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
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
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
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
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
Defendant that these Matters of Forgery were not within the Statute of 5 Eliz. nor also the Perjury or the procurement thereof upon which the Lords of the Council there Upon the Statute of 5 Eliz. of Perjury referred the consideration of the said Statute to both the Chief Iustices who at the next day in Court declared their Opinions upon the said Matters i. e That the said Matters did not extend to the Forgery of a Deed containing a gift of Chattels personals which see clearly by the Statute which as to that purpose extends but to Obligations Bills Obligatorie Acquittances Releases or other Discharges and that also a Deed of Assignment of a Lease of Lands in Ireland is not within the said Statute and also they were of opinion that the said Perjury and the procurement of it was not punishable by the said Statute because the Oath was taken coram non Judice for the Town-Clerk of London could not take an Oath in such a case Note no more than a private person But because that the Bill in the perclose and conclusion of it was contrary to the Laws and Statutes of this Realm the two Chief Iustices were of Opinion That the said Court might punish these Offences as Misdemeanors at the Common Law but not according to the Statute and afterwards Shyriffe was fined and by Order of the Court to stand upon the Pillory Mich. 29 Eliz. In the Exchequer Chamber LXXX The Queen and Lord Vauxes Case Bills IN the Exchequer Chamber before the Chancellor c. the Lord Vaux brought a Writ of Error upon a Iudgment given against him in the Court of Exchequer and assigned for Error that a Bill was exhibited against him that the Lord Vaux had taken certain goods of the Queen at Westminster in the County of Middlesex and also had intruded into the Rectory of Ethelborough in the County of Northampton whereas the Queen ought to have brought several Bills being for several causes arising within several Counties But it was resolved by the whole Court That the Bill of the Queen was good enough and here is no mischief for if the Defendant will plead Not Guilty two several Venire Facias shall be awarded one into Middlesex the other into the County of Northampton Mich. 27 Eliz. In the Common Pleas. LXXXI Owen and Morgans Case 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 the Conusee rendred the same to the husband and wife and to the heirs of the body of the husband 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 the wife And afterwards the husband suffered a common Recovery without naming of the wife Common Recovery the hushand and wife died without Issue and now Owen to whom the remainder was limited by the Fine brought a Scire Facias in bar of which the Recovery was pleaded It was argued by Shuttleworth Serjeant That the said Recovery had against the husband was a good bar Feme not party to the Writ of Covenant not bound by a Recovery and should bar the remainder and the wife ought not to be named in or party to the Recovery for that nothing accrued to her by the Fine because she was not party to the Writ of Covenant and to the Conusans vide 32 H. 8. Fines 108. None can take by the Fine but those who are named in the Writ of Covenant but every Stranger may take by way of Remainder Vide etiam 7 E. 3. Br. Fines 114. 6 E. 3. Fitz. Fines 117. 7 E. 3. Fitz. Scire Facias 136. It is said by Herle if such a Fine ut supra be taken it is good as long as it is in force LXXXII Sir Richard Lee and Arnolds Case Post 93. SIr Richard Lee Kt. seized of three Manors made a lease of them to Sir Nicholas Arnold for certain years reserving for the one Manor 5 l. and for the other Manor 10 l. and for the third Manor 10 l. upon condition that if the said rents or any of them or any part c. be behind a re-entry into all the Manors and afterwards he bargained and sold the reversion of one of the said Manors to William Winter in Fee and afterwards by Deed indented and inrolled bargained and sold the two other Manors and for the rent of one of the said Manors the Vendee did re-enter into all the Manors Manwood Here are several reservations Reservation of Rents upon a joynt Lease several rents and several leases for although that the words are joynt yet by construction they are become several as Land given to an Abbot and a Secular man although here be joynt words yet they are Tenants in Common Litt. 296. And if I sell to you two Horses the one for 5 l. and the other for 5 l. here are two several contracts the Parties to whom these reversions are assured ut supra are Assignees within the Statute of 32 H. 8. by which it is enacted that Assignees may take advantage of Conditions for such an Assignee is not meerly in by act of law as the Lord by Escheat and he is not such an Assignee but is in by conveyance The Lessor enters upon his Lessee Assigns and makes his Feoffment and the Lessee re-enters now the Feoffee is an Assignee and this condition is destroyed in part and continued in part Condition destroyed in part good in part If one hath Common in the land of another for 20 beasts and releases his Common for 10 beasts the Common for the residue remains but if he purchaseth part of the land in which he hath Common the whole Common is destroyed A Feoffment to two with warranty and one of them releases the warranty all the warranty is gone As to the condition for as much as it is not collateral but incident to the reversion it may be severed and is of the same nature as the rent and reversion A man possessed of lands for 20 years and seized of other lands in Fee Conditions divided leaseth all the land for 10 years reserving rent with clause of re-entry and dieth now the Heir hath a reversion for the land in fee and the executor for the other land so the condition is divided according to the reversion so if lands were given to one in general tail and others in special tail he thereof makes a lease rendring rent and dieth having several Issues inheritable to each tail now the condition shall go according to the rent and he conceived that the Grantee of parcel of the reversion is an Assignee within the said Statute Grantee of parcel of the Reversion is an Assignee within 32 H. 8. Of Conditions as if a Lease for years
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
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
time of the Recovery for he is estopped to say that his Father was not Tenant to the Praecipe and therefore it is a good Recovery against him by way of Estoppel CCCLXXXV Mich. 6 Jac. In the Kings Bench. IN a Writ of Error brought upon a Iudgment given in Communi Banco in an Ejectione firmae upon a Lease of a Running Water it was agreed by the Court That no Livery could be made of Running Water because it is fugitive but otherwise it is of Water in a standing Pool for that is certain and peramount and of that Livery ought to be with a dish of part of the Water CCCLXXXVI Duncombs Case In the Common Pleas. THe Grantee of a Rent-charge for life acknowledgeth a Statute and afterwards he released to the Terr-tenant It was the Opinion of Cook Chief Iustice in Communi Banco that the Rent after the Release should be put in Execution upon the Statute CCCLXXXVII The Opinion of Popham Chief Justice in the Kings Bench. IT was the Opinion of Popham Chief Iustice That if a man covenant to stand seized to the use of himself for life the remainder to the use of his Executors that in that Case the Executors shall take to the use of their Testator But if a man covenant upon good consideration to stand seized to the use of the Executors of a stranger that the word Executors is a word of Purchase and they shall take to their own use CCCLXXXVIII Mich. 7 Jac. In the Common Pleas. COok Chief Iustice put this case If the custom of a Manor is that every Tenant at his death shall pay his best Beast for a Heriot if a Feme sole who is Tenant for life of this Manor taketh a Husband and afterwards dyeth if the Lord shall have a Heriot Dodderidge the Kings Serjeant said that he should not because that the Wife had not Goods Mich. 7 Jac. In the Common Pleas. CCCLXXXIX Wards Case AN Information was against Ward and his Wife for his Wives not coming to the Church upon the Statute of 28 35 Eliz. It was said by Cook Chief Iustice That the Husband is chargeable for the Recusancy of his Wife and he said there needed no Conviction but before an Information the Husband shall not be chargeable for his Wife but where he is named with the Wife and he said That the King had a Fee-simple in their Lands for he hath it to him and his Heirs and Successors until conformity with satisfaction of the Arrearages Vide Statut. 28 Eliz. Rastal Tit. Corone Mich. 3 Jac. In the Common Pleas. CCCXC Wheelers Case A Copyhold custom is That a Woman shall have a Free Bench quam diu se bene gesserit and live chaft and she is incontinent of which the Lord hath not notice and the Lord admits her Tenant It was holden it should bind the Lord although he had not notice of the Incontinency Mich. 5 Jac. In the Star-Chamber CCCXCI Edwards and Wattons Case NOte for Law in the Star-Chamber If a man write a scandalous Letter unto another and put his name to it if the party who writ it publisheth the same either before or after the delivery an Action upon the Case lyeth against him at the Common Law But if the party who writes it doth not publish it yet he may be sued for the same in the Star-Chamber And it was said in this Case That he who receives Books which are written against the Religion established in the Kingdom and shews them to others with Comments of them he runs into a Praemunire by the Statute of 4 Eliz. CCCXCII Rolls tit Waste THe Case was A. made a Lease of White Acre to B. upon condition he should do no Waste in which there was a Fish-pond stored with Carps Pikes and their Fry C. destroys all the Fish B. being upon the Land for which A. enters 1. If the destruction of all the Fish and their Fry be Waste within the Statute of Gloucester It was said that it was for they are parcel of the Inheritance as are Deer within a Park enclosed But it was adjudged 29 Eliz. in Communi Banco in Moyle and Ewers Case That where a Lease of a Manor was in which was a Warren of Conies and the Lessee destroyed the Conies that it was not waste for they were ferae naturae and the Land bettered by them and such was the Opinion of Walmsley Iustice although the Conies were in a Warren paled and enclosed with a Wall but the destroying of Doves in a Dove-house is Waste And it was adjudged in Sir Francis Palmers Case 9 Jac. in B.R. That although the cutting of Vnderwood was not Waste yet the eradicating of it was Waste The other matter was If the destruction of the Fish by a Stranger the Lessee being upon the Land were waste it was said it was waste for qui non vetat peccare cum possit jubet and it was said That if a man commit waste or suffer another to do it he did incur the penalty in the Statute But in this case it was said That a Condition to defeat an Estate should be taken strictly As if a Custom be that if a Copyholder for waste done shall forfeit his Estate if a stranger doth the waste it is no Forfeiture for three things in Law shall be taken strictly Conditions Customs Penal Laws As if the Custom be That an Infant at the age of 15 may make a Feoffment he cannot make it by Attorney And it was adjudged 1 Jac. in Communi Banco in Woodleys Case So the Statute of 5 E. 6. a Penal Law is That a man shall not buy any Victual to sell the same again Yet it was adjudged That where a man buys Meal and makes the same into Starch and sells it he may well justifie the sale thereof and it is out of the Statute because it is not the same thing Pasc 8 Jac. In the Kings Bench. CCCXCIII Wards Case IT was adjudged in this Court That if a Mill be set upon Posts that no waste lyeth for it and that a Copyhold might be of a Mill as it was adjudged in Green and Harris's Case Also it was said That there is a real and personal Forfeiture of Copyhold Lands Real is not necessary to be found by the Homages as was resolved in Brocks Case but otherwise it is of a Personal Forfeiture And Hil. 8 Jac. a Woman Copyholder built a new House upon the Land and it was agreed to be a Forfeiture Pasc 8 Jac. In the Common Pleas. CCCXCIV Brown and Tuckers Case IF a man have Estovers to such a House 4 Co. 84. and he enlargeth his House or buildeth more Houses or Chimneys the Estovers remain to all the Houses and Chimneys which were there before and not to those added or new builded as it was adjudged Pasc 8 Jac. In the Common Pleas. CCCXCV Batcliffe and Chaplins Case 1 Roll. 623. IN an Ejectione firmae between Ratcliffe and Chaplin upon not
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
all the Iustices in the Case between Townsend and Pastor two Coparceners are in the use of a Manor after the Statute of 1 R. 3. the one of them enters and makes a Feoffment in Fee of the whole Manor that this Feoffment is not only of the moiety of the Manor whereof she might lawfully and by the said Statute make a Feoffment but also of another moiety by disseisin Mich. 26 Eliz. In the Kings Bench. CXXXVII Bulwer and Smiths Case BUlwer brought an Action upon the Case against Smith and declared how that H. H. had recovered against the Plaintiff in the Common Pleas 20 l. and before Execution died and that the Defendant knowing that at D. in the County of Norfolk malitiose deceptive machinans to Outlaw the Plaintiff upon the said Iudgment in the name of the said H.H. c. in performance of his said purpose at W. in the County of Middlesex took out a Capias ad satisfaciend in the name of the said H.H. against the now Plaintiff upon the said Iudgment directed to the Sheriff of London and Non est inventus being returned upon that took out an Exigent in the name of the said H.H. which Writ by the procurement of the Defendant was retorned and then the Plaintiff was Outlawed and afterwards the Defendant in the name of the said H. H. took out a Capias utlagatum against the Plaintiff directed to the Sheriff of Norfolk by force of which the Plaintiff was arrested and imprisoned for two months until he had gotten his Charter of Pardon by reason of which Outlawries the Plaintiff had forfeited all his Goods and Chattels and upon the said Declaration the Defendant did demur in Law and the principal cause of the demurrer was because that the Action might have been laid in Middlesex where the wrong began scil the Capias ad satisfaciend the Outlawry for this imagination at D. in the County of Norfolk set forth in the Declaration cannot give to the Plaintiff this Action But if divers conspire in one County for to indite one and they put the same in Execution in another County the Party aggrieved may lay his Action in which of the said two Counties he pleaseth 22 E. 4. 14. for a Conspiracy is more notorious than an imagination imaginatio est unius conspiratio plurimorum And in this Case the Deliverance of the Capias at D. in Norfolk is but accessary and the suing of the Process aforesaid at Westminster is the principal upon the part of the Plaintiff it was said that such an action might be laid in the County where the Plaintiff was wronged and the Plaintiff is not tied to lay his Action in the County where the original matter which was but conveyance to the said wrong was done A imprisoned upon a Capias ad satisfaciend in Middlesex escapes into Surrey the Action upon the escape shall be laid in Surrey Reteiner of a Servant in one County who departs in another County the Master shall lay his Action in which of the said Counties he will 15 E. 4. 18 19. 41 E. 3. 1. A Writ of Disceit was brought in the County of York and the Case was that in a Praecipe quod reddat of Land the Tenant shewed forth a Protection at Westminster the which was allowed for a year and within the year the Tenant stayed in the County of York upon his own occasions the said Writ of Disceit was holden to be well laid for there the wrong began notwithstanding that the Original i. e. the casting of the Protection was in Middlesex for the disceit is that the Tenant contrary to the pretence of the Protection continued at York for the Protection was quia Moraturus And always where the cause of the Action consists of two things whereof the one is matter of Record and the other is matter of Fact there the Action shall be laid in such County where the matter in fact may be more properly tried Vide 11 R. 2. Fitz. Action sur le Case 36 Br. Lieu 84. in the principal Case at Bar the Court was of Opinion that the Action was well brought in the County of Norfolk Another Exception was taken to the Declaration because the Plaintiff hath there set forth whereas his true name is John Bulwer by which name he now sues he was sued and outlawed by the name of John Buller and then the now Plaintiff upon that matter was never sued nor outlawed and then is not grieved by the Defendant but John Buller for here in his Declaration there is not any averment that John Bulwer and John Buller are one and the same and not divers Persons But the Exception was disallowed for the whole Court held that for As much as the Plaintiff hath declared that he by the name of John Buller was sued and Outlawed the same is an averment in Law c. and amounts to so much Another matter was objected because it appeareth in the Declaration that H. H. was dead before this Process was sued and then the Outlawry was erronious and so the Plaintiff is not at any mischief but that he may reverse the Outlawry by Error as in Conspiracy the Defendant pleads that the Indictment upon which the Plaintiff is arraigned is vitious and erroneous and so his life was never in jeopardy But as to that it was said by the Court that the erronious proceedings of the Defendant shall not give advantage to himself but because the Plaintiff was vexed by colour and reason of the Outlawry and put to his Writ of Error which cannot recompence the loss and damage by him sustained by reason of the Outlawry aforesaid it is reason that the Plaintiff have his Action wherefore Wray Chief Iustice ex assensu Sociorum gave Iudgment for the Plaintiff CXXXVIII Mich. 27 Eliz. In the Kings Bench. Upon the Statute of 23 Eliz. of Recusancy CErtain Persons were indicted upon the Statute 23 Eliz. for refusing to come to the Church and upon the same were Outlawed and now they came to the Kings Bench ready to make their submission and to conform themselves according to the said Statute and thereupon they prayed to be discharged But the Court would not receive such Submission but advised them to purchase their Pardon for the Outlawry and then to tender their Submission which they did accordingly and at another day came again and shewed to the Court their Pardon whereupon the Clerk of the Court asked them if they would conform themselves according to the said Statute who said they would wherefore they were discharged Mich. 27 Eliz. In the Kings Bench. CXXXIX Christian and Adams Case Action for words AN Action upon the Case was brought for speaking these scandalous words of the Plaintiff scil the Plaintiff did conspire the death of the Defendant it was found for the Plaintiff and moved in Arrest of Iudgment that upon the matter the Action did not lye for the bare conspiring of the death of a man
the Husband dyed the Wife recovered and entred and surrendred to the Lord and by Wray the Stranger to whom the Lord granted it after the Surrender by the Husband should have the Land and not the Lord himself against his own Grant. Pasc 28 Eliz. In the Common Pleas. CLXXXVII Chomley and Conges Case CHomley brought Trespass of Assault and Battery made to his Wife against Cony and upon the general Issue it was found for the Plaintiff It was moved in Arrest of Iudgment that the Action was not well brought for the same being an Action of Trespass done to the person of the wife the Writ ought to be brought and prosecuted in both their Names for now if Iudgment be given for the Husband and he dye before Execution the Wife to whom the wrong was done should not have Execution but the Executors of the Husband and afterwards upon advice the Plaintiff had Iudgment to recover Vide Cont. 9 E. 4. 51. 38 H. 6. 25. Pasc 28 Eliz. In the Common Pleas. CLXXXVIII Blithe and Colegates Case Vide this Case Reported by Cook 2 Part of his Reports REplevin by Blithe and Colegate who made Conusans as Bayliff to Roger Beckwith Son and Heir of Elizabeth Beckwith for damage feasant and upon a Special Verdict the Case was That the said Eliz. was seized and took to Husband Christopher Kenne and by an Indenture made by the said Eliz. without the assent of her said Husband by the name of Elizabeth Beckwith bearing date 14 March 14 Eliz. declareth the uses of a Fine to be levied c. 1. To the use of the said Elizabeth for life without impeachment of Waste and after to the use of the Conusees for their lives and after to the use of the said Elizabeth and her Heirs And that afterwards the said Christopher Kenne before any Fine levied in Feb. 20 Eliz. by Indenture between himself and the said Elizabeth his Wife of the one part and R. W. of the other part without the consent of the said Elizabeth declared that the uses of the said Fine so to be levied should be to the use of the said Christopher and Elizabeth for life c. And afterwards the said Fine was levied by the Husband and Wife and the only Question upon the matter was if the uses declared by the Wife or the uses declared by the Husband should stand It was argued by Shuttleworth Serjeant that the uses declared by the Husband should stand and that the Declaration by the Wife should be rejected for a Feme Covert is not sui juris but is sub potestate vâ—ri And therefore â—7 Ass 17. a Feme Covert without her Husband acknowledgeth a Fine the Husband shall avoid it and as to the Declaration of the uses it is no other thing but the shewing of the meaning of the Parties to the Fine how and in what manner the Land of which the Fine is levied shall be disposed of by the Fine but such a power cannot be in a Feme Covert For if an Infant levy a Fine and declare the uses by Indenture the Declaration is void and the Fine shall be to his own use and that was adjudged in the Court of Wards The same Law in case of a man of Non sanae memoriae and if an Ideot levy a Fine and declare uses upon it the Declaration is void and the Fine shall be to his own use and that Case also hath been adjudged in the Court of Wards And by intendment of the Law every Wife is at the disposition of her Husband as in a Praecipe quod reddat against the Husband and Wife the Wife makes default it shall be accounted the default of the Husband for the Law intends that the Wife is ameanable by the Husband 21 Ass The Husband seized in the right of the Wife made a Feoffment in Fee and in making of Livery his Wife interrupts him it was not any interruption or impediment quo minus the Livery operetur for cui ipsa in vita contradicere non potuit c. So in a Praecipe quod reddat against the Husband and Wife the Husband pleads one plea and the Wife another the Plea of the Husband shall be admitted 33 H 6. 43. 89 Ass 1 And the Husband may in some case prejudice his Wife in point of Inheritance as by Cession Vide E. 4 2. Fitz. Cui in vita 22. And he argued much upon the ground where it shall be said the folly of the Wife to take such a Husband If the Husband be seized in the right of his Wife they sell the said Land and for Assurance levy a Fine to the Vendee now the Husband alone shall have an Action of Debt for the mony upon the Sale which proves that it is the Sale of the Husband alone which see 48 E. 3. 18. Fenner Serjeant contrary And first he confessed that the Declaration by the Wife is utterly void and also the Declaration by the Husband and therefore when the Husband and Wife levy a Fine the Conusee in judgment of Law is in by the Wife and not by the Husband so as the Husband as to the right is a Stranger to the Land and to the Estate which passeth by the Fine although he be Party to the Fine for that is not for any Interest which he hath in the Land but for the conformity of Law which disables a Wife to levy a Fine without her Husband and therefore it is not any reason that the husband alone shall be received to declare the uses for he is no Proprietor of the Land in right especially forasmuch as in account of the Law the whole passeth from the Wife And the Law in divers Cases frames its Iudgment according to the possession of the Wife and that in acts done by the Husband 14 H. 8. 6 where A seized of a Rent-charge in Fee issuing out of the Land of the Wife A releases the Rent to the Husband and his Heirs the same shall enure to the Wife Vide 38 E. 3. 10. From such Cases the Law respects the nature of the Seisin and the manner of the possession And as to the Case vouched out of Dyer 12 Eliz. where the Husband and Wife were seized of a Messuage to them and to the Heirs of the Husband they suffer a common Recovery and the Husband alone declareth the uses the same is good for in that Case the Fee was in the Husband and always he who hath the Fee ought and may declare the use if all who have interest will not joyn and therefore if Lands be given to two and to the Heirs of one of them if they both joyn in a Fine he which hath the Fee may by himself declare the uses But if there be two Ioyntenants in Fee they both ought to joyn in the Declaration of the uses or otherwise make several Declarations of their several Moieties So if Cestuy que use and his Feoffees joyn in a Fine and make
23 Eliz. is If any Person do any thing to move the People to Sedition the same is Felony but then it must be Sedition against the Queen and of that Opinion was the whole Court. Trin. 32 Eliz. In the Kings Bench. CCXLV Ratcliffe and Shirleys Case THe Lady Ratcliffe brought an Action upon the Case against Shirley for these words Words My Lady Ratcliffe is a beggerly Lady and giveth thread-bare Coats she bought Sheep and cosen'd men of their money and she is as very a Thief as he that robbeth by the High-way Vpon Not Guilty the Iury found that the Defendant spake these words She is a worse Thief than he that robbeth by the High-way It was holden that the words found by the Verdict were actionable as well as if the Defendant had called the Plaintiff Thief generally But it seemed to the Court that upon that Verdict the Plaintiff should not have Iudgment for it may be that the Defendant dixit utrumque at several times and so several Causes of Action And it is not like to the Case 3 Ma. 118. where part of the words is found quoad alia verba non dixit and so expresly acquit him of the remnant so it is not here for this Verdict doth not acquit him of the other words and for that Cause Iudgment was stayed Hil. 26 Eliz. In the Kings Bench. CCXLVI Herne and Crowes Case IN an Action upon the Case by Herne against Crowe and declared that whereas certain Irish Merchants had imported Furs here into England which were offered to be sold in London which Furs the Defendant desired to buy but because he was a Foreigner he could not buy them without peril of forfeiture and then the Plaintiff was in communication with the Merchants to have bought them that the Defendant in consideration that the Plaintiff promised to the Defendant that when he had bought the said Furs the Defendant should have such a quantity of the said Furs as he pleased upon equal price assumed and promised that he would speak no more with the said Merchants for the buying of the said Furs yet that notwithstanding he proceeded in the said bargain and offered to the said Merchants sixty pound more than any other by reason of which the Plaintiff could not have them for such reasonable price as he might have had them before It was holden by Wray Chief Iustice That the Declaration here was insufficient upon which the Defendant might have well demurred Mich. 26 Eliz. In the Common Pleas. CCXLVII. Bakers Case A Writ of Partition by Baker Heir of Gertrudi Marquess of Exeter who devised all his Lands to Blunt by which the third part descend to the Plaintiff Estrepement and prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ is not to be granted for the Plaintiff may have a more proper remedy upon the Statute Cum duo vel tres and in a Writ of Partition no Land is demanded CCXLVIII Mich. Eliz. In the Common Pleas. Conditions A Man was bound in an Obligation that he should release all his right in Black Acre to the Obligor and in the performance of the said Condition he made such a Lease and delivered the same to C. to the use of the Obligor The Opinion of the whose Court was That the Condition was not performed because the Obligor had not the Lease in his own hands to plead but is put to his Writ of Derinue against C. which was not the intent of the Condition Mich. 31 Eliz. In the Common Pleas. CCXLIX Seaman and Brownings Case SEaman brought Debt in an Obligation against Broshnin and others Executors of one Marshall The Condition was That whereas the said Marshall had sold certain Lands to the Plaintiff If the Plaintiff peaceably and quietly enjoyed the said Lands against the said Marshall c and assigned the breach That the said Marshall had entred upon them and cut down five Elms there upon which they were at Issue And it was found that a Servant of the said Marshall had entred and cut them and that in the presence of the said Marshall his Master and by his commandment It was the Opinion of the Court that the Condition was broken and that the Master was the principal Trespasser Trin. 30 Eliz. In the Common Pleas. CCL Babingtons Case HUmphrey Babington brought a Writ of Disceit and counted that T. S. was seized of Land and held the same of the Manor of Rodely which Manor is ancient Demeasn And that the said T. S. being so seized a Writ of Entre sur Disseisin was brought against him in which T. S. pleaded and lost and Iudgment was given against him Et quod ipse Humphridus extitit Dominus Manerii praedicti and concluded ad exhaeredationis ipsius Humphrâ—di periculum manifestum Exception was taken to the Count because the words are quod cum ipse existit Dominus Manerii praedicti where he ought to say further Amendment Et tempore Judicii praedicti existebat for if the Recovery was before he purchased the said Manor his Action doth not lye which Rhodes and Anderson concesserunt wherefore day was given to the Plaintiff to amend his Count. 32 Eliz. In the Exchequer CCLI Sir William Pelhams Case THe Case was A. Tenant for life the remainder in tall to B. c. A by Deed indented and inrolled bargained and sold the Messuage so conveyed to W. P. in fee who suffered a common recovery in which A. is vouched and so a common recovery had and executed and this was before the Statute of 14 Eliz. And if the recovery should bind B. and his remainder in tail was the question or if it be a forfeiture Altham argued that here is a forfeiture 1. It is to see if a common recovery suffered by Tenant for life which here is the Bargainee be a forfeiture or no by the common Law 1 Leon. 264. it s not forfeited 2 Leon. 60 65. if no Execution be sued upon the same Recovery 2. If it be executed then if he in the remainder may enter for the forfeiture When the Tenant for life bargains and sells the Messuage although upon it an estate in fee be limited yet nothing passeth from him but what he may lawfully pass and that was the estate for life of the Bargainor for such an estate only he might lawfully pass and here the Vendee is but Tenant for the life of another and when of his own assent he suffers a common recovery and that without right it is a forfeiture By matter in Fait a particular Tenant may commit a forfeiture as well as by matter of Record By matter in Fait he cannot commit a forfeiture if not thereby the reversion be not pulled out of him in the reversion As if a Lessee for 10 years make a Lease for 1000 years it is not a forfeiture for by that the reversion is not touched but if he by matter of Record do
any thing which sounds to the disinheriting of him in the reversion although in truth the same doth not touch the Inheritance yet it is a forfeiture Vid. 39 E. 3. 16. If Tenant for life pleads any thing against the right of him in the reversion it is a forfeiture and by Finchden and Belknap he cannot plead in the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution The Lessor brought an Assise and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the reversion in another because it is an alienation to the disinheriting of the Plaintiff and of the Lessor 12 E. 3. Fitz Resceipt 14. where Tenant for life pleaded in chief or cannot deny or gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate But if a rent be demanded against Tenant for life and he rendreth the same it is no forfeiture 12 Ass 31. Tenant for life is impleaded by Covin between him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the reversion enters in a Juris utrum against Tenant for life who pleads feintly traversing the point of the Action he in the reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. 3 5. Default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In Scire facias to execute a Fine against Tenant for life who pleaded to the Inquest whereas in truth the Land in demand was not comprised within the Fine Iudgment is given for the Demandant in the Scire facias he in the reversion may enter In our principal case here is apparent and manifest Covin for the Tenant for life voucheth without cause and this Recovery is by assent and is to the use of the Vendee who is Tenant for the life of another and therefore by the Common Law he in the Remainder may enter before Execution sued And it is well known that these common Recoveries are used for to dock Remainders in Tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the Voucher and it is found for him he in the Reversion hath no remedy but by a Writ of Right and if the Vouchee entreth and loseth by Action tryed or default ut supra that Book is to be intended of a Recovery executed for there in such case he in the Reversion hath not an Entry but is put to his Writ of Entry by the Common Law Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded and prays in the Aid of a stranger he in the Reversion may enter but if he doth not enter until the other hath recovered then he cannot enter but is put to his Writ of Entry Ad terminum qui praeteriit vel de ingressu ad Communem Legem and therein he shall falsifie the Recovery and there by Brook Voucher of a stranger is not cause of Forfeiture for it doth not disaffirm the Reversion in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the right with aid prayer And so he argued that before Execution he in the Remainder might enter but after Execution is put to his Action But in our Case although that Execution be good yet he in the Remainder may enter for it is found by Verdict that at the time of the Recovery he was within age and that when he dyed that he in the next Remainder was within age and then no Entry shall be imputed and then he shall not be driven to his Action As if Tenant by the Courtesie makes a Feoffment with warranty and dyeth and the same descends to his Heir within age yet he shall enter although he hath not avoided the warranty in the life of his Ancestors Also he said that the Statute of 32 H. 8. extended to this Case for Sir William Pelham the Vendee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life or otherwise Tenant for life or lives Note this the words of the Statute As upon the Statute of 20 E. 1. which gives Resceipt de defensione juris the words are Cum quis aliquod breve Domini Regis impetret versus Tenentem per Legem Angliae vel feod taliat ' vel sub Nomine Dotis vel alio modo ad terminum vitae upon these words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another that upon such an Estate he in the reversion should be received by reason of these words vel alio modo ad terminum vitae c. And although he who enters at the time of the recovery was not next in remainder to the particular Estate yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery and at the time of the entry he in the immediate remainder was dead and then he the next in remainder Vide 15 E. 4. 9. by Litt. If I grant my Services to one for life and he in a Praecipe brought against him pleads in the right or grants to another the said Services in Fee it is not a Forfeiture for it is no Discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such recoveries shall be utterly void and if so then he in the reversion cannot be damnified and then no cause of Forfeiture So that it may be easily answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the reversion by matter of record although the same doth not devest or otherwise prejudice the Inheritance yet it is a Forfeiture Cook to the contrary Here in our Case is not any Covin in Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seized in tail according to the Covenant in the Indenture by which the Bargainor covenanted that he was seized in tail at the time of the Bargain and also to do any other act for assurance of the Estate of the Bargainee and it was lawful for him to Vouch his Bargainor and although he voucheth a stranger it is not a Forfeiture 39 E. 3. 16. Aid prayer of a stranger is a Forfeiture and the reason of that is because he acknowledgeth the reversion to be in a stranger and that is the cause of Forfeiture Vide Book of Entries 254. Where upon
by a Writ of Right So if the Vouchee had entred and lost c. As to that Case we ought to consider That every Book reported in our Law is not Law But let us observe of what Authority the Case is truly it is the conceit of the Reporter himself for he puts the Case and resolves it but there is no Iudge or Serjeant named in the Case c. The other Case is 5 E. 4. 2. Note by Hendon clearly If my Tenant for life voucheth a stranger who entreth into the Warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the reversion of him who hath in value shall be to me in lieu of my former reversion as release to Tenant for life shall enure to him in the reversion But that is but the Opinion of one Serjeant c. But I answer to these Books If the Demandant in such recovery have a good title so as the Tenant or the Voucher as Hendon saith know not how to bar the Demandant there such a Voucher of a Stranger is not a Forfeiture nor such recovery suffered thereupon for against his will and volens nolens he suffered it But if the Tenant had good matter to bar the Demandant and no good cause of Voucher that the vouching of a stranger or suffering of a recovery is a Forfeiture of his Estate And here in our Case the Defendant had not any title The Tenant or Vouchee had not any Warranty or cause of Voucher But the Tenant might have barred the Demandant if he pleased And he said That the Voucher only doth not make the Forfeiture but much rather the Recovery for when Iudgment is given and Execution had then is the Fee plucked out of him in the reversion 6 R. 2. If Tenant for life claimeth a Fee it is a Forfeiture but here Pelham hath done more for he hath gained Fee by the Iudgment therefore à Fortiori it shall be a Forfeiture But let us a little see what medlings or attempts by the particular Tenant are causes of a Forfeiture and what not 5 Ass 3. Where A. brings an Entry against Tenant for life by collusion to oust B. of his reversion supposing that the Tenant for life held of his Lease The Tenant confesseth the Action upon which Iudgment is given B enters and his entry adjudged lawful for that recovery is adjudged in Law but an Alienation to the disinherisin of him in the reversion and here it appears That such recovery by Covin is but an Alienation and without any strength of a recovery And he cited many other Cases cited before by Altham 14 E 3. Resceit 135. Where Tenant for life pleads in chief or prays in aid of a stranger where he might bar the Demandant and will not it is a Forfeiture And also 22 E. 3. 2. 27 E. 3. where Tenant for life in a Quid juris clamat Attorns unto the Conusee upon a Fine levyed by him who hath not any thing in the Land the same is a Forfeiture and yet that Attornment doth not divert the Reversion out of the Lessor 50 E. 3.7 8. Land was given by Fine in tail the remainder over to a stranger in Fee the Donee took a Wife and dyed without Issue the Wife accepted Dower assigned by a stranger he in the Remainder brought a Scire facias against the Wife that she is Tenant in Dower of the Assignment of a stranger and pleaded to the Title the Demandant recovered she hath lost her Dower for she hath not pleaded dutifully as she ought being a particular Tenant Temps H. 4. Tenant for life loseth his Land in a Recovery against him against his will and thereupon brings Quod ei deforceat and declares upon an Estate tail and recovers the same is a Forfeiture because he hath challenged a higher Estate c. 5 H. 7. Tenant for life joyns the Mise upon the meer Right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger sur Conusans c. come ceo que il ad de son done All these are Forfeitures In our principal Case here the Tenant who suffered the Recovery did not plead at all to defend the Right but where he might have barred the Demandant he gave strength to his pretended Title and made it a perfect Title and by suffering the Recovery and Iudgment to pass had taken away the Reversion out of the Lessor to whom he owed Fealty and therefore it is a Forfeiture And without doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title for the Recoverers in such Cases are but Assignees and Purchasors which appeareth by the Statute of 7 H. 8. cap. 4. which gives Distress and Avowry to Recoverers c. As to the inventing of Recoveries it was a necessary Device for it was to take away Estate tails which were the causes of grand Mischiefs and Inconveniencies in this Realm and it was great reason for Tenant in tail might by the Common Law alien his Land post prolem suscitat and then he had an Inheritance and might commit Waste But he was so restrained by the Statute of Westm 2. all the Realm and the Subjects of it were inveigled thereby Ioyntures of Wives Leases of Farmers Mortgages to Creditors Statutes and other Assurances defeated by their deaths which was against the Common Law and all Conscience These matters tending to the knowledge of the Iustices and the Mischiefs thereupon ensuing very frequent and that Tenant in tail was become a perillous Fellow and there was no safe dealing with him Then they taking into consideration that several Warranties and Assets and collateral Warranty without Assets for that in it self implyed Assets did bar him Icil. the Entail upon that consideration they grounded the practice and usage of common Recoveries so that by that means Tenant in tail has potestatem alienandi as he had at the Common Law because his authority was restored to him and injury done to no man But as to Tenant for life he never had potestatem alienandi And as to that which hath been said That the Recovery shall stand in force till after the death of the Tenant for life and in our Case here Tenant in tail is living certainly if the Law should be such great mischief would follow for then greater Ioyntresses the Widows of great Persons having allowed unto them great and sumptuous Houses and Lands furnished with Timber of great value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit Waste and the same should be dispunishable c. which should be an intolerable Mischief And so he concluded that this suffering of a Recovery was a Forfeiture and Iudgment was given accordingly CCLII Grendon and Albanies Case JOhn Grendon brought Trespass for breaking of his Close against Tho Albany And upon the pleading the Case
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
he is not to have Damages because the Waste was not to his disinheresin and the Land he shall not recover against the Defendant for the Term is not determined and such was the Opinion of the Court. As to the matter in â—aw Shuttleworth said That the Action of Waste ought to be brought against the Lessee himself and not against the Assignee for when he grants over his Term excepting the Trees it is a good Exception for when the Land upon which the Trees grow is leased to another the Trees pass by the Lease as well as the Land and the property of them is in the Lessee during the Term by which when he grants his Land he may well except them as the first Lessor might have done and if the Lessee for years cutteth down the Trees the Lessor cannot take them for that he hath other sufficient remedy scil an Action of Waste Fenner and Walmsley contrary And they conceived that the Lessee had but a special Property in the Trees scil for Fire-bote Plough bote House-bote c. But if he demiseth the Land or granteth his Interest in it he cannot except the Trees nor his special Property in them no more than he who hath Common appendant may grant the Land excepting the Common And in such case the general Property in the Trees remains in the Lessor as parcel of his Inheritance And this appeareth by many cases 27 H. 8. 13. Lessee for life and he in the remainder joyn in a lease for life the Lessee commits Waste the Tenant for life and he in the remainder joyn in an Action of Waste the Tenant for life shall recover the place wasted and he in the reversion all the damages Vide 2 H. 7. 10 H. 7. cited before That the Lessor may licence the Lessee to cut the Trees which proves that the Property is in him And Vide 40 Ass 22. the Lessor shall have the Windfalls And as to that which hath been said That by the Exception of the Trees the Soil it self is also excepted that is true as to the Trees for nourishment and not otherwise for if the Lessor cutteth down the Trees or roots them up he shall not after meddle with the Land where c. but the Soil shall be entirely to the Lessee The Lessor during the Term may grant the Trees so cannot the Lessee therefore the greater and better Property in the Trees is in the Lessor and not in the Lessee and the Trees proprie loquendo are not parcel of the thing demised If this Exception of the Trees or Woods should hold place Inconvenience would follow for as it is holden in 15 H. 7. 11. If the Termor of Wood commits Waste in one corner of the Wood he should not lose all the Wood but that place only But if in the said Wood there are divers Plats of Land in divers places of the Wood if the Termor commits Waste in that Wood he shall lose all the said Plats although he hath not done waste in them for they are parcel of the Wood. Vide Temps E. 1. Fitz. Waste 127. and Vide ibidem Waste 112. 8 E. 2. Waste done in parcel of an House the whole House shall be recovered Vide also 30 E. 3. Fitz. Amendment 67. and 4 E. 3. Waste 10. Now if that be Law and the Exception be good how shall the place wasted be recovered here and against whom It seemed to the Lord Anderson That the Exception was void and that the Action was brought against the Assignee and he said it was a knavish and foolish Demise and if it should be effectual in Law some Mischiefs would follow which he would not remember Windham was of the same Opinion and that the Lessee could not assign his Estate with such Exception for he hath but a special Interest in the Trees scil for Fire-bote Plough-bote c. which should go with the Land. Periam conceived That as to such special Property that none could have it but he who hath the Land and therefore the Exception is void but as to the Fruit-trees such an Exception might be good and although that the Trees are not expresly demised yet quodam modo and after a sort they may be said demised as annexed to the Land and if waste be brought against him who made the Exception scil the Lessee he cannot say they were not let to him and therefore he doubted of the Exception And Rhodes doubted also of the Exception and Anderson said that he was clear of opinion that the Lessor should have the Windfalls and afterwards the Case was adjorned to be further argued c. Temps Roign Eliz. CCLXX. Audleys Case Uses THe Lord Audley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as followeth in effect viz My Will is that my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the said Lands â—00 l which he had lent to the said Lord Audley and also to stand seized to pay all his Debts upon Bills signed with his hand and after â—he Debts paid that the Feoffees shall make an Estate of the said Lands to him the said Lord Audley and Joan his wife and to the heirs of their Bodies c. with divers Remainders over The said Lord Audley had Issue by the said Joan and also having Issue by a former wife a daughter the Feoffees never made any Estate to the said Lord and his wife and by the opinion of divers Iustices and Sages of the Law upon this matter no use was changed for it is not a last Will but an Intent and although that the Feoffees shall be seized to the use of the Feoffor and his Heirs because no consideration was wherefore they should be seized to their own uses yet the same could not make a new use to the said Lord and his wife in tail without conveying an Estate c. for the wife is a stranger to the Land and the same cannot be a Will or Testament for the Estate mentioned in the said writing ought to be made to the said Lord and his wife who could not take by his own Will and this matter was depending in the Chancery And the advise of the Iustices being there required they delivered their Opinions That by that writing no use was changed nor any use vested in the said Lord and his wife and a Decree was made accordingly until proof was made that such an Estate was made c. Trin. 29 Eliz. In the Common Pleas. CCLXXI. Walgrave and Somersets Case IN Trespass by Walgrave against Somerset the Case was That tenant at will cut down Trees and the Lessor brought Trespass vi armis And the Court was clear of opinion that the Action was well maintainable modo forma and Iudgment
of the Conusee it might now be Inrolled It was the Opinion of all the Iustices That upon the request aforesaid it might be Inrolled like as it was of a Conusance of a Fine taken before a Iudge which may be removed out of his hands by a Certiorari although it be not a Record before that it be certified in the speaking of that Case It was made a question whether the Court of Chancery might help a man who purchased Lands for valuable Consideration where there wanted the words Heirs in the Deed of Purchase or not but the point was not resolved But in that Case it was agreed by all the Iustices That after a Fine is levied of Land Chancery Attornment that the Chancery may compel the Tenant of the Land to Attorn And so where an Annuity or Rent is granted to one for life or in Fee and the Deed is Executed Sealed and Delivered but no Seisin is given to the party of the Rent or Annuity the Court of Chancery may decree a Seisin of the Rent to be given and the Rent to be paid to the Grantee and that was said to have been often times decreed in the said Court of Chancery CCLXXXIV Mich. 30 Eliz. In the Common Pleas. Intrusion Trespass NOte by Anderson Chief Iustice If one intrude upon the Possession of the King and another man entreth upon him that he shall not have an Action of Trespass for that Entry for that he who is to have and maintain Trespass ought to have a Possession But in such Case he hath not a Possession for every Intruder shall answer to the King for his whole time and every Intrusion supposeth the Possession to be in the King which all the other Iustices agreed except Periam who doubted of it And Rhodes Iustice said and vouched 19 E. 4. to be that he cannot in such Case say in an Action of Trespass Quare Clausum suum fregit CCLXXXV Mich. 29 Eliz. In the Common Pleas. NOte It was holden by Popham Chief Iustice Remainder and so said by him to have been resolved upon a Special Verdict in the County of Somerset 20 Eliz. That where a Lease was made unto Husband and Wife for their Lives the remainder to the Heirs of the Survivor of them that the same was a good remainder notwithstanding the incertainty and that in that case after the death of the Wife he should have Iudgment to recover the Land. But if a man be possessed of a term for 20 years in the right of his Wife and he maketh a Lease thereof for 10 rendring rent to him his Executors and Assigns and dyeth that in such case though the Wife surviveth yet he shall not have the rent because that she cometh in paramount the Lease But if a man be possessed of a term in the right of his Wife Mortgage and Mortgageth for payment of a certain Sum of Money at a day certain and before the day the Wife dyeth and the Husband payeth the Money at the day and then dyeth whether his Executors or the Administrators of the Wife should have the term was not then resolved Ideo Quaere that Case Trin. 32 Eliz. In the Exchequer CCLXXXVI Bartase and Hinds Case NOte Manwood Chief Baron gave it for a general Rule for all Counsellors at Law That they did not advise any Collectors of Subsidies or Fifteens to exhibit Bills in the Exchequer Chamber for the Non-payment of Subsidies c. for such Bills should not be allowed hereafter because they had remedy by Distress Also it was holden That if any be assessed for the Fifteen which he ought to pay or if two Towns are to pay together and the one Town be taxed more than it ought to be or had been accustomed those which are grieved by such Sesment may have a Commission out of the Exchequer which is called Ad aequaliter taxand ' and that was put in ure in a Case between Bartase and Hind where one of them was Lord of the Town of Little Marloe and the other of Hedford And it was also holden That Fifteens are to be levied of Goods and Chattels properly and one Township sometimes is richer than another and therefore it is not reason that they pay their Fifteen always according to the same proportion But by Clark Baron where the Custom hath been that the Fifteen should be taxed according to the quantity of Acres there the Rate and Purport shall be always one whosoever holds the Land and as to the Commission Ad aequaliter taxand ' Manwood and Fanshaw said That they could shew above twenty Presidents of it Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVII Barnard and Tussers Case Debt BArnard recovered in a Scire Facias upon a Recognizance against Tusser and afterwards brought an Action of Debt upon the same Recovery and it was adjudged maintainable notwithstanding that it was Objected That the Iudgment in such Scire Facias is not to recover Debt but to have Execution of the Iudgment And by Wray Chief Iustice If in a Scire Facias to have Execution of an Annuity the Plaintiff hath Iudgment upon such Iudgment he shall have an Action of Debt Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVIII The Earl of Arundel and Bradstocks Case THe Case was The Earl of Arundel let Lands to Bradstock for years upon condition that the Lessee should not do any Act by which his Goods and Chattels might be forfeited Bradstock committed Felony and before any Attainder he obtained his Charter of Pardon It was holden in this case That the Earl might lawfully enter but if the words of the Condition had been Whereby the Goods ought to be forfeited chen it had been otherwise for before Attainder they ought not to be forfeited Mich. 17 18 Eliz. In the Kings Bench. CCLXXXIX Taylors Case Outlawry How avoided by Plea in Person TAylor was Outlawed in Debt and a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent It was holden that the party should avoid the same by Plea then it was moved if the Plea should be pleaded by Attorney or in Person To which it was said by Manwood That where matter in fait is pleaded in avoidance of an Outlawry it ought to be pleaded in Person but matter of Record by Attorney And Ford Prothonotary said It was so agreed in Sir Thomas Chamberlains Case in 7 Eliz. and so it was adjudged in this Case CCXC. Mich. 17 18 Eliz. In the Kings Bench. THe Case was The Prior of Norwich made a Lease for life by Indenture by which the Lessee covenanted to find Victuals to the Cellerer at all times when the Cellerer came thither to hold Court the Priory was dissolved and the Possessions given to the Dean and Chapter newly erected It was holden in this case That the Lessee should perform that covenant to him who supplyed the Office of Cellerer scil the Steward And
it was also holden That the Lessee should have an Action of Covenant against the Assignee of his Lessor or his Lessee at his Election CCXCI. Mich. 19 20 Eliz. In the Kings Bench. A. B. C. three Ioyntenants give their Lands to D. in tail Joyntenants the remainder to A. in tail It was the opinion of Mead That the remainder is void Manwood and Harper A. and B. Ioyntenants Grants A. makes a Lease for life of his Moiety to C. and grants the reversion to B. the same is good quod Curia concessit A. and B. Ioyntenants of a Term A. grants his Moiety to his Companion the same is good without question if it be by Deed but if it be by Word Quaere Hil. 20 Eliz. CCXCII Hills Case HIll 20 Eliz. Rot. 371. Giles Hill seized of a Close of Pasture called Pitmonde and of Broome Acre two other Closes in his Demesne as of Fee and so seized the said Giles and Agatha his Wife and Robert their Son and B. his Wife by Indenture leased the same Broome Acre and the said other two Closes to W. Hutchin and B. and his Wife for 90 years Si quis eorum tam diu vixerit reddendo inde annuatim praedicto Egidio Uxori ejus Haeredibus ipsius Egidij viz. pro Broome Acre 3 s. 4 d. pro una Clausura 10 s. pro altera 20 s. ad quatuor anni Terminos with Clause of Re-entry If any part or parcel of the said rent be behind c. Giles and Agatha dyed The Son sold the reversion of Broome Acre 12 Febr. 12 Eliz. by Deed Indented rendring rent to Smith and Heale the rent of Broome Acree is behind Smith and Heale enter and lease the same to Reynolds for three years who being Ejected brings Ejectione firmae and Iudgment was given for him for that they are several Reservations and several Conditions And a difference was taken between this and Winters Case for in Winters Case the rent reserved originally is entire but in this Case the rent is originally several and also in Winters Case the condition was That if any part of the rent be behind that the Lessor should re-enter into the whole Note that the rent reserved for Broome Acre was 3 s. 4 d. and the condition was si contingat praedict ' reddit ' ou ascun parcel de ceo to be behind in part or in all by one Month after any Feast c. in quo solvi debuit Quod tunc bene licebit praefat ' Egidio c. in omnia singula praemista superius specificat ' re-entrare Et nomine That pro 10 de nariis pro Broome Acre pro uno quarterio anni aretro existent the Vendees of the Reversion did enter CCXCIII Mich. 19 Eliz. In the Common Pleas. Leases NOte by Dyer and Manwood Iustices A. leaseth to B. for years the remainder to the right Heirs of the said B. and makes Livery accordingly that the said remainder is void because that there is not any person in esse who can take presently by the Livery and every Livery ought to have its operation presently But where a Lease is made to B. for life the remainder to his right Heirs that he hath a Fee executed and it shall not be in abeyance and Iudgment was given accordingly CCXCIV. Hil. 23 Eliz. In the Common Pleas. THe Case was a Man made a Lease of a Garden containing three Roods of Land the Lessee is ousted and he brought Ejectione firmae and declared That he was Ejected of three Roods of Land And by Rhodes Serjeant The Declaration shall not be intended that the Plaintiff was Ejected out of the Garden of which the Lease was made which Dyer granted for Gardinum is a thing which ought to be demanded by the same name in all Praecipe's And this Action of Ejectione firmae is higher than an Action of Trespass and the Plaintiff if he recover shall be put into possession by it Mead and Windham held the contrary and they agreed That in all real Actions a Garden shall be demanded by the name of Gardinum But this Action of Ejectione firmae is in the nature of Trespass and it is in the Election of the party to declare as he doth or for to declare of the Ejectment of a Garden For a Garden may at one time be used for a Garden and at another time for Plough-Land But they conceived the better course to be and the better order of pleading to have been if the Plaintiff had declared That he was Ejeected of a Garden containing three Roods of Land as in the Lease it is specified Vide 22 E. 4. 13. Assise of a Garden Vide Cook 11 Part Savells Case Ejectione firmae of a Close vocat ' Leedes containing three Roods a Rule that such Action lyeth not of a Close although it hath a certain name but it ought to be of so many Acres and of what nature every Acre is CCXCV. Mich. 19 Eliz. In the Common Pleas. AN Action of Debt was brought by an Administrator who declared That the Administration was committed unto him by the Archbishop of Canterbury It was holden That in such Case he needed not to declare Ratione Praerogativae suae or that the Intestate had bona notabilia in divers Dicocesses for if the Intestate had not Goods in divers Diocesses the same shall come and be shewed on the other side and then the Plaintiff shall shew the same in certain and to that purpose divers Presidents were shewed to the Court by Sandbege and Best principal Clerks of the Court and the same was also affirmed by the Prothonotaries of the Court of Common Pleas. CCXCVI. Mich. 19 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared upon Trover and Conversion to his use It was pleaded by Plowden That the Defendant before the Action brought had lawfully sold the Goods whereof c. and he demanded Iudgment of the Action As if one hath Goods by Trover and Bails them over before any Action brought against him Detinue doth not lye against him which Wray Chief Iustice concessit as to the Detinue But where such a person who hath Goods by Trover Bails them quibusdam ignotis such an Action will lye against him CCXCVII. Mich. 19 Eliz. In the Common Pleas. IN a Writ of Dower the Demandant recovered by default Retorn of the Sheriff and the Sheriff took an Enquest de Officio by which it was found that the Husband did not dye seized prout eis constare poterit and that Inquisition is retorned by the Sheriff and filed It was moved by Mead That the Office and Inquisition was not good for the Office ought to have expresly found That the Husband dyed seized or not and not ambiguously as it doth here prout eis constare poterit and therefore by the Award of the Court the Retorn was taken off the File because it was insufficient
Land Rents and Reversion until of the Issues and Profits thereof certain Sums of Mony should be paid to his younger Sons and dyed And Exception was taken to the pleading because it is not specially shewn that the Land devised was holden in Socage And that was holden a sufficient Exception And the Court was of Opinion That the Opinion of Dyer Devises Whiddon and Bendloes in 16 Eliz. was not Law for by the common Law no Land was devisable but by Custom which ought to be pleaded where Title is made by Devise Tenances And now by the Statute all Lands holden in Socage are devisable and but two parts of the Land holden by Knight Service and therefore he who would make Title to himself by a Devise ought to shew the Tenure of it and so it was lately adjudged in the Kings Bench in Thompsons Case And by Anderson and Periam This Feoffment was well executed for the manner of it Attorneys make Livery for the Letter of Attorney is Conjunctim divisim ad intrandum in omnia singula praemissa and upon these words one Attorney may make Livery in one parcel of the Land and the other Attorney in the other parcel and in this case if one of the said Attorneys make Livery in one part only without medling with the residue by himself or by any other the same shall pass for it is not necessary that all pass or nothing at all 7 Eliz. Dyer 79. CCCXI. The Dutchess of Suffolks Case ADrian Stokes and the Lady Francisca Dutchess of Suffolk his Wife brought a Quare Impedit against the Bishop of Exeter and others The Bishop pleaded and demanded Iudgment of the Writ because he said It appeareth by the Writ Quod praedicta Francisca uxor praefati Adriani nominatur in dicto Brevi Domina Francisca Ducissa Suffolk ubi per Legem terrae eadem Francisca by her Marriage betwixt the aforesaid Adrian and her the said Frances had lost her name of Dignity and ought to be named Francisca uxor praefati Adriani Wherefore and because the said Frances is named Lady Dutchess of Suffolk in the said Writ therefore he demanded Iudgment of the Writ And afterwards the Plaintiffs did discontinue their Suit and durst not proceed Vide the Case 7 E. 6. Dyer 79. Mich. 4 5 Phil. Mary CCCXII The Queen Due and Kirbys Case THe King and Queen brought a Writ of Disceit against Due and Kirby and declared That Colley was seized of certain Lands in Fee and holden of the King and Queen as of their Manor of Westbury which Manor is ancient Demesne and so seized levied a Fine to the said Due for Conusans de droit c. Due rendred unto Colley for life the Remainder over to Kirby in Fee Colley dyed Kirby entred as in his Remainder Kirby pleaded That the Land is Frank-fee c. upon which they are at Issue which Issue depending not tryed Due dyed It was moved that the Writ should abate But it was allowed for this Action is but Trespass in its Nature for to punish the said Disceit And Due had nothing in the Land but is named only because he was party to the Disceit And no Land is to be recovered but only the Fine reversed Pasc 26 Eliz. In the Kings Bench. CCCXIII. Russels Case RUssel was condemned in an Action of Debt Execution and after the year and day the Plaintiff sued a Capias ad satisfaciend ' against him and he was taken by force of it and committed to the Marshal as in Execution It was holden by the Court That the same was a void Execution and not only avoidable by Error and therefore the Defendant was discharged for it is not at any Execution and the Plaintiff may have a Scire Facias when he will. Pasc 26 Eliz. In the Kings Bench. CCCXIV Wroth and Capells Case BEtween Wroth and Capell the Case was 3 Leon. 102. That A. was indicted upon the Statute of 8. H. 6. and Exception was taken to the Indictment because there were no words of Freehold in it or to prove that the party grieved had any Freehold whereof he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold therefore the Exception was not allowed c. Another Exception was taken to the Indictment for that the words were in unum Tenementum intravit and this word Tenementum is too general and an incertain word and therefore for that cause the party was discharged But the Indictment was further in unum Tenementum 10 Acras terrae eidem pertinent and as to those Acres he was put to answer CCCXV. Pasc 26 Eliz. In the Common Pleas. Execution NOte It was agreed by the Court and affirmed by the Clarks That if an Action of Debt be brought upon an Obligation against two upon one Ioynt Praecipe and the Plaintiff hath Iudgment to recover that one Ioynt Execution ought to be sued against them both but if the Suit were by Original and several Praecipe's Execution might be sued forth against any of them Mich. 8 9 Eliz. In the Common Pleas. CCCXVI. Belfield and Rous's Case IN Dower by Sibill Belfield who was the Wife of Anthony Rous against Thomas Rous they were at Issue upon Detinue of Charters and it was found for the Demandant and it was further found That the Husband of the Demandant of whose Seisin she demanded Dower dyed having Issue Charles Rous Quodque idem Carolus dict' Sibill perceperunt receperunt per spacium sex annorum proxime post mortem dict' Anthonij the Issues and Profits of the said Lands whereof the Demandant now demands Dower and that the said Charles afterwards dyed without Issue after whose death the said Thomas Rous entred c. And Iudgment was given for the Demandant and to recover damages after the death of her Husband CCCXVII Pasc 7 Eliz. In the Common Pleas. Uses BEfore the Statute of Vses a Feoffment is made to the use of a Man sole and a Woman sole and their Heirs and afterwards they inter-marry and afterwards the Statute of Vses came It was the Opinion of the Iustices That they should hold the Land in such sort as they held the Vse scil by several and divided Moieties for by the said Statute the possession shall be executed to the Vse in such Nature Condition and Quality as it was before Mich. 28 29 Eliz. In the Kings Bench. CCCXVIII Sir Gervaise Clyftons Case A Quo Warranto was brought against Sir Gervaise Clyfton 3 Leon. 184. Quo Warranto and shewed That the said Sir Gervaise was seized of a Manor and a Messuage within which he claimed to have a Court with view of Frank-pledge and other Liberties and that without any Grant or Authority usurpavit Libertates praedictas That the Defendant pleaded Quod non usurpavit Libertates praedictas
she might disagree CCCXXXI Mich. 21 Eliz. In the Common Pleas. A. B. and C. three Brothers A. hath issue and dyeth the middle Brother Purchaseth Land and deviseth the same to his Son in Tail and if he die without Issue that the Land shall remain to the King and Lineage of the Father sc of the middle Brother and if the Son of the eldest Son or the youngest Brother should have the Land was the Question and it was the opinion of the Lord Dyer That the Son of the eldest Brother should have it CCCXXXII Mich. 21 Eliz. In the Common Pleas. A Lease for life was made to B the Remainder to C. and D. in Tail It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record for they are Tenants in Common but if the Remainder had been limited to them in Fee so as they took joyntly it had been otherwise for then by the disagreement of the one the other shall take the whole Land. Mich. 32 Eliz. In the Kings Bench. CCCXXXIII Waite and Coopers Case IN Ejectione firmae between Waite and Cooper It was found by Verdict That Cranmer late Archbishop of Canterbury was seized of the Manor and Borough of Southwark in the right of his Bishoprick and that the Prior of Morton was seized of the House in which the Ejectment is supposed and held the same of the said Archbishop as of his said Manor and Borough after which 30 H. 8. the said Archbishop gave to the King the said Manor and Borough with confirmation of the Dean and Chapter and that the same year the said Prior surrendred by which the said King was seized as well of the said Manor and Borough as of the said House and afterwards the King by his Letters Patents gave the said House and other Lands in Middlesex and Essex to Curson and Pope in Fee tenend in Libero Burgagio per fidelitatem tantum non in Capite pro omnibus serviciis demandis And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London Curson and Pope covey the said House to Welsh in Fee who dyed without Heir All the Question was What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope It was said It could not be a Tenure in Burgage because here is not any Rent reserved which see by Littleton 162 163 164. And the Lord Anderson at the first very strongly insisted upon that Another matter was because here is reserved for all the Lands and Tenements but one Tenure so that if the Court should adjudge the Tenure reserved to be Burgage then Lands at the Common Law out of Boroughs should be holden in Burgage Also a Tenure in Burgage cannot be created without these words ut de Burgagio And to that purpose Shute Iustice agreed Vide Br. Tenures 94. Mich. 29 Eliz. In the Kings Bench. CCCXXXIV Fullers Case NOte It is holden by the whole Court in Fullers case That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years if he his Wife and four of his Children so long shall live That this is not within the Statute of Vsury So if there had not been any Condition but care is to be taken that there be no Communication of borrowing of any Money before Trin. 30 Eliz. In the Kings Bench. CCCXXXV Goore and Winkfields Case 3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield the Obligation was written in this Form Know all by these Presents That I H. Winkfield am bound to William Goore in the Sum of c. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year until the same be paid To which the Defendant pleaded That the Plaintiff had levied parcel of the said Sum c. and did not shew how much and therefore the pleading was holden not good And it was clearly agreed by the whole Court That the Plaintiff was at Liberty either to bring his Action upon the said Obligation or to levy the Debt according to the Clause aforesaid Pasc 26 Eliz. In the Kings Bench. CCCXXXVI Powley and Siers Case POwley brought Debt against Sier Executor of the Will of one A. The Defendant demanded Iudgment of the Writ For he said That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor so as the Writ ought to have been brought against the Defendant as Executor of an Executor and not as immediate Executor of the said A. The Plaintiff replyed That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ upon which the Defendant demurred Wray was for the Writ for although here be not any Probate of the Will of A. or any other Administration yet when B. makes his Will and the Defendant his Executor it is an acceptation in Law of the Administration and Execution of the first Will. Gawdy and Ayliff Iustices that the Writ was not good Vide 23 Eliz. Dyer 372. Mich. 19 Eliz. In the Kings Bench. CCCXXXVII Taylors Case TAylor was Outlawed in Debt where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved If the Plea should be pleaded by Attorney or in Person To which it was said by the Iustices That where matter in fact is pleaded in avoiding of an Outlawry he ought to plead it in Person but matter of Record by Attorney And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain 7 Eliz. and so it ought to be in the principal Case here CCCXXXVIII Mich. 18 Eliz. In the Kings Bench. NOte It was agreed for Law in the Kings Bench if Lessee for years grant all his Estate and Interest to A rendring rent by Indenture and for default of payment a re-entry And the Grantor demandeth the rent and A. demands an Acquittance but the Lessee for years refuseth in such case A. may refuse to pay such rent for the rent is to be paid in this nature without an Acquittance but contrary if Lessee for years had leased parcel of his Estate rendring Rent with Clause of Re-entry c. CCCXXXIX Mich. 18 Eliz. In the Kings Bench. THe King seized of a Manor to which an Advowson is appendant a Stranger presented and his Clerk in by 6 Months It was holden that in such case the Grantee may present for the Advowson was always appendant and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have Quare Impedit
Tenants and therefore ought not to joyn c. It was Adjourned Temps Roign Eliz. In the Kings Bench. CCCLVII The President of Corpus Christi Colledge Case NOte It was holden by Cholmley Serjeant Plowden and many others in the Case of the President of Corpus Christi Colledge in Oxford That if the said Master or President of any such Colledge by his Will deviseth any Land to his Colledge and dyeth such Devise is void For at the time when the Devise should take effect the Colledge is without a Head and so not capable of such Devise for it was then an imperfect Body And so it was holden by the Iustices upon good advice taken thereof CCCLVIII Temps Roign Eliz In the Kings Bench. IN a Warrantia Chartae the Defendant said that the Plaintiff had not any thing in parcel of the Land the day of the Writ brought If in a Praecipe quod reddat the Tenant aliens and afterwards vouches the Vouchee is not bound to enter into the Warranty But here in this Case it may be That at the time that the Plaintiff requested the Defendant to warrant he was Tenant of the Land in which Case the warranty is attached and then if ever the Land be recovered against him he shall have this Writ and of this Opinion was Brown Iustice For the Land which the Defendant had at the time of the request is bound by the request but if he alieneth after the request he shall not have the Warranty CCCLIX Mich. 9 Eliz. In the Kings Bench. A Man seized of a Manor in which there are divers Copy-holds and the Custom there is That if any Copyholder leaseth his Land above the term of one year that he shall forfeit his Copyhold A Copyholder committed such a Forfeiture and afterwards the Lord leased the Manor for years and the Lessee entred for the Forfeiture and Weston said that his Entry was not lawful for although that the Heir may enter for a Condition broken in the time of his Ancestor because he is privy in blood yet the Lessee or Feoffee cannot do so for he is a Stranger such a one of whom an Estranger shall not take advantage Dyer If this forfeiture be preserved by Homage and enrolled in the Court Rolls the Lessee may well afterwards enter for by the forfeiture the Copyhold Estate is void and determined as if a Leafe for years be made rendring Rent upon Condition to cease if the Rent be not paid here presently by the not payment the Interest of the term is determined and of that the Grantee of the Reversion shall have advantage CCCLX Mich. 10 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a way The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life and that the said Duke and all those whose Estate c. have used time out of mind c. to have a way over the Land of the Defendant to the Park of D. to carry and recarry Wood necessary for the said House from the said Park to the same House and further declared That the Defendant Obstupavit the way It was moved by Carus That upon that matter no Action upon the Case lay because the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff or the Defendant had but an Estate for years then an Action upon the Case would lye and not an Assize and it is not material If the Plaintiff had but an Estate for years in the Park quod fuit concessum per totam Curiam It was also holden That this word Obstupavit is sufficient without any more without shewing any special matter of the stopping as the erecting of any Gate Hedge Ditch c. for Obstupavit implyes a Nusance continued and not a personal disturbance as forestalling or saying to the Plaintiff upon the Land where c. that he should not go over or use the said way for in such case upon such a disturbance an Action upon the Case lyeth But as to a local and real disturbance the word Obstupavit amounts to Obstruxit and although in the Declaration is set down the day and year of the stopping yet it shall not be intended that it continued but the same day for the words of the Declaration are further By which he was disturbed of his way and yet is and so the continuance of the disturbance is alledged and of that Opinion was the whole Court. Leonard Prothonotary He hath declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Carriagiis and upon that Prescription he cannot have a Cart-way for every Prescription est stricti juris Dyer That is well observed and I confess that the Law is so and therefore it is good to prescribe habere viam pro omnibus Carriagiis without speaking either of a Horse or a Foot-way CCCLXI. A. Enfeoffed B. to the intent that B. should convey the said Land to such person as A. should sell it A. sold it to C. to whom B. refused to convey the Land and thereupon he brought an Action upon the Case against B. And by Wray Chief Iustice and Gawdy Iustice here is a good consideration for here is a trust and that which is a good consideration in the Chancery is in this case sufficient Shute Iustice was of a contrary Opinion And afterwards Iudgment was given for the Plaintiff Mich. 29 Eliz. In the Common Pleas. CCCLXII Sir Richard Lewknors Case SIr Richard Lewknor seized of Wallingford Park Ante 162. made a lease thereof for years and dyed the Lessee granted over his term to another excepting the Wood the term expired and an Action of Waste was brought against the second Lessee by the Coparceners and the Husband of the third Coparcener being Tenant by the Courtesie Shuttlewood and Snag Serjeants did argue That the Action would not lye in the form it was brought and the first Exception which was taken by them was because the Action was general viz. Quod fecit vastum in terris quas Sir Roger Lewknor pater praedict ' of the Plaintiff cujus haeredes ipsae sunt praefat ' Defendent demisit And the Count was that the Reversion was entailed by Parliament unto the Heirs of the Body of Sir Richard Lewknor and so they conceived that the Writ ought to have been special cujus haeredes de Corpore ipsae sunt For they said that although there is not any such Writ in the Register yet in novo Casu novum est apponendum remedium And therefore they compared the Case to the Case in Fitz. N. B. 57. viz. If Land be given to Husband and Wife and to the Heirs of the Body of the Wife and the Wife hath Issue and dyeth and the Husband committeth waste the Writ in that case and the like