of the said Anne and of the right heirs of the same W. Wallshot Anne died and if this Lease should bind the Conusee was the question for it was agreed by all that the Issue in Tail was bound by the Fine Quaere the Case was only put but not resolved CXLV Trin. 30 Eliz. In the Common Pleas. UPon a recovery in a writ of Entry sur disseisin of two Acres of Lands an Habere facias seisinam was awarded the Sheriff as to one Acre returned Habere feci and as to the other tarde And that return was shewed to the Court Amercement of the Sheriff and all the Iustices but Periam held that the Sheriff should be amerced for that return being contrary repugnant in it self but Periam said it may be that the Acre of which no seisin is had was so distant from the other Acre whereof the seisin was had that the Sheriff in time could not make execution of both being so remote the one from the other To which it was answered That if the truth of the case was such Then might the Sheriff make Execution in one Acre in the name of both Acres And if upon a Capias ad satisfaciend against two the Sheriff retorn as to one a Cepi and as to the other Tarde he shall be amerced for his several retorns cannot stand together Mich. 29 Eliz. In the Common Pleas. CXLVI Lees and Lord Staffords Case COmpton made Conusans as Bayliff to Edward Lord Stafford and shewed that Henry Lord Stafford Father of the said Edward and Ursula his Wife were seized of the place where and let the same for years to Edward Lees the Plaintiff Robert Lees and Elizabeth Atwood upon Condition they nor any of them should alien the said Term nor any part of the same without the leave of the Lord or his Heirs Henry Lord Stafford and Ursula died and that the Reversion thereof descended to Edward Lord Stafford and shewed further that the said Edward Lees the Plaintiff had aliened To which the Plaintiff in bar of the Conusans said that the said Edward now Lord Stafford gave License that the said Edward Lees Robert or Elizabeth might alien and that was without Deed. It was conceived by some that this Licence was not of any force to dispense with the Condition because it is uncertain and doubtful in the disjunctive and it was resembled to the Case of 11 H. 7. 13. where a man gives a thing to J. S. or A. B. it is void for the incertainty But all the Court was to the contrary For here the thing which is given is but a Liberty and is not to be resembled to a Gift or Interest and the intent of the Lord Stafford was that one of them might alien but not all of them and afterward Iudgment was given for the Plaintiff Trin. 31 Eliz. In the Kings Bench. CXLVII Limver and Evories Case LImver as Administrator of one A. brought Debt against Evory and the case was F. made G. his Executor and G. made H. an Infant his Executor and died and during the minority Administration was granted to the Plaintiff who as Administrator of G brought an Action of Debt upon a Bond made to the first Testator and that was assigned for Error for the Plaintiff ought to bring his Action as Administrator of the first Testator vide 10 E. 4. 1. 26 H. 8. 7. and for that Cause the Iudgment was reversed Mich. 33 Eliz. In the Kings Bench. CXLVIII Knevit and Copes Case KKnevit brought Ejectione firmae against Cope and declared 3 Leon. 266. whereas John Hopkins by his Deed bearing date the 20 of May 32 Eliz. had let to him a House and two yard Lands containing forty Acres of Land Meadow and Pasture at Tithingham de forecomb in the Parish of Steep c. and upon Not Guilty the Visne was of Tithingham de Forecomb Exception was taken by Cook that the Declaration had not certainty for it is not shewed certain how much Meadow Land and how much Pasture is contained in the said two yard Lands and the Iury may find the Defendant Guilty as to so much Land but not to the residue also he hath not shewed in the Declaration when the Lease was made but only saith that by Indenture bearing date 20 May c. but doth not shew any day of delivery of the Indenture for then is the demise To which Exception it was said by the Iustices That the Declaration as to that was good enough for it shall be intended to be delivered at the day of the date Another Exception was taken to the Visne because that the Visne ought to have been from the Parish and not from Tithingham 11 H. 7. 23 24. Forcible Entry in the Manor of B. in B. the Visne shall not be from the Manor of B. but of B. Gawdy You shall never have a Visne of the Parish for divers Towns may be in one Parish but here the Visne is well of Tithingham for it may be that it is a Town Cook It is but a Vill conus from which a Visne cannot come CXLIX Trin. 28 Eliz. In the Common Pleas. Rot. 1027. MIlbourn brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex it was found by Special Verdict that the Plaintiff was robbed 23 Aprilis inter horam secundam matutinam tempore nocturno ante Lucem ejusdem diei and the Opinion of the Court was clear that the Plaintiff should be barred for the said Statute provided for ordinary Travel as in the Case of Archpool who came to his Inn post Sunset ante noctem in tempore diurno which is an usual time for travelling to come to his Inn but the Law doth not receive any in protection of this Stat. who travel in extraordinary hours for it is the folly of the Traveller to take his journy so out of season and the Inhabitants are not bound to leave their Houses and to attend the ways tempore nocturno and another reason was alledged by the Iustices because the said Statute appoints watch to be kept in the time of night à Festo Ascensionis usque ad Festum Sancti Michaelis and this Robbery was done the 23 of April so as it was out of that time and afterwards Iudgment was given against the Plaintiff Mich. 26 Eliz. In the Common Pleas. CL. Barkers Case Estrepement in Partition A Writ of Partition by Barker heir of Gertrude Marquess of Exceter who devised all her Lands to Blunt by which the third part was descended to the Plaintiff and he prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ ought not to be granted for that the Plaintiff might have a more proper remedy upon the Statute cum duo tres c. and in a Writ of Partition no Land is demanded Trin. 29 Eliz. In the Kings Bench. CLI Megot and Davies Case
Assumpsit MEgot brought an Action upon the Case against Broughton and Davy upon Assumpsit and it was found by Nisi Prius for the Plaintiff and afterwards before the day in Bank Broughton dyed and after Iudgment given Davy the other Defendant brought a Writ of Error in the said Court scil in the Kings Bench where Iudgment was given and assigned an Error in fact scil the death of Broughton depending the Writ vide 2 R. 3. 21. and this Case is not like to Trespass for Trespass done by many are several Trespasses but every Assumpsit is joynt If the Court may reverse their own Judgment and if the Court upon this matter might reverse their own Iudgment was the Question the Case was not resolved but adjourned CLII. Trin. 31 Eliz. In the Common Pleas. IT was found by Office that J. S. held by the Queen and dyed without Heir whereas in truth he had an Heir scil A. S. who leased the Lands for an hundred years and afterwards traversed the Office Office trove and had an Ouster le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner in behalf of the Sheriffs of London before whom the matter depended to whom it was said by Anderson Chief Iustice Conveyance by the Heir upon Entrusion That where the King is entituled by an Office to a Chattel as to a wardship c. there if the Heir without any intrusion bargain and sell levy a Fine or lease for years during the possession of the King it is void against the King but shall bind the Heir but where the King is intituled to the Fee-simple as in this Case such a Conveyance is meerly void Hil. 31 Eliz. In the Kings Bench. CLIII Samuel Starkeys Case HOmine replegiando by Samuel Starkey to the Sheriffs of London Who returned that the said Starkey was indicted to be de mala fama deceptione Domini Regis with divers other general words and namely that he had deceived J. S. a Clothier and that he was a common Cozener and thereof being found guilty Iudgment was given by the Mayor and Recorder That he should be disfranchized of his Freedom and should be fined and imprisoned for a year and further said that he had not paid his Fine nor the year expired Cook Such Return hath not been seen and it is directly against the Statute of Magna Charta Wray Chief Iustice gave a Rule that the Sheriffs should make their Return at their perils before such a day Hil. 31 Eliz. In the Kings Bench. CLIV. Bushy and Milfeilds Case IN Error brought by Bushy and Milfeild It was assigned for Error that where in the first Action the Iury gave four pence Costs and the Court gave de incremento three and twenty shillings that in the Iudgment the four pence was omitted Error It was the Opinion of the Court That for that Cause the Iudgment should be reversed although it be for the advantage of the Party so where the Iudgment is quod sit in misericordia where it ought to be Capiatur Hil. 29 Eliz. In the Common Pleas. CLV Bingham and Squires Case BIngham brought Debt upon an Obligation against Squire Obligation 3 Leon. 151. The Condition was If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the said Bingham so as the said Bingham at the said next Avoidance may present that then c. The Case was That afterwards by the means and endeavour of Squire the Grant of the next Avoidance was made to Bingham but before the next Avoidance the present Archdeacon was created a Bishop so as the presentment of that Avoidance belonged to the Queen It was adjudged in this Case that the Condition was not performed and that by reason of these words scil So that Bingham may present And afterwards Iudgment was given that the Plaintiff should recover Hil. 26 Eliz. In the Common Pleas. CLVI Mansors Case A. Man bound himself in an Obligation to make an Assurance of Lands the first day of Jan. and the last day of December he to whom the Assurance was to be made scil the Obligee the said last day before Sun-setting came to the Obligor with a Deed ready to be sealed and prayed him to seal it who said to him that he was a man unlearned and said he would shew the same to his Counsel and then he would seal it And if the Obligation was forfeited or not because he did not seal it presently was the question And Fenner argued that it was not for when a thing is to be done upon request then he who makes the request ought to give sufficient and convenient time to perform the Condition I agree That where the Condition is absolute there if the Condition be not performed he shall not be excused by the default of another As if a man be bounden to marry A.S. and she will not marry him or to enfeoff J. S. and he refuseth as 3 H. 6. is the Obligation is forfeited Yet in these Cases if the Obligee himself be the cause that J. S. will not take the Feoffment or he will not marry A. S. the Obligation is not forfeited So in our Case for by his late request it is impossible for me to perform the condition for before my Counsel shall have perused it the time will be past If a man be bound to enfeoff one of Lands in Barwick request ought to be made so long time before that after that he may go to Barwick So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender so long time before the last instant of the last day that the mony may conveniently be told This Case was in question A man made a Feoffment of the Manor of D. with the Appurtenances to which an Advowson was appendant and covenanted that the Manor upon request should be discharged of all manner of Incumbrances and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died the Clark of the Grantee was instituted and inducted the Feoffee requested the Feoffor to discharge the Incumbrance The opinion of many Sages of the Law was that he had not made his request within convenient time So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. shall have Issue of his Body If the Obligee demand Assurance after the death of J. S. without Issue yet the Obligation is not forfeited In 22 E. 4. if Lessee for the life of another continues possession for two or three weeks after the death of Cestuy que use where he could not have more speedy notice of his death he shall not be a Trespassor In 15 Eliz it was holden in Wottons Case That where he was bound to make a Feoffment to J. B. and J. B. came to him in Westminster Hall and tendred to him a Writing
or his Servant had put the Horse to grass and afterward the Horse is stollen there an Action upon the Case doth lye Trin. 29 Eliz. In the Common Pleas. CXCVII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs Citizens and Commonalty of the City of Norwich the Original Writ was directed to the Coroners of the said City And Exception was taken to the Writ because it was not directed to the Sheriffs of the said City but to the Coroners Sed non allocatur for the Sheriffs are parcel of the Corporation as it is to see by the name by which they of Norwich are incorporated And also it hath been adjudged That a Sheriff cannot summon himself and therefore by the Award of the Court the Writ was allowed to be good Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands the Kings Silver was entred and the Conusans taken but the Fine was never engrossed and now he who claimed under the Fine came in Court and prayed that the Fine might be engrossed and the Court examined them upon their Oaths to what use the Fine was levied and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine Vpon which Examination it appeared fully to the Court that the Party to whom the Fine was levied was seized after the Fine and suffered a Common Recovery of the Land and that the said Land had been enjoyed according to the said Fine at all such times since c. Whereupon the Court commanded that the Fine be ingrossed Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer CXCIX The Lord Dacres and Philip Fines Case THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite levied a Fine thereof without Licence 3 Leon. 261. and Process issued against the Tenants for Life It was holden by all the Barons that by Plea he should be discharged it was holden That if the Conusor had any other Lands ubicunque in Anglia the Fine for Alienation should be levied upon them But it was moved If the Tenant should be driven to plead it because it appears upon Record that the Conusor was but Tenant in Tail in Remainder and that was in an Office containing such matter which was pleaded by another in another Cause before by which Office it appeared that the Lord Dacres was Tenant in Tail the Remainder in Tail to Philip Fines and now Fines had levied a Fine sur Conusans de droit c. and because the same appeared on Record Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed Trin. 29 Eliz. CC. Paston and Townsends Case IN Trespass by Paston against Townsend The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized and the Land descended To which the Plaintiff replyed and said c absque hoc that Tindal was seized in Fee upon which they were at Issue On the part of the Defendant to prove the Issue it was given in Evidence to prove the Issue in his right that the said Tindal long time before his death was seized and aliened and never after was seized It was said that that Evidence did not prove the Issue for the Defendant for the Seisin in Fee intended in the Issue is in the nature of a dying seized and so Periam conceived that the Defendants Plea did not intend any other Seisin a dying seized and the dying seized is taken by Protestation to avoid the doubleness So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal and Seisin at large or a general Seisin at any time during the life of Tindal quod Anderson concessit Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case ERror by Griffith against Price upon a Iudgment in Chester in Ejectione firmae and the Error assigned was because the Original bore date 16 April 28 Eliz. and the Plaintiff declared of an Ejectment 17 April 28 Eliz. So as it appeareth that the Action was brought before there was any cause of Action and that was holden to be Error And also Ejectione firmae is not a personal Action and afterwards the Iudgment was Reversed Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls and upon that Error was brought in the Kings Bench quod nota For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior Vide â— N. B. 22 23. And Wray asked Wherefore the Writ of Error was brought here To which it was answered by Dodding Clark that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant to the purpose to bring a Writ of Error quod coram vobis residet And the Error was assigned in this that by the Statute of 18 Eliz. cap. 5. it is enacted that upon every Information that shall be exhibited a special Note shall be made of the Day Month and Year of the exhibiting of the same into any Office or to any Officer who lawfully may receive the same And here upon this Information there is not any such Note according to the said Statute And in truth no Information may be exhibited for there is not any Officer there appointed for that matter for the entry in such Cases in that Court is Talis venit deliberavit hic in Curia Miloni Sands c. But in the Case at Bar the Entry is Talis venit deliberavit in Curia but without shewing to whom But note that the words of the said Statute of 18 Eliz. are in the disjunctive into any Office or to any Officer and that such Information shall not be of Record but from that time forwards and not before wherefore here this Information is not upon Record and then no Iudgment can be given upon it Cook This Information may be well sued in London for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King And the Court in London is a Court of Record of the King and every Court of Record hath an Officer to receive Declarations and Pleas and if it be delivered into the Office it is good enough 2. The Offence is laid in the Parish of Bow in Warda de Cheap alibi in Civitate London and so there is not any place laid where the Offence shall be tryed Cook This Alibi is a Nugation Trin. 31 Eliz. In the Kings Bench. CCIII Peuson and Higbeds Case IN Assumpsit the Plaintiff declared that in consideration that he by his Servant had delivered to the Defendant two Bills
Marchioness had devised all her Lands and had not left any thing to her Heir for which Case the Heir of the Marchioness entred into the third part of the Manor of Cauford of which the Lease upon which the Ejectione firmae was brought was made by the Lord Mountjoy to Insley and into the third part of the residue of the whole land now his meaning was That if the rent was not well passed by the name of the Manor then the same descended to the Heir which was sufficient for him For the Special Verdict found also That the rent was the third part of the value of the whole Land of the Marquess So that thereupon it may be collected That if a man hath three Manors some of them holden in Capite and of equal value and he deviseth two of them and suffereth the third to descend that the Devise is good for every part of the two Manors and the Heir shall not have the third part of each Manor Pasc 28 Eliz. In the Common Pleas. CLXIII Spring and Lawsons Case ONe recovered in an Ejectione firmae and afterwards the Defendant made a new Lease for years and he who recovered ousted him and he brought an Ejectione firmae and the other pleaded the former Recovery It was holden a good bar by all the Iustices but Windham and Periam and by them the same is no Estoppel for the Conclusion shall be Iudgment if Action and not Iudgment if he shall be answered And although that it be an Action personal and in the nature of a Trespass yet the Iudgment is quod habeat possessionem termini sui during which Term the Iudgment is in force it is not reason that he should be ousted by him against whom he recovered for so Suits should be infinite and by Rhodes an Entry pendent the Writ shall abate it CLXIV Hil. 29 Eliz. In the Kings Bench. AN Action of Covenant was brought against one who had been his Apprentice The Defendant pleaded that he was within age The Plaintiff maintained his Action by the Custom of London where one by Covenant may bind himself within age Exception was taken to it that that was a Departure For 18 R. 2. an Infant brought an Action against his Guardian in Socage who pleaded that the Plaintiff was within age The Plaintiff did maintain his Declaration That by the Custom of such a place an Infant of 18 years might bring accompt against his Guardian in Soccage and it was there holden to be no departure Wray Chief Iustice was of Opinion that it was no departure for he said It should be frivolous to shew the whole matter in his Declaration viz. That he was an Infant and that by the Custom he might make a Covenant which should bind him But Quaere of the Matter and of his Opinion for that many learned Lawyers doubted much of it And vide the Case in 19 R. 2. of the Guardian in Soccage Mich. 29 30 Eliz. In the Kings Bench. CLXV Savage and Knights Case ERror was brought upon a Iudgment given in Leicester in Debt Tanfeild assigned Error because in that Suit there was not any Plaint for in all Inferior Courts the Plaint is as the Original at the Common Law and without it no Process can Issue forth and here upon this Record nothing is entred but only that the Defendant Summonitus fuit c. and because the first entry ought to be A. B. Queritur versus C. Clench a Plaint ought to be before any Process issueth and the Summons which is entred here is not a Plaint and for that Cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred But it was answered That that did not help the matter for there ought to be a Plaint out of which Process shall issue as in the Soveraign Courts out of the Original Writs 28 Eliz. In the Common Pleas. CLXVI Grindal Bishop of Yorks Case GRindal Archbishop of York made a Lease for one and twenty years another Lease for years of the same Land being in being not expired by four years and dyed and in time of vacation the Dean and Chapter confirmed it Clench It is a good confirmation A Bishop makes a Lease for years reserving the ancient rent but where it was payable at four Feasts of the year it is now reserved payable once in the year the same is within the Letter of the Statute but not within the intent the same Law if the Rent before was usually reserved to be paid upon the Land now it is reserved to be paid at any far remote place And he said that although his lease was in possession yet not to take effect before the four years of the former Lease are expired cannot be said an Estate within the Statute of 1 Eliz. whereby any Estate may pass before the commencement of it for he to whom it was made had but a right to have the Land and he could not surrender And he held that the second Lessee should pay the rent as well by the Contract as by the Estoppel Periam At the Common Law a Bishop with the Confirmation of the Dean and Chapter might have made a Feoffment Gift in Tail and a Lease for any Term of years and he spake much What shall be said the Possessions of a Bishop And therefore if a Bishop disseiseth another of certain Lands and makes a Lease thereof under the Seal of his Bishoprick it shall be now his Seal and it shall be his election in what capacity he will take and then this Land is to be reputed parcel of the Possession of his Bishoprick Mich. 29 Eliz. In the Common Pleas. CLXVII Hoo and Hoes Case JOhn Hoo brought a Writ of Intrusion against Richard Hoo depending which Writ the Demandant prayed Estrepement and had it and declared upon it scil That the Tenant after the Prohibition fecit Vastum Estrepementum in prosternendo c. To which the Tenant pleaded Not Guilty But the Plea was not allowed by the Court for there is no Issue in this Case but he might to plead Quod non fecit vastum c. after the Prohibition 29 Eliz. In the Common Pleas. CLXVIII Clinton and Bridges Case DEbt The Condition was for performance of an Award which was to pay 10 l. to the Plaintiff and to do divers other things The Defendant pleaded Quod perimplevit Arbitrium and shewed how the Plaintiff assigned for a Breach that the Defendant had not paid the 10 l. The Defendant rejoyned that he rendred it to the Plaintiff and he refused it It was the Opinion of Dyer that the same is a Departure for in the Bar the Defendant pleads that he hath performed the Award and shews how and now in the Rejoynder a Tender and Refusal which is not a performance of the Award although it is not any Breach of it 29 Eliz. In the Exchequer CLXIX The Bishop of L's Case Tenures THe Case of the Bishop of
defence c. and therefore if he maketh default or confesseth the Action it is a Forfeiture And as to the supposed recompence the same doth not help the Case for this common Recovery is no other but an Assurance and Recoverors are but Assignees and they shall take advantage of Conditions by 32 H. 8. and a recoveror shall be seized to the use of him who suffers the recovery if no other use be expressed And he also held that when Tenant for life bargains and sells his Land by Deed inrolled although no Fee passeth 1 Leon. 264. 3 Inst 251. b. Mores r. 212. 2 Leon. 60 65. yet it is a Forfeiture and that by reason of the Inrollment which is matter of Record And he said that if an Infant Tenant for life be disseised the Disseisor dyeth seized and afterwards the Infant dyeth that he in the remainder may enter Gent. to the same intent If Tenant for life c. the same is not simply a Forfeiture for he may have a Warranty or a Release or a Confirmation made to him Attornment doth not give a right but is only a consent yet if he who hath nothing in the reversion will levy a Fine of it to another and afterwards the Conusee bringeth a Quid juris clamat against the tenant of the Land and he Attorns it is a Forfeiture Manwood to the same intent This is a new Case and I have not read the Case in any Book nor seen any President of it And it is a great Case and a general Case and worthy to be argued and I conceive clearly that here is a direct and express Forfeiture at the Common Law without any aid or restraint of any Statute to make it a Forfeiture The dignity of Iudgment in the repute of Law hath been urged which ought to stand in force until they be reversed by Error or Attaint And also Littleton hath been urged 481. where upon the Statute of West 2. cap. 3. he saith that before the Statute aforesaid If a Lease had been made to one for life the remainder to a stranger and afterwards a stranger by feigned Action had recovered against the tenant for life by default and also the tenant for life dyed that he in the remainder had not any remedy But there Littleton doth not report the same as his own Opinion but as an Opinion conceived by a remainder upon the said Statute and it is in truth but a meer conceit And as to the main point he took this diversity Such Recoveries in which the title of the demandant stands indifferently to the Court and Non constat if it be good or not being suffered by tenant for life by default or confession without Aid prayer of him in the reversion do not make any Forfeiture although the tenant for life hath not dealt well with him in the reversion not having prayed in aid of him And in such Case If a Lease be made for life the remainder over in Fee upon such a recovery he in the remainder shall have a Formedon in the remainder or a Writ of Right and shall not oust him who recovered without Action and that by the Common Law. Then came the Statute of West 2. cap. 3. which gave to the Wife Cui in vita upon a Recovery against the Husband by default whereas before she had not any recovery but a Writ of Right and notwithstanding her former recovery ulterius necesse habet ostendere jus suum secundum formam brevis quod prius impetraverat and if his right be not better than the right of him in the Reversion he shall lose the Land notwithstanding the Iudgment given before for him And that Statute gave Resceit or Entry ad terminum qui praeteriit and that Statute is to be intended of such Recoveries where a good or at least an indifferent Title is so as non constat Curiae if it be good or not After that Tenant for life was driven to a near shift and would not make default or lose by nient dedire but would plead but yet faintly for the remedy of which Mischief the Statute of 13 R. 2. was made which gave Resceit in such Case the particular Tenant being restrained by that Statute He jugled yet and practised to suffer a Recover secretly without notice of him in the Reversion To remedy which Mischief the Statute of 32 H. 8. was made and that made such Recovery had against such particular Tenant void against him in the Reversion It hath been objected That the Statute of 32 H 8. doth not give any Forfeiture in that Case but makes that the Recovery be void therefore he in the reversion ought to tarry till after the death of the particular Tenant To that I shall speak after But how our Case is a common Recovery and constat Curiae that the Demandant hath not any right for the Tenant might have barred him and in truth he who recovereth is but a Purchasor Also this recovery is not to the use of the recoverer but to the use of him who was Tenant in it and not paramount as in the Case of a recovery upon a good title a Lease for years made by him who after suffers a recovery is good and shall not be defeated by the recoveree otherwise it is where the recovery is upon a good Title Vide Statute of Gloucest cap. 11. Where upon default of the Tenant resceipt is given for Lessee for years yet if the Tenant vouch upon default of the Vouchee the Lessee for years shall be received and now resceipt of Lessee for years is out of the Book for by the Statute of 21 H. 8. he may falsifie But no resceipt lyeth in the Case of a common recovery for he who recovereth cannot oust the Termor As to that which my Brother Clark hath said That the Bargain and Sale in this Case is not any Forfeiture but when the Deed of Bargain and Sale is inrolled it is a Forfeiture I am not of that Opinion for although that the inrollment be of record yet the Deed is not of record for against the Deed inrolled a man may plead Infancy although none can plead Non est factum to it Also he held that although by the Bargain and Sale and the inrollment of it the Bargainee had not Fee for by such act the reversion is not removed yet by the recovery and the Execution of it the Bargainee had gained the Fee out of the Lessor for the recovery is to the use of the Bargainee against whom it was had c. It hath been objected That he is only a Voucher which peradventure was lawful in this Case by reason of the Warranty paramount or of a release or confirmation with Warranty and two Cases have been vouched to such purpose viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe vouched a stranger the Demandant counterpleaded the Voucher which was found for him he in the reversion had no remedy but
was That Francis Bunny was seized and 1 May 20 Eliz. by Deed indented enfeoffed N. H. to the use of the said Fr. Bunny for term of his life the Remainder to D. in tail the Remainder to E. in tail the Remainder over to F. in Fee In which Deed of Feoffment a Proviso was That if it should happen one P. P. to dye without Issue Male of his Body that then it should be lawful for the said Fr. Bunny at any time during his life by his Deed Indented to be Sealed and Delivered in the presence of three credible Witnesses to alter change diminish or amplifie any use or uses limited by the said Deed aliquem usum vel usus inde alicui personae c. Limitare post mortem ipsius Fr. to begin After which the said Fr. Bunny 1 Aprilis 23 Eliz by his Deed Indented did renounce relinquish and surrender to the said N. H. D. E. F. all such Liberty Power and Authority which he had after the death of the said P.P. without Issue ut supra And further remised released and quit-claimed to them the said Condition Promise Covenant and Agreement and all his said Power Liberty and Authority and further granted to them and their Heirs that at all times then after as well the said Condition Promise Covenant and Agreement as the said Power Liberty and Authority should cease and to all purposes should be void after which P. P. dyed without Issue 1 Maij 23 Eliz. after which 20 March 24 Eliz. the said Fr. Bunny by Indenture between him and the said D. Sealed and Delivered ut supra altered the former uses and covenanted and agreed with the said D. that from thenceforth the said N. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs c. And note that in this Case Fr. Bunny being but Tenant for life enfeoffed one Tomson upon whom the said D. entred for a Forfeiture And it was argued by Altham That by the Feoffment by Fr. Bunny to Tomson the Liberty and Power aforesaid was not extinct or lost for this Liberty and Power was not then a thing in esse for then was P. P. alive and also the Liberty is meerly collateral to the Land whereof the Feoffment was made 39 E. 3. 43. Fitz The Son and Heir apparent disseised his Father and thereof made a Feoffment to a stranger the Father dyed now against his own Livery the Son shall not enter but if the Son dyeth then his Son shall enter which proves that the Livery is not so violent to determine a future right but that afterwards it may be revived à fortiori in our Case where the thing pretended to be extinct is meerly collateral 36 E. 3. Fitz. garr 69. In an Assise of Common the Release of the Father with Warranty is not a bar because it is of another thing 15 H. 7. 11. Cestuy que use wills by his Will that his Feoffees shall sell his Lands and dyes the Feoffees make a Feoffment to the same use yet they may well Sell so as against their Livery the authority to sell remains to them And he put Brents Case Dyer 340. A future use limited to a Wife which shall be shall not be prevented by a Fine or Feoffment and so by the Statute of fraudulent Conveyances 27 Eliz. cap. 4. where a Conveyance is made with clause of Revocation if afterwards the party who made such a Conveyance shall Bargain Sell or Grant the said Land to another for Money or other good Consideration paid or given the first Conveyance not being revoked that then such former Conveyance against the latter Purchasor shall be void c. The other matter was admitting that the said Power and Liberty be not extinct by the said Feoffment if by the Indenture of Renunciation Relinquishment Release c. it be destroyed and he said that a thing which is not in esse cannot be released Litt. 105. 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before it comes in esse 11 H. 6. 29. Br. Damages 138. In Detinue the Defendant would confess the Action if the Plaintiff would release the Damages and the Plaintiff would have so done but could not before Iudgment for before Iudgment the Plaintiff had not Interest in the Damages but he is intituled to them by the Iudgment So Lands in ancient Demesne are recovered at the Common Law and Execution had accordingly and afterwards the Tenant releases to him who recovers and afterwards the Lord reverseth the Iudgment the Tenant notwithstanding his release may enter for his Title which accrued to him by the reversal was not in esse at the time of the release Vide 98. contr And it was adjudged 23 Eliz. in the Case of one Falsor That where Lessee for years devised his term to his Wife if she should so long live and if she dyed within the term that then the residue of his term should go unto his Daughter which should be then unpreferred and dyed his Daughter unpreferred released to her mother all her right in the said Land the mother dyed within the said term the release shall not bind the daughter for that at the time of that release she had no title Cook to the contrary And he said That by the Feoffment the said Power and Liberty is extinct And he agreed the Case cited before 15 H. 7 for in such Case the Vendee of the Feoffees shall be in by the Devise and not by the Feoffees 9 H. 7. 1. The Husband makes Discontinuance of the Lands of his Wife and takes back an Estate to him and his Wife by which the Wife is remitted they have Issue the Wife dyeth the Husband shall not be Tenant by the Curtesie for he hath extinguished his future right by his Livery 12 Ass P. ultimo A Praecipe against A who loseth the Land by an erronious Iudgment and after Execution had enters upon the Demandant and makes a Feoffment his Writ of Error is gone 38 E. 3. 16. In a Scire Facias to execute a Fine the Plaintiff recovers and makes a Feoffment in Fee and afterwards the Tenant by Scire Facias by Writ of Disceit reverseth the Iudgment now the Plaintiff in the Scire Facias shall not have a new Scire Facias 34 H. 6. 44. A. recovers against B. by false Oath and after Execution had B. enters and makes a Feoffment to a stranger who Enfeoffs him who recovers it is a good Bar in an Attaint 27 H. 8. 29. The Feoffees to an use are disseised the Disseisor Enfeoffs Cestuy que use who Enfeoffs a stranger now by that Feoffment his right to the use is gone And as to the release the same is not properly a release but rather a defeasance to determine the Power and Authority aforesaid as if A enfeoffed B. with Warranty and afterwards B. covenants with A. that the said Warranty shall be void
as the Statute of 11 H. 8. hath ordained in case of a Lease for years where the Lessor his Heirs or Assigns have suffered the recovery and not otherwise And afterwards he argued very much upon the reputation and dignity of common Recoveries that they are the strongest and most effectual Assurances in the Law and therefore they ought to be countenanced rather by the Iudges than in any part diminished or disabled and we ought to consider of them Non ex rigore juris rigida disquisitione but according to the common use and practice what is the ground and foundation of these Recoveries And so Iudges have used heretofore to examine Matters which peradventure according to the strict Rules of the Common Law drew them away But they perceiving that a dangerous Consequence thereby would follow to an infinite number of the Kings Subjects the Law having been otherwise practised before have framed their Iudgments not according to the exact Rules of Law but to avoid the Inconvenience aforesaid according to the common and received practice c. Nam communis Error facit jus and to that purpose he cited a Case very lately adjudged in B.R. viz. A Writ of Error was brought in B. R. upon a Iudgment given in Wales and the Error was in this That the Writ was returnable coâ—am Justiciariis Domini Regis Comitatus c. where it should have been coram Justiciariis Magnae Sessionis Dominae Reginae c and such are the words of the Statute of 34 H. 8. cap 26. the which Sessions shall be called the Kings great Sessions in Wales and notwithstanding that the Iustices in strict consideration of the Law thought the same to be Error for the said Statute had given to the said Court such name yet because it was well known to the Iustices That that was the common course in the said Court ever after the erection thereof And also if the said Iudgment should be reversed for that cause many Iudgments should be also reversed which should be a great disquietness and vexation to the whole Country there they in their discretion thought it convenient to qualifie the Law in that point and so to avoid the said Inconvenience affirmed the said Iudgment So in the case at Bar If this Rent-charge should stand against the said recovery no inconvenience should be so firm but it should be impeached no Title so clear but should be incumbred therefore for the common repulse of many the strict rules of the Law ought to yield to common practice for the avoiding of a common inconvenience it hath been holden for Law when Tenant in tail maketh a feoffment in fee the Feoffee is impleaded voucheth the Tenant in tail now forasmuch as he cometh in as Vouchee it is now said that he cometh in of all his estates I do not see any reason for that but common allowance practice and experience c. It was adjourned c. Mich. 27 Eliz. In the Kings Bench. CCLXIV Baxter and Bartlets Case IN Assise of Freshforce by Baxter against Bartlet upon Null tort Null Disseisin pleaded it was found for the Plaintiff who had Iudgment upon which the Tenant brought Error for that the Assize have generally found the Disseisin but have not enquired of the force And after many motions the Iudgment was affirmed CCLXV. Sir Henry Gilfords Case IT was found upon a Special Verdict That Henry Gilford Citizen and Freeman of London 7 Feb. 6 E. 2. seized of a Capital Messuage Devised the same by these words Lego volo Quod omnes Domus reddit ' quae habeo in Villa de London ordinentur assignentur per Executores meos ad sustentationem trium Capellanorum qui pro vita celebrabunt in Ecclesia Sancti Pauli London Et ad hoc faciend ' Do eis plenam potestatem and made his Executors William Staunton and others and dyed the Will was Proved and Inrolled according to the Custom Afterwards the Executors by their Deed bearing date 7 E. 2 granted and assigned the said Capital Messuage and his other Tenements in London to the Dean and Chapter of Pauls in London and their Successors Habend ' tenend ' in forma sequenti Haec est finalis Concordia c. That the Dean and Chapter shall have the said Lands for ever to find yearly a competent Sustenance of 10 Marks to a Priest to celebrate Mass for the said Henry Gilford and all Souls and that the said Priest at all hours of Divine obsequies should give his attendance in the said Church and faithfully do his Office to say Mass and Prayers according to the Degrees and Customs of the said Church and that the Dean and Chapter should find Bread and Wine and Massing-cloaths and Torch-light and granted the residue of the profits of the Lands to celebrate an yearly Obit and for the perpetual security of the said Chauntry the said Executors granted to the Mayor and Commonalty of London 20 s yearly rent for ever Ita quod the Mayor and Chamberlain for the time being presented a meet and convenient Chaplain to the said Chauntry to the said Dean and Chapter within 15 days after the Avoidance the which Chaplain the Dean and Chapâ—er are bound to admit And the form of the said Conveyance was such We the Executors H. G. do grant and assign to the Dean and Chapter of Pauls all the Lands Tenements and Rents aforesaid to have and to hold to them and their Successors for the sustentation of a Chaplain perpetual and his Clark for the said H. G. and all Souls receiving from the said Dean and Chapter 10 Marks for the celebrating of the said Obit of the said H. G. And that the Grant and Assignment of the said 20 s. to the Commonalty in the relief of the said Chauntry is such scil To have and receive of one Shop in Cheap maintenance of the said Chauntry aforesaid And that the said Dean and Chapter oblige themselves and their Successors and the Church to pay the same to the said Priest and Clark and that it shall be lawful for the Mayor and Commonalty aforesaid to distrain for the said Rents By virtue of which Will and Indenture the Dean and Chapter enter and were thereof seized in their demesne c. and that at all times after they had taken the profits thereof until 2 E. 6. and that the Dean and Chapter of the profits of the premises had yearly paid 10 Marks for the stipend of the said Priest And further the 27 July 16 H. 8. the Dean and Chapter demised the same to F. Cole for 40 years and that afterwards 15 Maij 36 H. 8. the said Dean and Chapter leased the same to Nicholas Wilford for 50 years rendring 9 l. Rent with Clause of Distress if the Rent was behind by half a year being demanded the Lease should be void which N. W. 1 E. 6. devised the same to his Wife who devised the same to Tho. Wilford the
the whole matter is not any sufficient demand and so Wray Chief Iustice said CCLXXVIII Trin. 29 Eliz. In the Common Pleas. ACtion upon the Case was brought for these words Thou wouldst have stoln my Cloak if J.S. had not come in the way and thou art a Thief and I will prove it After Verdict it was found for the Plaintiff It was objected in Arrest of Iudgment That these words were not actionable For the first words Thou wouldst have stoln my Cloak c. do not by Law give any cause of Action and when the words subsequent Thou art a Thief are depending apon the said former words and to be construed as spoken in respect of them and upon that intent But the Opinion of the whole Court was to the contrary And that the said latter words should be taken and construed in abstracto by themselves as in gross and not as dependant upon the former words and afterwards Iudgment was given that the Plaintiff should recover Mich. 26 Eliz. In the Common Pleas. CCLXXIX Hungerford and Watts Case HUngerford brought an Action upon the Case againts Watts Words for that the Defendant had said That the Plaintiff had caused the Defendant to be arrested with forged Writs It was objected That the words were not actionable for it might be that the Writs were forged by strangers without the privity of the Plaintiff and that the Plaintiff not knowing them to be forged procured the Arrest But the Opinion of the Court was That the words were actionable for the word Caused extends as well to the Forgery as to the Arrest and so amounts to the slander of Forgery CCLXXX Mich. 19 Eliz. In the Common Pleas. Costs IN an Action upon an Escape the Plaintiff is Nonsuited It was holden that the Defendant should not have Costs Note The words of the Statute upon an Action upon the Statute of 23 H. 8. for any offence or tort personal to be supposed to be done immediately to the Plaintiff Notwithstanding this Action is quodam modo an Action upon the Statute 1. by Equity of the Statute of West 2. cap. 11. which giveth it expresly against the Warden of the Fleet Yet properly it is not an Action upon the Statute for in the Declaration in such an Action no mention is made of the Statute which see in the Book of Entries 169 171. and also here is not supposed any immediate personal offence or wrong to the Plaintiff And an Action upon the Case it is not for then the Writ ought to make mention of the Escape and that it doth not here and yet at the Common Law before the Statute of Westm 2. an Action upon the Case lay for an Escape and so by Dyer Manwood and Mounson Costs are not given in this Case And by Dyer upon Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have Costs for it is not a personal wrong for the Writ is quod disseisivit which is a real wrong Mich. 29 Eliz. In the Common Pleas. CCLXXXI Hollingshed and Kings Case HOllingshed brought Debt against King and declared That King was bound to him in a Recognisance in 200 l. before the Mayor and Aldermen of London in interiori Camera of Guildhall in London Vpon which Recognizance the said Hollingshed before brought a Scire Facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he had brought this Action and upon the Declaration the Defendant did demur in Law because that the Plaintiff in the setting forth of the Recognizance had not alledged That the Mayor of London had authority by Prescription or Grant to take Recognizances and if he had not then is the Recognizance taken coram non Judice and so void and as to the Statute of Westm 2. cap. 45. the same cannot extend to Recognizances taken in London which see by the words De his quae recordata sunt coram Cancellario Domini Regis ejus Justiciariis qui recordum habent in rotulis eorum irrotulantur c. and also at the time of the making of that Statute the City of London had not any Sheriffs but only Bayliffs And the Statute ordains That upon Recognizance Process shall go to the Sheriffs c. therefore not to them But the whole Court was clear to the contrary for we well know that they of London have a Court of Record and every Court of Record hath authority incident to it to take Recognizances for all things which do concern the Iurisdiction of that Court and which arise by reason of the matters there depending Another matter was Objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera therefore it was not well taken But as to that Anderson Chief Iustice said Admit that the Recognizance was not well taken yet because that in a Scire Facias sued upon it the Defendant shall not take any advantage he shall be now bound by that admittance As if one sues a Scire Facias as upon a Recognizance whereas in truth there is not any such Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him the same is not void but voidable And Fleetwood Recorder of London alledged many Cases to prove the Courts of the King ought to take notice that those of London have a Court of Record for if a Quo Warranto issueth to the Iustices in Eyre it doth not belong to them of London to claim their Liberties for all the Kings Courts have notice of them And at the last after many Motions the better Opinion of the Court was That the Plaintiff should recover Periam aliquantum haesitavit And it was said by Anderson and in a manner agreed by them all That if dependant this Demurrer here the Iudgment in London upon the Scire Facias is reversed yet the Court here shall proceed and take no notice of the reversal CCLXXXII Mich. 20 Eliz. In the Common Pleas. A Man seized of a Barn in which the Tythes of certain Lands have used to be inned let the same by these words Demises .. Demise and to Farm-let the Barn with all Tythes belonging to the same It was holden That by that Demise the Tythes did not pass but Tythes which had usually been demised with the Barn passed by such words as by the Demise of an House Cum omnibus terris eidem pertinent ' all the Lands pass which have used to be demised with the said House for the demising usually of the Tythes with the Barn makes the Tythes belonging to the Barn but not the Inning Mich. 30 Eliz. In the Common Pleas. CCLXXXII Haltons Case Recognisance Inrollment A Recognizance was acknowledged before J. S. who was one of the Masters of the Chancery and before the same was Inrolled the Conusee dyed the point was whether at the request of the Executors
one John Whettesley and Ann his Wife examinand ' Ann ' praedict ea intentione That the said John and Ann should take back an Estate thereof for their lives the Remainder to one John Buck in Fee. Note the Surrender ought to be de duobus Messuagiis Mariot Two several Surrenders of the said Husband and Wife of the said two Messuages and took an Estate for their lives the Remainder over to the said John Buck in Fee upon condition to pay certain Moneys c. It was moved That the Surrender is void and without warrant for the Warrant was ad Capiend ' unam sursam redditionem and here are two several Surrenders and so the Warrant is not pursued and then the Surrender is void Another matter was because the Remainder to John Buck by the words of the Letter of Deputation should be absolute and without condition and now in the Execution of it is conditional so as the conditional Estate is not warranted by the Deputation But the Court was clear of Opinion to the contrary in both the points That the proceedings here are sufficient and well warranted by the Deputation Another matter was objected because the Surrender and Regrant is entred into the Roll of a Court dated to be holden 2 Maij and the Letter of Deputation bears date the 3 of June after but as to that the Court was clear That the Mis-entry of the Date of the Court should not prejudice the party for that Entry is not any matter of Record but only an Escroll and if the parties had been at Issue upon the time of the Surrender made or of the Court holden the same should not be tryed by the Rolls of the Manor but by the Country And the party shall give in Evidence to the truth of the matter and shall not be bound by the Rolls and according to this Resolution Iudgment was given Trin. 31 Eliz. In the Common Pleas. CCCXLIX Long and Hemmings Case GIles Long brought a Quare Impedit against the Bishop of Gloucester Hemmings and Hadnell Hemmings pleaded That one Tho. Long seized of the Manor of F. to which the Advowson was appendant by his Deed granted the Advowson unto him 17 Eliz. The Incumbent pleaded the same Plea to which the Plaintiff Replicando said That before the said Grant viz. 6 Eliz. the said Tho. Long granted to him the said Manor c. and upon Issue joyned the Iury found this Special Matter That the said Feoffment was by word and Livery and Seisin was made and afterwards the said Tho. Long granted the said Advowson to the Defendant and afterwards Attornment was had and if without Attornment the Advowson passed with the Manor was the Question Shuttleworth argued That the Advowson passed as appendant to the Demesns for an Advowson shall be more properly appendant to the Demesns than to the Services for the Services may be determined many ways so cannot the Demesns for if the Services be determined by Escheat c. yet the Advowson remains appendant to the Demesns and an Advowson may be appendant to an acre parcel of the Manor but not to the Services and so an Advowson may well pass without Deed as upon a Feoffment of a Manor the Services pass without Deed. And if a man seized of a Manor with an advowson appendant makes a Feoffment of one acre parcel thereof with the advowson the advowson is appendant to that acre 33 H. 6. 5. although it be not by Deed. Vide contra Temps E. 1. Faits Feoffments 115. 17 E 3. 4. It ought to be by Deed 43 E. 3. 24. Walmsley argued to the contrary The Verdict is That Tho. Long give not the Manor but the Capital Messuage of F. and all other Lands and Tenements of the same which words of the same have relation to the Messuage and therefore neither the Manor of F. nor the advowson pass and admit that all the Demesns pass yet the advowson cannot pass as appendant for that advowson shall pass as appendant to the whole Manor and not to such or such part of it And by Littleton 7 E. 4. 27. if a man holds of me three acres by 12 d. and I grant the Services of the third acre the same is void so here there is no advowson appendant to the Demesns And he said That in this case the advowson is appendant to the Services and although Services are Inheritances incorporeal yet an advowson may be appendant to them as one Office may be appendant to another Office and one advowson to another advowson 33 H. 8. Dyer 48. A Man seized of a Manor to which an Advowson is appendant enfeoffeth one by Deed of one acre parcel thereof and also by the same Deed grants the Advowson the Advowson shall pass as in gross for they are several Grants although but one Deed. Another matter was That Thomas Long enfeoffed and here the Iury have found that Thomas Long gave in tail c. And he conceived that the Plaintiff upon that Verdict should have Iudgment As in Waste the Plaintiff assigns the Waste in cutting down of 20 Oaks and upon Not Guilty It was found that he cut down but 10 the Plaintiff shall have Iudgment upon that Verdict The Case was adjourned CCCL Trin. 19 Eliz. In the Kings Bench. THe case was Lessee for life of another bargains and sells by Deed indented and enrolled and afterwards levies a Fine to the Conusee Sur Conusans de droit come ceo c It was holden by the whole Court That it was a forfeiture of his Estate for when the Bargainee being now Tenant for the life of another accepts a Fine of a Stranger sur Conusans de droit c. that he admit the Fee in him by matter of Record otherwise it is of a Fine sur Release And by Manwood If Lessee for life be disseised and levies a Fine to the Disseisor sur Conusans de droit c the Lessor shall re-enter Quod Dyer negavit Because that the Lessor at the time of the Fine levied had not any thing in the Reversion but only a Right Manwood put this Case Land is given to A. and B. and to the Heirs of B. they are disseized by two A releaseth to one of the Disseisors now they are Ioyntenants but for a moiety and the Estate in the other moiety is changed into an Estate for life Trin. 31 Eliz. In the Common Pleas. CCCLI The Queen and the Bishop of Norwich's Case IN a Quare Impedit the case was That the title to present to the Church was devolved to the Queen by Lapse The Patron himself presented and his Clerk was inducted and afterwards deprived It was the Opinion of the whole Court That if the Deprivation was without any covin that the title of the Queen by Lapse was gone Trin. 29 Eliz. In the Common Pleas. CCCLII. Ashpool and the Inhabitants of Everinghams Case IN an Action upon the Statute of Winchester of Huy and Cry by Ashpool
another thing 15 H. 7. 11. Cestuy que Use declares by his Will That his Feoffees shall sell his Lands and dyeth the Feoffees make a Feoffment to the same use yet they may sell so as against their Livery the Authority to sell remains to them And he cited Brents case Dyer 340. where a future Vse is limited to his Wife that shall be shall not be prevented by a Fine or Feoffment And vide the Statute of Fraudulent Conveyances 27 Eliz. where a Conveyance is made with Clause of Revocation if afterwards the party makes such a Conveyance bargain sell or grant the said Lands for money or other good consideration paid or given the first Conveyance not being revoked that then such former Conveyance against the last Purchasors shall be void Another matter was admitting that the said Power and Liberty be not extinct by the said Feoffment If by the said Indenture or Renunciation Relinquishment Release c. it be destroyed And he said that a thing in esse could not be released Litt. 105. 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before that it come in esse 11 H. 6. 29. Br. Damages 138. In Detinue The Defendant would have confessed the Action if the Plaintiff would have released the Damages and the Plaintiff would have so done but could not before Iudgment for before Iudgment the Plaintiff had not interest in the damages but he was intituled to them by the Iudgment so Lands in ancient Demesne are recovered at the Common Law and Execution had accordingly and afterwards the Lord reverseth the Iudgment the Tenant notwithstanding that Release may enter for his title which accrued to him by the reversal was not in esse at the time of the Release And it was adjudged 23 Eliz. that where Lessee for years devised his term to his Wife if she should so long live and if she dyed within the said term that then the residue of his term should go unto his daughter who then should be unpreferred and dyed the daughter released to her mother all her right in the said Land the mother dyed within the term That that Release did not bind the daughter for that at the time of the Release she had not any title Cook contrary And he said That by the Feoffment the said power and title was extinct and he well agreed the case cited before of 15 H. 7. for in such case the Vendee of the Feoffees shall be in by the Devise and not by the Feoffees 9 H. 7.1 The husband makes a discontinuance of the Land of his wife and takes back an Estate to him and his wife by which his wife is remitted they have Issue the wife dyeth the husband shall not be Tenant by the Courtesie for he hath extinguished his future right by the Livery 12 Ass ultimo A Praecipe brought against A. who loseth the Land by erronious Iudgment and after Execution had enters upon the demandant and makes a Feoffment his Writ of Error is gone 38 E. 3.16 In a Scire Facias to execute a Fine the Plaintiff recovers and makes a Feoffment in Fee and afterwards the Tenant in the Scire Facias by Writ of Error reverseth the Iudgment in the Scire Facias Now the Plaintiff in the Scire Facias shall not have a new Scire Facias 34 H. 6.44 A Recovery against B. by false Oath and after Execution had B. enters and makes a Feoffment to a Stranger who enfeoffs him who recovers it is a good bar in an Attaint 27 H. 8.29 The Feoffees to an Vse are disseised the Disseisor enfeoffeth Cestuy que Use who enfeoffs a Stranger now by that Feoffment his right to the Vse is extinct And as to the Release the same is not properly a Release but rather a Defeasance to determine the power and authority aforesaid as if A. enfeoffeth B. with warranty and afterwards B. covenants with A that the said Warranty shall be void that Covenant shall enure to defeat and determin the Warranty And afterwards in the principal Case Iudgment was given against the Plaintiff See more of this Case in Cook 1. part Trin. 29 Eliz. In the Kings Bench. CCCLV. Owen and Morgans Case Ante 26. 93. GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the Land was given to the Conusee and his Heirs and the Conusee rendred the same to Husband and Wife Note that the Husband was the Conusor the remainder in Fee to the now demandant and Note that the Writ of Covenant was between the Conusee Plaintiff and the Husband Deforceant without naming of the Wife and afterwards the Husband suffered a common Recovery without naming of the Wife The Husband and Wife dyes without Issue and now Owen to whom the remainder in Fee was limited by the Fine brought the Scire Facias in bar of which the Recovery was pleaded It was argued by Serjeant Shuttleworth That the Recovery had against the Husband only was a good bar and should bind the remainder and he said That the Wife ought not to be named in or party to the Recovery for nothing accrued to her by the Fine because she was not party to the Writ of Covenant nor party to the Conusance and none can take by the render who was not party to the Writ of Covenant and to the Conusance Vide 30 H. 8. Fines 108. None can take the first Estate by the Fine but those who are named in the Writ of Covenant c. but every Stranger may take by Remainder Vide 3 E. 3. Er. Fines 114. 6 E. 2. Fines 117. 7 E. 3. Scire Facias 136. It is said by Horton If such a Fine is accepted it is good The Case was adjourned CCCLVI. A. Seized of a Manor to which two parts of the Advowson were appendant presents and afterwards aliens the Manor with the appurtenances the Alienee presents and purchaseth the third part of the Advowson and presents again one A. who was Chaplain to the Duke of Rutland and had a Dispensation from the Pope 1 Eliz. before the Statute was repealed and was instituted and inducted and afterwards accepted of a plurality viz. another Benefice and dyed 11 Eliz. The Queen presented for Lapse and her Clerk was instituted and inducted The said Lord of the Manor dyed seized inter alia and that Manor was allotted to the Wife of D. for her part and he brought a Quare Impedit It was moved if D. should not joyn in the Quare Impedit with him who had the third part and by Walmsley he is not to joyn in it 22 E. 4. by Brian If an Advowson descends to four Coparceners and they make partition to present by turns and the third doth present when the second ought for that time the presentment is gone but when it comes to his turn again he shall present which proves that they are as several
20 Of omnia bona by an Executor what passeth 22 Of a Reversion by a Bishop 23 Of the Office of a Sheriff 33 Habeas Corpus WHere the cause of Commitment must be retorned upon it Where not 21 Heirs The second Son shall inherit the Land purchased by his eldest Brother notwithstanding the Attainder of the Father 5 Jeofails WHere upon a Jeofail the Court awarded a Repleader 19 Indictment Quare Clausum A. B. fregit held good notwithstanding A. had but a Lease at will of the Land. 6 De uno Equo for a Gelding not good But where Trespass is brought de Equo ellato and the Jury find a Gelding c. it is otherwise ibid. Upon Stat. 13 Eliz. c. 8. for being a Broker in an usurious Contract for which he incurred a Premunire 32 Upon Stat. 5 E. 6. against P. for drawing his Dagger in the Church against J. S. holden void for that it is not said he drew it with intent to strike the party 49 Upon Stat. 8 H. 6. two Exceptions taken to it but disallowed ibid. For stopping quandam viam valde necessariam quashed for want of the word Regiam and for that the party indicted had not any addition therein 121 Infant Makes a Lease for years and at his full age says to the Lessee God give you joy of it the Lease is thereby affirmed 4 If an Infant being in Execution sues a Writ of Error and is bailed the Recognisance shall be by his Bail only that he shall appear and if Judgment be affirmed that they pay the mony and not render his Body to Prison 6 Inmates Who shall be accounted Inmates upon the Stat. of 31 Eliz. 10 Interest Difference between an Interest and a Limitation 33 Judgment Shall not be stayed upon Allegation that one of the Defendants was dead after Verdict for the Court cannot take notice of it judicially nor any of the parties have day in Court to plead it besides the party is not without remedy for he may have a Writ of Error 15 If the Court may reverse their own Judgment Quaere 60 Reversed for Error in omitting the Costs the Jury gave 61 Jurors Where bound by confession of the parties where not 56 A Juror before the Retorn of the Pannel became a Minister of the Church and therefore prayed to be discharged according to the priviledge of those of the Ministry but it was not granted because he was a Lay man at the time of the Pannel made 190 Justice of Peace One cannot be Justice of Peace by Prescription 149 Lease OF a Manor c. with all the profits of a Wood except 40 Trees to the Lessor to take at his pleasure the Wood is not comprised within the Lease but the Lessee shall only have the profits as Pawnage Herbage c. 9 If a man makes a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit the Lessee cannot thereby cut the Trees nor do waste 9 Made by a Corporation void for Misnosmer 11 Good to maintain an Ejectione firmae 14 Leases by a Baron contrary to Act of Parliament void 17 By Tenant at will if a disseisin 35 Leases made by Prebendaries within the Equity of the Statute of 32 H. 8. c. 28. 51 Leet Pound breach is not inquirable there 12 But excessive Toll is ibid. Nobleman SHall be bound with Bayl in a Recognizance to render his Body 6 By 13 E. 1. if he hath not Goods or Lands his Body shall be taken in Execution ibid. Obligation Forfeited 18 Outlary How avoided by Plea in person 22 186 Payment OF Rent before the day by the Obligee doth not discharge him 4 Of a Debt generally by a Surety Executor to the Principal if it shall be as Executor or as Obligor Quaere ibid. Pleadings In a special Justification in Trover the place of Conversion may be traversed but where a Justification is general the County is not traversable at this day 4 It is no good Plea for the Tenant in a Writ of Entry sur disseisin to say that the House in demand is within the City of London whereof he is a Citizen and that King H. 3. concessit civibus c. quod non implacitentur c. extra muros Civitatis praed sed illis rectum teneatur infra Civitatem praed secundum cons Civit. praed For he ought to have shewed That the Citizens for their Lands there ought to be impleaded in the Hustings 13 In Trespass for pulling Hurdles c. the Defendant justified by Prescription to have a free course for Sheep in the place where c. and because the Plaintiff erected Hurdles without leave of the Lord of the Manor the Defendant cast them down prout c. the Plaintiff replyed of his own wrong without cause and held naught for he should have traversed the Prescription 17 Traverse of the place in Trover where good 22 Special Plea to an Assumpsit not good and why 31 Posse Comitatus It differs from Posse Manerij 87 Possessio Fratris Where it shall not be of Copyhold Lands 38 Previledge Denied to the Treasurer of the Records of the Kings Bench and why 81 Prohibition If the Parson Libels in the Spiritual Court against the owner of Lands for Tythes which he severed but a Stranger took and carried away no Prohibition shall issue for that he might plead the same matter in bar in the Spiritual Court. 7 To the Spiritual Court to stay a Suit commenced there for Tythes upon a Prescription shewed in the Kings Bench. 25 Granted to stay a Suit in the Court Christian commenced against an Executor by one for a Legacy bequeathed to him by his Father who willed his Goods should be parted amongst his Children according to the Custom of London 12 Upon claim of Property 150 Quare Impedit May be brought by Executors to remove a Clerk collated wrongfully in the life time of the Testator 15 Recognizance IF a Recognizor of a Recognizance acknowledged before a Master in Chancery dye before it be inrolled it may be inrolled at the Petition of his Executors 8 Common Recovery Feme not party to the Writ of Covenant not bound by Recovery 26 Remainder Where void 21 Resceit One prayed to be received in a Formedon and was ousted of it by the Court. 51 Reservation Of Rents upon a joint Lease 27 Difference between a Reservation and a Contract 29 Retorn Of the Sheriff where void 21 Sale. OF a Bayliwick of an Hundred is not within the Statute of 5 E. 6. c. 16. 33 Of Goods by the Sheriff upon Execution where good where not 20 21 Surrender If Lessee for years take a second Lease from Guardian in Soccage made in his name it is a surrender of the first Lease 7 What shall be said to be a surrender of a Term what not 30 Treason UPon Attainder of Treason who shall seize the Goods for the Queen 34 Tythes Unity no discharge of Tythes 47 Venire Facias GRanted de novo after Verdict for that the first Venire Facias was of K. only for that it ought to have been de Vicento de K. W. 85 Vesturam terrae He who hath Vesturam terrae cannot dig the Land. 43 Those who have Lot-Meadow viz. to change every year according to Lots have not any Freehold therein but only Vesturam terrae 43 Writ DE fama gestu what it is 40 FINIS