compulsive so that he shall have prejudice if he doth not but is a thing obligable at the will of the Defendant and then his entry is not material but is at pleasure and therefore the not shewing thereof shall not make the Plea vicious Admitting that it be a Condition yet it is subsequent and in Defeasance of his Estate 30. And therefore shall not be shewed by him but by him which shall have benefit by the breaking of it So if a Condition be enlarged which may be good leaveth that out which is material because it is Surplussage Also it hath no Livery for to convey Title nor hath it enabled him any waies to take the benefit of the breach of the Condition if it were broken because he hath Demurred generally upon the Bar in which the Defendant hath not acknowledged any reversion And so it appeareth not by the Record that he is other then a meer stranger And by the Common Law no man shall take benefit of a Condition but such a one as is privy And therefore 38. H. 8.34 Pattentees of the King after 177. Also if it be a Condition during the Term it shall be intended all the Term as a man bound to perform Covenants is bound to perform all and his Feoffees fol. 30. Yet if he be sometimes absent and his Family there it is good because the Law shall have a reasonable Construction in things alwaies If W. dies then the Remainder is a Limitation and appoyntment of the time when the remainder shall vest But admitting that it be a Condition yet a Remainder may depend upon a Condition which every lawfull owner of the land may give to what person or persons and in what manner and at what time he pleaseth if his gift be not against Law or repugnant as 10. E. 3.39 A man makes to his Termor in surety of his Term a Charter of Feoffment upon Condition That if he be disturbed of any part of his Term that then he shall have Fee he was disturbed and afterwards outed and recovers in Assise which proves that the Franck-Tenant passed upon condition express to the Livery be it mediate or immediate it stales not the Remainder because his Livery shall be taken most strongly against him So 27. H. 8.24 Remainder to a stranger if the gift fail for bearing of the standard So in Plessintons case it is held That the estate of Free-hold there could not Commence upon Condition but the cause wherefore was because he had not the Free-hold upon performance of the Condition which was repugnancie So a Remainder upon condition contrary to the Law or impossible is not good because a Condition unlawfull or impossible may not obtain the thing by doing of it So if the Doâ—… aliens then it shall remain is not good because repugnant for when he hath aliened to one it may not remain to another Remainder ought to have estate precedent for that 9. H. 6.24 Lease to a Monk Remainder over void because a Monk hath not capacity and so the estate which precedes the Remainder void Remainder also ought to be of a thing in esse before and therefore a Grant of a rent out of land remainder in Fee void because the rent was not in esse before and the remainder here passeth presently by the Livery upon possibility to be afterwards performed and vests when W. dies and in the mean time rests in abeyance as 15. H. 7.10 Fee Tail passeth upon possibility That a Fem Covert and a married man may inter-marry and in the mean time the Inheritance viz. The Tail shall be in abeyance but holden there That they are seised in Tail presently and concludes that the Remainder is good and the pleading also and so the Plaintiff shall be Barred Plat against the Sheriffes of London ONe Goodlad was in Execution Ludgate upon a recovery in Debt had against him by plaint in the Guild-Hall of London 4 E. 6. In the Excheq and going with a Baston that is to say a Servant of the Gaolers attending upon him into Southwark in the County of Surrey and the Administrator of him which recovered brings his Bill of Debt into the Exchequer against the Sheriffs for the escape and adjudged that he should recover thereupon But no exceptions were taken to the Bill and the reasons of the Judgement were 1. For that the Action lyeth at the Common-Law by 45. E. 3.9 Debt against one Abbot or Prior and also for that That he had not remedy against him which escaped for by the esape he is discharged for ever against the party and the Goaler also and the Officer which suffers the escape is charged contrary to 13. H. 7.1 But the Action lay not by the Common Law by 42. ass 11. 2. Admitting that it lay not by the Common Law yet it lyeth by equity of the Statute of 1. R. 2. c. 12. which gives an Action against the Warden of the Fleet or by the equity of the Statute of Westm 2. c. 11. which gives an Action against the Gaoler which suffers an Accomptant for to escape 3. The defendants have admitted the action good by their Demurrer 4. That it is an escape because he was out of the Jurisdiction and Authority of the Sheriffs and that his Imprisonment is ended the last instant that he was in London and his escape began the first instant that he came into Southwark and so he was never in prison in Southwark for he had no guard there The effect of every suit contains and implies in it selfe 3. things First to shew the verity of the matter to the Judge thereof which is the duty of the party Secondly to have judgement to recover and execution thereupon and this is the duty of the Judge Thirdly the making of execution for to take the Defendants body and detain it in prison and this is the duty of the Officer and because he only hath offended it is reason that he be punished that is That he answer the loss to the Plaintiff for that he hath not any remedy against him which escapes nor the Gaoler never apprehended him because a personal thing once suspended is extinguished and therefore if the Debtee maketh the Debtor and another which surviveth the Debtor his Executors yet the Debt is extinct and the person of either of them discharged Therefore in respect that after the escape the Plaintiff shall not have other execution and so without any remedie against the Defendant in the first suit the Common Law which is Common Reason provides That the Plaintiff shall have an Action of Debt against the Gaoler in whose default the Execution of the Plaintiff or otherwise the Common Law will be defective in this point And therefore by 45. E. 3. 9. Abridged by Fitz. h. in Title Debt 130. which was before the Stat. of R. 2. where a Prior dative and removeable le ts one in Execution in his Guard for dammages recovered in his Court of Py-powder escape P.
not agree otherwise then for landing because the Statute will as if a Baily pay the debts of his Master he shall not be allowed for this in his accompt without specialty but if he pay Quit-Rents issuing out of the Land he shall be allowed for this for that the payment of this belongeth to his Office And so if the Collector accept another Agreement then is intended by the Statute this shall not help the party and said that agreement upon condition ought to be performed before it be pleaded as if I give all the money in my purse to I. S. he cannot have his action for it except that he alleadge the certainty of it So here wherefore judgement shall be given for the King Pollard Serjeant for the Defendant An agreement upon condition is an agreement as a Feoffment upon condition is a Feoffment and included in words of the issue that is to say in this word Agreement which contains every agreement So 36. H. 6.2 In debt upon a Regognisance and the Defendant saith That there is no such Recognisance whereupon they were at issue and at the day c. a Recognisance with condition was certified held good and that he had not failed of the Record because a Recognisance upon condition is held to be a Recognisance So here the agreement general was put in issue the which shall be intended the more common agreement and this is the general agreement and the evidence given by W. proves a special agreement viz. an agreement upon condition which is other then the agreement tendred by the issue therefore the Demurrer shall be adjudged for the King and Informer Sir as to this I answer That by the arguments made before nothing hath been put in issue but if they agree according to the Statute so here admitting that the agreement general had been in issue but the especial is The especial matter viz. Tempest super hoc agreavit are in the affirmative and may stand together and therefore both remain as one entire matter and substance of the issue As if the Tenant pleads special Bastardy against the Plaintiff in mort D'ancester and alleadge this incertain as he ought viz. That the Plaintiff was ingendred between I. and A. and born before marriage then they marry and conclude as he ought and so Bastard This conclusion hath not avoided the special matter before for if so then it should be Bastard generally and triable by the Bishop and then shall be by him certified Mulier because such is a mulier in the law spiritual but shal be tried here by Assize and therefore the special matter remains and the issue is taken thereupon So 3. H. 7.5 by Keble One counts of a gift in formedon and being demandant maintains it by recovery in value by reason of a Warranty and so gave the Tenant ought not to traverse the conclusion viz. as he should do if he had avoided the special matter before because it is matter in fact triable by the Countrey but he ought to answer to the recovery triable by Record which proves That the special matter before the conclusion shall remain So 32. H. 6.14 by Litl If the Plaintiff in Assize makes to himself a Title and concludes and so he was seised until by the Defendant disseised now if this conclusion hath avoided the especial matter before then it ensueth that the Defendant cannot answer to the Title but the Law is That he ought to answer to the Title and traverse it by which it is proved that the conclusion hath not avoided the especiall matter before and in all these cases the matter before the conclusion and the conclusion are in the Affirmative as in Debt the Defendant pleads payment and so ows nothing and in Trespass the Defendant pleads a gift of the goods and so not guilty when it is agreed between any That a principal thing shall be done or had and before that this may be done or had there is another thing first to be done which is not certainly agreed who shall do the other thing the Law appoints him which hath the most skill to do the said other thing So 9. E. 4.4 One is bound to make the great Bell of M. tunable with the other Bels there in that case to say in Debt by Obligation That the Bell was not weighed judgement if action is no Plea because in construction of the Law he shall weigh it for it belongeth to his Office So a Taylor bound to make a gown shall shape the cloth So here the Collector in behalf of the King shall have the Subsidie which is the principal thing and therefore he shall weigh for it belongeth to his Office to try the certainty for without certainty the King may not be satisfied And in Trespass because that he justisies the necessary circumstance and mean or hath Title to the principal thing as 2. R. 2. Fitz. Bar. 333. and Perkins fol. 23. He may cut and carry trees granted to him and justifie it although the grass is spoiled by it So one may take Fishes in a Pond with Nets and justifie it but if he digg a Trench to drain out the water not A Collector may weigh when he pleases for where one shall have benefit upon the first act to be done by him and no time is limited when he shall do it the Law saith That it shall be done at his pleasure So the Mortgager shall pay when he pleaseth when no time is limited so one may marry the daughter of A. when he pleaseth if no time be limited so in the principal case for as much as payment shall be made to the Collector upon the weighing and no time is limited for the weighing the Law refers the time of it to the will of the Collector and so the agreement is good and perfect 3. H. 7.11 The Sheriff takes A. by Capias now he doth well but if he return non est inventus then he shall be a Trespassor ab initio but here the not weighing because the King refers this to the Collector in the behalf of the King in his default the agreement shall not be made void ab initio in prejudice of the Defendant which before was good notwithstanding that the agreement special is an agreement as Sanders confesseth yet it shall be construed best viz. general for the King as he urged The rules of the Common Law in the construction of Statutes prohibite this for Statutes Penal shall be taken and restrained to their general words favourably and to the benefit and not prejudice of him against whom the pain is inflicted and shall not extend farther then the words as W. 2. cap. 40. saith where the husband aliens the land of his wife quod secta mulieris non differatur c. per minorem aetatem heraedis qui warrantizare debet and saith not the Heir of the husband nor of a stranger yet 18. E. 4.16 and 17. E. 4.59 postea 47.
Discender if it be out of the words yet it shall be taken by equity although it be penal to some man for here it restrains the Liberty of Tenant in Tail because it was for to redress false Covin for to advance right and justice and benificial to the weal-publick As W. 2. cap. 3. gives a cui in vita upon a recovery by default which was a wrong to the Wife and therefore gave Cui ante Divortium by equity So Marlebridge cap. 6. De primogenith and of Feoffment yet if the first Son dies and he infeoffees the second Son or Levy a Fine it shall be taken by equity because it redresses Covin which the Law abhors So 1. H. 7. cap. 1. gives a Formedon in Remainder against Pernors of Profits and 14. H. 7.31 and after 178. scire facias for to execute a Remainder against the taker of the Profits shall be maintainable by equity No judgement was ever given in this case for this default viz. because he had not shewed certainly how he was Heir and in special for that it was issuable and Title given is certain Note that all the Justices held the case here within the words of the Statute of 11. H. 7. And if it were not within the words that yet it was within the equity of the Statute And they held also that the Heir may enter immediately that is to say in the life of Tenant in Tail but no judgement was given Dive against Maningham ONe was in prison in execution upon a Recognisance of Debt M. 4 E. 6 In the Common Pleas in debt taken according to the Statute of 23. H. 8. cap. 6. and the Defendant being a stranger made an Obligation to the Sheriff indorced with Condition That the prisoner should save him from dammage against the King and the Conusee and also that he should be alwaies at his commandment as a true prisoner to appear before the justices and the King at Westminster or elsewhere within this Realm And it was adjudged a void Obligation by the Statute of 23. H. 6. c. 10. 1. For that the prisoner was not bailable but excepted by the Statute which in this point is not but an affirmance of the Common Law 2. For that That the third branch of the Statute which maketh all Obligations vold taken for any the causes abovesaid against the form there expressed extends as well to the second branch in which the exception is as to the first for the generalty abovesaid and also by the intent of the Statute to suppress the extortion of Sheriffs in this behalf 3. Although it shall not be so yet he taketh the Obligation colore officii as Sheriff of his prisoner and so within the Statute 4. No day or place of appearance is limited in the Condition so the form appointed by the Stat. is not observed 5. Other things are mixt in the Condition with the apparance as that he shall save harmless and this shall be intended there for all things and at all times 6. He had but one surety and the Statute speaks of surety of sufficient persons in the plural number by Montaigue fol. 63. 7. The Obligation here is void by course of the Common Law for that the Condition is against the Law for the party is not bailable 2. H. 4.9 The Extent ought to precede the Liberate here are both in one Writ yet in nature they are several but the Writ remains good for the extent and the other is surplusage 7. H. 4. 44. for Toll not paid the Writ was Tolloneum asportavit illud solvere recusavit asportavit is void because surplusage and it abates not because he refused to pay for that is sufficient and be the Writ good or bad in Law it shall stand in force until it be Reversed by Error because an ancient Record 37. H. 6. 1. the Sheriff took a single Obligation for to let one to Mainprise which is not Mainpernable it was void because he took colore efficii which is taken alwaies in ill part and implies that the thing is done by pretence of Office but not yet duely and their office is but a vail and shadow to falsity Virtute officii or Ratione officii taken in good part because it is alwaies where the Office is just which causeth the thing it is pursuant to the office Obligation is void where the condition is contrary to Law as to be saved harmless if he kils a man or doth commit trespass so here the Obligation is void by the Common Law because it was to save the Sheriff harmless for wrong done against the Law as is the letting the Prisoner at freedom he being one which is not Bailable So 2. H. 4. 9. A Baily by withernam takes the Beasts of the Defendant and afterwards re-delivers them to the Defendant upon Obligation given to him by the Defendant for the saving of him harmless wherefore holden void because it was to aid the Baily for this wrong in the re-delivery of the beasts to the party for he ought to have detained them untill c. And afterward Mollineux Hales and Brown Justices argued to the same purpose Montague Cheif Justice It is likely to me that the Plaintiff shall be barred for an Act which is general in particularity or particular in a generality which is all one as in 13. E. 4. 8. That all Corporations and Licences made by H. 6. shall be void So that all Bishops or Justices shall do such an Act shall be pleaded but a general Act which extends to every man not but the Justices ought to take Conusance thereof but if this Act hath several branches concerning several matters yet contained in one Chapter there he needs not recite all but this onely which concerns him and maketh for his purpose for every branch is a several Act by it self But a Record shall not be pleaded inter alia for it is intire upon one Originall and one Judgement upon it but ought to plead certainly all the Record when it is pleaded in Bar because the Record is the matter of substance and the effect of the Bar which ought to be plain and perfect when the Record is but conveyance and induction to the Bar or Action it is sufficient to reciteithis which is the cause of the Action as 34. H. 6. 48. A Tenant by Elegit makes avow in â—…eplegiare for that he had execution as Tenant by Elegit and made a Lease reserving Rent for which being arear he avowed he needed not shew the Record because the Lease onely is traversable and is the effect of the Avowry and the execution by Elegit is the Record from which it issues which is nothing but conveyance to the effect and therefore it sufficeth to begin at the Execution upon Damages recovered without pleading how lie brought his first Action and what answer the Defendant made or such like So in the 19. H. 6. 29. a Bill of Deceit against an Attorncy for
end and expiration of the first Term of years the Lessor maketh a Lease for life to the first Lessee for years during the first Term and the second Lessee Enters and upon an Ouster bringeth Ejectione firme and by the Court it well lyeth 1. By the Law by a Grant of the reversion of the Farm the Farm and all the Demeasnes of it pass because it is nomen collectivum and certain in its self and so it was adjudged in the case of Bridges That by the Demise of the Farm the reversion and rent incident to it passeth 2. That the word Reversion shall be intended land reverting in the premisses and the habendum and not the estate in reverter which hath his continuance but in respect of the Term and during it it is a Grant of the reversion habendum the farm or land or reversion after the particular estate ended are all one 3. That the second Lease for years commencing by any determination of the first Lease whether it be in Law or in Deed and the expiration refers to the Term and not to the years Term is an estate in or for years and is finished when the estate is finished and this may finish when the years remain If a man marry with a woman Termor and the woman dies her husband shall have the Term for notwithstanding that the marriage hath not divested this out of the woman during coverture yet by her death this is given to the husband by Act in Law because it is a thing in possession and not in Action The Law is the Common use in Letters Pleas and Judgements and the Common Law is but common use by Anthony Brown fol. 195. Stradling against Morgan EXceptions alleadged in arrest of Judgement 2 El. Exchequer debt upon not guilty pleaded by the Defendant and found against him 1. The Plantiff hath shewed in his Declaration That the Defendant was then receiver c. and saith not That the Mannors were the Queens then and therefore shall be intended more strong against him then it should be to a common person and by consequence the Defendant is Baily to a common person by the Court. 2. That no receiver or Baily accomptant of a common person shall be within the Statute of 7. E. 6. c. 1 but onely of the Queen by the Court. 3. That the Action was not maintainable and the matter well alleadged lieth in the Queens Courts at Westminster notwithstanding the Statute of 34. and 35. H. 8. for Wales for that they are in the Affirmative and not in the Negative 4. That by this Statute an Action of debt by original Writ lieth for the forfeiture in the Exchequer howbeit that the party hath not cause of priviledge there 5. The Plaintiff ought to make mention of the Statute of 38. H. 8. and 7. E. 6. in his count for that the one is founded upon the other 6. He ought to shew expresly in his Count That the Queen was seized and made him her Bedel 7. Jeofails remedies not mispleadings in counts adjudged in Moon and Cliffords case In Debt the Plaintiff counts That whereas he was Bedel and Collector of certain Mannors by vertue of Letters Pattents of H. 8. and had a Fee for it the Defendant being Receiver of the said Mannor in 3. and 4. P. and M. took extortion for the payment of his Fee viz. 4. d. for every pound against the form of the Statute of 7. E. 6. the Defendant pleads not guilty and found against him And yet judgement given against the Plaintiff because the Count was incertain to whom he was Receiver and shall be intended against him then done to a Common person and a Receiver of a Common person is not within 7. E. 6. yet within the words for the intent of the makers shall be observed in the exposition of Statutes and so acts general in words have been expounded to be but particular where the benefit hath been particular As the King shall not have Wardship of lands which discends to the youngest Son but of that which discends to the heir general 12. E. 4. Stamford fol. 8. yet the Tenant dyed seized of others in Fee because the Statute of Praerogativa regis cap. 2. intends where the land is holden of the King and a Common person discended to the same Heir where one is Heir to the Tenant And Praerogativa Regis cap. 3. intends not that Soccage in capite shall give to the King primer seisen of lands holden of a Common person yet the words are general before fol. 109. Stamford Prerogative fol. 13. So Marlebr cap. 4. intends where Signiory and Tenancie are in the same County and therefore the Lord may bring a Distress taken in one County to a Mannor in another County of which the land is holden 1. H. 6.3 30. E. 3.6 before fol. 18. So Glouc. cap. 1. giveth Damages to the Disseisee against him which is found Tenant after the Disseisor for that he is Tenant by his own agreement and therefore the Disseisee shall not recover Damages against him which agrees not to a Feoffment made to him and others by the Disseisor yet he is Tenant but not Tenant by his agreement Litl Remitter fol 153. so long 5. E. 4. fol. 142. if he hath view in a precipe and afterwards abates the Writ for false Latine or for some other cause apparent he shall again have another Writ because there the Court might have abated this without motion For W. 2. cap. 49. although general intends where the Tenant abates the Writ by exception not apparent by 25. E. 3. cap. 16. by non-tenure of parcel no Writ abateable but for the quantity intends if the thing demanded be several as Acres but all the Writ shall abate where the thing demanded is entire as a Mannor before fol. 109. and the intent of the Statute never was contrary to the Text. By W. 2. cap. 25. if one fail of a Record he shall be a Disseisor yet a woman Covert shall not be 11. H. 4.50 nor infant because excepted by the intent yee in words hath included all So extenders shall not pay presently according to the words of Acton Burnel which ought to answer presently c. but shall be debtors presently with the duty and chargeable with the payment and daies payable of the rent or Revenues receiveable So by Exposition it seems against the Text of the Statute and is not because the intent of the makers guides them to it Of the part of the Defendant it was argued That the Action shall be sued there in Wales where the receipt is alleadged although that Wales is united to England by 27. H. 8. because by the same Statute Wales is divided into 12. Counties and by 34. and 35. H. 8. four Justices are appointed for wales viz. one for every three Counties and hold plea of all things within their circuit and one seal appointed for every circuit and all Actions suable there by the words of
probat And by him the Ordinary ought not to suffer the Executor to refuse after he hath once medled with the Goods of the Testator for if before the probat he had released a Debt and after he proves the Will this hath made the release good Walsh probat maketh the Release of the Executor made before good because it is a consummation of the Will and refers to the death Dier Chief Justice If the Ordinary commit and after the Metropolitan commit to another because the intestate hath Goods of the value of 10 l. in diverse Dioces 10. H 7.18 this disproves the authority of the first Administrator and avoids his mean Acts and by Keeble the second Administrator shall have Trespass against the first for taking of the first Goods So 7. E. 4.12 Executor pleads that he hath proved the Testament the action of the Administrator depending against him a good Bar because the power of the Administrator disproved and mean acts avoided by Probat of the Testament and the Executor which is made not knowing of it if he agree after good seems to be 3. H. 7.14 The Ordinary ought to award Proces against the Executor to come in for to prove the Testament before he commits the Administration The Probat here disproves the Administration for ever and proves the Executor to be full Executor from the death of the Testator and is not like to the cases before fol. 239. because the mean time in which no Executor and this time the Ordinary hath authority The Seal of the Ordinary put to the administration is but matter in fact and no estopple and the executor shall not be inforced to sue in the spiritual Court to recall this but shall avoid it by Plea or by matter in fact as 44. E. 3.16 A. bringeth Debt against B. as administrator and sheweth certainly how his Deed was as he ought B. saith he and another are executors Judgement of the Writ and shew forth the Testament to prove it A. offers to aver that he died intestate B. saith to it he shall not be received contrary to the Testament proved and under Seal to take the Plaintiff from his averment but that he shall have it and try it by the Country also the taking of Letters of Administration discharges not a Suit against those which were executors of their own wrong before 21. H. 6.8 2. R. 3.20 So 34. H. 6.14 in debt by the Administrator the Defendant received to avoid Letters of Administration by saying the dead made an executor and taking issue upon it Chapman against Dalton A Man makes a Lease for 21. years by Indenture and Covenants with his Lessee Tr. 7. El. in the K. B. Covenant and his Executors to make a new Lease for 21. years after the expiration of the first to the Lessee and his Assignes the Lessee dies and the Executor of the Executor brings Covenant after the first Lease determined against the Lessor and adjudged good 1. That the executor is an Assignee in Law to whom the Lease ought to be made and so the executor of an executor by the Common Law 2. That the Lease ought to be made to the Lessee if he were alive or to his Assignes in Deed and if he die Assignee in Deed then to his executor and although that the Covenant be in the Copulative in the Letter yet it shall be expounded disjunctive in sense for to avoid absurdity or impossibility 3. Admitting that the word Assignee were void or omitted out of the deed yet this shall be made to the executor for that the intent was such which shall be performed where the words could not Baber and Wray argued for the Defendant as it is abridged by Ash fol. 50. Fleetwood and another apprentice for the Plaintiff Every Covenant and Grant shall be taken most strong against the Maker and most available to the other And if the words thereof have a double sense that which is for the benefit of the Grantee shall be taken then the word Assigned here shall be drawn to so effectuall sense for the avail of the Grantee And if the word Assignee as the Councel on the part of the Defendant would have it applied to a limitation viz. in the sense of an Habendum to him and his Assignes for 21. years it is void and conveys no benefit to the Grantee because if I Lease to A. for 21. years and his Assignes shall have this as largely as I do vest this Lease in him and his Assignes because the Law gives power to him to assign it to another Assignee hath two senses in the one it signifies the person to whom the thing granted or given shall be afterwards conveyed by him which hath the thing as the Lessor Grants to the Lessee for years That he or his Assignes shall have twenty Carts of Wood annually in such a Wood Assignee there hath the sense of the person to whom he shall Assign the Lease So one warrants Land to the Feoffee his Heirs and assignes there the second Feoffee shal vouch So I sell a Horse upon Condition That if I pay 40 s. to him or his Assignees that I shall have the horse again Assignee there is he to whom he grants the horse but such Assignee is not in our case because he hath not any estate first made and such a one is Assignee after the thing granted in the second it contains the person to whom the thing which is to be made and is not made shall be made as I am bound to make a Feoffment or give a horse to you or your Assignee there the Assignee is such a person which you shall name to me to receive and the Assignee in this sense is before the things done or granted and Assignes in this sense is in the first also But with this in the first sense we have not to do here there are Assignes in Deed and Law in Deed where you name such a one to whom I shall make the Feoffment or give the horse in Law where you name no man to receive then the Executor shall have it because the Law saith That they are your Assignes to such purpose and present your person as to receive any Chattels real or personal So 27. H. 8 2. Executor is an Assignee in Law to take a Rental where the Lessee bound himself to deliver it to the Lessor or his Assignes at the end of the Term a true rental and the Lessor made no Assignee he is an ill expounder which confounds the Text. And therefore here and the Copulative shall be taken for or the Disjunctive for otherwise the sense will be absurd that the Lessee if he had been alive at the end of the first Lease should not take a new Lease until he names his Asasignee or impossible as joyning his assignee in law with him because he cannot have an Executor in his life So in our Law a copulative is taken as a disjunctive and a disjunctive as a
thereof he entred this is a departure from the Bar for it is a new matter For the same reason a special agreement in evidence shall not maintain the general issue one witness is not enough nor one Juror for to try an issue if more were warned by the Sheriff 8. E. 3.50 So here the Defendant had but one witness which proves for him which is not sufficient and so judgement shall be given for the King Atkins for the Defendant A witness produced to prove a thing if he saith That he knoweth nothing of the matter his deposition is void so if he depose negatively as to say no more was not entred then so much and if no witness the knowing of the Jurors aid not the tryal of the matter and a Verdict given contrary to the testimony of witnesses good It is not needfull to aver that which of necessity must be intended as that the King hath a Beam there special agreement is an agreement as a Feoffment upon condition is a Feoffment and so this word Agreement includes every agreement by which the evidence well maintains the issue The Statute speaks not of surety and peradventure intends it not and therefore in vain to speak of it and therefore it may be he hath not answered to this exception Agreement in our Law is threefold viz. Executed at the beginning of it with payment intended by the Statute of 25. E. 3. cap. 3. which saith That goods bought by fore-stallers are forfeited to the King if the buyer had made agreement with the seller such agreement is not meant in our case because then the Statute should not be intended in the disjunctive for then the first and the second clause should be all one but the word Or disjoyns the clauses Agreement to an act made by another as in 20. E. 4.9 To a disseisin to his use maketh him a disseisor from the beginning so the party ravished to agree to the ravisher is an agreement executed here because nothing is to be done afterwards and agreement here may not be an executory agreement because the performance shall be afterwards yet both parties accord at one time before 26. H. 8. cap. 3. intends such because it speaks of payment or agreement for first fruits c. and common usage to pay after upon obligation made before proves this which intends agreement executory and here agreement is intended executory because it is not the first nor the second and an agreement executory is Duplex the one certain at the beginning as this of first fruits the other by matter ex post facto upon certainty to be known as here and such agreement executory the Statute will warrant for no Law will punish him in whom there is no default and where he cannot prevent the mischance by no possibility for the necessity of the matter and for that inevitable chance shall not prejudice any 20. H. 7.11 Fineus A man by the Common Law may kill another in his own defence or as a champion for the necessary safeguard of his life and the Tryal of right so notwithstanding the custom of the Realm new Natura brevium 94. b. If enemies of the King steal of Guests the Hoastler is discharged because he cannot resist So if the ship were on fire the casting of the goods on the land without payment or agreement for the Subsidie shall excuse the Defendant so here the extremity of the Tempest doth excuse the vigor of the Statute Sanders the Kings Serjeant Notwitstanding that an agreement conditional is included in the words of the Statute viz. The Collector not agreed with yet every Statute although it be penal shall be taken as the makers intended for the Statute of Waste is If any make waste in Lands which he holdeth by Demise c. yet if his Estate be Ex ligatione it shall be punishable in waste and yet the Statute gives Ex demissione onely suo de assignat and so it is holden 10. H. 6.3 But Gloucester cap. 5. W. cap. 14. nor Martebridge cap. 13. speaks nothing de demissione So quia emptores terrarum viz. W. 3. speaks secundum quantitatem terrae intend valore So 4. E. 4.12 An information for shipping Wooll without sureties of the carrying of Bullion according to the 14. E. 3. the last chapter holden good because the finding of sureties is not repealed by the general words of 36. of E. 3. cap. 11. which giveth the old custom of half a Mark for every sack after three years nor of 45. E. 3. cap. 4. which imposeth no charge upon Wooll other then Custom and Subsidie granted to the King and without assent of Parliament and the two last Staâ—intend not for to discharge Bullion but great Subsidies upon Wooll after 3. years so that the mind intent of the makers shall expound the general and doubtfull words of Star and abridge the generalty of them so here it shall be intended an agreement certain Also because the Commons pray the King That he will be pleased to accept of their Grant for that the words of the Statute which is their Grant shall be taken more beneficial for the King and most strong against the Grantors according to the Principle of the Common Law in case of a common person So the Statute of Prerogativa Regis 17. Ed. 2. Rastal wards 13. is the Grant of the Commons to the King which saith The King shall have the custody of all the Lands of such which hold of him by Knights service in Capite whereof the Tenants were seized in their Demeasne as of Fee at the day of their death of whomsoever they hold also by like Knights Service and notwithstanding that Fee is commonly taken to be Fee-Simple yet the King shall have of Tail because it shall be construed most strongly for the K. where it hath two intendments Agreements upon which the Common Law giveth no remedy are void and not good as in 19. H. 6.36 Upon an information for the forging of false Deeds the Defendant pleads Arbitrement made viz. That the Plaintiff shall not farther prosecute his Writ against the Defendant and saith also That the Defendant shall be non-suited in the Assize This is no Plea because non-suited founds not in satisfaction and cannot compell him to be non-suited for the award is not good if it be not executed wholly or the thing awarded may be recovered by action and therefore in 6. H. 7.10 In Trespass to say That he hath paid money but he hath not made his windows which the Heir may compel him to do for the concord is intire but wants execution in all and indeed before action brought is not good then it is performed yet not immediately and therefore it was held no Plea So in 27. ass pl. 5. A Baily known pledge the Ox of his Master for Wheat and if he pays not c. he shall keep the Ox alwaies This shall bind the Master because the wheat cometh to his use otherwise
the patol Demur in cui in vita per nonage of the second vouchee because he was not heir to the husband and so because penal here in savor of him it is restrained to the heir of the husband onely So by W. 2. cap. 11. an accomptant found in arrearages shall be imprisoned by Auditors and saith not when in 27. H. 6 8. In debt for arrearages of accompt it is adjudged That if the Auditors do not commit the accomptant to prison presently after the accompt and therefore the generality of time is restrained to a particularity by the rule of the Common Law in construction of Statutes and also by the intent of the makers for if the scope and end of the matter is satisfied all the matter and intent of the matter is accomplished and the scope of the Statute here was That the King shall have the Subsidie and the agreement here sufficeth for that because it authorizeth the King to weigh Woad by the Collector when he pleaseth and then the King hath Title of Action and so the surety of the King thereby is referred to will Also such agreement hath been allowed upon the same words of former Statutes for Subsidies Also if the Statute had expressed the agreement in certain yet agreement uncertain should have been good here and out of the penalty because the infringing of the words of the Law without the infringing of the intent of the Law for upon some accidents the law priviledges some things done against the words of the Law of the nature of the Law of this Realm and of other Realms and the Law of God viz. First for to avoid greater inconveniencies Secondly for necessity Thirdly by compulsion Fourthly by involuntary ignorance First for the avoiding of greater inconveniencies as 22. ass pl. 6. where a man of non sane memory and in his rage did great hurt and another man and his parents took him bound him and beat him with rods and here it is holden that they might justifie this in avoidance of greater damage being of non sane memory and yet the Law of nature and of the Realm prohibites battery but this particular case for the avoiding of greater mischief hath one exception and special priviledge So 1. H. 6.9 The Lord contrary to the Statute of Marlebridge may lead the Distress from the Land into another County where the Mannor is for it should be prejudicial to the Lord if he should not carry the distress to his Manor Amongst the Romans they had a Law That every one which should scale the walls in the night should be condemned to death and one in the night did scale the walls in the time of War to discry enemies to the Romans and he by the judgement of the Senate was not onely discharged but had a reward therefore so such interpreting of Laws is a tempering of the rigor of the Law Secondly necessitas non habet legem and therefore it is a good excuse in every Law as 38. H. 6.11 Increasing of water excuseth a default in a precipe quod reddat because he could not appear without danger of death yet the Law abhors every default because it is in contempt of the Court So David did eat bread for necessity although prohibited by the Law of God Thirdly compulsion excuses in Law as the avoiding of an obligation made by dares So if the arm of any man is drawn by compulsion and a weapon in his hand kill another this shall not be Felony nor he damnified because he did it by compulsion Fourthly involuntary ignorance doth excuse as 3. H. 7.1 Kell fol. 268. An infant killeth another it is not Felony because he hath not discretion and it shall be imputed to his ignorance which is involuntary by compulsion of nature so no default in him So Fitz. Nat. br 202. b. if one of non sane memory kill another because his ignorance by compulsion viz. the hand of God and such other things done by ignorance because not to be resisted and this involuntary ignorance is cause of the Act and therefore he which kills another by involuntary ignorance As by thâ— fall of a hatchet out of his hand shall have Sanctuary Deut. 19. But ignorance voluntary is not priviledged as if a man killeth another because this ignorance cometh by his own act and folly which he might have resisted and therefore shall not be priviledged because he himself was the cause of such ignorance if any were à fortiori in all the cases together before mentioned shall excuse for the Law is not offended for the said four causes the incertainty of the agreement here and therefore in as much as the Statute saith The Collectors not agreed with and so gives him authority to agree with the Collector and the Defendant hath made a special agreement with him which is an agreement and so within the words of the Statute if seemeth that by the rules of the Common Law used in construction of Statutes is by the intent of the makers and by all reason and equity shall be adjudged a sufficient agreement and warranted by the Statute and therefore demanded judgement against the King and so it was adjudged But all the Judges were of opinion against the King onely Hales and Montague and afterwards the King sent his Privy-Seal Colthirst against Bejushin 23. Trâ—… E. 6 in the Common Pleas. En Trespass the Defendant pleads a Lease for life to H. B. and E. his wife remainder to his son W. for his life si ipse habitaret residens esset in and upon the aforesaid Grange and Farm and if he should dye in the life time of H. and E. then to remain to B. the Defendant for his life if he also would inhabite there during the Term aforesaid and saith That W. did dye in the life of H. and E. and after H. and E. dyed also and the said B. now Defendant entred without shewing in certain when and took averment that he had inhabited there alwaies after his entry and upon this Plea the Plaintiff Demurs and it was adjudged against him for the Defendant 1. For that the averment of his continual residence is surplusage and therefore the incertainty thereof nil refert by Harris Hinde and Montague 2. It is not a condition compulsary but a thing elegible at the discretion of the Defendant by Montague and then his entry is not material but at his pleasure 3. Admitting that it be a condition yet it is subsequent and in defeasance of his Estate and therefore ought not to be shewed by him which shall have benefit thereby the contrary is of a condition precedent 4. For that it is pleaded by way of Bar and being certain to a common intent it sufficeth and it shall be intended that he entred immediately after the Remainder happened but by Hales Justice this common intent ought to be of a vehement presumption and not indifferent 5. That this word if W. dye then
this shall remain is a limitation of time when this shall vest and not a condition by Hinde and Montague 6. Admitting that it be a condition yet a remainder may depend upon a condition By Hales Hinde and Montague and adjudged accordingly 7. The Plaintiff hath not conveyed to himself Title to have benefit of the breach of the condition if it be broken By Montague Pollard Serjeant for the Plaintiff Except that the Form of the Plea is sufficient 1 Because he doth not aver his continual residence after the Remainder happened but after his entry which may happen to be long time after and so although that he hath performed the words of the condition which hath not satisfied the intent thereof yet he hath not performed the condition because the intent was That he should have all the Mannor So 21. H. 6.10 A man is bound that his Feoffees of the Mannor of D. should grant a Rent of 40. s. to the Plaintiff He had three Feoffees and two of them grant the said Rent to him and there all the Justices said That it shall be intended all the Feoffees so that alwaies the intent of the condition ought to be as well performed as the words of the condition and here the intent of the condition appears to be That Hospitality shall be kept upon the Grange continually from the beginning to the end of the Term which is the death of the Husband and the Wife and here he hath not shewed that he entred within as short time as he conveniently could after the death of the Husband and Wife and therefore because he hath not shewed and averred this he hath not shewed the performance of the condition and therefore his plea is not good For in all cases where the time is issuable he ought also to shew it certainly and therefore in 32. H. 6. it is held That if a man plead a Lease for years made to him that he ought to shew what day the Lease was made because it is issuable So in 33. H. 6.44 In debt by an Executor the Defendant saith That the Testator made the Plaintiff and one R. his Executors at L. the which R. is alive and not named judgement of the Writ and the Plaintiff confessing it saith That after this time last assigned by the Plaintiff that the Testator made the Plaintiff his sole Executor in Middlesex and the Defendant saith That after this time last assigned by the Plaintiff that the Testator made the Plaintiff and R. his Executors after this time and the Plea of the Defendant was not held good for that the day on which the Plaintiff and R. were made Executors is uncertain So 3. H. 6.33 In Trespass the Defendant pleads in Bar the day of the retaining of the Plaintiff who traverseth the Bar and the Defendant enforced to shew the day certain Matter in Law As to the matter in Law it seemeth to him that the Remainder is void because it ought alwaies to be limited to take its effect after the partricular estate ended and not during the particular estate for if it be limited and appointed to take its effect during the particular estate then it shall be utterly void As if A. Leases to B. for life the Remainder for life and if B. dies that it shall remain over to a stranger in Fee this Remainder is void for that it is appointed to take effect immediately after the first estate for life ended for if the Remainder in Fee should commence then it shall avoid the Remainder for life so if a Lease be made to two the Remainder over in Fee after the death of the first of them this Remainder is void because the Survivor shall have the Land So in the principal case it is given to the Baron and Fem for their lives the Remainder to the eldest son for life upon conditon That if the eldest die living husband and wife that then it shall remain to the Defendant for life which cannot be for the first estate at this time continues and if the Remainder shall be good it drowns the estate of husband and wife and therefore the Remainder void and also for that it is limited to commence upon condition which enures alwaies in privity therefore if a lease for life be made rendring rent and upon condition That if the Rent be arear that then it shall remain to a stranger in Fee if the Rent be arear and not paid the remainder is void for the Remainder which commence upon condition is not good otherwise it is if an estate be made for life upon condition That if the Tenant for Life dies it shall remain over this Remainder is good because that it commenceth upon the Determination of the I state the which is certain and therefore no condition because conditions are alwaies incertain and may be performed or broken and as our Law is for to know the time certain when the things pass from one to another and namely Free-hold because the Law hath it in greater estimation then other things and so to prevent contention hath ordained Ceremonies to be used as in every Feoffment Livery and in every Grant Reversion or Rents c. That Attornment shall be made the which are points certain containing time and by them Estates pass Rules to know when Remainders are good The Law hath appointed that every Remainder shall have three things by the matters aforesaid as Notes and Rules certain for to discern when good The first is an Estate precedent made at the same time that the remainder Commences and that the particular Estate continue when the Remainder vests and that the remainder be from the Donor at the time of Livery and if any of the said three things fail the Remainder is void And therefore for the first point if the Lessor confirm the state of his Tenant for years the Remainder in Fee this Remainder is vold for that the Estate for years was made before the Remainder So if a Lessor disseise his Tenant for Life and after makes a new Lease to him for Life the remainder in Fee this Remainder is void because it is a Remitter to his Estate So an Estate precedent was not made at the time of the remainder and therefore the Remainder is void So the Heir endows his Mother Remainder in Fee by reason of Relation and so the precedent Estates are made before the Remainder appointed Secondly That the particular Estate continue when the remainder vests as 21. H. 7.12 per Frowick Lease for Life upon Condition That if he doth not such an Act that his Estate shall cease and that then the Remainder over is void because the Estate precedent is determined before the Remainder appointed and the Remainder must vest during the particular Estate Thirdly because the Remainder passes from the Lessor at the time of the delivery as Hales Hinde and Montague say and as it is proved by the Cases before cited So Perkins 12. and 19.
Remainder to the right Heirs of I. S. in Life passes from the Lessor presently although it vests not presently but here the Remainder passeth not presently because the Condition precedes the Remainder as 15. H. 7. 1. if A. Grant to B. That when he is promoted to a Benefice or do such an Act he shall have an Annuity there he shall shew his Promotion if he demands his Annuity because it is a Condition precedent and to him which maketh the Grant but if he Grants an Annuity until he be promoted there he shall not shew it because the Promotion is subsequent to the Annuity and will defeat the Annuity and therefore it shall be shewed by the other party which is contray So 7. E. 3.10 A Lessee for eight years rendring 10. s. yearly and if he holdeth over to him and his heirs an action of Debt is maintainable during the Term for the Rent is a Chattle because the Fee passeth not presently for that the Condition precedes the Fee So 6. R. 2. a Lease to two for years upon Condition That if the Lessee aliens within the Term or die he shall have Fee it is holden that the Fee passeth not presently because the Condition precedes it which Cases prove That the Remainder passes not out of the Lessor at the time of the Livery albeit that the Condition precede the Remainder and proves also That the Remainder Commenceth upon Condition and proves also That the Remainder is appointed to begin after the Commencement of the particular Estate the which is contrary to the grounds of Law and therefore and for the said other causes the Remainder shall be void And so for the insufficiencie of the matter of the Bar and Form also the Plaintiff shall recover Cook Serjeant to the contrary As to the two Exceptions which have been moved That the Plea is not good because he shews not that he hath been resiant after the deaths of the Husband and Wife alwaies nor what day he entred Sir I take it That it shall be taken that he entred immediately after the death of the Husband and Wife for the Defendant hath pleaded by way of Bar and if the Bar hath matter of substance and is good to a common intent it sufficeth although it be not good to every special intent and therefore in the Case of 33. H. 6. fol. 24. where the Defendant pleads That the Testator made the Plaintiff and one R. his Executor Judgement c. The Plea was good without shewing that he was made after that the Plaintiff was made sole Executor because it shall be intended after So 10. H. 7. 15. by Keble in Trespas the Defendant pleads his Free-hold good because good by Common intendment yet the Plaintiff might have an Estate for years and it may stand with his Bar and by which he may punish the default but such special matter will not be intended So 6. E. 4.1 in Debt upon an Obligation the Defendant saith That he hath done such things as was contained in the Indenture and at Issue and found for the Plaintiff and spoken to in Arrest of Judgement because the Defendant said not that the two Covenants were all and so had not alleadged the performance of all but held good because by Common intent there shall not be intended more then two Covenants if the Plaintiff shew not the contrary So 3. H. 6.4 in Formedon he gave not prima facie a good Bar because it intends a general gift and yet it may be That the Land was recovered in value and then the Plea is not apt for other Land was given So 3. H. 6.3 In Debt nothing in their hands pleaded by Executors good yet it may be that other goods first not the Testators at the day of his death are come to their hands in place instead of other goods So 21. H. 6.17 In Assise the Defendant was in by discent where he had a mean Title which tolled the Assise of the other shall not be void by the said recovery but this shall not be intended without shewing so discent and entry in Bar good yet it may be that a stranger abated and dyed seised and the Heir could not enter but if shall not be intended without shewing specially but when a thing Commenceth in respect of the time then the certainty of the time shall be shewed fol. 24.27.33 as 20. H. 7.12 by Rede A Servant which demanded 20. s. Sallary for his service by the year ought to shew the expiration of the year because the Action is given in respect of the year past and the time is parcell of the cause of the Demand and precedes the Demand but here the time pursues the Remainder and is not cause of the Remainder and therefore we ought to shew it so certainly as where time gains a thing for here it goeth in defeasance of the thing and therefore the Bar is good notwithstanding the said two Exceptions besides it seemeth to me the Remainder is good For first he hath an Estate here upon which the Remainder may be grounded here the remainder is appointed thereupon but the cause wherefore the Remainder shall not be good is alleadged in two great points viz. because the Fee passeth not presently forth of the Lessor and also for that the Remainder cannot pass upon Condition And it seems to me That the Remainder passeth out of the Lessor presently howbeit that it vests not presently as in Litl 81. A Lease for five years if he pay within the first two that then he shall have Fee the Fee passeth out of the Lessor presently so the Remainder to the right Heirs of I. S. in life and a Remainder may Commence upon Condition as a Lease for life upon Condition That I. S. Marry my Daughter during the state for Life which shall remain to him is good because he hath an Estate upon which it may be grounded So 34. E. 3. Devise for Life upon Condition That if the Heir to whom the Reversion discends disturbs Tenant for Life or his Executors of their Administration That then the Land shall remain to the Daughter of the Devisor and to her Heirs and dyeth Tenant for Life dyeth the Son of the Daughter brings his Formedon against the Heir because he disturbs the Tenant and also the Executors of the Tenant traverse it and at issue and upon this issue is joyned which should not have been so if the Remainder had not been good Also if Assent as 18. E. 4. 12. by Catesby ante 8. post 31. to the Diseisen made before to anothers use may Traverse the Free-hold from one to another à fortiori a condition may namely where the Franck-Tenement precedes to which a Condition may be annexed Morgan Serjeant for the Plaintiff The Plea is not good because it doth not shew the day in certain of the death of W. nor of the Husband and Wife but he argued not this Also it is not good because he shewed not the
imbesseling of a Habcas Corpora upon a Formedon between the Plaintiff and another holden good whithout shewing the Original and certainty of the Land and all the Record in certain because the Record is but a conveyance to the suit of Deceit and therefore for this cause cannot be gainsaid as to say Nultiel Record But where a Record is pleaded in Bar all shall be shewed certainly and is Traversable there in Conclusion or general Demurrer as petit judicium if the Plaintiff shall maintain the Action one shall have advantage of all defaults and of every thing mentioned in the Record and of every point that the Law gives him In Conclusion speciall of defaults onely alleadged in certain as here petit judicium if the Plaintiff shall maintain the action there if it be void for another cause then this which is mentioned he shall not have benefit of this of a thing void ab initio as the Obligation here because void by Statute so in avoidance of a Deed That he was not a man lettered and that it was read to him in another form So 24. H. 8. 28. because delivered as an Escrow upon Condition the Conclusion shall be so not his Deed because the matter proves that it was never his Deed of a thing voidable where it was void after because once is was a Deed the Conclusion shall be Judgement if Action because the duty is now extinct as 1. H. 7. 15. by release 35. H. 6. 18. for nonage 7. E. 4. 5. by dures When the Conclusion is nought and the matter in Law good Officium Judicis est for to give Verdict against the Plaintiff if it appeareth that he had not cause of Action howbeit that the Defendant hath lost the advantage thereof as it is here So 7. E. 4. 31. Trespass against B. and C. B. pleads not guilty C. pleads the gift of B. found guilty and found for C. no judgement for the Plaintiff because found against him So. appeal of a woman for the death of her father 10. E. 4. 7. because she shall not have an appeal of the death of any man except her husband or Trespass against the Lord by distress where nothing is in arear because the Statute is Non ideo puacatur dominus abate ex officio although the Defendant accepts the Writ good for the Plaintiff shall be barted by the Court ex officio and shall not have judgement although the Defendant admits his Title or by his Conclusion hath concluded himself of his advantage if it appeareth that he had no Title 1. The first branch is commanding and authorising the Sheriff to let to Bail persons manipernable by the Common Law viz. persons taken by Writ Bill or Warrant upon an Action personall or indictment of Trespass for it was indifferent if they were guilty or not made in affirmance of the Common Law 2. The second Branch viz. The exception was also made in the affirmance of the Common Law before for such persons which were in by condemnation execution Capias ut legat c. were not bailable before 3. The third is onely the purview which relates to the second branch as well as to the first for before refers to all this spoken of before as well the thing excepted as otherwise as a Lease for years of a Mannor except a Close rendring Rent the Lessee binds himself to perform all Covenants Grants and Agreements expressed or recited in the Indenture and after disturbs the Lessor of a thing excepted he hath forfeletd the Obligation because it is an Agreement for when he excepted the Close the other was contented with it and that the Lessor should occupy it and recited goes to the exception as to the rest 45. E. 3. 4. contained and recited goes to every Covenant in the Indenture An Act done Colore officii is extortion as if an Officer takes more for Fees then he ought And an Obligation taken of a prisoner for meat and drink is void because it is colore officii for he nor the Plaintiff are not bound to give him sustenance as he which distrains is not bound to give although he be in for Felony because 7. H. 4. 47. his goods are his untill he be attainted by the Common Law which is confirmed by 1. R. 3. c. 3. Rastal Forfeiture fol. 15. and if he dies for want of sustenance it is his own fault because that by presumption his ill demeanor bringeth him to such imprisonment The Statute of R. 3. restrains the Sheriff and other Officers to take Obligations of their prisoners except the Warden of the Fleet and the Kings Pallace at Westminster A Sheriff lets to mainprise one taken by Capias upon an indictment of Trespass which for the surety of the Sheriff makes an obligation to a stranger to keep his day is 7. E. 4. 5. held to be void because taken to another and not to the Sheriff onely according to the Statute Also there it is held if the Obligation hath not the Conditions expressed in the Statute That it is not the Deed of the party ex quo sequitur that he ought to conclude not his Deed keeping without dammage shall be intended by the generalty for all things Treasons Felonies Accounts and for all times if another thing is added by the Statute to be given it shall make all void as if a Condition be made according to the Statute and hath another thing not according to the Obligation is void So to add other words in a Formedon or Writ of Waste which are given by Statute all is void So to alien all the Land when he hath licence for part the licence is void in all by the Statute of 32. H. 8. because he hath exceeded the Authority thereby given to him The Statute saith That the Sheriff shall let persons mentioned therein to bail upon reasonable surety of sufficient persons in the plural number and because there is but one surety here the Obligation is void Also because the Statute saith That if it shall be taken in any other manner then is contained in the Statute if shall be void Also here by Plowden yet taken by one at large by the words of the first branch and those aid then third branch every person which extends to those at large nor for any person in their Ward which extends only to prisoners Kidwelly against Brand. LEease for years rendring 40. s. Rent by the year at H. out of the Land at the Feast of M. and if the Rent be behind H. 4. 5. E 6. In the Common Pleas. and not paid by the space of 40. daies after the said Feast then it shall be lawfull for him c. for to re-enter the Reversion is granted for Life the Grantee cometh to the Land 40. dales after M. to demand the Rent aforesaid but demanded it not and for not payment re-entred and adjudged lawfull 1. A Grantee for Life of a Reversio is an assignee within the Statute of 32.
it ought to be conjoyned to certainty as 9. H. 7.3 by Fineux and 6. H. 4.7 Debt upon payment at two days whereof the one is come abates by shewing of the Plaintiff the same because he hath shewed falsity So 20. H. 6.30 one ought to reherse the Stat. upon which he bringeth Champerty for to Warrant this certainly which ought to appear alwaies to the Court but not in one manner as sometimes by the replication in Assizes sometimes by Verdict as in aquare impedit the value of the Church In Ward the value of the Marriage in Detinue the value of the goods as in 20. H. 6. Champerty was brought which was not Warranted by any Statute and there Newton said That if the party could not shew to them some Statute by which it is Warranted that they would award that the Writ should abate And for that which hath been said that he needs not to recite the Statute and therefore misrecital is not material it seemed to them That howbeit he need not yet if he recites it and there is none such then he hath failed of his substance for the Court will not aid him nor think he intendeth any other thing then what he hath shewed and by this abundance in reciting more then needs hurts the party many times And therefore in 20. H. 6. fol. 42. contrary to 8. H. 6.33 Fitz. H. Count 15. of forging of false Deeds the Writ was of Diversa facta and minimenta c. and he counted but of one onely and by assent of all the Justices it was awarded That the Writ should abate and so abundance abated the Writ And if one maketh Title in Assize in his plaint where he need not yet if it be not formall all shall abate and yet it was abundance and more then he was compelled to do So in the principal case And where it was said That the Defendants by their Demurrer have confessed such Act of Parliament as the plaintiff hath declared they held that admitting this to be a confession yet this binds nor the Court which is a third person as appears by 10. E. 4. Wherein Trespass of Cattle taken brought by the Lessee for years the Defendant said That the Lessor held of him by Rent which was Arear and he took the beasts for it the Plaintiff said nothing Arear and there although the Defendant had admitted the Writ good yet the opinion of the Justices was That the Writ should abate for that the Lord was Defendant And so if the Defendant will admit good an appeal brought by the wife of the death of her Father yet the Court ought to abate it although the party affirm it and a Demur-is a Confession of all matters in Fact but not of matters in Law For by the Demurrer he puts it to the Judgement of the Court and confesseth not the Law against himself although the King may wave the Issue and so Demur in Law and recover afterwards fol. 236. and he hath many other prerogatives yet shall he be bound by misrecitall or by misusing or misconceiving of his Action and there shall abate the Writs where he is sole party as in the case of a common person à fortiori where another is party with the King as here the Plaintiff ought to shew certainty of the Lease here by Cook by other Justices not In Decies tantum certainty of the Summ received here because he shall not recover ten times as much and may not without shewing in Champerty the certainty of the first plea here because privy to the Record So in Trespass if the Defendant pleads Franck-Tenenemt the Plaintiff intitles himself by a Lease made by him the Defendant will shew that he made a Feoffment and that he entred for Forfeiture he ought to shew the name of the Feoffee and certainty of the Feoffment because he is privy and in all cases of privies he ought to shew the certainty as 2. H. 7.6 in Bar of Dower the Heir pleaded detainer of evidences he shall shew certainty for he is privy to them that he affirms to appertain to him of a bag sealed with Charters not 18. H. 8.1 because the bag sealed is certain Indictment cujusdam ignoti good Stamford fol. 95. and after fol. 129. Statute penal here not taken by equity by all the Justices as an Attaint shall not 14. H. 7.13 nor the Statute which augments bread by evil making nor things out of the words shall not be taken by equity But the words may be expounded beneficially as Treason by the Statute 25. E. 3. for killing of a Master so of a Mistris are of one effect 19. H. 6.47 but not by equity but rather within words Plural number contains singular by Hales So here pretenced Rights and Titles as shall be punished for forging one false Deed yet 1. H. 5. cap. 3. speaks of false Deeds So for Entry into one Tenement yet 5. R. 2. cap. 7. speaks of Entry into Tenements under this word any the lesser Estate is contained in the greater as 23. H. 6.10 prohibits that a Sheriff shall Lease his County to farm in any manner shall not Lease part thereof after fol. 124. contrary by Hales This Lease here made by one in possession is out of the Statute because it is not averred to be a pretenced right viz. the bargain and Lease to be made for maintenance contrary Cook for this was the point of the Statute as 9. H. 6.26 if published onely yet the Stat. is in the Copulative for forging and publishing this within the Statute but ought to aver That it was published to trouble the possession and Title of the Plaintiff for this is the point of the Statute So here the Lease ought to be averred for maintenance for this is the point of our Statute Montague Chief Justice He that is in possession may buy the pretenced right of another he which is out of possession if he promise or bargain to depart with the Land when he shall get the possession is within the Statute and maketh it void by the Common Law wherefore the Statute affirms it and adds a greater pain to the thing done against the Common Law and the Statute shall be meant to avoid a bargain of Right when out of possession he which hath possession but one hour alwaies may sell or it shall be a hard Exposition Acts expounded against the words of the Statute because Law and Reason allows it As Tenant hanging a Precipe Infeoffs his Son and Heir 6. E. 3. fol. 274. after fol. 204. good contray to the words of the Articuli super Chartas cap. 2. because the Son may not maintain to the Father but is bound to aid his father So an Heir may abet his Mother for to bring an appeal as W. 2. Cap. 12. So a Trespass in a Park without hunting shall not be punished by a year before refers to the Clause before onely so that the Clause being in possession Reversion or Remainder
Return of summons of the Exchequer because it concerneth the King himself there So 2. R. 3.4 2. H. 7.7 The Kings Grantee of Amerciaments of his Tenants shall not have the amerciament of his Tenant which holdeth of him and another because it is before other Tenants as well as my Tenant Charters of the King taken according to common intent and other things which have not common intent shall not pass from the King by his Charters And therefore 3. E. 3 the King Grants to an Abbot That he and his Successors shall be quit of repairing of Bridges Cawseys and Walls it discharges not him for repairing of such which he hath been used to repair by prescription as Lord of the Village but it is good otherwise of a Town to which the King hath Granted Murage Pannage or Pontage So 9. H. 6.56 before fol. 243. The Grantee of the King with Warranty shall not have in value without precise words but he may rebutt So 2. H. 7.6 The Grantee of the King of all Fines and Amerciaments in such a County he shall not have Amerciaments if the Sheriff Coroner or other great Officer is Amerced because Royal and a Grant shall enure for common things in intendment So 43. E. 3. ass pl. 15. The King Grants to his eldest Son the Dutchie of Cornwall cum omnibus Wardis Maritagiis c. And one which held of the Dutchie by Knights Service and which held also of one which was in Ward because of Ward by Knights Service dieth his Heir within age the Prince shall not have the Wardship of him but the King because a thing pertaining to the Crown passeth not without special words So the King maketh a County Palatine and giveth to another and Jura Regalia and that Pleas within the County shall be determined there yet he himself shall sue at Westminster his actions arising within the County Palatine as 3. E. 2. For an advowson in the County Palatine of Durham the King brings his Quare impedit in the Common Pleas the Defendant pleaded to the Jurisdiction of the Court and was compelled to answer So an Abbot by the Kings Grant made to him for the amortizing of Land or Tenements may not purchase an Advowson holden of the King in Capite and this case by Wray differs from the case in 41. ass pl. 19. before fol. 332. for there the Charter names the house but names not what Lands by which it cannot be intended that the King was mistaken in the Tenure and therefore it is good there and not for the cause of Ex gratia speciali So 19. E. 3. he might not appropriate an Advowson holden of the King by licence to appropriate So 1. H. 7 23 and 26. A sanctuary for Treason shall not be without speciall Words Ex merâ—… motu c. will not pass other things then the nature of the words contain And therefore the King Grants to a man and his Heirs males excerta scientia c. passeth not inheritance 28. H. 8. A Felon may not wage battail against the King because dangerous for the King Stamford fol. 180 and 182. nor against those of London in an appeal by the Kings Grant 20. E. 3. So if one takes the Kings goods wrongfully the King may seiz his goods until restitution and 8. R 2. if any take Toll of those of the Town of Lynn they may by the Kings Grant take withernam of those another time within their Jurisdiction And so the King conveys not from the Prerogative of his person to the person of another a fortiori he may here where the thing is not but Revenue or profit These words ad humilem Petitionem Comitis deminisheth the force of the Pattent by Catline by Plowden if Gold or Silver will not defray charges the King shall not have it because no mettal without them but because the party shewed it not as our case is the Queen shall have Judgement And this point was not put to the Judges to adjudge because that the Defendant confessed that it contained gold which is intended to be of good value because the best for the King Bret against Rigden A Man seized of 10. acres Soccage Devises all his Lands by writing Tr. 10. El in the Com Pl. Repl. and after purchases 12. acres Soccage and the Devisee dieth the Devisor saith to the Son of the Devisee That he shall be his Heir and have all the Land that his Father should have had if he had survived him and dies Adjudged that he shall not have the 12. acres 1. If the Devisee shall have the Land purchased by the Devisor after the making of his Will Manwood for the Defendant said That it shall be presumed that every one knows the Law in acts indifferent and that the Will is of no effect until the death of the party for ignorance of Law excuses no man and the date and writing of the Will is not effectual but the words of the Will shall be construed as they were spoken at the time of his death And therefore if a man Deviseth a Mannor in Fee a Tenancie escheateth and after the Devisor dieth the Devisee shall have the Tenancy because parcel of the Manor at the death of the Devisor when the Will taketh effect yet when the will made not A woman Deviseth Land and after takes husband which dies the Woman dies the Devise is good because she is discovert when it took effect as she was when she made her will and marriage cannot countermand it which was not of effect in her life Also because it intends no exception for the generality of the words As if she had Devised all her plate and after bought plate and died the Devisee should have all his plate at the time of her death for the ampleness of his words declares his intent to be benificially taken for the Devisee Lovelas and all the Justices for the Plaintiff to the contrary That Land purchased after the making of the Will cannot pass by the words nor intent of the Testator because he had not the 12. acres at the time of the writing and publication of the Testament it is no presumption that afterwards he would have and is as if he had died when he writ and published the Will and therefore cannot have an intent to give it and the death which is the Confirmation of the Will follows the first Acts thereof viz. the writing and publication of it for every Act founded upon discretion consists of 3. parts The first Inception which is writing of the Testament here The Second Progression which is the publishing of the Testament begun The Third is Consummation which is the self same and continues one through all these parts or otherwise the Act is void of discretion And by Lovelas it is proved That the Commencement is to be considered in Wills because if a woman Covert Devise Land by her Will and publish it and her husband dies and after she dies
is not lawfull but that he shall be barred by the Fine with Proclamations and the five years notwithstanding his Infancy for that the five years are once attached in his Ancestor and then they ought to incur for the pursuit of a Claim within five years is a Condition in Law which shall bind an Infant Those which argued with Stowell for the better intelligence of the Statute of 4. H. 7. ca 24. which gives five years to every stranger and of the reason of making it thought the Fines and their force at the Common Law and the incidents thereof which consists in three points 1. The nature of the Fine and the puissance of it 2. The preservation of the antient right by Claim 3. What persons may make the Claims 1. Fines are as antient as any Court of Record and at the Common Law they bind all strangers but those which have defect which Enters not or Claim within a year by 17. E. 1. So Non-claim after the year and day was peremptory upon a Fine or Recovery in a Writ of Right Executory and not Executed as is a Fine sur Conusans de droit and Render 7. E. 3.335 Because transmutation of Possession gave occasion to a stranger to take notice and to bring his Action or enter within the year and a day after Recovery in Right tryed by Battail or great Assise barred a stranger if he had not defect as Nonage was for the great notice of it because publike and more notorious then in other Actions And a Proclamation shall be made before Judgement upon a Recovery in right by default for to give notice of it And from thence use is derived to make Proclamation in formedon as it is in 7. H 4.19 upon the confessing of the Action Quaere by what Law and so Fines after Recovery in a Writ of Right was of the greatest force 2. But the avoyding of a Fine by one defeats it against all although their Right was bound before by their Nonclaim which sets at large all other Rights above them although they make not claim within the year and day 16. E. 2. As if the Lord defeats a Fine at the Common Law by deceit he restoreth the right to him which Levies the Fine And if the state which passes by the Fine be defeated the right Paramount is restored although it was barred before by Nonclaim As the Feoffee upon condition if an Abator levies a Fine one year passeth the Heir is barred by Nonclaim the Abator enters upon the condition broken the Heir now shall have Mort. d' Auncestor against him and after the Statute of 4. H. 7. an Action brought within fives years shall defeat the Fine against himself and all others having right Paramount although he hath not Judgement and Execution until seven years after Proclamation Claim is defined by Dyer to be a Challenge of the Ownership or Property that he hath not in Possession but is detained from him by wrong There are four Claims for defeating of Fines whereof two are by Record viz. Action Reall and Entry of the Claim at the foot of the Fine two by Acts in the Countrey viz. by Actuall Entry and by Claim and so notwithstanding the Puissance of Fines at the Common Law the Law hath provided those Claims for to preserve the Ancient right 3. Those which are strangers to the Fine and have present right ought to make Claim and shall avail all in Remainder or Reversion their Non-claim binds all in Remainder and Reversion because all of them have but one year by the common Law after the Fine levied And such mischief was a great cause why the Statute of 34. E. 3. ca. 16. which out Nonclaims was made But before this time W. 2. ca. 1. 13. E. 1. hath provided for the Donor and Donee that Nonclaim shall not bind them as it did before 13. E. 1. as it is like But an Infant was not bound at a time certain to make Claim by the Common Law It is proved by Implication of the Statute of W. 2. ca. 1. and 18. E. 1. de modo levandi fines observe in their Exposition because he hath not discretion to consider of his right nor to conceive what Action he shall bring nor when or how to Enter or Claim or to do Acts which require intelligence and in the same degree are Non-sane a man in prison and beyond Sea But a woman Covert was bound to make Claim by the Common Law because she is not mentioned in any of the Acts and hath a Husband which may make Claim for her And therefore Infants and such are at large always and bound to no time for to make their Claim by the Common-Law And if the Father Disseisee dyeth within a year and day after the Fine Levied before the Statute of Nonclaim his Heir within age he need not make Claim because he is not bound where the right discends to him more then he is when he hath a present right when the Fine was levied nor Infant in Remainder or Reversion is not bound by the Nonclaim of the particular Tenant And so howbeit that Fines at the Common Law were of so great force yet the former right was considered and time given for to preserve it and Infants were exempt out for this time And after when Nonclaim was repealed and outed in Fines and to make their Claims and because the Law was unreasonable that those in Remainder or Reversion should be bound by Nonclaim of particular Tenants and the Law of Nonclaim being outed in process of time Fines became too feeble and were in effect but Feoffments of Record whereby the security of Inheritance was taken away which was cause of great Contention between Subjects and therefore the Statute of 4. H. 7. intending to reform three things First to magnifie Fines againe Secondly to preserve the Ancient Right if it be pursued within a certain time Thirdly of not binding of persons of defect nor feme Coverts unless they are also parties to the Fines but favoured those which had defects untill their impediment removed and then gave them time sufficient to pursue their right That which is excepted out of the Act is out of the provision of the Act and there is no Ordinance for it but is so apparantly exempted out of the Act as if no Act had ever been made As a Feoffment of a Mannor except an Acre or of all Lands in Dale except White Acre is voyd for those Acres as if no Feoffment had been made but a saving goes to them touched and not exexmpt The word having in the Statute of Fines 4. H. 7. shall be expounded of them which have right at the time of the Fine Levied and Proclamations made and also of the using of the Action or Claim c. And not only at the time of the Action or Entry The exception goes not but to those before bound The ampleness of the Exception is measured by the ampleness of the