John the Father in three parts to be divided And afterwards the Father by his Will devised the Lands holden in Socage unto his said Wife for life with divers Remainders over It was the Opinion of the Court in this Case that the Devise was utterly void by the Statute CLV Brett and Peagrims Case Pasch 26 Eliz. IN an Action upon the Case the Plaintiff declared that whereas he himself and the Defendant submitted themselves to the Award of A.B. and C.D. and whereas the said Arbitrators upon the hearing of the Causes between them did intend and were resolved amongst other matters of their Award to award that two Obligations by which the Plaintiff was severally bounden to the Defendant for the payment of certain sums of Mony to the Defendant should be delivered by the Defendant to the Plaintiff to be cancelled The Defendant promised in Consideration that that Article of the delivery of the said two Obligations should be left out of the Award that he himself would gratis deliver them to the Plaintiff without any Coertion or direction of the Award and further declared that the said Article ad specialem instantiam ipsius Querentis was left out by the said Arbitrators out of their Award and notwithstanding that that the Defendant had not redelivered ut supra c. but had put the same in suit against the Plaintiff In this Case upon the matter ut supra c. it was adjudged for the Plaintiff CLVI Nich. Lee's Case Pasch 26. Eliz. In the Kings Bench. 1 Cro. 26. 1 Len. 285. 1 Inst 113. Dyer 177. 219. a. 2 Len. 220. NIch. Lee by his Will devised his Land to W. his second Son And if he do depart this World not having Issue then I Will my Sons-in-Law shall sell my Land. The Devisor at the time of the Devise having six Sons-in-Law died W. had Issue John and died John died without Issue one of the Sons-in-Law of the Devisor died the five surviving Sons-in-Law sold the Land. 1. It was clearly agreed by the whole Court that although the words of the Will be ut supra If W. my Son depart this World not having Issue c. And that W. hath Issue which dieth without Issue there although it cannot be said Literally that William did depart this World not having Issue yet the intent of the Devisor is not to be restrained to the Letter but Construction shall be made that whensoever W. dieth in Law upon the matter without Issue the same Land shall be subject to sale according to the Authority committed by the Devisor to his Sons-in-Law And now upon the matter W. is dead without Issue As in a Formedon in the Reverter or Remainder although the Donee in tail hath Issue yet if afterwards the Estate tail be spent the Writ shall suppose that the Donee died without Issue a fortiori in the case of a Devise such Construction shall be made As to the other point concerning the sale of the Land Wray demanded if the Sons-in-Law were named in the Will The Clerks answered they were not See 30 H. 8. Br. Devise 31 and 39 Ass 17. Fitz. title Executors 117. Such a sale is good in case of Executors See also 23 Eliz. Dyer 371. And see 4 and 5 Mar. Dyer Land devised in tail and if the Devisee shall die without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu of A. if A. dieth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court that the sale by the manner aforesaid was good and Iudgment given accordingly CLVII Rag and Bowley's Case Trin. 26 Eliz. In the Kings Bench. ERror was brought upon a Fine and the Error was assigned in the Proclamations Whereupon issued a Certiorari to the Custos Brevium who certified the Proclamations by which Certificate it appeared that two of the said Proclamations were made in one day upon which the Defendant prayed another Scire facias to the Chirographer in whose Office it appeared that all the Proclamations were well and duly made It was the Opinion of Wray Chief Iustice in this Case that the Defendant ought to have his preyer for the Chirographer maketh the Proclamations and he is the principal Officer as to them And the Custos Brevium hath but the abstract of the Proclamations and we may in discretion amend them upon the matter appearing But the other Iustices seemed to be of a contrary Opinion for that the Proclamations being once certified by the Custos Brevium who is the principal Officer we ought not afterwards to resort to the Chirographer who is the inferior Officer And afterwards the Clerks of the Common Pleas were examined of the matter aforesaid by the Iustices of the Kings Bench and they answered according to that which was said by Wray Chief Iustice Wherefore it was awarded by the Court that a new Certiorari be directed to the Chirographer who Certified the Proclamations to be well and duly made And thereupon the Court awarded that the Proclamations in the Office of the Custos Brevium should be amended according to the Proclamations in the Custody and the Office of the Chirographer Note In the same Case before the Writ brought a stranger had brought a Writ of Error against the same Defendant upon the same Fine upon which the transcript of the Fine and Proclamations are removed in Banco and after the Plaintiff is Non-suit Now another who hath Cause may have a Writ of Error quod coram vobis residet CLVIII Taverner and Cromwell's Case Trin. 26 Eliz. In the Kings Bench. UPon an Evidence unto a Iury 3 Cro. 353. containing difficulty and matter in Law it was found viz. that the Bishop of Norwich 10 H. 8. was seised of the Mannor of Northelman in the right of his Bishoprick and at his Court holden within the same Mannor granted parcel of the Demesnes of the said Mannor to one Taverner and his Heirs where of the said Land in truth there was not any Demise by Copy before And so the said Land continued in Copy until 23 H. 8. at which time Taverner committed a forfeiture which being presented the Bishop seised the Land as forfeited and granted the same again by Copy to Taverner in Fee And so from thence it continued in Copy until 8 Eliz. which Interval between 23 H. 8. and 8 Eliz. amounted to 47 years It was the Opinion of the whole Court in this Case that the Continuance for 50 years is requisite to fasten a Customary Condition upon the Land against the Lord. It was also agreed by the Court that although the Original Commencement and that Customary Interest did commence 10 H. 8. ut supra from which time unto 8 Eliz. 60 years passed yet the seisure for a forfeiture which happened 23 H. 8. interrupted utterly the Continuance from the time which might by the Law have perfected the Customary Interest So
former Lease determined And as to the Attornment it was given in Evidence That B. after the notice of the Grant to C. had speech with C. to have a new Lease from him because he had in his Term but 8 years to come but they could not agree upon the price And it was the Opinion of the Iustices That the same was an Attornment because he had admitted the said C. to have power to make to him a new Lease Also the said B. being in Company with one R. and seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromley Sollicitor The same is no Attornment being spoken to a Stranger Barham contrary Because that C. was present And it was holden to be a good Attornment But if that Attornment was not before that the Bishop was translated to Winchester the Lease should be void And although the Confirmation of the Dean and Chapter was before the Attornment so as no Estate was vested in C. yet it was good enough For an assent of the Dean and Chapter is sufficient be it before or after as it was holden by Catline Southcote and Whiddon But Wray contrary XCI Norwich and Norwich's Case Trin. 18 Eliz. In the Kings Bench. HEnry Norwich was bound by Obligation to Symon Norwich upon Condition To stand to the Award of J.S. who awarded That the said Henry should pay to Symon 150 l. at such a day And that the said Henry should find 3 Sureties to be bounden with him to the said Symon for the payment of another sum of Mony to the said Symon In Debt upon this Obligation Henry pleaded As to the 150 l. payment and as to the other point That he was always ready to become bounden c. And as to the finding of Sureties he demanded Iudgment for that as to that the Arbitrament is void See 22 H. 6. 45. 17 E. 4. 5. 21 E. 4. 75. It was holden That in such a case of such Award to find Sureties the Defendant is not to find Sureties but is only to tender his Obligation And of that Opinion was the whole Court Because it was an Act to be done by a stranger to the Award But if the Award had been of an Act to be done to a stranger by him who was party to the Award then the Award had been good But if the stranger will not accept of the Monies awarded his Obligation is saved So if the Award be That one of the parties to the Award shall discontinue a Suit which he hath against another If the Court where the Action is depending will not suffer the discontinuance of it the Award is performed And in the principal Case It was ruled accordingly Note The same day another Case was in the same Court Between Dudley and Mallery The Condition was to perform an Award c. The Defendant pleaded performance of the Award The Plaintiff assigned the breach of the Award in this because the Award was That the Servant of Mallery should pay to the Servant of Dudley 5 l. which the Defendant had not paid It was the Opinion of the Court That the Bond was not forfeited for the Servants utriusque are strangers to the Submission But if the Award had been That Mallery should pay to the Servant of Dudley 5 l. it had been good for that Mallery is a party to the Submission c. XCII Rivers and Pudsey's Case Hill. 19 Eliz. In the Kings Bench. JOhn Rivers Alderman of London brought a Writ of Accompt against Pudsey who said That at the time c. and now he is the Plaintiffs Apprentice and demanded Iudgment c. And it was holden by Wray Iustice That it is no Plea for although an Apprentice cannot be charged by this Action for ordinary Receipts upon his Masters Trade yet upon collateral Receipts which do not concern the ordinary Trade of his Master he shall be charged as well as another See 8 E. 3. tit Acc. 94. And F.N.B. 119. XCIII Potkins Case Hill. 19 Eliz. In the Kings Bench. IN Debt upon an Obligation by Potkin The Defendant pleaded That he himself borrowed of one Watson a certain sum of Mony paying for the forbearance thereof excessive Vsury And that the Plaintiff was bound with the said Defendant to the said Watson for the payment thereof and that he himself by this Obligation upon which the Action is brought was bound to the said Plaintiff to save him harmless against the said Watson c. And because that this Bond was a Counter-Bond for the payment of Excessive Vsury c. And it was holden by Manwood That the same was a good Bar for here the Plaintiff when he was impleaded upon the principal Bond might have discharged himself upon this matter and therefore his Lachess shall turn to his prejudice and therefore the Issue was joyned upon the excessive Vsury XCIV Abrahall and Nurse's Case Hill. 19 Eliz. In the Common Pleas. JOhn Abrahall brought a Writ of Right-Close against John Nurse in the Court of George Earl of Shrewsbury and made protestation to prosecute that Writ in the form and nature of the Writ of the Lady the Queen of Assise of Novel disseisin at the Common-Law and made his Plaint accordingly And afterwards the Assise was taken who spake for the Plaintiff Whereupon Abrahall had Iudgment to recover After which Nurse brought a Writ of False Judgment and assigned Error in this That whereas the said Writ of Right-Close was directed to the Bailiffs of George Earl of Shrewsbury of his Mannor c. that the said Bailiffs should do full Right c. that it appeareth by the Record that the Plea was holden before the Suitors and not before the Bailiffs of George Earl of Shrewsbury For all the Precepts in the Plea aforesaid are Quod sint hic ad proximam Curiam coram Sectatoribus tenend An other Error was in this and false Iudgment was given therein because that the Roll is Praeceptum est Ministro Curiae praedict that he cause to come 12 Free and lawful Men c. videre illud tenementum c. nomina eorum imbreviare c. and the Minister of the Court retorned 12 Recognitors of the Assise aforesaid whereas by the Law of the Land 24 Recognitors in a Plea of Land ought to be retorned But notwithstanding that these Exceptions were taken Yet upon due consideration of the Court notwithstanding these Exceptions the Iudgment was affirmed See the Record Mich. 17 18 Eliz. Rot. 1301. XCV The Master and Scholars of Linckfords Case Hill. 15 Eliz. In the Common Pleas. IN an Ejectione firmae the Case was That the Master and Scholars of Linckford were seised of the Mannor of Haldesley in the Town of Laberhurst which Town extended into the County of Sussex and also in the County of Kent and they made a Lease to one Clifford of all their Lands in the Town of Laberhurst except the Mannor of Haldesley whereas in truth
That the Defendant should answer over CXXXVI Hering and Badlock's Case Trin. 26 Eliz. In the Kings Bench. 2 Len. 80. IN a Replevin the Defendant avowed for Damage-feasant and shewed That the Lady Jermingham was seised of such a Mannor whereof the place where c. and leased the same to the Defendant for years The Plaintiff said That long time before King Henry 8th was seised of the said Mannor and that the place where c. is parcel of the said Mannor Demised and Demiseable by Copy c. and that the said King by such a one his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is by Copy in Fee c. And upon that there was a Demurrer because by this Bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in Bar to the Avowry ought to have concluded and so was he seised by the Custom until the Avowant praetextu of the said Term for years entred c. And so it was adjudged CXXXVII Rosse's Case Mich. 26 Eliz. In the Kings Bench. Ante 83. IN Trespass brought by Rosse for breaking of his Close and beating of his Servant and carrying away of his Goods Vpon Not guilty pleaded the Iury found this special matter scil That Sir Thomas Bromley Chancellor of England was seised of the Land where c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish by whose Commandment the Defendant entred It was moved That that Tenancy in Common betwixt the Plaintiff and him in whose right the Defendant justifies could not be given in Evidence and so it could not be found by Verdict but it ought to have been pleaded at the beginning But the whole Court were clear of another Opinion and that the same might be given in Evidence well enough It was further moved against the Verdict That the same did not extend to all the points in the Declaration but only to the breaking of the Close without enquiry of the battery c. And for that cause it was clearly holden by the Court That the Verdict was void And a Venire facias de novo was awarded CXXXVIII Gurney and Saers Case Trin. 26 Eliz. In the Kings Bench. AN Ejectione firmae was brought by Gurney against Saer who pleaded That Verney was seised and leased the same to Baker for 21 years 8 Eliz. Baker 14 Eliz. assigned his Interest to Rolls who 15 Eliz. leased the same to Topp for 10 years and afterwards Rolls granted the residue of his Term to A. Verney 16 Eliz. leased the same Land to Stephen Gurney for 21 years to begin after the determination surrender or forfeiture of the first Lease rendring Rent with Clause of Re-entry And afterwards Verney granted over the Reversion in Fee to Hampden To which Grant A. and Topp attorned Topp leased to B. at Will A. and Topp surrendred B. held himself in by force of the Tenancy at Will And the said Surrender was made privily and secretly without the notice of the said Stephen Gurney The Rent reserved upon the Lease made to Stephen Gurney is demanded as now begun by the said Surrender Hampden entred as for the Condition broken for the non-payment of the said Rent And the Lease made to the said Stephen Gurney was pleaded Quod praedictus Johannes Verney per Indenturam suam sigillo ipsius Stephani Gurney sigillat demisit c. And that was holden a material Exception For here upon the matter doth not appear any Lease made by Verney For here upon the pleading it appeareth That Verney had accepted a Deed of Gurney purporting a Demise by Verney to Gurney which Gurney had sealed but there did not appear any such Deed sealed by Verney and therefore no Lease ut supra And although a Condition may be pleaded by Indenture sealed with the seal of the other party yet a Conveyance cannot be pleaded by Deed as it is here unless sealed with the seal of the party Agent scil the Feoffor Grantor Lessor And for that cause Iudgment was given for the Plaintiff Another Exception was taken because that after the Grant of the Reversion by Verney to Hampden the surrender of A. and Topp is pleaded whereas A. ought not to surrender for his Estate was not a Reversion for years but a Lease in Reversion and a Lease for years to begin at a day to come which could not be surrendred See 4 H. 7. 10. But if A. had granted his Interest by way of Reversion where Attornment had been as one Releaseth to him the Reversion for years it is good contrary to him who hath a Lease in Reversion But as to that it was said by the Court That this surrender by A. was good enough for in as much as the Interest which A. had at the time of the surrender was in Rolls a Reversion after his Grant to Topp and there it remained and continued in its nature as to that point notwithstanding that by the Grant it passed in another manner than as a Reversion Another Exception was taken because that in the pleading of the Surrender it is not alledged That at the time of the Surrender Hampden was seised of the Reversion 7 E. 3. 3. He who claims by Cestuy que use ought to alledge the Seisin and Continuance of Seisin to the said use at the time of the Feoffment or Grant notwithstanding that Seisin was alledged before And 10 H. 7. 28. Hewbade's Avowry he there pleaded That A. was seised of a Mannor and thereof levied a Fine to B. that C. the Tenant upon whom the Avowry was made attorned c. And Exception taken because it is not shewed in the Avowry That B. the Conusee was seised of the Mannor at the time of the Attornment And it was holden a good Exception On the other side it was said and affirmed by the Court That in all Cases where an Inheritance is once alledged in a Man the Law shall presume the Continuance of it there until the contrary be shewed See 1 Eliz. the Case between Wrotesley and Adams Plow Com. 193. And 15 Eliz. between Smith and Stapleton Plow 431. Which Wray and Gawdy Iustices granted Ayliff Iustice to the contrary Another point was moved If upon this secret Surrender notice ought to have been given to Gurney who had an Interest for years to begin upon the said Surrender For some conceived That Gurney without notice given him of the said Surrender should not be prejudiced by the Condition aforesaid And of that Opinion clearly was Wray Chief Iustice Note In this Case That Saer the Defendant presently after the Iudgment entred cast in a Writ of Error into the Court and assigned an Error in fact scil That Gurney the Plaintiff in the first Action within age appeared by Attorny whereas he ought by Gardein or Prochein Amy. And it was the Opinion of the Iustices upon the first Motion
bring a new Writ But Gawdy said That the Writ brought was good enough CCCXVII Pike and Hassen's Case Mich. 31 Eliz. In the Kings Bench. AN Action upon the Statute of 32 H. 8. touching buying of Titles And the Bargain was laid in Norfolk but the Land c. was in Suffolk And the Issue was tryed in Norfolk and the value of the Land also And as to the 5 Acres they found the Defendant guilty and found also the value of them And for the Residue a Special Verdict was given and for the 5 Acres the Plaintiff had Iudgment presently And by the special Verdict it was found That the Defendant had occupied the Residue of the Land for two years before c. as Tenant at sufferance and afterwards sold the Inheritance Wray Chief Iustice Tenant at sufferance is in truth a Tort feasor by which his taking of the profits is not such as is intended by the Statute But yet he afterwards looking into the words of the Verdict which were That the Defendant tenuit the Lands for two years ex permissione of another thereupon it ought to be intended That he was Tenant at will. CCCXVIII Sparry and Warfield's Case Mich. 31 Eliz. In the Kings Bench. IN False Imprisonment against the Defendant and others they pleaded The Charter of Bridewell and that the Plaintiff was mali nominis famae and that certain Goods were stollen from J.S. and upon search the Plaintiff was found suspitiously c. And that thereupon they put him into Bridewell It was the Opinion of the Iustices That the Plea was not good CCCXIX. Bragg's Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass by Strait against Bragg Quare Clausum fregit containing one Acre in C. in the County of H. and for the taking of a Horse The Defendant pleaded That long time before the Trespass The Dean and Chapter of Pauls were seised of the Mannor of C. in the said County in Fee in the right of their Church whereof the place where is parcel c. And so seised King E. 4th by his Letters Patents dated Anno 1 of his Reign granted to them all the Fines pro Licentia Concordandi of all their Homagers and Tenants resiants or not resiants within their Fee And shewed That for all that time they have used to have such Fines of their Tenants And shewed further That 29 Eliz. A Fine was levied in the Common Pleas between the Plaintiff and one A. of 11 Acres of Land whereof the place where the Trespass was done was parcel and the Post-Fine assessed to 15 s. And afterwards Scambler the forreign Opposer allowed to them the said 15 s. because the said Land was within their Fee and afterwards in the behalf of the said Dean and Chapter he demanded of the Plaintiff the said 15 s. who refused to pay it for which he by the Commandment and in the right of the Dean and Chapter entred and took the said Horse in the name of a Distress as Bailiff to the said Dean and Chapter for the said 15 s. and afterwards sold it c. upon which the Plaintiff did demur in Law And it was moved That here it is not averred That the Land whereof the Fine was levied was within their Fee but they say That Scambler allowed it because it was within their Fee. And that is not a sufficient averment quod curia concessit And also the opinion of the Court was Ante 56. 2 Len. 179. That the Dean and Chapter cannot distrain for this matter but they ought to sue for the same in the Exchequer as it appeareth 9 H. 6. 27. in the Duchess of Summersets Case Gawdy Iustice The Grant doth not extend to the Post-Fine for the Fine pro licentia Concordandi is the Kings Silver and not the Post-Fine Wray Iustice All passeth by it for it is about one and the same matter And they in Opinion to have given Iudgment for the Plaintiff Quaere of it CCCXX South and Marsh's Case Mich. 32 Eliz. In the Exchequer NOte It was holden by the Court That where Marsh was endebted unto South without any Obligation for it but only by a Note in writing signed with the Hand of Marsh scil By me W. Marsh but not sealed that such a debt might be assigned to the Queen although that before the Assignment against a Creditor he might have waged his Law for in as much as by these Notes and Bills the certainty of the debt appeareth and being true debts they may well be assigned See 21 H. 7. 9. An Obligation may be assigned to the Queel without Deed enrolled and where the Obligee is not endebted to the Queen But it cannot be assigned to a subject Noy 52. if not for a debt due by the Assignor to the Assignee for otherwise it is Maintenance And in this Case it was holden That where the King sues for a debt assigned to him the Obligor cannot plead Nihil debet for now by the Assignment it is become matter of Record CCCXXI. Trapp's Case Mich. 32 Eliz. In the Kings Bench. RObert Trapps 1 Eliz. seised of 15 Messuages in Clarkenwell in the Occupation of 15 several persons viz. A.B.C. c. and named them certain demised them to one Cox And afterwards conveyed the Inheritance of them to one Brian Trapps in Fee who afterwards demised to J.S. all those 15 Messuages in Clarken-well which Robert Trapps did demise inter alia to Cox by Indenture dated 1 Eliz. now in the Occupation of A.B.C. c. And one of the Occupiers names was left out in the recital And it was holden by the whole Court That notwithstanding the said Omission the said Messuage did pass for there was sufficient certainty before and the falsity came after the verity CCCXXII Brewin and Mansfield's Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared That A. was endebted to him in 10 l. and made the Defendant his Executor and died And that the Defendant in Consideration that the Plaintiff would forbear the Defendant for a certain time promised to pay it at two several days and shewed which in certain And it was found for the Plaintiff It was moved in Arrest of Iudgment That it is not set down in the Declaration by what portions the 10 l. shall be paid Clench Iustice conceived That the Defendant had liberty to pay it in what portions he pleased Gawdy He ought to pay it by equal portions as a Rent reserved payable at two Feasts without saying by what portions it shall be paid And he said That if the plea for the cause aforesaid had been defective yet now after Verdict all is helped for it is but form And afterwards the Opinion of the whole Court was That the matter shewed was not good to stay Iudgment Wherefore the Plaintiff had Iudgment to recover CCCXXIII Mich. 32 Eliz. In the Common Pleas. THe Case was The Plaintiff in a
Demands or Grants Omnia terras tenementa sua But general words qualified with a restraint where the Limitations are effectual As if the King Grants Omnia terras tenementa sua in D. which he hath by the Attainder of J.S. or which were the possessions of such dissolved Monasteries such Grants are good And where the Case is That Queen Mary hath the Lands in possession of the annual value of 19 l. and other Land there in Reversion of the annual value of 6 l. and then she Grants Omnia terras tenementa nostra rendring 19 l. per annum I conceive That upon these words the Land in possession only passeth because that the said general words may be aptly served and satisfied with the Lands in possession if no other Lands pass And I agree That this word Nostra extends as well to the Lands in Reversion as to Lands in possession but most properly to Lands in possession for Land in Reversion cannot dici simpliciter Nostra but quodam modo tanquam terra revertens and not to take the natural profits of it for the Termor hath such properly that he shall have an Action of Trespass Quare clausum fregit But the intent and meaning of the Queen is to be regarded and that is the surest way to have right intelligence of the Grants of the King For here the Queen hath reserved but 19 l. Rent which is the proper and ancient Rent of the Lands in possession and if Lands in Reversion should also pass the Rent of which was 6 l. per annum then upon the whole Grant but 19 l. being reserved the Queen should lose 6 l. per annum of her ancient Rent which should be contrary to the intent and meaning of the Queen and the intent of the Grantor even in the Case of a Subject shall direct the construction of Grants As 9 H. 6. Br. Grants 5 by Babington A Man grants Common in his whole Lands he shall not have Common in his Orchards Gardens or Meadows for such was the meaning of the Grantor a fortiori in the Case of the King. It hath been argued That the former Lease ought not to be recited because that after the first Lease made by King Henry the 8th the Inheritance hath been in a Subject that is the Bishop of Bath and Wells but the same is not so For if the King makes a Lease for years and afterwards Grants the Reversion upon Condition which after is broken and so found by Office by which the Reversion is reduced to the King If now the King will make a new Lease he ought to recite the former Estate notwithstanding the mean grant of the Reversion or else such second Lease is void Another matter hath been Objected wherefore the former Lease ought not to be recited and that is because it is determined by surrender in Law before that the new Lease takes effect Sir the same is not so for the former Lease is in being as the Case betwixt Fulmerston and Steward 1 Mar. Plow Com. 106. upon the Statute of Monasteries 31 H. 8. See the words of the Statute whereof and wherein any Estate or Interest for years at the time of the making of any such Lease had his being or continuance And an Abbot made such a Lease to one who had a term for years of a former Grant although here be a Surrender yet this Case is within the said Statute and the said former Lease shall be said to have his being at the time of the making of the later Lease and the Surrender shall not be said so to preceed the making of the Lease but that the former Lease shall be said in Esse at the time of the making of the later Lease And in our Case it shall not be taken for any Surrender for then the Queen shall lose 6 l. of her ancient Rent and Revenue and always when the Title of the King and of the Subject concur the Title of the King shall be preferred as 43 E. 3. The King Lord Mesne and Tenant The Tenant pays his Rent at the day to the Mesne before Noon and then the same day before Night the Mesne dieth his Heir within age the King shall be paid the Rent again for here the Title of the King and the Subject concur together at one time and in that the King shall be preferred and so he prayed Iudgment for the Defendant And afterwards at another day the Iustices declared their Opinions and by Wray Chief Iustice We all agree That the first Lease ought to be recited and the reason which hath been urged against that point hath reduced us to be of that Opinion scil That the second Lease was made to the first Patentee and the King doth not make the recital but the party ought to inform the King of all former Estates of the said Lands and that he might well do for he is well knowing of them and although that the Reversion after the first Lease made hath been conveyed to a Subject the same is not material here forasmuch as the second Estate is made to him who had the first Estate and might know whether the first Estate were determined or not Also by the re-purchase the King is in Statu quo prius Gawdy Iustice although that the former Term be drowned by the taking of the second Lease yet it was in being at the time of the taking of it as it is holden by Bromley in the Case of Fulmerston and Steward It is determined by the second Lease and yet it was in being at the time of the making of it Fenner Iustice to the same intent Clench Iustice If the Grant of the Queen shall enure to two intents then the Queen should lose 6 l. per annum of her ancient Revenue It was agreed by all the Iustices That the general words in as much as they are restrained to a certainty would pass the thing si caetera essent paria contrary if they had remained in the generalty and afterwards Iudgment was given Quod querens nihil Capiat per Billam CCCXXXVIII Trin. 32 Eliz. In the Common Pleas. 4 Len. 233. A Man 30 Eliz. made a Feoffment in Fee to the use of himself for life and afterwards to the use of his Son and his Heirs The Father and the Feoffees before issue for Mony by Deed granted and enfeoffed J.S. and his Heirs who hath not notice of the first use The Tenant for life hath issue and dieth the issue entreth Glanvil the use limited to the first Son is destroyed for without regress of the Feoffees it cannot rise and it is gone by their Livery See the Case in Plowden 349. and also he vouched the Case of the Earl of Kent where by the Release of the surviving Feoffee 2 Roll. 797. Plow 347. a Sleeping-Vse was destroyed and could not after be revived Harris the use may rise without entries of the Feoffees and he put a difference between an
the Enfant Hob. Rep. 281. for the Wife had her said Estate to her own use and then her Husband surviving her should have it and that without any admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee And it was said by them That if a Copyholder be for years and maketh his Executors and dieth that the Executors should have the Term Co. Case of Copyholders and that without any Admittance Weston contrary in that case as to the Executors XXIII Tindall and Cobbs Case 7 Eliz. In the Common Pleas. WAste was brought by Tindall Knight against Jeoffery Cobbe Esquire and the Plaintiff declared of a Demise of the moyety of the Mannor of Wolverton and of the moyety of a Wood called Wolverton-Wood The Defendant pleaded That Robert Winckfield before the Waste supposed was seised of and in tertia parte alterius Medietatis of the said Mannor and of and in tertia parte alterius Medietatis of the aforesaid Wood and held the same insimul pro indiviso with the Plaintiff and that the said Robert Winckfield by his Deed sold to the Defendant omnes omnimodas arbores subboscos suos crescent in praedict tertia parte alterius medietatis praedicti bosci ad libitum ipsius Galfridi succidend and so justified the cutting down of 300 Oaks in which the Waste is assigned with this that he will aver That the aforesaid 300 Oaks were the third part only in numero precio medietatis omnium arbor subboscorum at the said time when the Waste is supposed to be done and demanded Iudgment if Action And divers Exceptions were taken to the Count 1. He sheweth Vaugh. Rep. 175. that the Demise of the moyety of the Mannor was per nomen c. and doth not shew that the demise was by writing and if not then he cannot plead it by a per Nomen 2. The Waste is assigned in digging of Clay in 100 Acres of Lands parcel Medietatis Maner de Wolverton and hath not shewed in what Town the Land is For he hath shewed before the Demise of the moyety of the Mannor of Wolverton in Wolverton 3. He shews the Demise of the moyety of the Mannor of Wolverton and of other Lands and assigns the Waste in cutting down Oaks in quodam bosco vocat Wolverton Wood parcel praemissorum and that cannot be for this Wood cannot be parcel of the Mannor of Wolverton and of the other Lands also And for these Causes the Count by the whole Court was holden to be insufficient XXIV Stamfords Case 7 Eliz. Dyer In the Common Pleas HUgh Stamford seised in Fee had Issue A. his eldest Son and B. his younger Son A. had Issue George and Elizabeth by divers Women Hugh made a Feoffment in Fee to the use of himself for life and afterwards to the use of George in tail and afterwards to the use of A. in tail and afterwards to the use of the right Heirs of Hugh Hugh dieth A. dieth George levieth a Fine to the use of himself in tail the remainder over to B. in Fee and dyeth without Issue It was holden by Bendloes Carell Kelloway both the Bromleys and Kingsmill That Elizabeth is barred by this Fine by the Statute of 4 H. 7. 32 H. 8. XXV 7 Eliz. In the Common Pleas. THe Case was this Grandfather Father and Son Lands are given to the Grandfather for life the remainder to the Son in tail The Grandfather and Father joyn in a Feoffment with warranty The Feoffee makes a Lease for years and afterwards conveys the Land to the Grandfather for life the remainder to the Father in Fee The Grandfather and Father die The Son entreth and puts out the Lessee Weston was of Opinion That the Entry of the Son was lawful for it was the Feoffment of the Grandfather and the Confirmation of the Father and the Warranty of the Grandfather collateral to the Father and his Estate but when the Land is re-assured as above is said and afterwards the Son entreth after the death of the Grandfather and Father now he is remitted and the warranty gone by taking back the Estate and the Son is now seised of as high an Estate as his Ancestor was at the time that he departed with the Land by which the warranty is determined Dyer contrary Here had not been any discontinuance if the warranty had not been for the Father was never seised by force of the entail And I conceive that against a warranty collateral one cannot be remitted for it binds the Right as a Fine with Proclamation after the Statute of 4 H. 7. And I conceive that during the possession of the Grandfather the Warranty is but suspended and not determined and although that by the death of the Grandfather it be determined yet having respect to the Lessee it is in being for his Estate is derived out of the Estate which was warranted and which descends with the Warranty Bendloes One cannot make Title by a Collateral Warranty only c. XXVI Simonds Case 8 Eliz. In the Common Pleas. IN a Formedom the Tenant vouched Rose Simonds as Daughter and Heir of Henry Simonds Clerk and because she was within age he prayed that the Parol might demur Bendloes recited the Case to be this A Fine was levied of the Lands to Henry Simonds upon Condition c. who rendred back the Land to the Conusor by the same Fine and that the said Henry Simonds never had any possession or seisin but that which he had mean between the Conusans and the Rendee of which possession the Wife should not be endowed And therefore it is a good Counter-plea to say That the said Rose nor any of her Ancestors c. for that was not such a Seisin upon which Warranty might rise and so if a Feoffment in Fee had been made to the said Henry Simonds to the use of another And of that Opinion was Dyer Iustice for Henry Simonds had not any possession by force of which he might be vouched Welsh contrary For the Fine imports in it self that he hath a Fee and that he hath granted and rendred the same Fee and this Fine amounts to a Feoffment Dyer said to Bendloes The best way for you is to plead the Counter-plea generally and if he estop you by the Fine to demur upon it Afterwards Bendloes moved another matter viz. Henry Simonds was a Priest and therefore Rose is a Bastard and if so then she cannot be vouched as Heir But I would not trust the Bishop to Certifie the Bastardy if I should plead it generally and therefore I will plead the special matter and so it shall be tryed by the Country Dyer and Welsh So you may do if you please and yet if you plead general Bastardy it shall be tryed by the Country for Rose is not a party to the Writ and in such case Bastardy shall be tryed by the Country XXVII Mich. 8
of Bargain and Sale and he hath not election to take the Land by way of Livery But when all is in one Deed and takes effect equally together in such case the Grantee hath Election but here in this Case the Bargain and Sale the Deed being Inrolled doth prevent the Livery and taketh his full effect before And by Wray and Catline If he in the Reversion upon a Lease for years grants his Reversion to his Lessee for years by words of Dedi Concessi Feoffavi and a Letter of Attorny is made to make Livery and Seisin the Donee cannot take by the Livery for that the Lessee hath the Reversion presently XL. Mich. 14 Eliz. IN an Ejectione Firmae the Case upon Evidence appeared to be thus The Bishop of Rochester Anno 4 E. 6. Leased to B. for years rendring Rent and afterwards granted the Reversion to C. for 99 years rendring the ancient Rent To have from the day of the Lease without impeachment of Waste which Grant was confirmed by the Dean and Chapter But B. did not Attorn And for default of Attornment It was holden by the whole Court That the Lease was void for it is made by way of grant of a Reversion and to pass as a Reversion But by Catline If the Bishop had granted the Reversion and also demised the Land for 99 years it should pass as a Lease to begin first after the former Lease determined And as to the Attornment it was given in Evidence That B. after the notice of the Grant to C. spake with C. to have a new Lease from him because he had in his Farm but 8 years to come but they could not agree upon the price And the Iustices were of Opinion That that was an Attornment because he had admitted the said C. to have power to make a new Lease unto him Also the said B. being in Company with one R. seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromley Sollicitor That is no Attornment being spoken to a stranger Barham contrary because he was present And it was held by the whole Court to be a good Attornment But it was holden That if the Attornment was not before that the Bishop was translated to Winchester That the Lease should be void and although that the Confirmation of the Dean and Chapter was before the Attornment so as no Estate had vested in C. yet it is good enough for the assent of the Dean and Chapter is sufficient whether it be before or after by Catline Southcote and Whiddon Wray contrary XLI Mich. 14 Eliz. THe King seised of a Mannor to which an Advowson is appendant a Stranger presents and his Clerk is in by 6 months The King grants the Mannor with all Advowsons appendant to it to B. The Incumbent dieth The Grantee may present For the Advowson was always appendant and the Inheritance thereof passeth to the Grantee and is not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have a Quare Imped of the first disturbance for that presentment doth not pass to him being a thing in Action without mention of it in his Grant. And if the Patentee bringeth a Quare Impedit of the second Avoydance he shall make his Title by the presentment of the King not making mention of the usurpation yet if the Bishop presenteth for Lapse in the case of a common person he ought to make mention of it for that is his Title to the Presentment c. XLII Humfrey and Humfrey's Case Mich. 14 Eliz. In the Common Pleas. BEtween Humfrey and Humfrey the Case was That the Defendant in Debt after Iudgment aliened his Land and the Plaintiff sued forth Execution upon the new Statute And the Court of the Request awarded him to the Fleet because that he sued forth Execution Whereupon the Iustices of the Common Pleas awarded a Habeas Corpus and discharged the Plaintiff It was said by Bendloes Serjeant That the Chancery after Iudgment could not enjoyn the party that he shall not sue forth Execution for if they do the party shall have his remedy as above XLIII Mich. 14 Eliz. In the Kings Bench. A Man seised of Copyhold Lands Deviseth a certain parcel of them to his Wife for life the remainder to his Brother and his Heirs And afterwards in the presence of 3 persons of the Court said to them I have made my Will and I have appointed all things in my Will as I will have it And afterwards he said And here I surrender all my Copyhold Lands into your hands accordingly And it was moved If all his Copyhold Lands should be to his Wife or by those which were specified in the Will. And the Opinion of the whole Court was That the Surrender is restrained by the Will so as no more passeth to the Wife upon the whole matter but that which is mentioned in the Will and the general words shall not enlarge the matter XLIV Hill. 14 Eliz. In the Common Pleas. LAnds were devised to the Mayor Chamberlain and Governors of the Hospital of St. Bartholomew in London whereas in truth they are Incorporated by another name yet the Devise is good by Weston and Dyer which Manwood also granted because it shall be taken according to the intent of the Devisor And it was said by Weston If Lands be devised to A. eldest Son of B. although that his name be W. yet the Devise to him is good because there is sufficient certainty c. XLV Pasch 14 Eliz. In the Common Pleas. THe Case was A. seised of Lands deviseth the same to his Wife for life the remainder to his three younger Sons and to the Heirs of their bodies begotten equally to be divided amongst them by even portions and if one of them die then the other two which survive shall be next Heirs The Devisor dieth One of the Sons dieth and by Dyer and Weston Iustices The 3 Brothers were Tenants in Common in remainder But contrary it is where such a Devise is made between them To be divided by my Executors c. there they are Ioynt-Tenants until the division is made but here although the words are Equally to be divided the same is not intended of a Division in fact and possession but of the Interest and Title For if a Man bringeth a Praecipe quod reddat de una parte Manerii de D. in 7 parts to be divided it is not intended divided in Possession but divided in Interest and Title And it was said by the said Iustices That although one of the Brothers dieth the two surviving Brothers have his part by purchase and not by descent and they are Ioynt-Tenants of it And this was the Case of one Webster and Katherine his Wife the late Wife of John Bradbury XLVI Pasch 14 Eliz. In the Common Pleas. THe Case was Lessee for years of the
willed that his Son should have all his Mannors and Lands and should pay his Debts and should give certain sums of Monies for the Marriage Portions of his Daughters And the Question which was moved to the Court was Whether the first part of his Will That is to say That Hurlock and the others should have his Lands c. were void or not by the later words of his Will Dyer Iustice said That the last words of the Will did well expound the meaning of the first words and that the Will should be performed as it might be And afterwards Harper said That upon this matter Hurlock and the others had had a Decree in the Court of Wards to have the whole Lands during the years and not two parts of the Lands only Dyer Iustice said That the Will of Sir Tho. Umpton which was made mean between the Statutes of 32 H. 8. and 34 H. 8. and which is excepted by the same Statute that it should not be construed in other form than according to the first Statute was Of all his Lands And upon a Demurrer argued It was adjudged That the Will was good of two parts although that by the Will it was not divided For where a Man hath a Warrant to do a thing and he doth it and more so as he exceeds his Warrant yet it is good for that part for which it is warranted and void for the rest As if a Man makes a Warrant of Attorny to make Livery and Seisin of the Mannor of Dale and he makes Livery of the Mannors of Dale and Sale it is good for the Mannor of Dale and void for the Mannor of Sale. The Case was in a Writ of Partition And afterwards the Record was removed by a Writ of Error supposing that this Court had Erred and the Iudgment was affirmed by three of the Iustices of the Kings Bench. But because there was a Discontinuance in the Record which was erronious for that the first Iudgment was reversed but not for any other cause And such was the meaning and intent of the Statute of 32 H. 8. before the making of the Statute of 34 H. 8. of Explanation of Wills. And therefore here in the principal Case it was holden That the Will was good for two parts both to the Wife and also to Hurlock and the others And it was holden That by the Intent of the Will that the Son was to pay such sums of Monies a Hurlock was to have paid so as the Will was not for the advantage of the Heir but to be construed according to the meaning of Philpot That if Hurlock could not have the Lands c. that then the Son should have them but with such charge as aforesaid and it was no Intent to subvert the first part of the Will if the same might stand with the Law. And so it was adjudged LVII Mich. 15 Eliz. In the Common Pleas. THe Case was this A Man makes a Lease for 30 years More Rep. 94 Post 55. Winch. Rep. 5. and bargains and sells the Woods in and upon the Premisses to the Lessee and that he might carry them off the Lands during the time of 30 years The Lessee cut down all the Woods and afterwards other Wood grew up from the Stocks and the Lessee cut them also within the Term and the Lessor brought an Action of Waste for cutting of the new Wood. And it was moved by Meade Hob. Rep. 132. Serjeant If the Action of Waste would lie or not Harper Iustice Is the Bargain de bosco subbosco growing in and upon the Premisses Meade No but all his Woods in and upon the Premisses Harper The Grant is in the present tense in praesenti so as he cannot have that which shall grow there after And if he would grant all his Woods which should grow in time to come the Grant should not be good because it is not of a thing in esse And if a Man will grant all his Wood growing upon Black-Acre and there be then no Wood he cannot have any thing although that afterwards Woods grow there and if his meaning had been That he should have the Wood which should there after grow he would have expressed the same in another form Mounson If a Man grants all his Hay growing upon his Land Hob. 132. shall he have that which is growing there after No truly And if he grant all the Wooll which is growing upon his Sheep shall he have more than that which groweth this year Meade No truly But if he had granted all the Wooll growing upon the Sheep for 20 years then the same is like to our case for he hath granted that he may carry the Wooll during the 30 years Harper The same is but a Liberty to fell the Trees which where growing at the time of the Sale and to carry them when he pleaseth and not to give other Trees or Wood which should there after grow LVIII Mich. 15 Eliz. In the Common Pleas. LOvelace Serjeant moved this Case to the Court That an Assise was brought of the Office of Registership in the County of Devon And he shewed How that the Bishop of Exeter granted the Office and shewed the name of the Bishop And that after William Alley Bishop there granted the same Office after the death of the first Grantee to the Plaintiff And further he shewed That the Bishop might grant the Office ad Idoneam personam And because he doth not say in his Plaint That the person to whom it was granted is idonea persona I conceive that the Plaint is not good for if there be no such person which can exercise the Office he shall not have it For that is a Condition which is annexed to the Office that he be a fit person who shall take it And the Prothonotaries of this place ought to have skill in that which appertaineth to their Office For if such an Office should be given to a Courtier who hath not skill in that which appertaineth to the Office nor knowledge how to execute he shall not have it Also he said That he hath not shewed that the first Bishop is dead or that he hath resigned or whether that he be deprived and therefore it shall be intended that he continueth unless the contrary be shewed And then the Grant made by Alley to the Plaintiff cannot be good And for these causes and for others he prayed to know the Opinion of the Court. Dyer Iustice The matter is not before us and wherefore should we give our Opinions to serve the fancy of every person and to resolve the doubts of every Court But if the matter laid come before by Adjournment for difficulty because the Iustices of Assise are of divers Opinions or that they doubted of any thing upon such difficulty and adjournment we use to shew our Opinions and to take some pains to search our Books to Resolve the doubts but when we have not any thing before us
Customs stand with Reason And so in 5 H. 7. Where a Man prescribes That for the Pasture which the Beasts of the Tenant have taken in his Lands in the day-time that he have the Foldage of them upon his said Lands in the Night to manure his Lands is a good prescription because the party hath for it Quid pro Quo. And so where a Man prescribes to have a Farthing of every one who passeth over his Land the same is called Toll traverse and is good And so in 7 H. 4. Where a Man prescribes in Common by reason of Vicinage it is good for though it cannot be of Common Right yet because each hath Quid pro Quo it is good And so is the Custom for Fishermen to dry their Nets upon the Banks of the Lands of other Men lying upon the Sea Coasts because it is for the Common wealth and every Man hath an advantage by it but if a Man should prescribe to Fowle there upon the Lands of another that were not good Meade contrary That case is as it hath been put and divers Cases of the Common Law Custom and Statute Laws have been shewed And by common Intendment it is intended that need doth require the making of the By-Law for otherwise they would not have made it and there needs not any averment that there was need of it for that shall be taken by intendment As 19 E. 4. A Man counts of the Grant of the next Avoydance and the Count is good without shewing that that was the next Avoydance but yet it would have been better if it had been expressed And 21 H. 7. In Trespass the first day of May the Defendant pleads the Licence of the Plaintiff without shewing that it was for the same Trespass and yet it shall be intended when he pleads a Licence for the same day that it was for the same Trespass And as to the Case put upon the Statute of 1 R. 3. it hath been ruled otherwise for it shall be shewed on the other side that he was within age as it appeareth by 10 13 H. 7. Also he said that the Court here shall intend that there was a necessity sufficient without expressing of it and if there was not then it ought to be alledged on the other side As 15 H. 7. An Annuity is granted until he was advanced to a Benefice the Plaintiff shall not need to shew it but that shall come on the Defendants part And the Statute which is That no Cattel of the Plough shall be distrained where the party hath other Cattel of which a Distress may be taken there the party needs not to alledge that he had other Cattel or other Goods And as to that which hath been said That it was the better Order that needs not for the Defendant himself was one of the makers of the Order and when By-Laws are made they shall not extend but to the Tenants within the Mannor where they are made and to such only as have Lands there and not to the Lands of others which are out of the Mannor and the Defendant in this case shall not be received to say but that this is a good Custom and Order because he is a party to it and was the maker of it and that there was then a necessity for the making of it for the better ordering of the Lands and that especially when as the Defendant himself was a party to it And as to that which is said That Seisin is alledged in the Lord Cromwell in 6 E. 6. and it is not alledged that the Seisin did continue in him until 13th of this Queen It shall be intended that he continued seised until the contrary be shewed As in 11 H. 7. A Man prescribed to have Common by reason of the House c. The Avowant doth not say that he was seised of the House at the time c. of the disseisin of the Common because he once alledged Seisin of the House and that Seisin shall be intended to continue unto the time of the disseisin And so 10 H. 7. A Prior Domus Ecclesiae de C. brought Waste and supposed that it was to the disenheresin of the House and did not say praedict Domus and yet it was good and shall be referred to the said Priory And so here when he saith that he was Lord and that the By-Law was made as before and a penalty imposed and a Distress taken by the Bailiff of the Lord Cromwell for not observing the By-Law and payment of the sum assessed all being put together makes a sufficient certainty and that the Lord Cromwell continued his Seisin of the Mannor and Land And as to that which hath been said That the By-Law made and the Custom alledged to distrain in the Lands of any Man for the Offence of another is not reasonable and against the Law To that he said That the Tenants here had authority to make By-Laws and by their consents have bounden themselves to the observing and performance of them and therefore shall not now be received to say That the By-Law made by themselves was against the Law. And he said That the Customs in some places are Where there are Waste Lands that they may make By-Laws That if any Tenant or person dig Turfs in the same Waste that the Lord may distrain for such offence within any place of the Mannor and the Cattel of any person Quaere of it The Principal Case was Adjourned LXIV Mountford and Catesbys Case Mich. 15 Eliz. In the Common Pleas. AN Action upon the Case was brought by Mountford against Catesby Dyer 328. Vaugh. Rep. 120. And the Plaintiff declared That the Defendant covenanted assumed and promised in Consideration of a certain sum of Mony to him paid and in Consideration of the payment of a Rent of certain Lands demised to the Lessee That he should peaceably and quietly enjoy the same without Interruption of any person and he was ousted by a stranger And the matter aforesaid was found by special Verdict And it was argued by Lovelace Serjeant and he prayed Iudgment for the Plaintiff And he said That there is a difference when it is said that a Man shall hold and enjoy peaceably and quietly As in Case where one warrants Land there if he be ousted by a stranger who hath not any Title to the Land he shall have an Action of Trespass against him But a Man by word or Covenant may bind himself to that which he is not bound to do by the Law. As if the Covenant and Promise be That he shall leave the Houses in as good plight as he found them there although the Law doth not bind the party to re-edifie the Houses in case they be overthrown by tempest of Wind or that they be destroyed by Enemies yet by his special Covenant he shall be bound to re-edifie them Meade contrary And that this promise shall not be taken strictly against the Lessor Hob. Rep.
they had not any Lands in the said Town but the said Mannor And the Ejectione firmae was brought of that Mannor in Kent and from thence the Visne came and all the special matter aforesaid was found by Verdict And Exception was taken to the Verdict because they have found generally That the Master and Scholars had not any thing in the said Town of Laberhurst but the said Mannor Whereas they ought to have said That they had not any thing in the said Town in the County of Kent For they could not take notice what Lands the Master and Scholars had in that part of the Town which was in the County of Sussex And of that Opinion the whole Court seemed to be But Quaere of it for it was adjourned XCVI Hinde and Lyons Case Mich. 19 Eliz. In the Common Pleas. Post 70. Dyer 124. 2 Len. 11. IN Debt by Hinde against one as Son and Heir of Sir John Lyon who pleaded Nothing by descent but the third part of the Mannor of D. the Plaintiff replyed Assets and shewed for Assets That the Defendant had the whole Mannor of D. by descent Vpon which they were at Issue And it was given in Evidence to the Iury That the said Mannor was holden by Knights-Service And that the said Sir John the Ancestor of c. by his Will in writing Devised the whole Mannor to his Wife until the Defendant his Son and Heir should come to the age of 24 years And that at the age of his Son of 24 years his Wife should have the third part of the said Mannor for her life and his Son should have the residue And if that his said Son do die before he come to his said age of 24 years without Heir of his body that the Land should remain to J.S. the remainder over The Devisor died The Son came to the age of 24 years The Question was If the Son had an Estate in tail for then for two parts he was not in by descent And it seemed to Dyer and Manwood That here was not any Estate in tail for no tail shall rise if not that the Son die before his said age and therefore the tail shall never take effect and the Fee-simple doth descend and remain in the Son unless that he dieth before the age of 24 years and then the Estate vests with the remainder over but now having attained to the said age he hath the Fee and that by descent of the entier Mannor and then his Plea is false That but the third part descended And a general Iudgment shall be given against him as of his own Debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from his Ancestor as his other Lands And a Capias also lieth against him But Manwood Iustice conceived That if a general Iudgment be given against the Heir by default in such cause a Capias doth not lie although it lieth in case of a false Plea. Dyer contrary And the Writ against the Heir is in the debet detinet which proves That in Law it is his own Debt And he said That he could shew a President where such an Action was maintainable against the Executors of the Heir XCVII Mich. 19 Eliz. In the Common Pleas. THe Case was A. seised of Lands in Fee 2 Len. 154. Hob. 285. Dyer 329. by his Will in writing granted a Rent-Charge of 5 l. per annum out of the same to his younger Son towards his education and bringing up in Learning The Question was If in pleading the Devisee ought to aver That he was brought up in Learning And it was holden by Dyer Manwood and Mounson Iustices That there needs no such Averment for the Devise is not Conditional and therefore although he be not brought up in Learning yet he shall have the Rent And the words of the Devise are Towards his bringing up And the Devisor well knew that 5 l. per annum would not and could not reach to maintain a Scholar in Learning Diet Apparel and Books And this Rent although it be not sufficient to such intent yet the Son shall have it And by Dyer Three years past such Case was in this Court scil Two were bounden to stand to the Award of certain persons Who awarded That the one of them should pay unto the other 20 s. per annum during the Term of 6 years towards the education and bringing up of such an Enfant and within two years of the said Term the Enfant died so as now there needed not any supply towards his Education Yet it was holden That the said yearly sum ought to be paid for the whole Term after For the words Towards his Education are but to shew the intent and consideration of the payment of that sum and are not the words of a Condition XCVIII Mich. 19 Eliz. In the Common Pleas. IN a Quare Impedit The Plaintiff declared That the Defendant was seised in Fee of the Mannor of Orchard alias Lydcots-Farm to which the Advowson is appendant and presented such a one c. And afterwards leased to the Plaintiff the said Mannor per nomen of the Mannor of Orchard alias Lydcots-Farm with the appurtenances for 21 years and the Church became void c. And the truth of the Case was That there is the Mannor of Orchard and within the said Mannor the said Farm called Lydcots Farm parcel of the said Mannor and the Lease was of the said Farm and not of the said Mannor and so the Advowson remained to the Lessor as appendant to the Mannor In this Case It was moved What thing the Defendant should traverse Dyer He shall say That the Advowson is appendant to the Mannor of Orchard absque hoc that it is appendant to the Farm of Lydcots But it seemed to Manwood That the Defendant shall say That the Advowson is appendant to the Mannor of Orchard and that the Farm of Lydcots is parcel of the said Mannor and that he Leased to the Plaintiff the said Farm with the appurtenances absque hoc that the Mannor of Orchard and the said Farm are all one For if he traverse the Appendancy to the Farm of Lydcots then he confesseth That the Mannor and Farm are all one c. But Dyer doubted of it XCIX Kirlee and Lees Case Mich. 19 20 Eliz. In the Common Pleas. IN Action upon the Case upon Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would marry the Daughter of the Defendant did promise to find to the Plaintiff and his said Wife convenient apparel meat and drink for themselves and two servants and Pasture also for two Geldings by the space of 3 years when the Plaintiff would require it And further shewed That Licet the Plaintiff had married the Defendants Daughter and that he had required the Defendant to find ut supra c. the Defendant refused c. The Defendant
Plaintiff had acquitted and discharged him of the Reparations Vpon which the Plaintiff demurred in Law. Manwood The same is an Acquittal and Discharge of the Reparations as well for the time past as for the time to come by force of the said Covenant and amounts to as much as if he had Released the Covenant And it was moved If the Covenant being broken for want of Reparations If now that Acquital and Discharge or Release of the Covenant should take away the Action upon the Obligation which was once forfeited before And it was the Opinion of Manwood That it should not For if one be bound in an Obligation for the performance of Covenants and before the breach of any of them the Obligee releaseth the Covenants and afterwards one of the Covenants is broken the Obligation is not forfeited for there is not now any Covenant which may be broken and therefore the Obligation is discharged But if the Release had been after the Covenant broken otherwise all which Dyer and Mounson Concesserunt CVI. Mich. 20. Eliz. In the Common Pleas. HVsband and Wife seised in the right of his Wife of certain Customary Lands in Fee he and his Wife by Licence of the Lord make a Lease for years by Indenture rendring Rent have Issue two Daughters The Husband dieth The Wife takes another Husband and they have issue a Son and a Daughter The Husband and Wife die The Son is admitted to the Reversion and dieth without Issue It was holden by Manwood That this Reversion shall descend to all the Daughters notwithstanding the half-blood For the Estate for years which is made by Indenture by Licence of the Lord is a Demise and Lease according to the Order of the Common Law and according to the nature of the Devise the possession shall be adjudged which possession cannot be said possession of the Copyholder For his possession is Customary and the other is meer contrary therefore the possession of the one shall not be said the possession of the other and therefore there is no possessio fratris in this Case But if he had been Guardian by the Custom or this Lease had been made by surrender There the Sister of the half-blood should not inherit And Meade said That the Case of the Guardian had been so adjudged Mounson to the same intent And if the Copyhold descend to the Son he is not Copyholder before admittance 1 Len. 174 175. but he may take the profits and punish Trepass c. CVII Hinde and Lyons Case Hill. 20 Eliz. In the Common Pleas. 2 Len. 11. Dyer 124. Ante 64. DEbt by Hinde against one as Son and Heir of Sir John Lyon who pleaded Nothing by descent but the third part of the Mannor of D. The Plaintiff replyed Assets And shewed for Assets That the Defendant had the entire Mannor of B. by descent Vpon which they were at Issue And it was given in Evidence to the Iury That the Mannor was holden by Knights-Service and that the said Sir John the Ancestor of the Defendant by his Will in writing devised the whole Mannor to his Wife until the Defendant his Son and Heir should come to the age of 24 years And that at the age of the Son of 24 years his Wife should hold the third part of the said Mannor for the Term of her life and his Son should have the residue And if his Son do die before he come to the age of 24 years without Heir of his body that the Land should remain over to J.S. the Remainder over to another The Devisor died the Son came to the age of 24 years Dyer and Mounson Iustices conceived That here was not any Estate tail and then for two parts he is not in by descent For no Estate tail shall rise unless that the Son dieth before his said age and therefore the Tayl never took effect and the Feesimple descends and remains in the Son if not that he dieth before the age of 24 years and then the whole vests with the Remainder over but now having attained the said age he hath a Fee and that by descent of the whole Mannor and then his Plea is false that but the third part descended And a general Iudgment shall be given against him as of his own debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from the same Ancestor as of his other Lands And a Capias lieth also against him But Manwood Iustice conceived That if a general Iudgment be given against the Heir by default in such case a Capias doth not lie although in case of a false Plea it lieth But Dyer held the contrary And the Writ against the Heir is in the debet detinet which proves That in Law it is his own Debt And he said That he could shew a President where such an Action was maintainable against the Executor of the Heir CVIII Hill. 20 Eliz. In the Common Pleas. A Seised of Lands in Fee Devised them to his Wife for life and after her decease she to give the same to whom she will Latch 9,39 had issue two Daughters and died The Wife granted the Reversion to a stranger and committed Waste And the two Daughters brought an Action of Waste It was holden by the Iustices That by that Devise the Wife had but an Estate for life but she had gained authority to give the reversion by his Will to whom she pleased And such a Grantee should be in by A. and his Will For A. had given expresly to his Wife for life and therefore by Implication she should not have any further Estate But if an express Estate had not been appointed to the Wife by the other words an Estate in Feesimple had passed CIX Hill. 20 Eliz. In the Common Pleas. THe Lessor Covenanted with his Lessee That the Lessee should enjoy the Lands demised without any lawful Eviction And afterwards upon a Suit depending in Chancery by a stranger against the Lessor for the Land demised The Chancellor made a Decree against the Lessor and that the stranger should have the Land. It was moved If that Decree were a lawfull Eviction by which the Covenant was broken It was holden by the Lord Dyer That the same was not any Eviction For although that in Conscience it be aequum that the said stranger have the possession yet the same is not by reason of any right paramount the title of the Lessor which was in the party for whom it was decreed CX The Marquess of Northamptons Case Hill. 20 Eliz. In the Common Pleas. PArre Marquess of Northampton took to Wife the Lady Bouchier the Heir of the Earl of Essex 1 Roll. 430. who levied a Fine of the Land of the said Lady Sur Conusans de droit c. with a Grant and render to them for life the Remainder to the right Heirs of the body of the Lady And afterwards by Act of
him any other surety for his Debt he is contented so to do And John Stampe offered to the said P. the said B. and C. and he accepted the same and at the request of the said John Stampe granted his Interest to them 2 Feb. 22 Eliz. P. having notice of the Grant before made to the said G. Vpon which G. enformed against P. upon the Statute of 32 H. 8. It was holden in this Case by Periam and Meade Iustice That P. was not within the penalty of the Statute For P. granted his Interest to B. and C. at the suit and at the request of John Stampe who was the Mortgager for assurance of his Debt which he ought to them And therefore it shall not be intended that that Grant was made for any maintenance or for any unlawful cause against the Statute And also John Stampe who granted unto P. had possession and received the Issues and Profits of the said Lands for a whole year before the Grant notwithstanding that he was not in possession by a whole year next before the day of the date of the Grant. Godb. 450. As if a Man be in possession or hath received the Issues and Profits for a whole year and afterwards a stranger enters upon him and hath the possession for the space of a Quarter of a year or half a year yet he who was in possession by a year before may grant his Interest without danger of the Statute c. CXX Pasch 24 Eliz. In the Kings Bench. NOte Per totam Curiam 2 Len. 35. A man made his Will in this manner scil I Will and Bequeath my Land to A. And the name of the Devisor is not in the whole Will Yet the Devise is good enough by Averment of the name of the Devisor And for proof that the same is his Will If one lying in extremis having an intent to devise his Lands by Word makes such devise but doth not command the same to be put in writing but another without the knowledge or Commandment of the Devisor putteth it in writing in the life-time of the Devisor the same is a good Devise For it is sufficient if the Devise be reduced into writing during the life of the Devisor CXXI Pepy's Case Pasch 25 Eliz. In the Common Pleas. WAste was brought by F. and his Wife against Pepy and declared That the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded That the said Feoffment was to the use of himself and his Heirs in Fee c. absque hoc that it was to the uses as in the Count Vpon which they were at Issue And it was found by Verdict That the said Feoffment was to the uses contained in the Count but further found That the Estate of the Defendant by the Limitation of the use was priviledged with the impunity of Waste scil without Impeachment of Waste It was moved If upon that Verdict The Plaintiff should have Iudgment Anderson and Rhodes Iustices conceived That he should for that the matter in Issue is found for the Plaintiff and that is the Feoffment to uses contained in the Count and this impunity of Waste is a Forreign matter not within the Charge of the Iury and therefore the finding of the same is but matter of surplusage As if I plead a Feoffment of J. S. to which the other pleads That he did not enfeoff and the Iury find a Conditional Feoffment the Court shall not respect the finding of the Condition for it was not in Issue and no advantage shall be ever had of such a Liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unque seisi que Dower c. The Tenant pleaded That before the Coverture of the Demandant one A. was seised and gave the Land whereof Dower is demanded to the Husband of the Demandant in tail who made a Feoffment A stranger took the Demandant to Wife took back an Estate in Fee and died seised having Issue inheritable Now although upon the truth of the matter she is nâ—t Dowable de jure yet forasmuch as the parties were at Issue upon a point certain no forrein nor strange matter not in Question betwixt the parties shall be respected in the point of Iudgment But if the Defendant had pleaded it in Bar he might have foreclosed the Demandant of her Dower See 38 Ass 27. 47 E. 19. In a Praecipe quod reddat upon the default of the Tenant came one and shewed How that the Tenant who made default was but Tenant for life of the Lands in demand the Reversion in Fee to himself and prayed to be received The Demandant counterpleaded the Resceit Dicendo That the Tenant had Fee c. Vpon which Issue was taken And it was found That neither the Tenant nor he who prayed to be received had any thing in the Land. And in that Case The Court did not regard the matter which was superfluous in the Verdict For they were at Issue upon a point certain scil whether the Tenant was seised in Fee For it is confessed of the one side and of the other that he had an Estate for life and of that matter the Iury was not charged and they are not to enquire of that And so it is found against the Demandant by which the Resceit was granted See 7 H. 6. 20. The parties were at Issue upon a Dying seised which is found by Verdict but the Iury find further That the other party made continual Claim The said continual Claim shall not be respected in point of Iudgment because it was not pleaded in Avoidance of the Disceit c. Windham Iustice to the contrary because it appeareth to us upon the Verdict That the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue the Plaintiff declares upon a Baylment by his own hands The Defendant pleads Ne Detinue pas the Iury find the Detinue but upon Baylment by another hand In that case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Anderson Rhodes and Periam conceived That in the principal Case Iudgment should be given for the Plaintiff For in no case the party shall have advantage of that liberty of impunity of Waste if he doth not plead it And the Iurors are not to meddle with any matter which is not in issue and if they do It is but matter of surplusage and to no purpose and afterwards Iudgment was given for the Plaintiff See the Number Roll Pasch 25 Eliz. Rot. 602. CXXII Skipwith's Case Pasch 20 Eliz. In the Common Pleas. IN an Action of Trespass It was found by a special Verdict Godbolt 14 143. Co. of Copy-holds 94. That the Lands were Copy-hold Lands That the Custom of the Mannor was That Quaelibet Foemina Viro Co-operta poterit
confirms it is a void Confirmation And 7 E. 6. Br. Grants 154. A Man possessed of a Lease for 40 years grants so many of the said years which shall be to come at the time of his death it is a void Grant for the incertainty Afterwards Shuttleworth moved another point viz. The Plaintiff hath declared of a Trespass done 1 Januarii 23 Eliz. The Defendant shews in Evidence a Lease for years to him made 14 Januarii the same year which is 13 days after the Trespass whereof the Plaintiff hath declared and it shall not be intended that the Plaintiff had another Title than that which he hath alledged and forasmuch as he hath not disclosed in himself any Title Tempore transgressionis the Plaintiff should punish him in respect of his first possession without any other Title And although it may be Objected That where the Defendant hath given in Evidence That Williamson leased to the Defendant that is not sufficient and the words subsequent 14 Januarii are void as a nugation and matter of surplusage Truly the Law is contrary for rather those words ante Transgressionem shall be void because too general and shall give way to the subsequent words after the videlicet because they are special and certain As the Case late adjudged The Archbishop of Canterbury leased three parcels of Land rendring Rent of 8 l. per annum viz. for one parcel 5 l. for another 50 s. and for the third 40 which amounts to 9 l. 10 s. It was adjudged That the videlicet and the words subsequent concerning the special reservation of the Rent was utterly void because contrary to the premisses which were certain viz. 8 l. and that the Fermor should pay but 8 l. according to the general reservation but in our case the words precedent are general i. e. ante Transgressionem and therefore the words subsequent which are special and certain shall be taken and the general words rejected As in Trespass the Defendant pleads That A. was seised of the Land where and held it of the Defendant and that the said A. 1 die Maii 6 Eliz. aliened the said Land in Mortmain for which he within a year after viz. 4 Maii Anno 7 Eliz. entred now the same is no bar for upon the evidence it appeareth that the Lord hath surceased his time and the words within the year shall not help him for they are too general and therefore at the subsequent words viz. c. Cook on the Defendants part took Exception For it appeareth here upon the Evidence of the Defendant which is confessed by the Demurrer of the Plaintiff That upon this matter the Plaintiff cannot punish the Defendant for this Trespass for he was not an immediate Trespassor to the Plaintiff for the Plaintiff hath declared upon a Trespass done 1 Januarii 23 Eliz. And it is given in Evidence on the part of the Defendant and confessed by the Plaintiff c. That 22 Eliz. Cordell Savell levied a Fine to Williamson by force of which the said Williamson entred and was seised and so seised 14 Januarii 23 Eliz. leased to the Defendant Now upon this matter the Plaintiff cannot have Trespass but the Defendant for Williamson was the immediate Trespassor to him for he entred 22 Eliz. And at length after deliberation had of the premisses by the Court The Court moved the Plaintiff to discontinue his suit and to bring de novo a new Action in which the matter in Law might come into Iudgment without any other Exception But the Plaintiff would not agree to it Wherefore it was said by Wray Chief Iustice with the consent of his Companions Begin again at your peril for we are all agreed That you cannot have Judgment upon this Action CXXVI Mich. 26 Eliz. In the Kings Bench. THe Case was A. made a Feoffment in Fee to the use of his younger Son in tail and after to the use of the Heirs of his body in posterum procreand and at the time of the Feoffment he had Issue two Sons and after the Feoffment had Issue a third Son The younger Son died without Issue Vpon a Motion at the Bar it was said by Wray Iustice That after the death without Issue of the second Son the Land should go to the third Son born after the Feoffment for this word in posterum is a forcible word to create a special Inheritance without that it had been a general tail CXXVII Smith and Smith's Case Mich. 26 Eliz. In the Kings Bench. LAmber Smith Executor of Tho. Smith brought an Action upon the Case against John Smith That whereas the Testator having divers Children Enfants and lying sick of a mortal sickness being careful to provide for his said Children Enfants The Defendant in Consideration the Testator would commit the Education of his Children and the disposition of his Goods after his death during the minority of his said Children for the Education of the said Children to him promised to the Testator to procure the assurance of certain Customary Lands to one of the Children of the said Testator And declared further That the Testator thereupon Constituted the Defendant Overseer of his Will and Ordained and appointed by his Will That his Goods should be in the disposition of the Defendant and that the Testator died and that by reason of that Will the Goods of the Testator to such a value came to the Defendants hands to his great profit and advantage And upon Non Assumpsit pleaded It was found for the Plaintiff And upon Exception to the Declaration in Arrest of Iudgment for want of sufficient Consideration It was said dy Wray Chief Iustice That here is not any benefit to the Defendant that should be a Consideration in Law to induce him to make this promise For the Consideration is no other but to have the disposition of the Goods of the Testator pro educatione Liberorum For all the disposition is for the profit of the Children and notwithstanding That such Overseers commonly make gain of such disposition yet the same is against the intendment of the Law which presumes every Man to be true and faithful if the contrary be not shewed and therefore the Law shall intend That the Defendant hath not made any private gain to himself but that he hath disposed of the Goods of the Testator to the use and benefit of his Children according to the Trust reposed in him Which Ayliffe Iustice granted Gawdy Iustice was of the contrary Opinion And afterwards by Award of the Court It was That the Plaintiff Nihil Capiat per Billam CXXVIII Amner and Luddington's Case Mich. 26 Eliz. Rot. 495. In the Kings Bench. A Writ of Error was brought in the Kings Bench by Amner against Luddington Mich. 26 Eliz. Rot. 495. 2 Len. 92. 8 Co. 96. And the Case was That one Weldon was seised and leased to one Peerepoint for 99 years who devised the same by his Will in this manner viz. I Bequeath to my Wife the
Lease of my House during her life and after her death I will it go amongst my Children unpreferred Peerepoint died his Wife entred and was possessed virtute legationis praedictae And took to Husband one Fulsehurst against whom Beswick recovered in an Action of Debt 140 l. Vpon which Recovery issued a Scire facias and upon that a Vendit ' Exponas upon which the Sheriff sold the Term so Devised to one Reynolds Fulsehurst died his Executor brought Error and reversed the Iudgment given against the Testator at the Suit of Beswick the Wife re-entred sold the Term and died Alice a Daughter of Peerepoint unpreferred entred And upon this matter found by Special Verdict in the Common Pleas The Entry of Alice was adjudged lawful Vpon which Iudgment Error was brought in the Kings Bench And it was argued upon the words of the Devise because here the Lease is not Devised but all his Interest in the thing Devised And it is not like to the Case between Welden and Elkington 20 Eliz. Plow Com. 519. where the Case was that Davies being Lessee for years Devised That his Wife should have and occupy his Land demised for so many years as she should live Nor unto the Case betwixt Paramour and Yardley 21 Eliz. Plow Com. 539. For there the Lessee Devised That his Wife should have the Occupation and Profits of the Lands until the full age of his Son For in those Cases the Land it self is quodam modo devised But in our Case all the Estate is Devised i. e. the Lease it self And also in those two Devises a certain person is named in the Will who should take the residue of the Term which should expire after the death of the Wife but in the Case at Bar no person in certain is appointed c. but the Devise as to that is conceived in general words Children unpreferred Ergo neither any Possibility nor any Remainder is in any person certain therefore all the whole Term is intirely in the Wife and then she may well dispose the whole But the whole Court was to the contrary and that in this Case the Possibility should rise well enough upon the death of the Wife to the Daughter Alice unpreferred Another Point was moved If the said Term being sold in the possession of the Wife of the Devisor by force of the Execution aforesaid If now the Iudgment being reversed the sale of the Term should be also avoided for now the party is to be restored to all that which he had lost And by Cook it was argued That notwithstanding the reversal of the Iudgment the sale should stand For the Iudgment for the Plaintiff in a Writ of Error is That he shall be restored to all that which he lost ratione Judicii praedict and the Iudgment was That the Plaintiff should recover 140 l. and therefore by the Iudgment in the Writ of Error he shall be restored to so much but the mean Act scil the Sale of the Lease shall stand and shall not be defeated and avoided As 7. H. 6. 42. A Statute Staple is bailed in Owel Mayn the Conusee brings Debt against the Bailee and hath Iudgment to recover the Statute and upon that Suit he had Execution and the Bailee brought a Writ of Error to reverse the Iudgment in Detinue yet the Execution shall stand and an Audita Querela doth not lie for the Conusor And see 13 E. 3. Fitz. tit Bar. 253. Accomptant found in arrearages committed to the Goal escaped and reversed the Iudgment given against him in the Accompt Ex parte talis yet an Action upon the Escape did lie And as to that Point the whole Court was of the same Opinion with Cook But that Point did not come in Iudgment For by the sale nothing passed but the Interest in praesenti which was in the Wife of the Devisor but the Possibility to the Children unpreferred was not touched by it And afterwards the Iudgment was affirmed CXXIX Bunny and Bunny's Case Hill. 26 Eliz. In the Common Pleas. IN an Action of Covenant between Bunny and Bunny the Plaintiff declared That the Defendant had Covenanted to find unto the Plaintiff Meat and Drink at the House of the Defendant The Defendant pleaded That he was always ready to find the Plaintiff Meat and Drink if he had come to his House to have taken it Et de hoc ponit se super Patriam And it was found for the Plaintiff And in this Case the Court awarded That the parties should replead For in all Cases where the Defendant pleads matter of excuse not contained in the Declaration as here he shall say Et hoc paratus est verificare in the perclose of his Plea But if the Defendant had pleaded That he had given the Plaintiff according to the Covenant Meat and Drink then the Conclusion of his Plea had been good Et de hoc ponit se super Patriam c. CXXX Hill. 26 Eliz. In the Kings Bench. IN an Action upon the Case supposing certain Goods to have come to the hands of the Defendant and that he had wasted them and shewed in what manner The Defendant pleaded Not guilty And it was found by Verdict That the Goods c. came to the Defendants hands and that he had wasted them but in another manner than the Plaintiff had declared It was the Opinion of the whole Court That upon this Verdict the Plaintiff should not have Iudgment As in an Action of Trespass the Plaintiff declared That the Defendant had distrained his Horse and travelled riding upon him And the Iury found That the Defendant did distrain the Horse and killed him In that case it was holden The Plaintiff should not have Iudgment So in an Action upon the Case the Plaintiff declares upon a Promise upon one Consideration and the Iury find the Promise but that it was upon another Consideration in such case the Plaintiff shall not have Iudgment Adjudged for the Defendant CXXXI Merry and Lewes's Case Pasch 26 Eliz. In the Common Pleas. MErry brought an Action upon the Case against William Lewes 2 Len. 53. Executor of David Lewes late Master of St. Katherines juxta London And Declared That the said David in Consideration That whereas Quaedam pars Domus fratrum sororum Sanctae Katherinae fuit vitiosa in decasu the said Merry ad requisitionem dicti Davidis repararet eandem promised to pay the said Merry all such monies as the said Merry expenderet in such Reparations And declared further That eandem partem Domus praedict reparavit c. And upon Non Assumpsit It was found for the Plaintiff It was Objected in Arrest of Iudgment That the Declaration is too general Quaedam pars Domus For the Plaintiff ought to have shewed especially what part of the House in certainty as the Hall Chamber or other Rooms But the Exception was disallowed Another Objection was Because he set forth in the Declaration That the
Williams and declared Whereas one J. had affirmed a Plaint of Debt against the Plaintiff in the Queens Court of her Mannor of D. in the County of Cornwall and demanded against him 100 l. And whereas the Defendant now Plaintiff sued a Corpus cum Causa c. and delivered the same to the now Defendant being then Vnder-Steward of the said Court That notwithstanding that the now Defendant proceeded to Iudgment and awarded Execution against the Plaintiff and his Sureties by force of which the Goods of the Plaintiff and of his Sureties were taken in Execution Vpon which Declaration the Defendant demurred in Law because the Iudgment was given in a Court-Baron which could not hold plea above the sum of 40 s. And notwithstanding that Exception and notwithstanding also that the Action was brought against the Vnder-Steward c. The Plaintiff had Iudgment to Recover CXLIV Denton and Goddard's Case Pasch 26 Eliz. In the Kings Bench. DEbt was brought against Denton Administrator of the Goods and Chattels of James Newton and the Plaintiff declared upon an Obligation made to the Intestate bearing date the 4th day of April 24 Eliz. The Defendant prayed Oyer of the Deed and Condition and then pleaded to the Action For he said That the aforesaid James Newton ante Confectionem praedicti suppositi scripti scilicet ultimo die Septembris 23 Eliz. apud N. obiit and so Non est factum c. The Iury found That the said Deed was delivered to the Intestate 3 July 23 Eliz. in the life of the Intestate bearing date 24 Aprilis 24 Eliz. before which day the Intestate died And upon the whole matter Iudgment was given for the Plaintiff CXLV Lichfield and Gage's Case Pasch 26 Eliz. In the Kings Bench. 2 Len. 167. IN an Ejectione firmae the parties were at Issue And by Order of the Court the Tryal was stayed And yet the Plaintiff against the Order obtained privily a Nisi Prius Vpon which Gawdy Iustice being informed of it after the Term awarded a Supersedeas to the Iustices of Assise before whom c. And notwithstanding that the Enquest at the Instance of the Plaintiff was taken and found for the Plaintiff All this matter was shewed to the Court in the Kings Bench and there examined and proved And it was Ordered by the Court That the Verdict should not be entred of Record nor any Iudgment upon it And so was it put in execution in a Case between Vernon and Fowler And then the Counsel moved and took Exception to the Supersedeas because it was not subscribed by the hand of Iustice Gawdy But it was not allowed because his Seal was sufficient CXLVI Fuller and Cook 's Case Pasch 26 Eliz. In the Kings Bench. 1 Roll. 111. IN an Action upon the Case the Plaintiff declared That the Defendant had informed one Tho. Colby a Iustice of the Peace That the Plaintiff had stollen the Defendants Hoggs By force of which the said Colby ad Querimoniam Defendentis made a Warrant and directed it to the Constable of H. to apprehend the Plaintiff and to bring him before the said Colby By force of which the Plaintiff was Arrested and brought before the said Colby and there was examined upon the said matter and bound over by Recognizance to appear at the next Sessions and there to Answer at which Sessions he appeared And Proclamation was made That if any one would inform against the Plaintiff c. and none came For which the Plaintiff was discharged and so by this matter he was discredited c. And all this matter was found by Special Verdict And thereupon Iudgment was given for the Plaintiff And in this Case the Court took a difference Where one whose Goods a stollen comes to are Iustice of Peace and shews him the matter and prays that the matter be examined and that such a one is examined upon it here in this case No Action lieth But if such a person in such case will expresly say That such a one hath stollen c. Hob. 192. and procure a Warrant from a Iustice of Peace upon such Surmise to arrest the party upon such matter an Action upon the Case will lie CXLVII The Queen and the Lord Lumley's Case Trin. 26 Eliz. In the Exchequer IT was moved in the Exchequer 2 Len. 80. Hob. 304. That Queen Mary seised of the Rectory of D. granted Advocationem Ecclesiae de D. If now by this Grant the Advowson should pass as now disappropriate Or that the Rectory it self should pass as appropriate Or that nothing at all should pass And by Manwood Chief Baron the Advowson shall not pass but remain appropriate as it was before For the Church as it was appropriate by a Iudicial act so without such an Act it cannot be disappropriate And he said That by the Grant of the said Advowson the Rectory did not pass For by the Appropriation the Advowson was gone and it was not in esse and by consequence could not be granted And it is not within the Statute of 4 5 Philip Mary of Confirmations of Grants of the King For the said Statute helps not but misrecital misnaming c. But here there is not such a thing in rerum natura as the Patentee pretends to be passed by the Letters Patents And if it were in the Case of a Common person nothing should pass As it was adjudged in Sands Case 11 Eliz. And he said That at this time a Parsonage might be disappropriated but that ought to be by a Iudicial Act as by Presentment and not by any private Act of the Proprietor And so he said a Church was disappropriated by the Lord Dyer by a Presentment which of late he made to it CXLVIII Cox's Case Mich. 26 Eliz. In the Kings Bench. IN Debt upon an Obligation against Cox the Case was A Parson made a Lease for years and became bounden to the Lessee to perform the Covenants in the Lease The Defendant pleaded That the Lease is void by the Statute of 14 Eliz. because he was absent from his Benefice above the space of 80 days part of which time encurred depending the Action and before the Pea was pleaded It was the Opinion of the Court That the Plea was good But Exception was taken to the pleading The Defendant saith That the said Church is a Parochial Church cum Cura animarum but doth not say That it was so at the time of the Lease and Obligation made For it may be that at the time of the Lease there was a Vicar and then it was not Cura animarum And afterwards upon that Exception Iudgment was given for the Plaintiff CXLIX Wroth and Capell's Case Pasch 26 Eliz. In the Kings Bench. 4 Len. 197. THe Case was A. was Indicted upon the Statute of 8 H. 6. And Exception was taken to the Indictment because no word of Freehold was in it or to prove that the party grieved had any Freehold whereof
for the variance is in a thing which is matter of surplusage and so much the rather because the said A. had not another House in D. c. CLXXXVI Lucas and Picroft's Case Pasch 28 Eliz. In the Common Pleas. THe Case was That an Assise of Novel Disseisin was brought in the County of Northampton of two Acres of Lands 2 Len. 41. and as to one Acre the Tenant pleaded a plea tryable in a Forreign County Vpon which the Assise was adjourned into the Common Pleas and from thence into the forreign County Where by Nisi prius It was found for the Plaintiff and now in the Common Pleas Snag Serjeant prayed Iudgment for the Plaintiff and cited the Book 16 H. 7. 12. Where an Assise is adjourned into the Common Pleas for difficulty of the Verdict they there may give Iudgment But all the Court held the contrary For here is another Acre of which the Title is yet to be tryed before the Iustices of Assise before the tryal of which no Iudgment shall be given for the Acre of which the Title is found And the Assise is properly depending before the Iustices of Assise before whom the Plaintiff may discontinue his Assise And it is not like to the Cases of 6 E. 4. and 8 Ass 15. Where in an Assise a Release was pleaded dated in a forreign County which was denyed Wherefore the Assise was adjourned into the Common Pleas and there found by Enquest not the Deed of the Plaintiff's Now if the Plaintiff will release his Damages he shall have Iudgment of the Freehold presently But in our Case parcel of the Land put in View remains not tryed which the Plaintiff cannot release as he may his Damages 2 Len. 199. and therefore the Court remanded the Verdict to the Iustices of Assise CLXXXVII Hare and Mellers Case Mich. 28 Eliz. In the Common Pleas. Post 163. HUgh Hare of the Inner-Temple brought an Action upon the Case against Phillip Mellers and declared That the Defendant had exhibited unto the Queen a slanderous Bill against the Plaintiff charging the said Hugh to have recovered against the Defendant 400 l. by Forgery Perjury and Cosening And also that he had published the matter of the said Bill at Westm c. In this Case it was said by the Court That the exhibiting of the Bill to the Queen is not in it self any Cause of Action For the Queen is the Head and Fountain of Iustice and therefore it is lawful for all her Subjects to resort unto her ad faciendam Querimoniam But if a subject after the Bill once exhibited will divulge the matter therein comprehended to the disgrace and discredit of the person intended the same is good cause of Action And that was the Case of Sir John Conway who upon such matter recovered And as to the words themselves It was the Opinion of the Court That they are not actionable For it is not expresly shewed That the Plaintiff hath used perjury forgery c. And it may be that the Attorny or Sollicitor in the Cause hath used such indirect means not known to the Plaintiff And in such case it is true That the Plaintiff hath recovered by forgery c. and yet without reproach And by perjury he cannot recover for he cannot be sworn in his own Cause It was adjudged against the Plaintiff CLXXXVIII Moore and the Bishop of Norwich's Case Mich. 28 Eliz. In the Common Pleas. IN a Quare Impedit by Moor against the Bishop of Norwich c. It was found for the Plaintiff and thereupon issued forth a Writ to the Bishop which was not retorned Vpon which an Alias issued forth Vpon which the Bishop retorned That after Iudgment given in the Quare Impedit the same Incumbent against whom the Action was brought was Presented Instituted and Inducted into the same Church and so the Church is full c. And if that was a good retorn It was oftentimes debated Windham cited the Case L. 5 E. 4. 115 116. A Quare Impedit against Parson Patron and Ordinary and pendant the Writ the Parson resigned and the Ordinary gave notice of it to the Patron and afterwards by Lapse the Ordinary presented the same Incumbent who resigned And afterwards the Plaintiff in the Quare Impedit had Iudgment to recovers And it was holden Because the same Incumbent is now in by a new title scil by Lapse and the same person against whom the recovery was had and that appeared to the Court he should be removed See 9 Eliz. Dyer 260. and 21 Eliz. Dyer 364. And it was said by the Lord Anderson What person soever is presented and admitted after the Action brought unless it be that the title of the Patron be paramount the title of the Plaintiff upon such Recovery he shall be removed And so in the principal case It was adjudged That the Retorn of the Bishop was not good Wherefore he was fined 10 l. and a Sicut alias awarded upon pain of 100 l. CLXXXIX Parret and Doctor Matthews Case Mich. 28 Eliz. In the Kings Bench. A Praemunire was brought and prosecuted by the Queens Attorny General and Parret 1 Len. 292. against Doctor Matthews Dean of Christ-Church in Oxford and others for that they procured the said Parret to be sued in the City of Oxford before the Commissary there in an Action of Trespass by Libel according to the Ecclesiastical Law In which Suit Parret pleaded his Freehold and so to the Iurisdiction of the Court and yet they proceeded there and Parret was Condemned and Imprisoned And afterward the said Suit depending the Queens Attorny withdrew his Suit for the Queen It was now moved to the Court If notwithstanding that the party Informer might proceed in his suit there See 7 E. 4. 2. the King shall have Praemunire and the party grieved his Action See Br. Praemunire 13. for by Brook None can have Praemunire but the King. Cook There is a President in the Book of Entries 427. In a Praemunire the words are Ad respondendum tam Domino Regi quam R F. and that upon the Statute of 16 R. 2. And see ibid. 429. tam Domino Regi de Contemptu praedict quam dicto A.B. de Damnis But it was holden by the whole Court That if the Queens Attorny will not ulterius prosequi the party grieved cannot maintain that Suit For the principal matter in the Praemunire is the Conviction and the putting of the party out of the Kings protection and the damages are but accessary and then the Principal being Released the damages are gone And it was also holden That the Presidents in the Book of Entries are not to be regarded For there is not any Iudgment upon any of the pleadings there CXC Archeboll and Borrell's Case Mich. 28 Eliz. In the Kings Bench. ARcheboll brought an Action upon the Case against Borrell and declared That the Defendant had procured one L. to bring an Appeal of the death of J.S. against
no case where the party useth but the means of the Law by the Kings Writ without any Corruption or Covin of the party he shall be amerced only pro falso clamore and no Action lieth against him because he hath not used but the means of the Law. Which see 2 R. 3. 9. by all the Iustices But yet in an Appeal because it toucheth the life of a Man the Defendant shall have his damages against the Plaintiff but not in any other Action which is a vexation by suit if no Corporation or Covin be in the party who prosecutes such suit See such matter justifiable in Conspiracy 35 H. 6. 13 14. Afterwards the principal Case was adjourned CXCI. Parker and Howard's Case Pasch 28 Eliz. In the Kings Bench. 2 Len. 102. IN Debt upon an Obligation the Condition was That whereas the Plaintiff and Defendant be now joyntly seised of the Office of the Register of the Court of Admiralty If the Defendant shall permit the Plaintiff to exercise the said Office and take the profits of it wholly to his own use during his life without let or interruption done by him That then c. The Defendant pleaded That the Custom of the Realm of England is That the Lord Admiral for the time being might grant the said Office and that such Grant should be good but for the life of the Grantor And further shewed 1 Len. 103. That the Lord Clynton Lord Admiral granted the said Office to the Plaintiff and the Defendant and died And that the Lord Howard was appointed Lord Admiral And that he 27 Eliz. granted the said Office to one Wade who put him out and interrupted him before which time the Defendant suffered the Plaintiff to enjoy the said Office and to take the profits of it Vpon which the Plaintiff demurred in Law. Cook argued for the Plaintiff That the Defendant's Plea was not good for he hath not entituled the Lord Admiral to grant the Office For he saith That the Custom of the Realm of England is which he hath pleaded in such manner as no Issue can be taken upon it for it is pleaded Quod usitatum est quod Admirals pro tempore existens Non potest Concedere Officium praedict nisi pro termino vitae suae and that cannot be for it cannot be tryed for the Venire facias cannot be Of the Realm of England Also if it be Through the whole Realm of England then the same is the Common Law and not Consuetudo Which see Br. Custom 39. And see 4 5 Mar. Dyer 152 153. An express case of this Office And there he prescribes in Consuetudine in Anglia c. And also that such Grant is good but during the life of the Admiral who granted it Also he doth not answer to any time of the Grant of the Admiral Howard For if he were lawfully put out by Wade yet the Defendant against his own Obligation cannot put us out or interrupt us As L. 5 E. 4. 115. In a Quare Impedit against an Abbot and the Incumbent who make default upon the distress upon which a Writ to the Bishop was awarded for the Plaintiff Vpon which the Bishop retorned That the Incumbent resigned of which the Bishop gave notice And afterwards Lapse encurred and the Bishop collated the said former Incumbent and then that Writ came to him Now although the Incumbent be in by a new title yet he is bound by the Iudgment So here although the Defendant had another title and the former title of the Plaintiff be determined yet against his own Deed and Obligation he shall not put out the Plaintiff And the Court was clear That the Iudgment should be given for the Plaintiff But afterwards the Cause was Compounded by the Order of the Lord Chancellor CXCII Mannings Case Mich. 28 Eliz. In the Kings Bench. NOte It was agreed by the Iustices in this Case That where an Enfant Executor sold the Goods of his Testator at less undervalue than they were worth And afterwards brought an Action of Detinue against the Vendee upon it in retardatione executionis Testamenti That this sale of the Enfant Executor was good and should bind him notwithstanding his Nonage CXCIII Mich. 28 Eliz. In the Common Pleas. THe Case was A Man made a Feoffment in Fee to the use of himself for life and afterwards to the use of his eldest Son in tail and afterwards to the use of his right Heirs not having at the time of the Feoffment any Son Afterwards he suffered a Common Recovery had Issue a Son who died in the life of his Father having Issue a Son and afterwards he himself dieth It was holden in this Case That the Son and Heir of the Son should not avoid this Recovery by the Statute of 32 H. 8. For there was not any remainder in him at the time of the Recovery had but the remainder then was in abeyance for then the Son was not born And the words of the said Statute are That such Recovery shall be void against such person to whom the Reversion or Remainder shall then appertain i. e. at the time of the Recovery And it was said That if Lands be given to E. for life the Remainder to B. in tail the Remainder to C. in fee B. dieth his Wife with Child with a Son A Recovery is had against E. with the assent of C. and afterwards the Son is born he shall not be helped by this Statute for that the Remainder was not in esse at the time of the Recovery But it was holden in the principal Case That the Heir might avoid this Recovery by the Common Law For the Recompence could not extend to such a Remainder which was not in esse CXCIV The Countess of Sussex and Wroth's Case Hill. 28 Eliz. In the Common Pleas. IT was moved in this Case by Gawdy Serjeant If the Disseisee Licence J.S. to put his Cattle into the Land whereof he was disseised If it were a good Licence And If by the Execution of the said Licence the Freehold should be revested in the Disseisee so as if the Disseisor distrain the Cattel of J.S. for Damage-feasant and in a Replevin avow the Plaintiff may plead That the Freehold was in the Disseisee who so Licensed him Periam Iustice The Licence is void For at the time of the grant of it the Disseisee had but a Right before he had recontinued the Land by re-entry Windham If the Disseisee make a Lease for years of the Land whereof he is Disseised it is a void Lease Anderson If the Disseisee command one to enter into the Land and he doth accordingly the same is good The Case was adjourned CXCV. Payn 's Case Mich. 28 Eliz. In the Exchequer 2 Len. 205. A Writ of Error was brought by Payn Treasurer of the Records in the Kings-Bench in the Exchequer-Chamber upon a Iudgment given in the Court of the Exchequer for the Queen upon an Assignment of a
of the said Lands A. brought an Action of Covenant The Defendant pleaded That before the day of payment the Plaintiff put the said B. out of his Farm It was moved by Godfrey That the same is no plea For this is a Collateral sum and not for Rent issuing out of the Land Also the Defendant is a stranger to the Contract for the Farm. But the Opinion of the whole Court was clear to the contrary For the Defendant hath Covenanted That the Lessee shall pay for the said Farm and Occupation 40 l. so as it is as a Conditional Covenant and here is Quid pro quo and here the Consideration upon which the Covenant is conceived scil the Farm and the Occupation of it is taken away by the Act of the Plaintiff himself and therefore the plea is good and the Action will not lie CCVII. The Archbishop of York and Morton's Case Pasch 29 Eliz. In the Common Pleas. THe Archbishop of York recovered in an Assise of Novel Disseisio against one Morton before the Iustices of Assise 1 Len. 55. upon which Iudgment Morton brought a Writ of Error retornable before the Iustices of the Common Pleas And after many Motions at the Bar it was adjudged That a Writ of Error upon such Iudgment doth not lie in the said Court. Which see 8 Eliz. Dyer 250. See also N. B. 22. e. That upon Erroneous Iudgment given in the King Bench in Ireland Error shall be in the Kings Bench in England 15 E. 3. Error 72. And Fenner who was of Counsel with the Archbishop demanded of the Court How and in what manner the Record shall be sent back to the Iustices of Assise so as the said Archbishop might have Execution To which the Court answered That the surest way is to have a Certiorari out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by a Mittimus to the Iustices of Assise But Fenner made a doubt to take such Course for such remanding Then Anderson Chief Iustice said Sue Execution out of the said Record for in as much as the Record came before us by Writ of Error it shall also be removed and sent back by Writ And so it was done CCVIII The Queen and Hurleston's Case Hill. 29 Eliz. In the Kings Bench. 2 Len. 194. THe Queen brought a Scire facias against Hurleston to Repeal a Patent made to him of the Constableship of Chester and Iudgment was given for the Queen And now Hurleston brought a Writ of Error against the Queen in the Kings Bench. And it was moved by Gawdy Serjeant That the Writ did not lie for the manner for that he ought first to have sued to the Queen by Petition See 22 E. 3. 3. 23 E. 3. Fitz. Error 9. If the King recover by an Erronious Iudgment a Writ of Error cannot be granted upon such a Recovery sine gratia Regis speciali And he said That in Chester they have Courts of Common Pleas Kings Bench Exchequer and Chancery And that if Iudgment Erronious be given in the Chancery at Westminster It cannot be reversed but by Parliament and so it is of an Erronious Iudgment given in the Chancery at Chester Also he said They have a Custom in London That within one month they may reverse their own Iudgment See 23 Eliz. Dyer 376. Erronious Iudgment given in the 5 Ports cannot be reversed in the King Bench but it is reversable in the Court of the Guardian of the 5 Ports Clench Here both the parties claim by the Queen therefore there needeth no Petition for valeat quantum valere poterit it is no prejudice to the Queen Cook There needs no Petition here for the Attorny General hath subscribed our Writ of Error Egerton Sollicitor General It was the Case of Eliz. Mordant who was to reverse a Fine levied during her Nonage and the proceedings were stayed because she had not sued to the Qeen by Petition See the Case of 24 E. 3. 35. the Case of William de Ingularby who sued to reverse a Iudgment given against him in a Writ of Conspiracy in the Eyre of Derby and there it was said by Thorp Iustice That he must first sue to the King by Petition Wray An Outlawry may be reversed by bringing a Writ of Error without suing Petition to the King. CCIX. Beckwith's Case Hill. 29 Eliz. In the Common Pleas. 5 Co. 19. ROger Beckwich by Indenture Tripartite between him of the first part William Vavasour Frances Slingsby and Elizabeth Sister of Roger of the second part George Harvey and Frances Wife of the said George the said Frances being another of the Sisters of the said Roger of the third part Covenant with the aforesaid William Vavasour and Frances Vavasour his Daughter and with the aforesaid George and Frances cum quolibet qualibet eorum That the said Roger at the sealing and delivery of the said Indenture was lawfully and solely seised of the Rectory of Aldingfleet in the County of York discharged of all Incumbrances Francis Vavasour took to Wife Frances Slingsby And Note That by the same Indenture Roger Beckwith Conveyed the said Rectory to the said Francis Vavasour Francis Slingsby and Frances his Wife brought an Action of Covenant against the said Roger Beckwith and assigned the Breach in this That the said Roger was not seised of the said Rectory And Note That the Plaintiff declared of an Indenture bearing date at the Castle of York And upon the breach of the Covenant they were at Issue which was found for the Plaintiff and damages assessed and Iudgment given for the Plaintiff And Note That the Venire facias was de Vicineto Castri de York And upon that Iudgment a Writ of Error was brought in the Exchequer upon the new Statute and Error was assigned because all the Covenanters ought to have joyned in the Action of Covenant notwithstanding those words cum quolibet cum qualibet which words do not make the Covenant to be several And for that cause the Iudgment was Reversed Another Error was assigned because the Issue is not well and duly tryed For the Issue is upon the seisin of the Rectory of Aldingfleet in which case the Venire facias ought to have been de Vicineto de Aldingfleet And of that Opinion was Manwood and Anderson Iustices CCX Young and Ashburnsham's Case Hill. 29 Eliz. In the Common Pleas. IN an Action of Debt brought by the Administrators of Young against Ashburnham The Defendant pleaded Nihil debet And the Enquest was taken by default And upon the Evidence given for the Plaintiff the Case appeared to be this That the said Young was an Innholder in a great Town in the County of Sussex where the Sessions used to be holden And that the Defendant was a Gentleman of Quality in the Country there And he in going to the Sessions used to lodge in the house of the said Young and there took his lodging
Also the words Of the Mannor of Fremmington and Hundred are put amongst others which are Mannors in truth By which he conceived That the Devisor did not intend to pass but one Mannor and no other Herediatments by this Mannor of Fremmington There is a Rule in Law That in the Construction of a Will a thing implyed shall not control a thing expressed But here If by implication the Rent shall pass then the Mannor of Camfield is not passed which was the intent of the Testator to pass and that by express words See 16 Eliz. Dyer 330. Clatches Case No Implication of any Estate in remainder can serve when a special Guift and Limitation is made by the Devisor himself See also 16 Eliz. Dyer 333. Chapman's Case But in our Case here there are not sufficient words to warrant any Implication for neither in truth nor in common reputation was it taken for a Mannor 27 H. 6. 2. Green-Acre may pass by the name of a Mannor although it be but one Acre of Land because it is known by the name of a Mannor See acc 22 H. 6. 39. And see Where before the Statute of Uses A Man had recoverors to his use and he willeth by his Will That his Feoffees sell his Lands they might sell And he said That if a Man seised of a Mannor parcel in Demesne and parcel in Service and he granteth the Demesnes to one and his Heirs and afterwards deviseth his Mannor peradventure the Services shall pass but this Rent hath not any resemblance to a Mannor Gawdy This Rent shall pass by the name aforesaid Favourable Construction is always given in Wills according to the meaning of the Devisor and no part of his Will shall be holden void if by any means it may take effect Then it here appeareth that his intent was That upon these words something should pass to the Devisee concerning the Mannor of Fremmington for otherwise the words Of the Mannor of Fremmington are void and frivolous which shall not be in a Will if any reasonable Construction may be made For it is found expresly by the Iury That neither at the time of the Will made nor at the time of the death of the Testator the Devisor had any thing in the said Mannor of Fremmington but the said Rent of 130 l. per annum And it may well be taken That the Devisor being ignorant what thing a Mannor is thought that this Rent was a Mannor because that she had Rents and Services out of the said Mannor For in Construction of a Will the words shall serve the intent And therefore if a Man Deviseth That his Lands shall be sold for the payment of his Debts his Executors shall sell them for the intent of the Devisor names the sellers sufficiently And See Plowden 20 Eliz. 524. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Assigns in Fee whereas then there was no Feoffees to use the same was holden a good devise of the Land to A. But the Iustices conceived That the Devisor was ignorant of the operation of the Statute in that case and therefore his ignorance was supplyed See Br. Devises 48. 29 H. 8. A. had Feoffees to his use and afterwards after the Statute of 27 H. 8. and 32 H. 8. he willed That his Feoffees should make an Estate to B. and his Heirs It was holden by Baldwin Shelley and Mountague Iustices That it was a good Devise And see 26 H. 6. Fitz. tit Feoffments Faits 12. A Carue of Land may pass by the name of a Mannor therefore a fortiori a Rent for Rents and Services have more affinity and more resemble a Mannor than a Carue of Land. And it cannot be intended that the meaning of the Testator was to grant the Mannor it self in which he had not any thing especially by his Will for Covin Collusion or indirect dealing cannot be presumed in a Will. Also The Marchioness for 4 years together before her death had the Rent and Services of the said Mannor and she well knew that she her self had not any thing in the said Mannor but the said Rent and Services and therefore it shall be intended that the same was her Mannor of Fremmington A. seised of a Capital Messuage and great Demesnes lying to it Leased the same for years rendring Rent and afterwards devised to another all her Farm in such a place And it was Ruled in that Case That by that Devise the Rent and the Reversion passed See the Case between Wrottesley and Adams Plow 19. 1 Eliz. by Anthony Brown and Dyer Periam Iustice conceived That this Rent might be divided well enough But by Anderson It is but a Rent-Seck Periam It is distrainable of Common right Anderson doubted of it But all the Iustices agreed That the Rent might be divided but there should not be two Tenures The Lord Mountjoy being advised that this Rent did not pass but descended to the Heir being the full third part of the Lands entred into the Residue and made a Lease of the Mannor of Camfield unto the Plaintiff upon which the Ejectione firmae is brought And afterwards the Plaintiff seeing the Opinion of the Court to be against him and for the Devise of the Rent for the reasons aforesaid Discontinued his Suit c. CCXIX. Williams and Drew's Case Mich. 29 Eliz. In the Common Pleas. THe Widow of Williams who was Speaker of the Parliament brought Dower against Williams and Drew upon the Grande Cape Williams made default And now came Drew and surmised to the Court That he is not Tenant of the Land But further he saith That the Husband of the Demandant Leased the said Lands to him for 50 years and that this Action is brought by Covin to make him lose his Term and prayed to be received And the Opinion of the whole Court was That although he was party to the Writ yet he should be received and that by the Statute of Gloucester for he is in equal mischief And the Court was also clear of Opinion That upon the default of Williams the Demandant should not have Iudgment for a moyety for that the Cause of the receipt trenched to the whole And by all the Iustices but Rhodes If Iudgment had been given upon the deault of both i. e. Williams and Drew yet the Term of Drew should stand but Drew should be put out of possession and put to his Action And Anderson conceived That the Resceit upon that Statute did not lie unless that Covin be alledged betwixt the Demandant and the Tenant to make him to lose his Term and that Covin is traversable Which all the other Iustices denyed for the Covin ought to be averred but ought not to be traversed And also they all but Anderson were clear of Opinion That in this Case of Receipt the party shall not plead upon his Receipt as upon the Statute of Westminster but he shall be received
and have day to plead CCXX Dicksey and Spencer's Case Mich. 29 Eliz. In the Common Pleas. THe Case between Dicksey and Spencer see H. 29 Eliz. Notwithstanding the Opinion of the Court of Common Pleas The Mayor and Aldermen of London reversed the Iudgment given in an Assise of Freshforce Vpon which Dicksey sued a Commission directed to Anderson Manwood and Periam to examine the said Iudgment ad errorem corrigendum And the Case was often Argued The principal matter was That Lessee for years in an Action of Debt brought against him for the Rent reserved claimed Fee by bargain and sale of his Lessor the which bargain and sale the Plaintiff traversed And it was argued Because this bargain and sale was traversed there was not any forfeiture in the Case for upon that both parties are at large As in a Praecipe quod reddat The Tenant disclaims and the Demandant avers him Tenant he shall not enter for that Disclaimer But all the three Iustices were clear of Opinion That notwithstanding the Traverse it is a forfeiture for the very claim is a forfeiture which cannot be saved by matter subsequent See 9 H. 5. 14. If Tenant for life be impleaded in a Writ of Right and joyns the Mise upon the meer Right it is a forfeiture Another Error was assigned Because where it is found that both the Defendants Disseisiverunt the Plaintiff but Spencer only with force and the Iudgment in the Assise of Freshforce was that ambo Capiantur where no force is found in Clark one of them yet such a Iudgment is good enough For the Assise have found a Ioynt Disseisin and that Clark was present at the said Force and then he particeps Criminis And of that Opinion were all the 3 Iustices And it way Objected That forasmuch as Clark is Convicted of force upon the matter for both ought to be taken therefore the Damages ought to be trebled against both And the Court was in some doubt of that But clearly the Incrementum shall be trebled as well as the Damages taxed by the Assise And after many Arguments the said Iustices moved the parties to a friendly course to compound the matter For if we reverse the Iudgment given in the Hustings Then Spencer may have his Writ of Error upon the Iudgment in the Assise of Freshforce sic infinite And afterwards the parties put themselves to the Mediation and Order of the said 3 Iustices who at length made an end of the matter betwixt the said parties CCXXI The Lady Newman and Shyriff's Case Mich. 29 Eliz. In the Star-Chamber 4 Len. 25. THe Lady Newman Sister of James Wingfield lately deceased Exhibited a Bill of Complaint in the Star-Chamber against one Shyriff dwelling in Ireland and two others setting forth That the said Shyriff had forged a Deed purporting That the said James had by the same given to him all his goods and also that the said James had assigned to the said Shyriff a Lease for years of Lands in Ireland And also that the said Shyriff had procured the said two other Defendants to depose upon their Oath before the Town-Clerk of London That the said Deed was sealed and delivered by the said James as his Deed. It was moved by the Counsel of the Defendant's That these matters of Forgery are not within the Statute of 5 Eliz. nor also the Perjury or the procurement of it Whereupon the Lords of the Council referred the Consideration of the said Statute to both the Chief Iustices who the next Court-day declared their Opinions upon the said Matters 1. That the said Statute did not extend to forgery of a Deed conveying a gift of Chattels personals Which see by the Statute which as to that point extends but to Obligations Bills Obligatory Acquittance Release or other discharge And also a Deed of an Assignment of a Lease of Land in Ireland is not within the said Statute And also the said Iustices were of Opinion That this Perjury and the procurement of it is not punishable by the said Statute because the Oath was taken Coram non Judice For the Town-Clerk of London cannot minister an Oath in such case no more than a private person But because the Bill in the perclose and Conclusion of it was contrary to the Laws and Statutes of this Realm The said Chief Iustices were of Opinion That the said Court might punish those offences as misdemeanors at the Common Law but not according to the Statute And afterwards Shyriff paid for a Fine 3 l. and by Order of the Court was set in the Pillory CCXXII Middlemore's Case Mich. 29 Eliz. In the Kings Bench. MIddlemore brought an Action upon the Case for these words scil Middlemore is a Cosening Knave for he had me to Coventry and there cosened me of 40 s. And afterwards had Iudgment to recover And now the Defendant brought a Writ of Error in the Exchequer-Chamber and there the Opinion of the whole Court was That the said words were not actionable And the Case of one Egerton was remembred Thou art a Cosening Knave Coroner For thou hast Cosened me of my Land. The Plaintiff in that Case could not have Iudgment For he was not particularly charged in respect of his Office. And Note That in this Case of Error the Defendant pleaded an Outlawry in the Plaintiff and being barred in that he pleaded now an Excommengement in the Plaintiff and shewed the Letters of Excommunication Vpon which it appeared That the Plea was pleaded before the Outlawry was pleaded And it was Ruled by the whole Court That this Plea lieth not for the Defendant For he cannot have two Pleas to the person of the Plaintiff but where his second Plea is matter of later time since the first Plea And afterwards the said Iudgment was reversed CCXXIII. Barns Executor of the Bishop of Durham and Smith's Case Mich. 29 Eliz. In the Exchequer EManuel Barns Executor of Barns late Bishop of Durham 2 Len. 21. brought Debt for Arrearages of Rent reserved upon a Lease for years of certain Mines demised to Smith scil Mines called Argill and Mines called Greenbourn and it was against the Executors of Smith The Defendant pleaded as to parcel Non detinet and as to other parcel of the Arrears That in the Indenture of demise there is a Covenant Quod si contigerit that the said Lessee impeditus fuerit quominus Mineris praedict gaudere possit That then so much of Rent should be deducted amounting to the value of the Mines he could not enjoy c. And pleads in facto quod impeditus fuit quo minus gaudere potuit Mineris praedictis c. And it was found for the Plaintiff And it was moved by Cook in arrest of Iudgment That here is not any place shewed where these Mines were so as Non constat from what place the Visne shall come As if in an Action as here the Plaintiff Declares of a Lease made of Land called R. in
hic in Curia prolat is but form And afterwards the Iudgment was reversed for default of the said matter Magno sigillo Angliae sigillat And by Anderson Iustice Patents are good without Inrollment and that was adjudged in Hungate's Case CCXLI. Mich. 29 Eliz. In the Exchequer Chamber DEbt brought upon an Obligation Post 266. The Defendant pleaded payment apud Lockington in the Parish of Killmerston And the Venire facias was awarded de Lockington And that was assigned for Error in the Exchequer Chamber upon a Iudgment given in the Kings Bench That the Venire ought to be de Killmerston See 6 H. 7. 3. 11 H. 7. 23 24. 9 E. 4. 3. Trespass for Entry in the Mannor of D. in S. the Visne shall come de Vicineto de S. and not from the Mannor Contrary if it be for the entry into the Mannor of D. only for there it shall be de Vicineto Manerii Cook said There was a Case very late adjudged in the Kings Bench A Lease was pleaded to be made at Ramridge End in Luton and that he himself was of Opinion That the Venire ought to have been of Ramridge End and not of Luton But the Court Over-Ruled the same against him It was said in the principal Case That Lockington shall be intended a Town as this Case is For a Parish may contain many Towns. And afterwards the Iudgment was affirmed CCXLII. Mich. 29 Eliz. In the Common Pleas. IN Trespass for breaking his Close The Defendant pleaded That heretofore he himself brought an Ejectione Firmae against the now Plaintiff of the same Land in which the Trespass is supposed to be done and had Iudgment to recover c. and demanded Iudgment if against c. It was moved That the Bar was not good 1 Len. 313. because that the Defendant had not averred his title And the Recovery in one Action of Trespass is no Bar in another c. Quod Curia concessit But as to the matter the Court was clear That the Bar was good And by Periam Who ever pleaded it it was well pleaded For as by Recovery in an Assise the Freehold is bound so by Recovery in an Ejectione firmae the possession is bound And by Anderson A Recovery in one Ejectione Firmae is a Bar in another Especially as Periam said if the party relyeth upon the Estoppel And afterwards Iudgment was given That the Plaintiff should be barred CCXLIII Peter's Case Mich. 29 Eliz. In the Common Pleas. WIlliam Peters being Plaintiff in an Action of Debt in the Common Pleas came to London this Term to prosecute his Action And afterwards he was committed to the Marshalsey by the Lord Hunsdon Chamberlain of the Queens houshold and one of her Privy Council And now an Habeas Corpus issued out to the Keeper of the Marshalsey to have the body of the said Peters in Court And at the day the Keeper retorned the said Writ That the said Peters was committed to the said Prison by the said Lord and shewed the Warrant for it there to remain and to Answer before the Lords of her Majesties Council to such matters c. Causa vero detentionis mihi omnino incognita est The Court examined the said Peters upon his Oath If he came to London to prosecute his said Cause Who answered That he did And the Court also examined the said Keeper If he had acquainted the said Lord with the said Writ Who said That he had so done but he shewed him not any Cause Wherefore by the Award of the Court Peters was discharged of his Imprisonment CCXLIV Hill. 29 Eliz. In the Common Pleass SErjeant Fenner demanded the Opinion of the Court in this Case A. Devised Lands to his Wife for life 1 Co. 155. and afterwards to B. his Son and his Heirs when he should come to the age of 24 years and if his Wife died before his said Son should attain his said age of 24 years that then J.S. should have the said Land until the said age of the said Son A. died J.S. died the Wife died the Son being within the age of 24 years If the Executors of J.S. should have the Land after the death of J.S. until the said age of the Son was the Question Anderson and Periam conceived That he should not For this Interest limited to J.S. by the Will was but a possibility which was never vested in him and therefore could not by any means come to his Executor Rhodes and Windham doubted of it Fenner put the Case in 12 E. 2. Fitz. Condition 9. Where Land is mortgaged to J.S. upon payment of Mony to J.S. such a day or his Heirs and before the said day J.S. by his Will deviseth That if the Mortgagor pay the Mony that then A. B. should have them That this Devise of this possibility is good Quod omnes Justiciarii negaverunt And Windham put the Case between Weldon and Elkington Plow Com. 20 Eliz. 519. Where Lessee for years devised his Term to his Wife for so many years of the said Term as she should live And if she died within the Term that then his Son Francis should have the Residue of the Term not encurred Francis died Intestate the Wife died within the Term The Administrator of Francis had the residue of the Term and yet nothing was in Francis the Intestate but a Possibility A Lease was made to one Hayward his Wife and one of his Children Habendum to Hayward for 99 years if he should so long live and if he die within the said Term that then his said Wife should have the said Term for so many years which should be to come at the time of the death of her Husband And if she died also before the said Term That then the Child party to the Devise should have it for so many years of the said Term as should not be expired at the time of the death of the Wife And the Case of Cicill was vouched 8 Eliz. Dyer 253. A Lease was made to William Cicill pro termino 41 annorum si tam diu vixerit Et si obierit infra praedictum terminum extunc Uxor praedicti William Cicill habebit tenebit omnia singula praemissa pro residuo termini praed incompleto si tam diu vixerit Et si the said Eliz. obierit infra praedict terminum tunc William Cicill filius c. And it was holden by Catlyn and Dyer That these remainders were void For the Term is determinable upon the death of William Cicill the Father and the Residue of the said Term cannot remain And by Anderson The remainders of the Term limited ut supra are void For every remainder ought to be certain but here is no certainty for it may be that the first possessor of the Term may live longer or die sooner so as he in the remainder doth not know what thing he shall have And so also conceived Rhodes Iustice And he put the Case between
Gravenor and Parker 3 4 Mar. Dyer 150. A Lease was made to A. for life by Indenture and by the said Indenture a Proviso was That if the Lessee died within the Term of 60 years then next ensuing that then his Executors should have it in right of the Lessee for so many of the years as should amount to the number of 60 years to be accounted from the date of the Indenture And it was holden That the secondary Interest to the Executor was void And that the words concerning the same went only in Covenant CCXLV The Lord Compton's Case Trin. 29 Eliz. In the Common Pleas. 2 Len. 211. Kellow 41. 4 Inst 85. NOte It was holden by the Lord Anderson Chief Iustice in this Case That if Cestuy que Use after the Statute of 1 R. 2. Leaseth for years and afterwards the Feoffees Release to the Lessee and his Heirs having notice of the Vse that that Release is to the first Vse But where the Feoffees are disseised and they Release to the Disseisor although that they have notice of the use yet the same is to the use of the Disseisor And no Subpoena lieth against the Disseisor See 11 E. 4. 8. CCXLVI Sir Thomas Gorge and Dalton's Case Trin. 29 Eliz. In the Common Pleas. SIr Thomas Gorge and the Lady Helene his Wife brought a Quare Impedit against Francis Dalton Who pleaded That the Queen was seised of the Mannor of D. to which the Advowson c. was appendant and so seised the Church became void And that afterwards the Queen granted the said Mannor with the Advowson to J.S. who presented the Defendant It was the clear Opinion of the Court That by that Grant of the Queen the Advowson did not pass although that the King by his Prerogative may grant a thing in Action Quod vide Dyer 13 Eliz. 300. against F.N.B. 33 16 H 7. CCXLVII. Hill. 29 Eliz. In the Common Pleas. A Copyholder with the leave of the Lord Leased for years 1 Len. 297. Hob. Rep. 177. and afterwards surrendred the Reversion with the Rent to the use of a stranger who was admitted accordingly It was moved If in this case there needed any Attornment either to settle the Reversion or to create a privity It was holden in this Case by Rhodes and Periam Iustices That the surrender and admittance ut supra are in the nature of an Inrollment and so amount to an Attornment or at the least do supply the want of it CCXLVIII Carter and Marten's Case Mich. 29 Eliz. In the Kings Bench. TWo Men made an Obligation joyntly for Debt The principal in the Obligation made him who was surety only for him in the said Obligation for payment of the Mony his Executor who payed the Mony generally And whether it shall be said that he paid it as Executor or as an Obligor was a Quaere not resolved by the Court. CCXLIX Mich. 29 Eliz. In the Exchequer A. Was endebted to B. who was endebted to the Queen B. assigned his Debt unto the Queen By all the Barons Process shall be awarded out of the Exchequer to enquire what Goods A. had at the time of the Assignment and not what he had tempore Scripti praedict facti c. CCL Hill. 30 Eliz. In the Exchequer A. Was accomptable to J.S. and afterwards J.S. was Out-lawed in an Action personal A. died The Queen by her Letters Patents granted unto B. omnia bona catalla exitus proficua forisfactur advantagia quaecunque which came to her or accrued by reason of the Outlawry of the said J.S. And now B. brought an Action of Accompt against the Executors of the said A. as Executors of their own wrong The Defendants pleaded That they had Letters of Administration committed to them by the Ordinary and demanded Iudgment of the Writ The Plaintiff in maintenance of his Writ Replyed That the Defendants did Administer of their own wrong before that Administration was granted unto them Vpon which the Defendants did demur in Law. It was the Opinion of some of the Iustices That the wrong is urged by taking of Letters of Administration and now they are to be charged as Administrators only and not otherwise See 50 E. 3. 9. 20 H. 6. 1. And see the Case of the Cardinal of Canterbury 9 E. 4. 33. If one Administreth of his own wrong and afterwards takes Letters of Administration he shall be sued not as Executor but as Administrator See 21 H. 6. 8. But Gawdy Iustice conceived That the Defendants might be charged as Executors As to the Grant of the Queen of this Action of Accompt See Br. Pat. 98. 32 H. 8. that the King may grant a thing in action which is personal as debt and damages or the like Or a thing mixt as the Wardship of the body but not a thing real as an Action concerning Lands Rights Entries But it was agreed on all sides That if this Action had been granted specially it had been clearly good And it was Observed That in the principal Case the Accomptant was dead before the Grant so that his Executors were chargeable to the Queen to render an Accompt and the Queen was entituled to it It hath been Objected That this Action of Accompt came to the King by reason of his Prerogative Royal and in vertue thereof the Executors are accomptable to her and therefore the Queen cannot grant the same over to a Subject Certainly the same is not an Incident inseparable from the Crown nor a Flower of the Crown as the King cannot grant over to a Subject power to pardon Felons for that is proper and peculiar to the person of the King nor that a Subject may have a Court of Chancery And although this matter of Accompt is at the first i. e. at the time of the Grant uncertain yet by matter ex post facto it may be reduced to certainty i.e. by the Accompt and although the Accompt be not expresly named in the Letters Patents yet the words of the Grant ut supra do amount to as much And Gawdy Iustice conceived That this Accompt ought to be brought in the name of the Queen And all the Iustices were of Opinion That if the said A. had been living at the time of the said Grant of the Queen the Grant had not been good for then the Action against the Executors which is the matter of Prerogative had not been vested in the Queen CCLI Specot's Case Mich. 30 Eliz. In the Common Pleas. 5 Co. 57. HUmphry Specot and Elizabeth his Wife brought a Quare Impedit against the Bishop of Exceter c. of the Church of Tedcole in the County of Devon The Bishop pleaded That the Plaintiffs presented to him one John Holmes quem super Examinationem invenit Scismaticum inveterat ' and so non habilem to be instituted vel ad acceptandum aliquod Beneficium cum Cura Animarum for which he refused him and of such Refusal gave notice to
sue in what Court he will in any of the Kings Courts of Record And in this Case the Queen is quodam modo a party For she is to have the moyety And so this cause is not meerly betwixt party and party c. CCLXXXV Willoughby's Case Trin. 30 Eliz. In the Kings Bench. 2 Len. 117. WIlliam Willoughby and two other were Endicted That where the Parson of the Church of D. and all his predecessors have used to have Common in such a place The said Defendants Willoughby and others had enclosed the same and that enclosure was upon their own Land. It was moved That upon this matter they ought not to have been endicted but the party grieved was put to his Action As where a presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Marden 29 Eliz. upon the stopping of a High-Way upon his own Land and if it were upon other Land it were not material for it is but an Impeachment to take Common which cannot be Vi et armis c. Also this Endictment is Recorded and Certified as found before Iustices of Assize and Gaol-Delivery and they cannot take such presentment And although the Iustices of Assize and Gaol-Delivery were in rei veritate also Iustices of Peace yet the Endictment being recorded and certified to be taken before them in quality of Iustices of Peace shall not help it for the Court shall not respect any Authority but that which appears upon the Record And for these Causes the parties were discharged CCLXXXVI Gates and Hollywell's Case Pasch 30 Eliz. In the Kings Bench. A Man having Issue two Sons devised That his eldest Son with his Executors should take the profits of the Lands until his younger Son should come to the age of 22 years and then the younger Son should have the Lands to him and his Heirs of his body It was the clear Opinion of all the Iustices That the eldest Son should have a Feesimple in the Lands until the younger Son came to the said age of 22 years CCLXXXVII Cony and Beveridge's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 146. IN Debt upon an Obligation the Case was That the Plaintiff Leased to the Defendant certain Lands in the County of Cambridge rendring rent And afterwards the Defendant became bounden to the Plaintiff in an Obligation for the payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton To which the Defendant pleaded payment of the Rent without shewing the place of payment and upon that they were at Issue And it was found by Nisi prius in the County of Northampton for the Plaintiff It was moved in Arrest of Iudgment That the Issue is mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge and there the Issue ought to be tryed See 44 E. 3. 42. And it was the Opinion of Anderson Chief Iustice That no Iudgment should be given for the Plaintiff for the Cause aforesaid But Rhodes and Windam Iustices were of a contrary Opinion For it doth not appear That the Issue is mis-tryed because that no place of payment is pleaded and it may be for any thing that is shewed That the Rent was not paid in the County of Northampton CCLXXXVIII The Blacksmith's Case Mich. 30 Eliz. In the Common Pleas. A Blacksmith of South Mimmes in the County of Middlesex took an Obligation of another Blacksmith of the same Town upon Condition that he should not exercise the Trade or Art of a Blacksmith within the same Town nor within a certain precinct of the same And upon that Obligation the Obligee brought an Action of Debt in the Common Pleas depending which Suit the Obligor complained to the Iustices of Peace of the County against the Obligee upon which the matter being found against him by Examination the Iustices committed the Obligee to Prison and now upon the whole matter Puckering Serjeant prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex and hat it And Fleetwood Recorder of London being at the Bar the Court openly admonished him of that matter For by the Law Iustices of Peace have not Conusans of such Offences nor can entermeddle with them for their power is limited by the Commission and the Statutes And the Recorder relyed much upon the Opinion of Hull in 2 H. 5. 5. But it was said by the Court Although that this Court be a high Court to punish such Offences appearing before them of Record yet it doth not follow That the Iustices of Peace may also do so But as to the Obligation it self the Court was clear of Opinion That the same was void and against the Law. CCLXXXIX Russell and Broker's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 209. IN Trespass for cutting down of 4 Oaks The Defendant pleaded That the place where c. And that he is seised of a Messuage in D. and that he and all those whose Estate he hath c. habere Consueverant rationabile estoverium suum for fuel ad Libitum suum Capiendum in boscis subboscis arboribus ibidem crescentibus and that in Quolibet tempore anni unless in Fawning time The Plaintiff by Replication said That the place where is in the Forrest of D. c. And that the Defendant and all those whose Estate c. habere Consueverunt rationabile estoverium suum de Boscis c. per Liberationem Forestarii aut ejus Deputati prout Boscus pati potuit non ad exigentiam petentis And upon that Replication the Defendant demurred in Law. And it was the clear Opinion of the Court That Iudgment should be given against the Plaintiff For if he would have ousted the Defendant of his Prescription by the Law of the Forrest he ought to have shewed the Law of the Forrest in such Case Lex forestae talis est For the Law of the Forrest is not the Common Law of the Land and we are not bounden to take notice of it but it ought to be pleaded Or else the Plaintiff ought to have traversed the Prescription of the Defendant For here are two Prescriptions one pleaded by the Defendant by way of Bar The other set forth by the Plaintiff in his Replication without any traverse of that which is set forth in the Bar which cannot be good But if the Plaintiff had shewed in his Replication Lex forestae talis est then the Prescription of the Defendant had been answered without any more for none can prescribe against a Statute Exception was taken to the Bar because the Defendant hath justified the cutting down of Oaks without alledging That there was not any Vnderwoods But that Exception was not allowed for he hath his Choice ad libitum suum Another Exception was taken
Commoner shall not use his Common before that the Lord hath put in his Cattel was holden to be a void Custom On the other side It was said That this Custom might have a lawful beginning and that it might be grounded upon the reason of the Common Law That a Remainder should not be without the assent of the particular Tenant and therefore that the Custom might be good And it was said That Wife should not have her Dower unless she claimed it within a year and a day that the same was adjudged to be a good Custom The Court delivered no Opinion in the Case but the Case was adjourned to another time CCCIV. Mich. 31 Eliz. In C. B. THE Case was a Man devised Socage Lands to his Brothers Son in tail to have the same at his age of 25 years and died having Issue a Daughter The Nephew after 21 years entred and levied a Fine and afterwards accomplished his age of twenty five years It was the Opinion of the whole Court That the Issue of the Devisee was barred by this Fine For the Heir in Tail and the Heir in Fee are all one by the Statute of 4 H. 7. And it was holden That this was not a Fine which doth enure by way of Estoppel but that it passeth the very right It was said to be the same Law If one who hath but a condition levyeth a Fine and afterward entreth for the condition broken c. CCCV Palmer and Smalbrook's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case The Plaintiff declared 1 Len. 132. Owen 97. 1 Cro. 178. That the Defendant had recovered a certain Debt against one A. and thereupon took forth a Capias against the said A. to Arrest his Body and delivered the said Capias to the Plaintiff being then Sheriff and prayed a Warrant for the serving of the Capias and that he would name to him one B. for a special Bayliff and promised the Plaintiff That if B. Arrested A. by force of the said Capias and suffered him to escape that he would not sue him for the said escape and further declared That he made a Warrant according to the said Capias and therein named and appointed the said B. his special Bailiff who Arrested A. accordingly and afterwards suffered him to escape and that the Defendant notwithstanding his Promise aforesaid sued the Plaintiff for the said escape and it was found for the Plaintiff And it was moved in stay of Iudgment That that Promise was against the Law to prevent the punishment inflicted by the Statute of 23 H. 8. upon the Sheriff and that it is meerly within the said Statute and so the Promise void Cook This is not any Bond or Promise taken of the Prisoner nor of any for him and therefore it is not within the Statute and it was Davies Case Wray A Promise is within the Statute as well as a Bond. But the Statute doth not extend but where the Bond or Promise is made by the Prisoner or by some for him And afterwards Iudgment was given for the Plaintiff CCCVI Wood and Payn 's Case Trin. 31 Eliz. In the Kings Bench. IN an Ejectione firmae for Entry into a Messuage sive Tenementum and 4 Acres of Lands to the same belonging Vpon not guilty pleaded it was found for the Plaintiff It was moved by Cowper Serjeant That the Declaration is uncertain Messuagium sive Tenementum quod fuit Concessum Cook We will release our damages Kemp Then your Costs are gone also Cowper You cannot have Iudgment of the 4 Acres For the Declaration is 4 Acres to the said Messuage or Tenement belonging and for the incertainty to which thing belonging But to that it was said That as to the 4 Acres it is certain enough For the words To the same belonging are meerly void And afterwards the Plaintiff released damages and had Iudgment CCCVII Bennington and Bennington's Case Trin. 31 Eliz. In the Kings Bench. BEnnington brought an Action of Trespass against Bennington for breaking of his Close c. The Defendant pleaded That long time before the Trespass supposed That it was the Freehold of one Joan Bennington and that he as her servant and by her Commandment entred upon which they were at Issue And it was found That for two parts of the Land where c. in three parts to be divided it was the Freehold of the Plaintiff and for the other part that it was the Freehold of the Defendant and by the clear Opinion of the whole Court The Plaintiff could not have Iudgment for now it appeareth That the Plaintiff and Defendant are Tenants in Common betwixt whom an Action of Trespass doth not lie and although this Tenancy in Common be not pleaded but found by Verdict yet it was the Opinion of the Court That it is all one CCCVIII Brereton and Auser's Case Hill. 31 Eliz. In the Kings Bench. JOhn Brereton of the Inner-Temple brought a Writ of Error against Auser to Reverse an Outlawry And the Case was That the said Auser had caused the said Brereton to be endicted upon the Statute of Magna Charta and divers other Statutes For that Whereas the said Auser had sued the said Brereton in a Bill of Debt in the Court of Request against the said Brereton and by the said Suit procured the said Brereton to be imprisoned Vpon which Endictment Brereton was Outlawed And Error was assigned in the Outlawry because whereas the Endictment was taken in Middlesex the Exigent upon it was in London whereas it ought to issue out of Middlesex but the proclamations issued in the County whereof he was named Nuper and that was peremptory for if he make default upon that Process he shall encur the danger of a Praemunirè And for that cause the Outlawry was reversed Also the party was discharged of the Endictment for this Suit in the Court of Requests as it appeareth upon the Endictment was before Iudgment in the Bill of Debt CCCIX Constable and Farrer's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case upon an Assumpsit the Plaintiff declared That whereas the Defendant had brought an Action against him the Issue in which ought to be tried at the next Assises at N. the Defendant in Consideration that the now Plaintiff should confess the Action aforesaid at the Assises holden the 4th of August promised that he would stand to the Arbitrament of J.S. for the said matter And upon Non Assumpsit the Iury found That the Defendant made such a Promise the 5th of August but not the 4th of August Cook I conceive That upon this Verdict the Plaintiff shall have Iudgment for in truth the Assises began the 4th of August and the Consideration was That the now Plaintiff should confess the Action at the same Assises which although they continue divers days yet in Law all is but one day And all the Assises shall be said to be holden the 4th of August
an Under-Sheriff proceeding after an Habâ—as Horpus delivered C. 99. If one whose Goods are stole desire the Justice to examine one no Action lies unless he charge some one positively C. 100 101. Lies no for exhibiting an Indictment which purported that the Plaintiff was a Disquieter of the Neighbors C. 123. For prosecuting a slanderous Bill against the Plaintiff to the King that the Plaintiff had got 100 l. by Forgery C. 138. For procuring J. S. to sue an Appeal of Death against the Plaintiff C. 140 141. For maliciously indicting the Plaintiff of what offences it lies C. 140 141. If such Action lies if the Appeal were Erroneous C. 140 141. A. 279. Action upon the Case for Assumpsit See Consideration and Request Lies for Rent where the Action is changed from the Baron and Feme to the Baron only A. 43. Lyeth in consideration to forbear parum tempus A. 61. Where it lies not for a Rent A. 155 156. contra B. 107. To pay Mony at two or more days when the Action must be brought A. 319. B. 108 221. If in such Action the consideration be laid to be at the Defendants request the performance of the Consideration must be averred to be done at his request B. 53. C. 91. If it be a good Bar that the Plaintiff did discharge the Defendant B. 214 203 204 If it lies against Bailee of the Plaintiffs Bailee who receiveth Mony to buy Goods and bought them not C. 38. Where this Action or Account lies C. 38. If the Defendant may plead in Bar another promise and traverse part of that in the Count C. 67. A special Assumpsit must be precisely found and averred else the Plaintiff shall not have Judgment C. 99 205. By a Sheriff for that the Defendant promised not to sue him for an Escape upon a Special Warrant granted at the Plaintiffs denomination C. 227 228. Action Popular Is vested in the Informer and the King or his Attorny cannot enter a Nolle pro sequi as to the Informer A. 119. In what Cases it must be brought in the Parties Name only or for the King and Party C. 237. Action upon the Statute Of 32 H. 8. cap. 9. of buying pretended Titles its necessary to alledge that the Defendant knew the Vendor had not been in possession A. 167 208. If the Action be brought pro parte gravata the Statute of 31 Eliz. 5. does not limit him to any time C. 237. Addition Must come before the Alias Dictus else it doth not satisfie the Statute B. 183. School-Master and Scrivener both good B. 186. No utlary without an Addition according to the Statute B. 200. Administrator and Administration Durante minori aetate of three ceaseth by the full age of any one A. 74. Husband Administrator to his Wife A. 216. The Ordinary may commit administration to whom he will if he will incur the penalty of the Statute A. 240. How to alledge Administration granted by a Chancellor or Vicar-General A. 312. Granted by a Bishop where the Intestate had bona notabilia c. is ipso facto void B. 155. If impleading Admistration granted by the Metropolitan bona notabilia must be alledged B. 155. It is the safest to pay Mony upon a Mortgage to the Infant and not to the Administrator durante minore aetate C. 103. Are assigns in Law and a Duty is payable to them though they be not and named in the specialty C. 2 2. Administrator during the minority c. hath one in execution and then the Infant comes of age the Administrator cannot release the Defendant nor acknowledge satisfaction C. 278. Admiralty No remedy there for extortion done on the Land A. 107. If they proceed by the Civil Law where the Common Law can decide the matter a Prohibition lies B. 103. How the Admiral Grants his Offices B. 115. Suit there for a moyety of prize Goods taken by two Ships whereof one did but stand still while the other seised B. 182. If by a Libel there it appear they have not Jurisdiction a Premunire lies B. 183. Action may be sued there upon a Bond made in France and no Prohibition lies C. 232. Advowson In gross cannot be made appendant A. 26. By what words the Advowson of a Vicaridge may be granted A. 191. Whether it pass from the King by the words Bona Catalla A. 201 202. To what it may be appendant A. 207 208. How an Advowson appendant to a Mannor may be granted A. 208. B. 26. C. 17 18 193 196. How an Impropriation may be disappropriated B. 80. Age. At what age a Man and Woman may consent to Matrimony A. 54. The second Vouchee in a Cui in vita shall have his age though the first should not B. 138. Agreement and Disagreement see Acceptance What shall vest in any person before or after Agreement A. 130. B. 223. If the Lords agreement to avoid admittance makes it good A. 288 289. Where an Interest shall be devested by Agreement en pais where not B. 72 73. To what time Agreement to a Disseisin or Feoffment shall have relation B 223. If an Agreement en pais to an Estate be good to devest an Estate C. 271 272 273. Amendment Of a Christian Name in a Plea in Bar after demurrer A. 24. What shall be amended by the Statute of 27 El. cap. 5. A. 80 81. Shall be to affirm a Judgment or Verdict not e contra A. 134. Of a Sheriffs Retorn A. 145. None of the Christian Name of a Juror after Verdict A. 267. Of a Judgment which was Ideo videtur Justic quod quer recuptret B. 1 2. If the Proclamation of a Fine which were wrong with the Custos Brevium and right with the Chirographer C. 106 107 183. Amerciament see Fine Annuity The Judgment therein B. 52. If the Term for which that is granted expire this Action lies not B. 51 52. An Annuity pro Consilio impendendo cannot be granted nor forfeited by attainder B. 122. Appeal Damages recovered in Trespass is a good Bar to an Appeal A. 319. Lies not for the Heir where the Feme poysons her Husband for it is Treason A. 326. If the Defendant shall be arraigned at the Suit of the King if the Appellant die before Judgment or be non-suited B. 83. Where auterfoits acquit or convict is a good Bar B. 83 160. If it be a Bar the Indictment being erroneous B. 160. Where it must be brought if the party die in another County than where the stroke was C. 140 141. See the Statute 2 E. 6. cap. 24. and W. 2. cap. 12. Of Appeals Defendant pleads Ne unques accouple c. Et si trove ne soit Not Guilty C. 268. If an Appeal from a Sentence in the High Commission Court B. 176 177. Appearance The form of recording it to save the Ball bound A. 90. Appendant Appurtenant and Parcel If Tithes pass by Grant of a Rectory cum pertinentiis A. 281 282. Issue if an Advowson be
to prevent all acts and charges made mean by the Vendor yet it shall not relate to vest the Estate from the time of the delivery of the Deed For the Vendee cannot punish a Trespass Mean And if the Vendee hath a Wife and the Vendee dieth before Enrollment and afterwards the Deed is enrolled she shall not be endowed but here shall be some descent to take away an Entry yet the Heir shall have his age But in our Case it is otherwise for by the Waiver the Ioynture was waived ab initio And he cited Carrs Case 29 Eliz. in the Court of Wards The King granted the Mannor of C. to George Owen in Fee tenend in Socage and rendring 94 l. per annum And afterwards granted 54 l. parcel of the said Rent to the Earl of Huntington in Fee to be holden by Knight-service in Capite and afterwards purchased the said Rent in Fee And afterwards of the same Mannor enfeoffed William Carr who devised the same for the payment of his Debts And it was holden That the devise was good against the Heir And the King was not entituled to Livery or Primer Seisin And therefore the Defendant was dismissed But peradventure the Queen shall have benefit of the Act. See Cook 3 Part 30 31. Butler and Baker's Case The King gives Lands unto A. in Fee to hold by Knights-service during his life and afterwards to hold in Socage He may devise the whole For at the time when the devise took effect he was Tenant in Socage Lands holden in Knight-service are given to J.S. in tail scil to the Heirs Males of his Body the Remainder to the right Heirs of J.S. J.S. deviseth these Lands and afterwards dieth without Issue Male the same is good for two parts yet during his life he had not an Estate in Fee in possession The Father disseiseth his Son and Heir apparent of an Acre of Land holden in Chief by Knight-service in Capite and afterwards purchaseth a Mannor holden in Socage and deviseth the said Mannor and dieth his Heir within age the Devise is good for the whole and the King shall not have Wardship of any part and that in respect of the Remitter and yet it is within the words Having sole Estate in Fee of Lands holden and within the Saving Tenant in tail of an Acre of Land holden of the King in Chief by Knight-service seised of two Acres in Fee holden ut supra makes a Lease for three Lives of the Acre entailed reserving the accustomed Rent and afterwards deviseth the other two Acres in Fee and afterwards dieth seised of the Reversion and Rent The same is a good devise of all the two Acres And here is an immediate descent of the third part for the same is within the words In Possession Reversion or Remainder or any Rent or Service incident to any Reversion or any Remainder See the Statute of 34 H. 8. A Man seised of three Acres of equal value holden by Knight-service in Capite assureth one to his Wife for her Ioynture by Act executed and deviseth another to a stranger And the third to his Wife also The King in this case shall have the third part of every Acre But if the stranger waiveth the devise the King shall have the Acre to him devised and the Wife shall retain the other two Acres and it shall not go in advantage of the Heir So if he deviseth the said three Arces severally to three several persons to each of them one Acre and the one Waives the devise in one Acre The devise of the other two is good Or otherwise the King shall have the third part of every Acre c. CCCLXVII Mich. 35 Eliz. In the Common Pleas. 5 Co. 29. THe Case was An Enfant was made Executor And Admimistration was committed to another viz. A. durante minori aetate who brought an Action of Debt against the Debtor and recovered and had him in Execution and now the Executor came of full age It was moved What should be done in this Case and how the party should be discharged of the Execution for the authority of the Administrator is now determined and he cannot acknowledge satisfaction or make an acquittance Windham Although the authority of the Administrator be determined yet the Record and the Iudgment remain in force But peradventure you may have an Audita Querela But he conceived That an Administrator could not have such Action for that he is rather a Bailiff to the Enfant than an Administrator See Prince's Case 42 Eliz. Cook 5 Part 29. Which Rhodes concessit A. was bounden unto B. in an Obligation of 100 l. upon Condition to pay a lesser sum The Obligee made an Enfant his Executor and died Administration was committed durante minori aetate to C. to whom A. paid the Mony It was doubted If that payment was rightful or If the Mony ought to have been paid to both Windham Doth it appear within the Record That the Enfant was made Executor and that Administration was committed ut supra To which it was answered No. Then Windham said You may upon this matter have an Audita Querela In this Case It was said to be the Case of one Gore 33 Eliz. in the Exchequer in a Scire facias by an Assignee of a Bond against an Enfant Executor He pleaded That the Administration was committed to A. and his Wife during her minority And it was adjudged no Plea. CCCLXVIII Mich. 35 Eliz. In the Common Pleas. NOte It was the Opinion of all the Iustices Jones Rep. 243. That if Lessee for 20 years makes a Lease for 10 years that he may grant the Reversion without Deed but in such case if there be a Rent reserved there ought to be a Deed and also an Attornment if the Rent will be had And it was agreed by them all That if there be Lessee for years and the Lessor granteth the Land to the Lessee and a stranger that the Reversion shall pass without Livery or Attornment and that by the Acceptance of the Deed by him who ought to Attorn But whether he shall take joyntly or in Common or whether in a moyety or in the whole the Iustices were of divers Opinions Ideo Quaere for it was not Resolved FINIS A TABLE of the principal Matters contained in the Third Part of LEONARD'S Reports A. ABatement of Writ Page 2 4 77 92 Ex Officio Curiae p. 93 Accompt p. 38 61 63 Damages given in it p. 150 Damages given in it not expresly but the Court shall give Quoddam Incrementum p. 192 Brought by the Grantee of the King against an Executor where maintainable where not p. 197 Generally brought where good p. 230 Acquittance Must be shewed upon payment of Debts by Executors p. 3 Action upon the Case For stopping of a way p. 13 Against one for proceeding to Judgment and awarding of Execution in an inferiour Court after an Habeas Corpus awarded p. 99 Where lieth
for procuring a Warrant from a Justice of Peace upon a surmise to arrest one upon suspition of stollen Goods p. 101 For stopping of a River whereby the Plaintiffs Lands are drowned though the Plaintiff had no Title in the Land at the time of the first stopping of it p. 174 Lieth not for the not delivery of a Greyhound upon an Assumpsit made thereof p. 219 For publishing a scandalous Bill p. 138 Either the Action or an Assise at the election of the party for a disturbance of him to take his Common p. 263 For Words p. 171 269 Action upon Statutes Brought upon the Statute of 2 Ma. the Defendant shall not have costs in it by the Statute of 23 H. 8. p. 92 Upon the Statute of 21 H. 8. of taking Lands to Farm by spiritual persons to what Leases it shall extend p. 122 A Bill in the Exchequer-Chamber lieth not to have the treble value upon the Statute of 2 E. 6 cap. 13. p. 204 Upon the Statute of Hue-and-Cry lieth not against the Hundred for a Robbery committed in the persons house p. 262 Advowsons Where by grant of Advowson the Rectory Appropriate doth not pass p. 111 Agreement Made by a Parson with a Parishioner in consideration of 20 s. per annum he shall be discharged of Tythes during the life of the Parson not good without Deed p. 257 Amendment Of the Proclamations upon a Fine levied p. 107 Amercement Of the Hundred for the escape of a Felon where not good p. 207 Annuity Pro consilio impendendo not grantable over p. 185 Appropriation and Disappropriation Of a Church must be by a judicial Act and not by a private Act of the party Apportionment Not of a Release p. 13 Arbitrament and Award To perform an Act to be done by a stranger not good p. 62 To pay Mony such a day to a stranger or his Assigns and he dies before the day it must be paid to his Administrator or his Assigns p. 212 Assumpsit Where and in what Case lieth against an Executor where not p. 69 Where the consideration is not good to ground an Action upon it p. 88 128 The Plaintiff declares upon one consideration and the Jury find that promise was upon that and another consideration the Plaintiff cannot have judgment p. 91 Declaration in it where not good because levied so general p. 91 For the performance of an Award where good p. 105 Where binds an Enfant though there be no present consideration p. 164 To forbear a Suit per paululum tempus no consideration in it p. 202 Within the Statute of 23 H. 8. of Sheriffs as well as an Obligation p. 228 Assignment Of a Debt to the King where good and how it shall retake p. 197 Upon an Assignment of a Debt to the King a Lease is found by Office the King not bound to set forth in the Inquisition the certainty of the Term p. 204 Attachment Cannot be by the Custom of London of a Debt which is depending in the Kings Courts of Record p. 210 236 244 Cannot be by the Custom before the Debt is due p. 236 Attornment what p. 17 Tenant by possibility of Issue extinct not compellable to Attornment p. 121 Upon a surrender of the Reversion and Rent by a Copyholder to the use of a stranger where it passeth without Attornment p. 197 The Lessor granteth the Reversion to the Lessee and to a stranger the Reversion passeth without Attornment p. 279 Averment That the Tenant was not seised where not good p 92 Not against a Deed enrolled p. 176 B. BAil Of an Enfant condemned and Execution for Debt where shall pay the Mony recovered p. 107 Bar In Avowry where not good p. 92 In Trespass where good where not p. 122 Recovery in one Action where a Bar in another p. 194 Outlawry pleaded in Bar after Imparlance where good p. 205 Bill Upon the Statute of 5 Eliz. for Perjury doth not lie upon a Perjury committed in an Answer in the Chancery p. 201 C. CErtificate Of the Ordinary of the inability of a Clerk refused by him he must certifie the particular cause of his refusal and a general Certificate is not good p. 199 Chancery After Judgment at Law cannot grant Injunctions p. 18 Chauntry What shall be said a Chauntry within the Statute of 2 E. 6. p. 115 Cinque-Ports Certiorari granted further to certifie a Record p. 3 Common Where obtained by long sufferance may be lost by long negligence p. 202 Common recovery Where not bar the issue in tail p. 143 Tenant in tail rendring rent suffers a common recovery of the Land if the Rent be gone p. 261 Condition Proviso where a Condition where not p. 16 Where broken where not p. 67 Where the words in a Will are viz. shall go about to sell his part shall for ever lose the same the words for ever shall be referred to perdere and not to vendere p. 181 None can enter for a Condition broken but the Lessor or one by his direction p. 269 Conspiracy Where it lieth upon an acquittal in an Appeal p. 140 Constable Cannot compel strangers who pass to Watch nor set them in the Stocks for refusing so to do p. 208 Constat Where must be made of a Patent enrolled vacated p. 165 Tenant in tail of the gift of the King surrenders his Letters Patents and a vacat is made of the enrolment it shall bind the issue in tail p. 165 Conusans of Pleas In a Writ of Right must shew before whom to be holden p. 148 Not grantable to an inferior Court against the priviledge of the Court of King-Bench p. 149 Of Pleas to the University of Camb. if they shall have Conusans upon an information upon the Statute of 7 E. 6. cap. 5. p. 214. 217 Copyhold and Copyholder For years shall go to Executors p. 9 Makes a Lease for years and afterwards surrenders the reversion and rent to a stranger who is admitted it passeth without attornment p. 197 The admittance by the Lord of a stranger to a Copyholder is no disseisin to the Copyholder for that an Estate at Will only passeth p. 210 Corporations Cannot stand seised to an use but may charge their Possessions with an use p. 176 Covenant To make Assurance how to be expounded p. 27 A. Covenanted to convey the Freehold to a Copyholder in consideration of a Covenant performed and the Copy-holder covenanted to pay such a sum he is bound to pay the sum before the Assurance made otherwise it was of a Covenant to be performed p. 219 Custom That the Lord of the Mannor might grants Copies in remainder only with the assent of the Tenants and not otherwise if good p. 227 Of the Mayor and Aldermen of London to make Acts and Ordinances to bind the Citizens and Free-men where good where not p. 264 D. DAmages Where Judgment is given for the Plaintiff and upon a Writ of Enquiry excessive damages are given by the Jury which Writ is