant Executor is a barre Page 188 An Executor may release before probate but not have an action ib. A judgement for Debt shall be paid before a Statute Page 188 189 Administration during minority ceaseth at 17. yeares of age Page 189 Such an administration may not sell goods but for necessity ib. Where an administration is void and where voidable ib. Where an Executor of his owne wrong may retaine goods Page 190 An action against an Executor or by him where it must be in the Debet and where in the Detinet tantum ib. What retorne the Sheriffe must make upon a Devastavit Page 191 Administrator brings Debt barred because Executor ib. What act maketh a man Executor of his owne wrong ib. Constructions of the Statutes of Jeofails c. Amendment of Records Fines c. In Trespasse the nature of the Fishes must be shewed Page 192 Where a Debt against Baron Feme must be in the Debet Page 193 An ejectment of Lands out of A. B. and C. tried by a visne out of A. onely it is insufficient ib. 23. Jurors are returned and 12. appeare and find for the Plaintiffe it is good ib. Variance betweene the Writ and Count is not aided by 18. Eliz. ib. Five parts of a fine and where the Conisor may assigne Error Page 194 A common recovery not like other assurances more favoured Page 195 A pannell is annexed to the Venire facias without returne not good ib. A difference where a man is misnamed in the Venire and where in the pannell Page 196 Issue joined upon a point not materiall aided by the Statute ib. An amendment good after the transcript removed Page 196 197 Error in the Originall matter of Substance Page 197 A writ of Covenant upon a fine dated after the returne is there amendable but not in other actions ib. A common recovery taken by intendment Page 197 198 Cases of Pardons When a Writ shall be said to be depending Page 198 VVhere an Amerciament is pardoned the Statutes of Jeofailes extend to VVALES Page 199 Debts to the Q are excepted but not Originally due to the Subject ib. VVhere the K. may pardon corporall punishment Page 200 The K. may pardon the Suite in the Court Christian but not costs ib. An Office of intitling but not of Instruction may be under the great Seale Page 201 VVhere the rents are severall and where joint and where the Patentee of part may take advantage of a condition Page 202 A
manner of inheritances grantable in him Page 298 VVhen the Kings Charter shall be taken to two intents good how it shall be expounded ib. A Retraxit must be in proper person and where one may appeare by Attorney Page 299 No writ of Errour lyeth after disclaimer it doth after Retraxit ib. The copiholder commeth in by custome paramount Page 300 Where seisin of a rent needeth not to be alleadged within forty yeares ib. If the Jury try an Issue they shall not try it again by new nisi prius Page 301 Where de Injuria sua propria is a good plea and where not Page 301 302 Who may certifie excommunication and when it rightly done ib. VVhen a power to make leases for 21. yeares or 3. lives rendring the ancient rent is well pursued Page 303 Baron and Feme tenants in speciall taile she is within 32. H. 8. c. 28. Page 304 To what things a condition of accruer may be annexed Page 305 Foure things requisite to an accruer ib. By purchase of part of the land in which c. common appurtenant destroyed Page 306 An authority is countermandable but then the bond is forfeited Page 307 A devise of rent out of all the Capite land is good out of 2. parts ib. VVhere one formedome lyeth upon two distinct gifts Page 308 In actions reall founded upon tort one writ lyeth upon severall Titles ib. In personall actions one may comprehend severall torts ib. The demaundant must make himselfe heire to the party last seized Page 309 A disturbance by parol is no breach of a condition Page 310 VVhere the Plaintiffe shall have judgement although his title destroyed ib. VVhat words with consideration amount to a bargaine and sale ib. An Inrollment not necessary where a chattell only passeth Page 311 VVhere a will inureth by way of executory devise ib. A man may devise an estate which he cannot doe by act executed ib. What shall be said a good awarde Page 312 Where the heire of a copy-holder beyond the seas shall be barred c. ib. Mulier prisne over the seas barred by the death of bastard eigne Page 313 What manner of services multiplyed and what extinct ib. Herriot custome by purchase of part is not extinct Page 314 What power the Censors of Physicians Colledge have ib. Where a count may be made good by the barre and that by Replication Page 316 Many things good by custome which cannot be by Charter ib. The improvement shall be employed to the former charitable uses Page 317 Nothing accompted administred but the money paid by Composition Page 318 Where the plaintiffe shall have judgement the Replication being evill ib. Fully administred pleaded the Jury find assetâ—s for part what judgement ib. The force of a Repeale and where the ordinary may commit administration Page 319 A difference where obligor is made administrator and where executor ib. A commoner in a forrest where he may enclose within the stat of 22. E. 4. c. 7. ib. If A. be in execution upon an erroneous judgement and escape and the judgement is reversed the action against the Sheriffe is gone Page 320 But if judgement and execution be against the Sheriffe before that it shall stand good against him ib. Tenant for yeares grants the next avoidance and surrenders how it worketh Page 321 Where a man abusing his License hee shall be Trespasser ab initio ib. Tender of sufficient amends for damage feasant when good Page 322 What is barred by a Release of diâ—…ctions Quarrells Suites c. ib. What Errors in a Record are amendable much good matter Page 324 325 See there ten Misprisions not yet remedied Page 326 Cases in the Court of Wards Where Collusion may be averred to defraud the King of Wardship ib. The King shall have no wardship where there is no heire Page 327 Where a Patent shall he good Quacunque via data ib. If the first Melius inquirendum be good no other shall issue Page 328 To what severall times an Office shall have relation ib. A sale of Chattells after judgement Bona is good not after Execution Page 329 A Bargaine and Sale by the heire after livery tendered is good ib. The Heire Knighted in the Life of the Father who dyeth the Heire tenders livery the mean rates are saved ib. Where the King shall have his third part out of the whole Page 330 THE NINTH BOOKE WHere a subsequent Indenture may direct uses in a precedent recovery Page 331 Where an averrment of other uses may be made ib. A common essoyne is allowable in Dower Page 332 In a Writ of Dower who may plead deteinment of Chartars Page 333 The Beasts of the Termor are distreined and an avowry made upon a meere Stranger what remedy for the Termor Page 334 No distresse for damage feasant if the Cattell be chased out ib. What ancient Franchises ought to have allowance Page 335 What priviledges are extinct if they returne to the Crowne ib. Where the Tenure and where the seisin is traversable Page 336 A difference when one Executor refuseth and when all doe Page 337 They can bring no actions before probate Page 338 What power the Ordinary hath over the goods of the intestate ib. See 21. H. 8. c. 5. touching granting administrations Page 339 The grant of the Stewardship of the Mannor of D. good without naming the County where it lyeth ib. Where such a Grantee may make a Deputy without expresse power Page 339 Where Non user is a forfeiture of an Office Page 340 What Writs Vi armis are good Causa causans and Causa causata ib. What words amount to a Release Page 341 If it appeare that the Nusans is to the damage of the Plaintiffe he needs not shew it he may abate the Nusans if he will ib. Westm 2. c. 24. extends not to the Alienee of the alienee ib. How conspirators may be punished before acquitall Page 342 Conspiracies punishable before Execution must have foure incidents ib. What Act shall be said to be a Nusans as a Lime-pit c. Page 343 What things requisite to convict a man of Libelling ib. A man needs not to shew that which lyeth not properly in his notice Page 344 Much noteable matter touching Indictments and a Serjeants duty Page 344 c. Commissioners to examine witnesses are not bound strictly to the Letter Page 346 What the duty of a Commissioner is and how he must demeane himselfe Page 347 Whither a Feme Covert be within the Sâ—… of Westm 2. c. 35. ib. What Marriage is within that Statute Page 348 A surrender made by a Copy-holder by Letter of Attorney is good ib. What authorities may be Executed by Attorney ib. VVhere the Act must be done in the name of the authorizor Page 349 VVhere an accord is a good plea and what is requisite thereunto Page 349 350 VVhat Act shall be adjudged murder Ex eventu Page 351 VVhere an Attornement shall bind an Infant ib. An action of the Case
lyeth against Executors for the Testators Debt Page 352 VVhere a man may wage his Law Page 353 VVhat words shall be adjudged a good consideration Page 354 VVhat Offices grantable for yeares and by what Acts Offices may be forfeited and where the King may seise without Scire facias Page 355 356 Copy-hold estates are within 4. H. 7. of fines Page 356 Disseissor of Copy-hold levyes a fine what time the Lord hath ib. VVho may enter without command to avoid a fine Page 356 357 A plea by an administratrix of fully administred must be certeine Page 358 VVhere an Allegation generally of Covin is good ib. A commoner Copy-holder may have an Action of the Case for the losse of his Common so he may distreine damage feasant ib. A Baron of Scotland shall be tried by Commons of England Page 359 See the diverse Resolutions of difficulties arising upon the Indictment of the Lord Sanchar and others Page 359 360 Cases in the Court of Wards The Kings release doth not extinguish a service inseparable Page 361 VVhen the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be ib. VVhere the particular estate is out of 32. H. 8. no wardship accrueth to the King by advancement of him in remainder otherwise of a reversion for he is Tenant Page 362 VVhat words are sufficient to create an estate taile Page 363 The Kings possibility shall not devest a VVardship vested Page 364 The reviving of an ancient Tenure preferred before the reservation of a new ib. By death of the father before livery sued after tender The King looseth primer seisin but no meane rates Page 365 Of a fruitlesse reversion a wardship but not primer seisin ib. Where the saving in 32. H. 8. giveth ward and primer seisin Page 366 A Mensnalty cannot be suspended in part and in esse for part by the act of the party but it may by Act of Law or a third person ib. There are foure manner of Avowries Page 367 What Act is a good delivery of a Deed or of seisin of Land ib. One may have an estate taile which cannot discend Page 368 Three manner of Confirmations Page 369 THE TENTH BOOKE WHat things requisite to the Founding of an Hospitall see at large Page 371 An estate taile barred by recovery in value without recompence Page 374 A Feme Covert shall not loose her Land by any conclusion without examination upon a Writ in Court ib. Tenant for life suffers a recovery and he in remainder in taile is vouched the reversion in fee is barred Page 375 The devise of a terme to one for life the remainder to another for life is good as an Executory devise Page 376 The first Devisee cannot barre him who hath the Executory devise ib. Assent to the first devise is an assent for all ib. Such an executory devise not grantable over ib. but it may be extinguished by release to the first Devisee ib. Qui destruit medium destruit finem Page 377 If a Recusant grant the next avoidance before conviction it is void by 3. Jacobi for he is disabled from the beginning of the Session c. Page 378 Covin shall not be presumed if it be not averred ib. A private Act shall be taken as it is Pleaded ib. What grants of Offices by a Bishop are void by 1. Eliz. except for twenty one yeares or three lives and what Circumstances requisite Page 380 Praerogativa Regis c. 15. excepts Knights fees and advowsons and indowments all other appendants now passe by grants and so doe they in Case of Restitution Page 381 A Corporation aggregate may make a surrender in Law not in Deed Page 382 The Jurisdiction of the Marshalsea and the reasons thereof Page 382 383 About 4. E. 3. the Court of Kings Bench became resident Page 383 A good diversity where the Court hath Jurisdiction but proceed In verso ordine and where they have not Jurisdiction there all they doe is Coram non judice and void Page 383 384 Diverse abstruse points resolved some at the common Law and severall upon the Statutes of 32. 34 H. 8. of wills Page 385 386 VVhat Colour is and where it must be given Page 388 VVhere a privy interest although he claime but part must shew the first Deed except he claim meerly by Law Page 388 389 VVhere a man may have a freehold discendible Page 390 A warranty barres no estate which is not displaced at the time of c. ib. A warranty cannot inlarge an estate where it may be given in evidence Page 391 VVhat Obligations made to Sheriffes are within the Statute of 23. H. 6. Page 391 Forma verbalis Forma legalis or Essentialis Page 392 393 The time of granting a Tales and when it is well granted Page 396 397 The proper place of a reservation is after limitation of the estate Page 397 Increase of services is betweene very Lord and very Tenant Page 398 VVhen Lands shall be said to be concealed from the K. 398 399 A man shall have costs in all cases where hee recover dammages Page 400 Where a man shall recover damages and costs also ib. Where to the writ of Inquiry and to the verdict and judgement ib. Where insufficient verdict may be supplyed by a writ of Inquiry and where it cannot a good difference Page 401 A difference between auncient Corporations and new in matter of Misnosmer Apices Juris non sunt Jura Page 401 402 Which is the legall time of payment of Rent Page 402 If payment be in the morning and the lessor dye at noone this is satisfactory against the heire but not against the King ib. Where the lessee shall hold rent free for a quarter Page 402 Where Damages may be assessed intirely and where not Page 403 404 What words passe under the name of Latine Page 404 Where by death of one of the Plaintiffes after summons and severance the writ abateth divers good diversities Page 404 405 A Qu. impedit praesentare ad medietatem Ecclesiae where good ib. Cases upon the Commissions of Sewers Where the Commissioners may subvert a Cawsey and where not Page 406 If a wall be subverted by a sodaine inundation the Commissioners may taxe all equally who have damage thereby ib. Otherwise if it come by neglect of him who ought to doe it ib. If the Commissioners have power to make a new River and a generall taxe so much upon every Towne for doing thereof Page 407 What is a good revocation of old uses and limitation of new Page 409 THE ELEVENTH BOOK A Difference between a disability absolute and temporary or personall Page 411 The grant of the office of Auditor to two is good Page 412 What offices grantable in reversion ib. Where the Jurors may assesse damages severally Page 413 Where one shall have an attaint that is a stranger to the issue ib. Where a writ of Enquiry shall issue Page 414 The plaintiffe shall have judgement de melioribus damnis ib. The conclusion of a plea is not traversable Page 415 In every issue there must be an affirmative and a negative ib. The Impropriation sufficient in the life of the Incumbent ib. VVhere the witnesses are not punishable for perjury Page 416 Perpetuall unity a discharge and what requisite thereunto ib. VVhat prescription for tithes of houses is good ib. A customary Mannor may be holden of another Mannor Page 417 VVhat variance in the name of a Corporation doth vitiate Page 418 VVhat devise of socage by tenant is Capite is good Page 419 An Ejectione firmae of tithes without shewing their kinds not good ib. If a deed be rased the obligor may plead Non est factum Page 420 A diversity where it is rased by the obligee himselfe and where by another ib. VVhere Clergy allowable at the Common law and where at this day copious and excellent matter Page 421 VVhere an Errour lyeth not before the finall Judgement Page 423 A fine by the Stewart of a Mannor where it is well assessed Page 425 VVhere the Lord may destreine for it without prescription ib. VVhere an action shall abate in part and where for the whole Page 426 Notwithstanding the exception trees remaine parcell of the Inheritance ib. A thing in possession cannot be parcell of a reversion upon an estate for life Page 427 None may be prohibited by the common law to use any trade Page 428 An ordinance by a Corporation against law is void ib. How an Ejectione firmae must be brought Page 429 Although the dammages are not well assessed yet the Plaintiffe may have judgement ib. Much variety of Learning touching Recusancy and upon the severall Statutes concerning them Page 429 430 Master and Fellowes of a Colledge restrained to grant by 13. Eliz. what statutes doe binde the King Page 432 Some grants to the King void and some voidable Page 433 VVhere acceptance of Rent doth barre and where not Page 434 Tenant in taile after possibility of c. hath a greater estate in quality then tenant for life not in quantity Page 434 435 VVhat priviledges belong to his estate Page 435 A lease without impeachment of wast what passeth thereby ib. A monopoly is against law and hath three incidents against the weale publique Page 436 What fees belong to the office of Master of the Ordnance Page 427 In the Kings Case the law maketh a privity to be accomptable ib. For what causes a Citizen may be disfranchised Page 438 The 3. Book fol. 9. Dowties Case A Difference where the first certainty is false in a grant and where the first is true and the second false Page 439 Where lands are in the Q. by 33. H. 8. c. 20. without seisure ib. Fol. 11. Sir William Harberts Case What remedy for debts at the common law and when the body and lands became liable thereunto Page 440 44â— In all actions vi et armis the body was subject unto Imprisonment and so for debt at the Kings suite Page 441 The heirs of the conâ—isâ—ser shall not have contribution against a purchasor ib. Changes reall doe not survive but personall doe Page 442 Three Errours there moved but not resolved ib. FINIS
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