in Bar to wit the Fine with proclamations pleaded by Mary Taylor and the warranty pleaded by Robert Leigh and 28 others of the Ter-tenants or by any of these pleas or not And as to the first If he in remainder depending upon an estate in Tayl may maintain a Writ of Error to reverse a Recovery against the first Tenant in Tayl after his death without issue And I conceive clearly that he in the remainder shall have a Writ of Error for the Writ of Error doth always pursue the nature of the Land and not the privity of the blood And therefore 5 H. 8. the Writ of Error shall go with the Land and therefore the Heir in special tayl shall have it although there be another Heir at the Common-Law And so in Fitz Herb. N. B. 21 K. He who is Heir to the Land that is lost shall have a Writ of Error and not the Heir at Common-Law as if Land in Borough-English be lost by erroneous Iudgment the younger Son shall have a Writ of Error and 3 H. 4. 19. The Heir in special tail shal have the Writ of Error although there be another Heir at the Common Law And 1 Mariae Dyer 90. Verneys Case The Writ of Error shall be brought by him who had the thing whereon erroneous Iudgment was given And as the especial Heir shall have the Writ of Error so shall he also in remainder or reversion upon an Estate for life after the death of the Tenant for life 4 H. 8. 21 H. 6. 29. But the sole Objection that hath any coulor against this was Object that this Writ of Error ought to be given to him in remainder by the Common-Law for it is not given by the Statâ—te of the 9th of Rich. 2. and then there can be no remainder upon an Estate tail at the Common-Law and therefore he in such remainder cannot have any Writ of Error But this is easily answered for the Common-Law being Answer that when an erroneous Recovery is had against a pâ—rticular Tenant that he in the Reversion or Remainder shall have a Writ of Error after the determination of the particular Estate it follows that when this new particular Estate is made by the Statute of Westm 2. he in the remainder shall have the same remedy And this is proved by the case of the Tenant in Tayl for although that his Estate was not at the Common-Law yet now he shall have all Actions which the Common-Law gives to a Tenant in fee which may stand with his Estate and therefore he shall have a Writ of Escheat a Quod permittat Nat. B. 124. 4 Ed. 5. 48. Nat. B. 212. and so he shall have an Assize and many other Writs which lie for a Tenant in fee at the Common-Law And for Authorities in this point Dyer 188. That he in the remainder after the Estate-tail spent shall have a Writ of Error and so is it in Dyer 40. in Verneys Case And in the 3 Rep. fol. 3. B. if is resolved that he who hath a remainder expectant upon an Estate in Tayl shall have a Writ of Error upon a Iudgment given against the Tenant in Tayl although there were no such remainder at the Common-Law for when the Statute de Donis Conditionalibus does enable the Donor to limit a remainder upon the Estate-tail all actions which the Common-Law doth give to the privies in Estate are by the same act as incidents tacitly given also according to the rule of the Common-Law and therefore as he in Reversion or Remainder upon an Estate for life shall have a Writ of Error by the Common-Law upon a Iudgment given against a Tenant for life although that they were not parties by Hyde Pryer Voucher c. so since the Statute de Donis conditionalibus shall he have who hath a Reversion or Remainder expectant upon an Estate in Tayl. And therefore I conceive the Writ of Error is good notwithstanding that Objection But now it is to be considered if this Plea of non-tenure shall avoyd the Writ of Error and I conceive it will not for three Reasons 1. I conceive that it is no plea to abate the Writ for the Plaintiffs might have reversed the Recovery against the Lessors of the Reversion onely without having made the Ter-tenants parties for the Writ of Error being grounded upon the Recovery does always lie against the parties to the Iudgment and their Heirs and may be reversed against them although they have nothing in the Land and this is clear by Nat. Brev. 107. and 26 Assis 12. A Writ of Error does lie against him who recovers and after the Error found a Scire facias shall issue against the Tenant and 42 Assis 22. and 44 Ed. 3. and 10 Ed. 4. 13. Non-tenure is no plea in a Writ of Error for the party to the Iudgment or his Heir And here in this case if those who have pleaded Non-tenure are not Tenants they are at no loss for they can lose nothing but this plea does discharge themselves onely and the Scire facias remains good against the Heirs and the other Ter-tenants 2. If Non-tenure could be a good Plea for the Ter-tenants in a Scire facias yet at the least it ought to be in such a Scire facias wherein the Ter-tenants are named and not in such a general Writ as this is For here the Plaintiffs have pursued their Scire facias in as good a form as may be viz. generally against the Heirs and the Ter-tenants and if there be any default it is in the Sheriff who hath returned those to be Tenants who indeed are not so and it shall be very hard if the Writ should abate for default of the Sheriff 20 Ed. 3. Scir facias 121. In a Scire facias on a Recognizance against the Ter-tenants it was said that one of them that ware warned had but a Lease for years of such a one who had the Freehold Iudgment of the Writ c. And there Birton said That the Sheriff had a general command to warn the Ter-tenants wherefore this is no Plea to the Writ And Hill and Wilby answered that it was otherwise for that the Plaintiffs at their peril should name the Ter-tenants in their Writ whereupon there was a new Writ Whereupon I observe that if the Writ be special naming the Ter-tenants as it was anciently then it ought to be so but of late such course hath been changed as appears by the 8 of H. 4. 18. and the Writ awarded generally and therefore such special Non-tenure shall be a good Plea for it is the default of the Plaintiff to pursue his Writ against one who is not Tenant but when the Writ is general Non-tenure is no Plea to the abatement of the Writ 48 Ed. 3 15. 8 H. 18. 48 Assis 2. and the 2 H. 4. 18. B. In a Writ of Account against the Sheriff of Northumberland of a Receit in Newcastle upon Tine and it was pleaded that Newcastle was
way Cum sepibus Januis and did not say praedict so that it might not be of the same Gates in the Declaration and that is there said to be a fault incurable And although we are not in the nature of a Plea in our case but of a speciall Verdict yet as I have shewed before that is all one where it wanteth matter of substance Thirdly the Confirmation is utterly defeated and avoided by the Remitter to Sir Richard Knightley and therefore the Fine cannot revive it 14. Assise 3. Tenant in Taile doth charge the Land and dies and the Issue does enfeoff a stranger he shall hold the Land discharged because the Land was once discharged by his Entry and so shall the Issue do that re-purchaseth the Land 19 Ed. 3. Resceit 112. Tenant in tail acknowledgeth a Statute and dies and the Issue enfeoffs a stranger against whom the Conusee sues out execution and adjudged there good but yet it was denyed in 11 H. 6. 26. b. by Paston and Comment 437. Smith and Stappletons case And Trin. 15 Jac. This Case was argued by Sir Tho. Coventry the Kings Solicitor for the Plaintiff by Sir Hen. Yelverton the Kings Attorney for the Defendant And Hil. 15. Jac. by Serjeant Chidborn for the Plaintiff and by Serjeant Harvy for the Defendant And Pasch 16. Jac. without any argument by the Iudges agreed for the Plaintiff and thereupon Iudgment Judgment was given that the Plaintiff should recover Mich. 14 Jac. Ashfeild against Wrendford IN a Writ of Error to reverse a Judgment given in the Common Pleas for the now Defendant against the Plaintiff in an Action of Debt upon a Bond of two hundred Marks made the first of October 9 Jac. In which the now Plaintiff then Defendant did plead that Gregory Havard was possessed of five Cowes thirteen Sheep and of certain Hay Wheat Rye Pease Barley Oates and Fetches not Threshed And some speech being had between the said Gregory and one John Ashfeild for the buying thereof whereupon the said Gregory did affirm the same to be twenty Loads of Hay thirty of Wheat a hundred of Rye c. whereupon before the making of the Bond viz. the last of September the 9 Jacob. It was agreed between the said Gregory and the said John that the said John should pay for the said goods seventy five pounds and that a Bond should be made in which should be contained that the said now Plaintiff with the said John Sturet were bound to Cuidam Edward Wrensford in two hundred Marks upon condition for the payment of the said seventy five pounds which writing was to be delivered to the said Gregory as a Schedule to be kept upon condition that the said Gregory before the said day of payment should go to the house of the said John in Pixley to account with him for the said Goods and if thereupon any of the said Goods should be wanting if the said Gregory shall be content to make the same up that then the Writing should be delivered to the said Edmund otherwise it should remain as a Schedule whereupon the said Writing mentioned in the Declaration was made and sealed and delivered to the said Gregory upon condition aforesaid And after the measuring of the Hay there wanted eight Loads c. and the said Gregory did not come to the House of the said John c. And so pleaded it was not his Deed. And found for the Defendant c. And I conceive that Judgment ought to be reversed For Cuidam Edward Wrensford cannot be intended the Plaintiff in the first Action but a stranger of that name as in Dyer 5 Ed. 6. Case of Isham and Wither And then the aforesaid Edward to whom the Obligation is made and who joyned Issue and appeared at the tryall and at the return of the Postea and for whom Judgment was given ought to be referred to Cuidam Edward Wrensford whereof mention is last made in the Plea and not to the Plaintiff in the Action and so Issue is joyned by a stranger and Judgment given for him and not for the Plaintiff Judgment confirm'd But all the Court held that the Issue shall be intended to be joyned by the Plaintiff himself and upon the Bond whereon the Declaration is made wherefore Judgment was affirmed c. Hil. 14 Jac. Newsham against Carew Knight In the Exchequer IN an Ejectment the Case was this A Bishop makes a Lease of a Rectory to I.S. for 21. years and dies the Successor before the Statute 1 Eliz makes a Lease of this to I. N. habend from the 20. Decemb. 1. Eliz. being the day of the date for 56. years from thence next ensuing the end of the Lease to I S. and dies and the 56. years are expired from the 20. of Decemb. 1 Eliz. And if this second Lease be ended or not is the Question And I conceive that the Lease shall begin from the 20 of December and so it is ended before the Lease made to I. S. For the argument of which case the true sence and meaning of this ill pen'd Habendum is to be considered for thereupon all the difficulty of this case doth depend and as to that I conceive there are but four ways to expound this Habendum and if it be taken in any of these constructions this Lease shall begin by computation from the 20 of December 1 Elizab. and so shall end the 20 of December 12 Jacob. which is before the Lease made to the Lessor of the Plaintiff And the first way is to observe the first part of the Habendum scil from the 20 day of December then next following to be onely material and good and the last part being repugnant thereto is voyd The second way is to take the first words of the limitation of the begining of the Estate to be voyd and the last words scil next following the determination and end of the term of I. S. c. to be good The third way is to construe as well the first as the last words of the Commencement to be voyd by reason of the direct repugnancy in them And the fourth and last construction is to make such construction as all these words by a reasonable exposition may agree together And according to any three of these constructions viz. the first the third or the fourth it is apparent that the Lease to I. N. under whom the Defendant claims did end the 20 of December 12 Jacob. which was before the entry of Anthony Rudd the last Bishop and the Lease made to the Lessor of the Plaintiff and then this Lease is good and therefore my endeavor is to prove that this Habendum ought to be taken in any of these three ways viz. the first third or fourth and to disprove that it cannot be taken in the second way For the argument whereof I shall speak to the first and second together for that that I will speak of the first will be a manifest
a Lease for four years the Lessee entred and the Lessor did grant the Land habendum from Midsomer next for life the Lesses after Midsomer did attorn and adjudged that the Grant was void and in Barkwicks Case 5 Rep. the reason thereof is given because that if the Grant should be good the Grantor should have a particular Estate scil during the first day of the date or in the mean time untill the Grant did begin to take effect without any Donor or Lessor which is against the Rules of Law And although this Grant of the Reversion be but for years yet is it all one for the diversity is between a Lease for years made Tenant in Fee or for life to commence in future and a grant of a Reversion for in the first Case it is but a future Charge upon the Land so that the Lessor hath his former Estate untill the Lease doth begin and the Lessee hath no Term but only interesse termin and therefore Hil. 38. Eliz in the Common Pleas between Row and White it was agreed that if the Lessor be disseised before the Lease begins the Lessee after the day of the Commencement may grant the term otherwise where a Lessee for yeares in possession is outed by an estranger for there his Term is turned into a Right but in the first Case he hath not any Term in esse and therefore it cannot be turned into a Right nor any wrong done thereunto And for direct Authorities in this Case 29 Eliz. in the Common Pleas the Countesse of Kents Case Where one having a Reversion in Fee does grant this Habendum after the death of I. S. for years and it was adjudged a void Grant And Trin. 39 Eliz. Johnson and Somerset in the Common Pleas Lessee for life grants the Reversion Habendum a die dat for ten years and adjudged a void Grant And in the Comment 155. by Brown If one having a Reversion does grant it habendum after a day to come for years this is a void Grant for if it may be granted from a day to come the Grantor shall have a particular Estate in the mean time by his own making which cannot be that one may be Lessor to himself or diminish his own Estate and there it is taken for a Rule that when there is a Rent in Esse or a Reversion c. a man cannot make this to be in esse for a time and to cease for another time or to grant it to another after the death of any or from a day to come relinquishing to himself an Estate in the mean time And in the Comment 197. b. Adams against Wortesbey agreed there that a Reversion cannot passe as a Reversion according to the common understanding thereof from a day to come But Haughton conceived that this Case being a bargain and sale whereby the use doth passe first this may well passe from a day to come Quod nullus dedixit Thirdly It is not averred that the twenty acres in which the Distresse was taken was not part of the Closes excepted so that it may be part of them and then no Distresse for the Rent can be taken there And although it may be gathered by some words in the Bar to the Avowry that the place where c. was parcell of the Land devised to Wiseman yet this shall not help the Conusans as in Cokes 7. Rep. fol. 24 25. where one having Land in Fee and another Land for years did grant a Rent for life out of both the Grantee distrained for the Rent and avowed that the Rent was granted out of the Lease land amongst other lands whereas he ought to have alledged the Rent to be granted out of the Land in Fee only and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case yet this will not make the Avowry which wants substance to be good Judgment And all the Court did agree the Avowry to be naught for this exception Wherefore Iudgment was given for the Plaintiff in the Replevin Mich. 14 Jac. Webb and Jucks Case against Worfeild Rot. 266. IN a Writ of Error to reverse a Iudgment given in the Common Pleas for the now Defendant against the now Plaintiffs In which the Plaintiff did declare that the Defendants the fourteenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court did take an Oxe from the Plaintiff ad damnum forty pounds The Defendants did acknowledge the taking of the said Oxe as Bayliffs to Elizabeth Ligon Widow for that the place where c. contained two acres of Land and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford and of seven Messuages three Gardens and a hundred and fifty acres of Land forty two of Meadow sixty six of Pasture five of Wood and seventy of Furzes and Heath in Ponick aforesaid Bransford Leigh Newland and Wick whereof the place where c. is parcell That the sixth of September the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years after the death of Elizabeth his wife if they or either of them shall so long live rendring five pounds four shillings eight pence Rent at the Annunciation Christmas Midsummer and Michaelmas That the eleventh of August 1554. Elizabeth Parsons died whereupon John and Anne Parsons entred And Ligon dies whereby the Reversion descended to Sir Rich. Ligon her Son and Heir and Sir Richard died wherby the same descended to William Ligon his Son and Heir who died also whereby the same descended to Richard Ligon his Son and Heir who died also and the same descended to Sir Richard Ligon his Son and heire who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo c. to the use of himself for life the Remainder to the said Elizabeth Ligon then his Wife for life the Remainder to the Heirs of the body of Sir William the Remainder to the right Heires of Sir William 10 May 4. Jac. John Parsons died Pasch 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff to the use of the Plaintiff for the life of Sir William the Remainder to the said Elizabeth for her life the Remainder to the Plaintiff in Fee Sir William dies whereby the Reversion does remain to Elizabeth his Wife And for seventy eight pounds six pence of the said Rent for three quarters of a year ending at Christmas 9 Jacob. they did acknowledge c. and they averred the lives of the said Elizabeth Ligon and the said Anne Parsons Bar. The Plaintiff said that the Fine levied by Sir William and Elizabeth his wife was to the use of the Plaintiff and his Heirs and justified the putting in of the said Oxe by the license of the said Anne Parsons Absque hoc that the said Fine was to the use of the Plaintiff for the life of
and Iudgment was given therein whereupon the Tenant to the Assise brought a Writ of Error the 5. Eliz. in Easter Term which did abate by reason of his death and after in the time of King James the new Plaintiff brought a Writ of Error in Recordo quod coram nobis refidet which did also abate by reason of variety between the Record and the second Writ of Error whereupon Mich. 13. Jac. the said Plaintiff did purchase this new Writ of Error And the Defendants did plead in abatement of the said Writ of Error that the now Plaintiff before the purchasing of the said last Writ of Error and since the purchasing of the second Writ of Error viz. the 19th of September the 10. Jacob. did enter into the said Land and the same day and year at the place aforesaid did devise the said Tenements to one Thomas Alport Habendum from the Feast of S. John Baptist then last past for four years next ensuing by vertue of which Demise the said Thomas Alport into the said Tenements did enter and was and yet is possessed Vpon which Plea the Plaintiff demurred and the Defendants joyned And I conceive that the Plea is insufficient Yet I do agree that if he who hath cause to have a Writ of Error to reverse a Iudgment of Land does make a good Lease for years he hath suspended his Writ of Error for the Term as he does quite extinguish it by his Feoffment But here it appears that there is no Lease made for it is pleaded only that the Plaintiff did enter into the Land and it appears by the recovery that his entry was taken away by the Iudgment in the Assise whereby he gains nothing by his Entry but the Freehold and possession does remain alwaies to the Defendants being Heirs to the Recovery as appears by Litt. Warrant 158. If one be seised of Land and another who hath no right doth enter into the Land and continues possession yet doth he gain nothing thereby but the possession doth alwaies continue in him that hath right and so in the 3. Ed. 4. 2. Woolocks Case and in the Comment 233. Barkleys Case Execution is taken to be no plea in Bar to an Ejectment because it was shewed that the Lord Barkley did enter as in his Remainder and was seised in Fee untill the Lessor of the Plaintiff did eject him and did demise to the Plaintiff which is not good because it is not alledged that he disseised the Lord Barkley for otherwise he had no Estate to make the Lease and the Entry doth not imply any disseisin or doth gain any possession and 11 Edw. 4. 9. B. 12 H. 6. 43. B. And the Court did agree that the plea was insufficient But then it was moved that the Writ of Error was nought for the Writ was that Quidem Recordum processus Dom. Regina Elizabeth nuper Regina Angliae causa erroris interven venire sec and it appears by the Record that although the Recovery was removed by Writ of Error the 5. Eliz. at the Suit of the Father of the Plaintiff yet the Plaintiff did purchase a new Writ of Error Mich. 9 Jacob. and had a Scire facias against the Heirs of the Recover or who appeared Mich. 10. Jacob. and also the Writs of Habeas Corpus tales Distringas wherefore the Writ is naught for all the Recovery was not in the time of the Queen but part in her time and part in the Kings time But I conceive that it is good enough for first the Recovery and Processe is satisfied by transmitting the body of the Recovery as it is proved by the usuall form of all Writs of Error which is to certifie the Record and Processe and yet they do certifie only the Declaration and the Pleas omitting the Writs Also the Record shall be intended the principall Record and not the Writ and Proces Coke Rep. 11. Metcalfes Case the words of the Writ of Error Si judicium inde redditum sit this shall be taken to be the principall Iudgment 39 Ed. 5. 1. In a Scire facias brought by John Duke of Lancaster and Blanch his Wife to execute a Fine levied to them in the time of Ed. 2. and the Writ did recite the Fine to be levied Tenendum de nobis c. but it was adjudged good by Iudgment of Parliament and 2 R. 3. 4. Bough brought an Action of Debt against Collins who pleaded a forreign Attachment in L. by custome and did mistake the Custome and it was traversed that there was no such Custom and the major certified it so and all this was in the time of King Edw. the first and it was adjourned over to another Term before which time the King died and resumed in the time of King Richard the third and Iudgment given whereupon Collins did bring a Writ of Error which was Rex Dei gratia c. quia in Recordo processu in redditione Judicii loquela quae fuit coram nobis per breve nuper inter B. c. error c. And the question was if it was good And some said that there was no Warrant for such a Writ and some said that the Writ ought to have been speciall reciting how c. But the Masters of the Office said that in a Writ of Error before the Iustices of the Bench there is but a generall form in the Writ And after it was adjudged that the Writ of Error was good John Vandlore Plaintiff Cornelius Dribble Defendant Trinit 14 Jacob. Rot. 1062. IN an Action of Debt on a Bond of two hundred pounds made the eleventh of Febr. the 12th of King James upon condition that the Defendant shall perform the agreement of William Holliday Thomas Moulson Robert de la Bar and Humphrey Burlemacke Arbitrators elected c. to arbitrate of and for all Actions Suits Accounts and Demands had moving or depending in variance between the parties before the date of the said Obligation so that the agreement of the premisses be made and put into writing before the twentieth of March next The Defendant pleaded that there was no such Arbitrement The Plaintiff replyed that the eighteenth of March 12 Jacob. they did make an Arbitrement c. of and concerning the Premisses that the Defendant should pay the Plaintiff fifty pounds viz. twenty pounds at April next and twenty five pounds at _____ and the twentieth of July next twenty five pounds in full satisfaction and discharge of all such monies as the Plaintiff did claim or demand of the Defendant by reason of the administration of the Goods c. of John Stadsell or by any other means whatsoever And that each of the parties upon payment of the said fifty pounds shall make generall Acquittances one to the other of all Actions Debts and Demands unto the day of the making of the said Acquittances And alledged breach to be made in the payment of the said twenty five pounds the twentieth of
April And whereupon the Defendant demurred in Law And I conceive that the Action will not lie for the Arbitrement is bond because the Arbitrators have exceeded their authority First because they have no power to discharge any action or duty accrued to any of the parties as Administrators Secondly because that by the Release the Obligation it self to stand to the Arbitrement is discharged Cook 10 Rep. 131. where Moor brought an Action against Bedell upon a promise to stand to the Arbitrement of A. and B. concerning all matters then in difference between them and that was the last day of Novemb. 24 Elizab. And the 10 of Decemb. the 24 of Eliz. they did agree that Moor should pay to Bedell certain monies and that Bedell should release all demands until the 15 of June 24 Eliz. and the Defendant in consideration of this submission did assume that he would not sue any Execution upon a Iudgment And the Plaintiff there assigned two Breaches one that he did not Release the other that he sued Execution And this was found for the Plaintiff upon a non assumpsit and entire damages given and then after it was reverst by Error because that the agreement as to the Release was voyd and therefore the damages being entire the Iudgment was erroneous And Michaelm 11 Jacob. Rot. 155. Staires against Wilde wherein an Action of Debt upon an Obligation to perform an award of and concerning all matters c. And they made an Award that one should pay to the other 3 l. and that each should release all Actions and Demands and the breach was assigned in not paying the 3 l. adjudged to be a voyd Arbitrement in all because it was to release all Actions at the time of the Release which is not within the submission And Pasch 42 Eliz. Rot. 211. Knap against Mâ—w where the condition was to perform an Award of certain things c. who did award that one should pay 20 l. to the other and that each should release all Actions and Demands and the breach was assigned in non-payment of the mony and it was adjudged that the Award was voyd And at last all the Court agreed that the Award was good as to all that was submitted to and voyd for the others and that the breach being assigned in a matter submitted to does give a sufficient cause of Action to the Plaintiff Wherefore it was adjudged that the Plaintiff should recover c. Hillar 13 Jacob. Smith against Whitbrook IN an Action on the Case for words viz. for saying to the Plaintiff the 4 Septemb. 12 Jacob. Thou meaning the Plaintiff art a Traytor and an Arch-traytor and I meaning the Defendant will hang thee or be hang'd for thee and after the 15 Septemb. 12 Jac. the Defendant did procure the Plaintiff to be brought before Sir Robert Cotton Knight and Robert Castle Esq two Iustices of Peace of the said County for Oyer and Terminer c. and did complain to the said Iustices that the Plaintiff had said and published divers Traytorous words of the King by reason whereof the Plaintiff was committed to the Goal of the said County by the said Iustices and there was imprisoned and did so remain until the next Sessions of Peace of the said County holden the 4 of Octob. 12 Jacob. before Robert Bell Knight Robert Payn Knight and other Iustices c. and the Plaintiff was compelled to finde Sureties for his appearance against the next Sessions to answer to such things as should be objected against him on the behalf of the King and in the mean time to be of good behavior c. At which next Sessions holden the 10 Janu. 12 Jac. before the said Iustices and other Iustices the Plaintiff did appear upon which the Defendant the same day and year in the publique Sessions did say of the Plaintiff I meaning the Defendant do accuse Robert Smith meanining the Plaintiff absolutely whereupon the Plaintiff was committed to the Gaol by the said Iustices and there remained in prison for the space of a month whereas the Plaintiff did never speak and Traytorous words against the King nor had committed any Treason against the King and this he layd to his damage of 1000 l. The Defendant pleaded that before the time wherein the said words are supposed to be spoken viz. the third of Septemb. the 12 Jacob. the Plaintiff having speech of the King did speak of him these Traytorous words The King meaning our Lord the King is a scupry King and so justified the several words and also the procurement of the Plaintiff to be brought before the said Iustices The Plaintiff by Protestation saith that he did not speak the said words of the King and for plea did demur in Law and the Defendant joyned Judicium And after Iudgment was given for the Plaintiff without reading the Record or having any argument because that the justification was insufficient and the Record was not read because it imported Scandal to the King Cooper against Smith IN an Action on the Case for words scil Thou and Waterman did kill thy Masters Cook meaning one Yarnton late Servant of Francis Dingley Esq and thou wast never tryed for it and I will bring thee to thy Tryal for it The Defendant pleaded Nor guilty and it was found for the Plaintiff and it was moved in Arrest of Judgment that it was not averred that the Plaintiff had a Master and that Francis Dingley was his Master but resolved that it need not be aveâ—â—â—d for if he had no Master yet it is a Scandal as if one should say Thou hast stoln the Horse of I. S. there is no need to aver that I. S. had a Horse and if everment be necessary it is averred here when he said Thy Masters Cook and there it is averred that the Cook was servant to Francis Dingley and it follows also that Francis Dingley was Master to the Plaintiff Judgment Wherefore Judgment was given for the Plaintiff Trinit 14 Jacob. Weal against Wells IN an Action on the Case for that the Defendant the 22 of Novemb. the 13 of King James crimen Felonie querenti false malitiose imposuit and did cause him to be arrested and taken for the Felonious taking and stealing of five Heifers of the Defendant and caused him to be brought before Sir Thomas Bennet one of the Iustices of Peace c. and out of malice also at the Sessions of Peace at the Guild-hall London before the Major and other the Iustices of Peace c. did cause him to be indicted maliciously and falsly for the Felony of stealing of five Steers the 23 Octob. 13 Jacob. and did cause him to be detained in the Gaol of Newgate until he was legally acquitted at the Gaol delivery the first of December the 13 Jacob. to his damage c. 100 l. and did aver the matter in the indictment to be false The Defendant said that the 18 Novemb. 13 Jacob. he was possessed
Also the Bar is not good because the Defendant says he was possessed of five Steers and doth not say of the aforesaid 9 H. 6. 16. In a Quare Impedit brought by the King of a Chantery in the Chappel of St. Thomas in D. and made title to it and the Defendant pleaded that there was a Chantery in the said Chappel and made title to it and traversed the title of the King and adjudged to be no plea because he did not answer to the Chantry whereof the King had declared And Pasch 14 Elizab. Downing against Hayward In a false imprisonment in Suffolk the Defendant did justifie as servant to A. to whom a Commission of Rebellion of Chancery was directed and the Plaintiff pleaded De son tort Demesne and found for the Plaintiff and reversed again by Error in the Star Chamber because that when the matter of justification is upon matter of Record and matter in fact or of matters done in two Counties that cannot joyn the Issue ought to be upon one only And Pasch 15 Jac. Iudgment was given against the Plaintiff by the opinion of Mountague Crook and Doderidge because that all that was done after Sir Thomas Buriets Warrant was illegall but they agreed that the Plaintiff might have an Action for the charging of Felony and for all that was done before the said Warrant But Haughton disagreed who conceived that Iudgment should be given for the Plaintiff because the Plea of the Defendant was no justification for what was done before the warrant but at last Iudgment was given for the Defendant Judgment Mills against Marshall IN a Writ of Error to reverse a Iudgment given for the now Defendâ—nt against the Plaintiff in the Common Pleas upon an Action of Debt on a Bond of twenty pounds Hil. 11 Jac. Ror 1109. And the Bond was made the twentieth of Jan. in the sixth year of King James and it was on Condition to stand to the Award of George Cockrell Edward Sureton and William Wasse to arbitrate of and concerning all matters then depending between â—hem so that the said Award be made and delivered to the parties under the hands and Seals of the said Arbitrators before the twenty ninth of January next The Defendant pleaded that the Arbitrators the twenty fourth of January in the sixth year of King James did make their Award of the Premisses by Indenture under their hands and Seals 1. That all Controversies and Suits between them unto the date of the written Arbitrement should cease and that the Plaintiff should have liberty to drive his Cattell to the River Eâ—ke c. and that the Plaintiff and Defendant should work and maintain at all times from thence forward a sufficient Hedge by the top of the Scar Sicut terrae praedicti Querentis Defendentis extendunt Anglice as their own Ground goes for security of the Cattell and Sheep which said Hill doth extend to the Land of Henry Facherly unto the Pale which then was between the Land of the Defendant and if any Trees or Woods growing in or neer the Woods of either party shall fall in controversie at any time that it shall be arbitrated by the said Arbitrators three or two of them which Arbitrement was delivered to the parties the same day and the Defendant pleaded that he had performed c. The Plaintiff replyed that the Defendant did not make a sufficient Hedge upon the top of the Scarr Prout terra sua extendit the Defendant said that before the Writ purchased viz. the fourth of April 12 Jacob. at Eshdayle in the County aforesaid he did make a sufficient Hedge upon the top of the Hill aforesaid prout terra sua extendit and so they were at Issue and found for the Plaintiff and Iudgment given and the Defendant brought this Writ of Error And I conceive Iudgment ought to be affirmed Coke 5 Rep. Slingsbles Case If one let white Acro to I.S. and B. Acre to I. D. and covenant with them Et quemlibet eorum that he is Owner each of them may have an Action and Coke 5. Rep. Hurgots Case Submission to an Award so as it be delivered to either of the parties ought to be delivered to each of them 39 H. 6. 7. And all the Court did agree that each of them ought to inclose against his own Land only and so the breach was well assigned wherefore the Iudgment was well assigned wherefore Iudgment was affirmed Hilar. 13 Jac. Crawley against Marrow IN an Ejectment upon a Lease by Robert Faldoc dated the one and thirtieth day of August the thirteenth year of King James of two Houses two Orchards forty acres of Land ten of Meadow and fifty of Pasture in Bridgenorth Habendum from the tenth day of the said month for three years whereupon the Plaintiff was possessed untill the Defendant the eighth of October in the same year did enter and eject him ad damnum c. Vpon not guilty pleaded The Iury found the Defendant not guilty for all except one House and five acres of Land and found further that before the said time the twentieth day of Decemb. 11 Eliz. Rowland Hayward Knight was seised in Fee of the said one house and five acres of Land and ten of Meadow and being so seised thereof did enfeoff John Day and Robert Marshall in Fee to the use of John Whitbrooke and Margaret his Wife in Taile the remainder to the right Heirs of John Whitbrooke and that the last of January 12 Eliz. John Whitbrooke did enter into a Recognizance of a thousand pounds in the Chancery to Richard Faldoe which money was not paid to Richard in his life time That John Whitbrooke and Margaret had issue John Whitbrooke Knight and after and before the fourteenth of January 8. Jacob. died and before the said day Richard Faldoe made his Will and did make Amphillis his Wife his Executor and died and Amphillis did make Robert Faldoe Esquire and Thomas Shepheard Knight her Executors and died who undertook the Executorship 14. Jan. 8. Jac. Robert Shepeard and Faldoe had a Scire facias to the Sheriff of Middlesex to have execution of the Recognizance whereupon John Whitbrook was returned dead whereupon they had a Scire facias against the Heir and the Ter-tenant whereupon John Whitbrook was returned Heir and Ter-tenant who pleaded that he had no Land that was the Conusors at the time of the Recognizance or ever since by hereditary descent from the Conuzor in Fee and said that he ought not to be charged as Ter-tenant because he hath no Freehold that was the Conusors The Plaintiff replyed that the said John Whitbrook had divers lands by descent from the said Conuzor viz. A house called the Hospitall thirty seven Tenements or Messuages five Cottages one Tost one Dove-house thirty nine Gardens six Barns fifty four acres of Land thirty nine of Meadow and thirty six of Pasture in Bridgnorth and that the said John Whitbrook was Tenant of the Premisses
a County of it self but because it was made a County since the Teste of the Writ the Writ was adjudged to be good 3. These Ter-tenants are estopped to plead Non-tenure because that they with the residue at first did plead that John Chatterton was Tenant of parcel of the Land by which Plea they have taken upon themselves to be Tenants of the Land and therefore they cannot afterwards plead Non-tenure 41 Ed. 3. 4. In a Praecipe quod reddat against I. S. who pleaded to the Writ and the Writ abated whereupon the Writ did abate and a new Writ brought for Jornies Accompts against I. S. he shall not plead Ioyntenancy with the other because he hath admitted himself sole Tenant by the first Writ 33 H. 6. 3. In a Formedon against the Husband who pleaded Ioyntenancy with his wife for which the writ a bated and a new writ was purchased against the husband and wife who pleaded non-tenure and adjudged a good plea for the benefit of the wife but if the last writ had been against the husband only he could not have pleaded non-tenure 22 H. 6. 54. B. In a Praecipe quod reddat the Tenant pleaded Non-tenure the Demandant said that before he brought another Writ against the Tenant and I. S. who made default for which a Grand Cape was awarded upon which I. S. made default and the now Tenant said that he was sole Tenant and waged his Law of Non-summons which the Demandant did acknowledge whereupon the writ abated and this Writ purchased by Jornies Accounts and there it is argued if he shall have advantage of this because the first Writ did abate by his own default but it was agreed that if he could have such advantage the Tenant shall be estopped to plead Non-tenure and adjudged that the Tenant shall answer 42 Ed. 3. 16. In a Praecipe quod reddat one took the severall Tenancy on his part and the other of the other part and they were estopped because that a former proces was against them and others and they took the entire Tenancy upon them without that that the others had any thing and did gage their Law of Non-summons wherefore the first writ did abate and this writ purchased by Journies Accounts And so in our Case when all the Tenants have pleaded that I. C. was Tenant of parcell not named in the returne they have taken the Tenancy upon them and therefore they cannot afterwards plead Non-tenure And now the Writ being maintainable notwithstanding these exceptions Part. 2 it is to be considered whether there be any error in the Recovery or not And I conceive clearly that the appearance of the Wife within age by Attorney is Error for by the Rule of the Common Law in every Praecipe quod reddat whereby Land is demanded if the Tenant appear he ought to appear either in person or by one lawfully authorized by him and that is the reason that if Iudgment be given against one upon an appearance by the Attorney where the Attorney had no Warrant to appear that this is Error untill it be remedied in case where a Verdict is past by the Statute of 32 of H. 8. of Repleader but if the Iudgment be given upon default or demurrer or upon a Verdict and no Warranty by him who recovered this is not Warranted by the Statute Dyer 93. 20 Eliz. Dyer 363. and the reason is because that the Land or thing in demand is lost or gained by one who had no Warranty and then the Rule of Law is that an Infant shall not appeare by Attorney and 1 H. 5. 6. adjudged that an Infant cannot be Attorney for another and so therefore it is there said that he cannot appear by an Attorney 22 H. 6. 31. b. There by Newton if an Infant sue by an Attorney it is Error And the Law in this case stands with great reason for the Warrant of Attorney is made by the Infant which although it be sufficient when it is of full age yet it shall be dangerous to permit Infants to lose their Land by their Attorney while they have not discretion enough to choose such who shall be faithfull to them and therefore the Law hath made better provision for them to wit that they shall appear by their Gardian admitted and allowed by the Court so that in regard of the imbecility of the Infant the Court makes choyce of a sufficient trusty person to plead and defend their cause Nat. Br. 27 H. 1. an Infant shall sue by his next friend but if he be Defendant in any Action he shall make defence by his Guardian and not by his next of kin and the Court does assigne a Guardian for an Infant who is Defendant and that is commonly one of the Officers of the Court and in 22 H. 6. 31. where Hungerford and his Wife brought an Action of Trespasse for taking of their Villain being in their Service The Defendant pleaded that he was free c. and as to the losing of the Service that he was not retained and found for the Plaintiff and severall damages viz. for the taking of nine and twenty pounds and for the losing of the Service twenty shillings And it was argued neither Iudgment should be entred because the Retainer was not found And after Markham moved that the Plaintiffs being within age did appear by their Attorney and did declare that all the proces continued by the Attorney whereas it ought to have been by their Guardian so that all was Error And Newton said that if it were so there was good reason to have a Writ of Error and after the Plaintiffs released the twenty shillings and had Iudgment of the other So that an Attorney being alwaies made by the party ought to be therefore made by one of ability to give such Authority which ability cannot be in an Infant for all Authorities made by an Infant â—re utterly void And that the appearance of an Infant by Attorney in any Action is Error does appear by the said Book if the 22 H. 6. 31. 9 Eliz. Dyer 262. b. Object But it may be objected that the Husband in this case is of full age and therefore he may make an Attorney for himself and his Wife Answer But I answer that the Law is not so for the Rule of Law is that the Husband cannot give away or lose the Inheritants of his Wife but it must be given or lost by her her self and by her own act and therefore if the Inheritance in this case being to the Wife she is the principle and only to be taken notice of and she ought to appear in such manner as the Law hath appointed in regard of her nonage 14 Ed. 3. Age 88. In a Cessavit against the Husband and Wife the Husband did appear by an Attorney and the Wife by her Guardian and upon suggestion that she was of full age the Guardian was hidden to bring her into Court to see whether she were
him and his heirs for ever if B. shall have issue of his body and if he die without heirs of his body that the Land shall revert to the Donor and his heirs B. had issue which died without issue and it was adjudged that B. had but an Estate in tail and because he died without heirs of his body it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor a fortiori in a Devise which is to be taken more favourably then an estate made by Deed and therefore it is sufficient in a Devise to have the intention of the Devisor understood either to make an estate in fee or in tail although proper words to make such an estate be not used and the intent of the Devisor cannot be more manifest to have an estate in tail then in this case As to the second Point the question will be whether the younger Son hath an estate in Tail or in Fee determinable by this limitation and it seemed to them that he shall have but an Estate in tail In which the question is to which estate these words of limitation to wit living the elder Son shall be referred viz. Whether to the Estate made to the younger Son or to the Estate given to the elder for if they be referred to the Estate made to the younger there is no question but these words do abridge restrain the estate but if to the elder then they make no restraint or restriction as to the estate of the younger Son but onely limit the remainder to the elder Son on this contingency only viz. If he be alive at the time of the death of the youngest Son without issue And to prove that these words shall be referred to the estate devised to the elder brother They said That if the land had been devised to the younger Son and the heirs of his body and if he dyed without issue living the elder that the elder should have the estate to him and his heirs it is clear that the younger hath an absolute estate tail and that then the remainder to the elder shall be on this contingency viz. If he be living when the younger dies without issue And so is Frenchmans Case 1 2. Eliz. who demised land to his wife for life the remainder to Charles Frenchman and the heirs males of his body and if he died without heirs males of his body the remainder to Arthur Frenchman and the heires males of his body Charles had issue a Daughter and died without issue male and it was adjudged that the Daughter should not have the land for this contingency does not alter the Estatetail that was first limited to Charles and although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body yet the limitation afterwards to wit if he die without issue does explain well enough that the heires of his body are intended and then the subsequent words living the Eldest Son cannot alter the estate first given to the younger Son And Hil. 40. Eliz. in the Kings Bench by Walmesly If one deviseth land to his Son and his heirs and further deviseth that if he die without issue that the land shall be sold yet the Son shall have an estate in fee and not in tail but otherwise if he devised that if he died without issue that the lands should remain over for in the first case he disposeth of no more of the estate by the last words then he did at the first but in the last case he disposeth of the estate it self in remainder And this was agreed by Owen 18 19. Eliz. Rot. 354. and 15. 16. Eliz. Rot. 330. where the case was That one Edward Clark being seised in fee of two houses had issue Henry and two Daughters Alice and Thomasin Henry dyed before the two daughters living the Father the Father devised one house to his daughter Alice and her heirs for ever and the other to Thomasin who was at that time but eight years of age and her heirs for ever and if she died before the age of sixteen years Alice then living Alice should have it to her and heirs and if Alice should die having no issue living Thomasin Thomasin should have the house of Alice to her and her heirs and if both of them died without issue he devised the two houses to the two Daughters of his Son Henry and their heirs and if they died without issue he devised the remainder to a stranger Proviso That if Alice should marry I. S. that Thomasin should have her part to her and her heirs and if Thomasin should dye having no Child that the daughters of Henry should have all and if they died having no Child the remainder to a stranger as aforesaid The Devisor dies then Alice marries N. but not I. S. and enters into her house Thomasin after sixteen years of age dies without issue And if Alice or the daughters of Henry should have the estate of Thomasin was the question And it was holden by three Iustices that the daughters of Henry should have it because that Thomasin did not die within the age of sixteen years and that it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a contingent it was at last adjudged 14. Eliz. Rot. 340. that they were Tenants in tail by this Devise in Mich. 37 38. Eliz. 42. Mich. 14 15. Eliz. And Michaelmas 18. Jacobi Judgment This Case was argued by Montague cheif Iustice Doderidge Haughton and Chamberlain who all agreed that by this Devise the youngest Son had not an Estate-tail but a limited see so that by his dying without issue living the elder Son his estate was quite determined and all except Doderidge agreed that the Recovery could not hurt the future Devise But Doderidge was much against this opinion by reason of great mischeif that might ensue by making of Perpetuities in Devises and cited Archers Case and Capels Case but notwithstanding Iudgment was affirmed as aforesaid De Termin Trinitat 18 Jacob. Rot. 1198. Dawtree against Dee and others IN an Action on the Case wherein the Plaintiff Declared That he the fifth of July 16 Jacobi was and is seised in Fee of a Capital Messuage called Moor-place with the appurtenances and of 600 Acres of Land meadow and pasture in Petworth with the said Messuage used of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements therein Farmors and Tenants have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid and that in the Church of Petworth aforesaid on the said fifth of July and also time out of minde there hath been and is a little Chancel on the North part of
tenth of August next following at the said City did use the art and trade of Starch-making and that he the 21 of September 15 Jacobi did get into his hands by buying and not by Devise Grant or Lease twenty Quarters of Wheat residue of the said 400 Quarters to the intent to convert the same into Starch and the 20 October in the same year did convert the same into Starch and the 26 of October did sell the same to several persons and that every one of the said Quarters at the 21 of September was of price 36 s. But whether the Defendant were guilty of the Ingrossing aforesaid according to the form of the Statute the Iury knew not and therefore desired the Opinion of the Court but if otherwise c. And this Record was removed into the Kings-Bench by a Certiorare Judicium And Iudgment was given against the King and the Informer Moor against Sir George Reynel Marshal of the Marshalsee IN an Action of the Case wherein the Plaintiff declares That he the 15 Jacobi did recover in the Common-Pleas 240 l. Debt against one Gilbert Alsop and 20 l. damages and that the Plaintiff in execution of the said Debt did prosecute the said Gilbert by several Iudicial Writs issuing out of the said Court. And that he by a Writ of Exigi Facias issuing out of the said Court the next Term after the said Iudgment directed to the Sheriff of the City of Exceter and Returnable before the said Iustices Quindena Martini that the said Gilbert the 28 Octob. 15 Jacobi was Out-lawed in the said City at the Suit of the Plaintiff in the Plea of Debt aforesaid unde tunc convictus fuit c. That Michaelmas 15 Jacobi the Plaintiff took out of the said Court a Capias ut lagatum against the Defendant then to the said Sheriff directed returnable Octabis Purificationis That the 8 Octob. 15 Jacobi the said Writ was delivered to the said Sheriff That the 20 January 15 Jacobi the Sheriff took the said Gilbert and held him in his Custody That the 23 Januarii 15 Jacobi a Habeas Corpus was awarded to have the Dâ—â—â—ndâ—nt cum causa c. Lunae proxim post crastinam purificationis At which day he came to the said Court in the Custody of the said Sheriff who returned the said Writ That the twelfth of February the Defendant was committed by the said Court to the Marshalsey the Defendant then and yet being Marshall nevertheless the Defendant the thirteenth of April 18. Jacobi at Westminster did suffer the said Gilbert to escape against the will of the Plaintiff he being unsatisfied his said Debt and damages whereupon the said Plaintiff hath lost his said Debt and damages ad damnum 300 l. The Defendant pleaded that the said Gilbert was committed to him by vertue of the said Writ but said further that he remained in his Custody from the aforesaid twelfth of Febr. untill the twenty seventh of Febr. the 16. Jac. during all which time the Plaintiff never prayed to have the said Gilbert in execution neither was the said Gilbert ever committed at the request of the Plaintiff to the Marshalsey in execution for the said debt and damages And pleaded further that the twenty seventh of Febr. 16. Jac. the said Gilbert did escape against the will of the Defendant which is the same escape whereon the Plaintiff doth declare Upon which Plea the Plaintiff did demur Bridgman for the Plaintiff I conceive Iudgment ought to be given for the Plaintiff for when the Defendant Alsop in the first Action was taken by the Capias utlagatum after Iudgment he was in execution for the Plaintiff Vide Cokes Rep. Vernons Case for in asmuch as the King by the originall Suit of the party is entitled to have all the Goods and Chattels and the Profits of the Land with his body also by reason of the Outlawry it is good reason that if the Defendant be taken at the Suit of the King that as the King shal have benefit by the suit of the party so the party should have some benefit by the suit of the King Resolved by the Court that when he was taken by the Capias utlagatum issuing out of the Kings Bench he shall be in execution for the Plaintiff presently after the Arrest if the Plaintiff will although his body was never brought into the Court and although the Court did not commit him in execution for the party Note that in all Cases when the Defendant may have a Capias ad satisfaciendum and the party Defendant is taken by a Capias pro fine there the Defendant is in execution presently if the Plaintiff wil without any Prayer of the party but when the Plaintiff hath Iudgment and le ts pass his time so that he cannot presently neither by Capias nor by Fieri facias but is driven to his Scire facias there if the Defendant be taken by a Capias pro fine the Plaintiff must pray that he may remain in execution for him but this cannot be done without such Prayer Vide 5. Rep. Frosts Case 22. Assise 74. If one condemned for a Disseisin with force or fees be taken for the Fine yet he shall not go at large if the party prayes that he may remain for his execution and in 11. H. 7. 15 when the party may have execution without a Scire facias the execution for the King shall be prayed for the party and it is not materiall whether there were a Capias in the Originall but otherwise if it be after a year 2. Rich. 3. If one be taken for a fine to the King within the year and the King pardons him yet he may remain for the party And so in this Case I conceive that Gilbert was in execution for the party and if he was not yet the Plaintiff hath proved him in execution from whence he escaped by the default of the Defendant so this Action doth well lye Also the Plaintiff doth charge the Defendant with an escape 13. April 18. Jacobi and the Defendant pleads an escape the 27. Febr. 16. Jacobi which was a year and two daies before the escape alledged by the Plaintiff to which the Defendant hath made no answer and although he concludes that it was the same escape which makes the plea good where the time is not materiall yet it is not in this case for here it is admitted by the Defendant that the Plaintiff might have prayed him in execution so long as he remained in prison but it may be he made his prayer afterwards viz. between the 27. Febr. 16. Jac. and the 13. April 18. Jac. as it may very well be in this case and then the averment of the Defendant is nothing to the purpose Also the Defendant saith that he remained in Prison from the twelfth of February 15. untill the seven and twentieth of February 16. Jacobi during which time the Plaintiff did not pray him in execution in which case
the day is excluded by this word Quousque Crook contra Who said that the Declaration was insufficient for it ought to have been Tam pro Domino Rege quam pro seipso because here is a contempt to the King But upon full debate of the Case and upon shewing a President to the Court which was Plt. Jacobi Rot. 308. in the Common Pleas between King and Monlenax where the Declaration was for the party onely and all the Prothonotaries did certifie the Court that the greater part of Presidents of such Actions brought in the Common Pleas were for the party only and not Tam pro Domino Rege quam seipso whereupon it was adjudged that it was good either way Judicium and Iudgment was given for the Plaintiff And note that in this case the Iudgment was Quod Defendans sit in misericordia and not Quod capiatur vide 27. Assise 11. 42. Assise 17. Dyer 238. 40 41. Eliz. New Book of Entries 44 45. Bassett against Jefiock and Johnson IN an Ejectione the Iury gave a speciall Verdict to this effect That Queen Elizabeth was seised in fee in Jure coronae of the Mannor of Watton in the County of York and that King James the 15. Martii 2. Jac. did grant the same to William Brown and Robert Knight and their Heirs who the twenty seventh of April 3. Jac. did bargaine and sell the same to Michael Feilding and his heirs who entred and died seised and after whose death the same descended to Basill Feilding as his Brother who made a Lease to the Plaintiff Bridgman It seemeth to me that the Plaintiff hath made a good Title But it was objected that there was no good Title for that it is not found that the Queen died seised or that the Lands descended to the King But it was answered that when the Queen was seised in Fee in Jure Coronae that shall be intended to continue untill the contrary be shewed for when an Estate of Inheritance is once alledged it shall be intended still to continue till the contrary be shewn Plow Com. 193. 43 1. and 202. Judicium And afterwards viz. 19. Jacobi Iudgment was given for the Plaintiff without any argument at the Bench. Trin. 19. Jac. Samborne against Harilo IN an Action of Trespasse for that the Defendant 10. Octob. 44. Eliz the Plaintiffs free Warren at Mouldford in certain places there called Harecombe Harcombe Coppice and the Down did break and enter and did therein hunt without the license of the Plaintiff and three Hares and three hundred Conies did take and carry away Continuando as to the said Hunting and taking and carrying away the said Hares and Conies from the said tenth day of October to the first of November And further declared that the tenth of April 1. Jac. the Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and twenty Hares did take and carry away continuing the said hunting untill the first of March next after c. And further declared that the tenth of April 2. Jac. the said Defendant the said Warren in the said places did break and enter and therein without the license of the Plaintiff did hunt and forty Hares and four hundred Conies did take and carry away continuing the said hunting untill the first of March following contra pacem c. ad damnum c. The Defendant as to the Vi armis and to the first Trespasse except the entring and hunting in the said place called the Down and the taking and carrying away the three hundred Conies pleaded not guilty And as to the entry hunting and carrying away the said Conies he saith that the said place called the Down is and hath been time out of mind Communis fundus containing by estimation two hundred acres of Land and Pasture and that before the said tenth day of September and before the said Trespasse and at the said time the Defendant was seised of a Messuage and six Yard Land containing a hundred and sixty acres called the Mannor of Southbery in Mulford aforesaid and that the Defendant and all those whose estate he hath in the premisses time out of mind have had Common of Pasture in the said Down for 200. and 40. Sheep Levant and Couchant upon the said Messuage and six Yard Land and that the Defendant and all those whose Estate c. have used for preservation of the said Common as often as the said Common hath been oppressed and troubled with Conies have used of custome to have liberty to hunt and to take the Conies wherefore the Defendant the aforesaid time of the aforesaid first Trespasse and for preservation of the said Common from such oppression and diminution aforesaid into the said Down did enter and there hunted and the said Conies did take and carry away according to the said custome and continuing the said hunting all the said time And as to the second Trespasse besides the entry and hunting in the said places called Harecombe Harecombe Coppice and the Down and the taking and carrying away two hundred Conies he pleaded not guilty And as to the entry and hunting in the said places c. he saith that the said places called Harecombe and Harecombe Coppice are Woodland containing by estimation ten acres and that he was seised in Fee of the said Messuage and six Yard Land and made the same prescription as aforesaid for all his Horses Cowes Heifers Bullocks and two hundred and forty Sheep levant and couchant upon the said Tenements viz. for the Horses Cowes c. at the Feast of S. George and from that time untill the Corne growing in the Feilds of Moulford were carried away and after the Corne carried away for the Sheep untill the fourth of March next after and made the former prescription for the Sheep in the Down And the same prescription also for hunting and taking away the Conies as abovesaid and so did justifie the taking of the said two hundred Conies And as to the third Trespasse besides the entry and hunting in the said places and the taking and carrying away of the said four hundred Conies he pleaded not guilty and as to this plea he made the same prescription as before upon which plea the Plaintiff demurred in Law And if this matter pleaded in Bar was sufficient to bar the plaintiff of his Action was the question And it seemeth to me that there is nothing in the Defendants plea to hinder the Plaintiff from having Iudgment And the better to argue upon this matter I will first endeavour to shew what interest a Commoner hath in the Soile and what things he may do upon the Soile for preservation of the said Common 2. Whether this be a good usage and custome to enable the Defendant to hunt and kill Conies in the Plaintiffs free Warren And as to the first I conceive that he that hath Common in
173. Judicium And after many arguments in this Case Hillar 20 Jacob. the Court agreed that the Demise was good and Iudgment was given for the Plaintiff Periman against Pierce and Margaret his Wife TEnant in Socage had issue by his first Wife Joan Elizabeth and Agnes and Alice and Elizabeth by his second Wife Katherine Mary William and Joan by his third Wife and by his Will did Devise his Land to Joan the younger for her life rendering 13 s. 4 d. Rent to William the remainder to William in Tayl the remainder to Elizabeth and Mary for life the remainder propinquo sanguinitatis of the Devisor for ever William dyes without issue Joan the younger dyes without issue Elizabeth had issue William Stokes and dyes Mary had issue William Pierce and dyes Joan the elder dyes having issue John Periman and William Periman Agnes and Alice dye without issue John Periman had issue John Periman the Lessor and dyes Elizabeth and Mary dye Katherine dyes without issue Elizabeth had issue George Dean and John Dean Elizabeth deviseth her Land to John Dean and his Heirs and dyes John Dean hath issue John Dean and dyes the Lessor enters and makes a Lease to the Plaintiff who enters and is ejected by the Defendants by commandment of the said John Dean the son upon which the Plaintiff brought an Ejectment And it seemeth to me that judgment ought to be given for the Plaintiff for all the Land or at least for part thereof And therefore in the first place I conceive that when William the son dyed without issue the remainder in fee did vest in John Perriman who was the eldest son of Joan the elder who was the eldest daughter of the Devisor for although the Devisor had many daughters yet his intent appeared in the Will to a single person and not to divers also it appears that he doth not intend that this remainder should vest in William his son for he deviseth to him a Rent during the life of Joan the younger and afterwards an Estate Tail cannot be in Joan the younger or any of her issues because that an express Estate for life is limited to her nor in Elizabeth or Mary for he deviseth a remainder to them for life nor in any other of his daughters for then he would have named them either by their proper names or as his daughters and not by such circumlocution as is pretended in this Case Also the words of Remainder in fee cannot extend to those daughters for they are proximae consanguinitatis which does clearly exclude his own sons and daughters for they cannot properly be termed to be of consanguinity of the blood of the father as it is said in Sir William Herberts Case Cooks Rep. 3. that filius est pars patris and this is proved by the usual pleading of a Descent for if the Plea be by any except son or daughter the form is to say That the Land descends to him as Cosin and Heir and shall shew how but if by the son or daughter then to plead as before And 30 Assis 47. Land was devised to one for life the remainder to another for life the remainder propinquioribus haeredibus de sanguine puerorum of the Devisor there it is agreed that the sons and daughters are excluded by that Devise And so here in this Case neither William the son nor any of the daughters of the Devisor can take any thing by this Devise for they cannot be said de Consanguinitate de sanguine of the Devisor but the Issues of the Children of the Devisor are comprized within these words And then I conceive that the limitation being in the singular number viz. proximo consanguinitat all the issues of those Children shall not take but one onely and that as I conceive shall be the eldest son of the eldest daughter of the Devisor which was John Periman father of the Lessor of the Plaintiff as in the 20 H. 6. 23. In an Account supposing the Defendant to be his Receivor from the Feast of St. Michael it shall be taken to be the principal Feast of St. Michael the Archangel and not the Feast of St. Michael in Monte Teneb And 13 H 4. 4. 21 H. 68. 37 H. 6. 29. If father and son be of one name scil of J. S. If J. S. be named generally in a Writ Recovery or Deed it shall be intended the father for that he is most worthy And so Pladwels Case in this Court Mich. 38 and 39 Eliz. If a woman hath a Bastard and two legal issues and Land be given to one for life the remainder to the eldest issue of the woman the eldest legal issue shall take and not the bastard although he be the eldest issue for general words shall always be taken in the most worthy sence And so here the Devisor did dispose of his Estate to Joan the younger rendering Rent to William his son the remainder to William in Tail the remainder to two of his daughters scil to Elizabeth and Mary for life the remainder proxim consanguin c. in fee By which words it is apparent that the Devisor intended that for the default of the issues of William and after the death of Elizabeth and Mary the Estate should remain to one who was next of blood to him and that is John Periman the eldest son of his eldest daughter But admitting that all the issues of the daughters shall be in equal degree to take by this remainder as well as the eldest son of Joan the eldest daughter yet I conceive that those daughters who had an Estate devised to them by Will are excluded Cooks 8 Rep. 95. B. Always the intention of the Devisor expressed in his Will is the best Expositor and Director of his words and therefore if Land be devised to one in perpetuum this shall pass a fee although it be otherwise in a Grant So if one deviseth Land to another to dispose of or sell at his pleasure this is a fee to the Devisee Litt. 133. 19 H. 8 9. B. And so in our Case the intent of the Devisor appears to dispose of his Land among his Children and their issues as in Trin. 38 Eliz. Ewre and Heydons Case Heydon was seised of a Messuage in D and of three houses and certain Land in Watford did devise his Messuage in D and all his Land in Watford it was judged the houses in Watford did not pass in regard of the express mentioning the houses in D. and this was affirmed in a Writ of Error Edmund Meskin against John Hickford Administrator of Henry Machin IN an Audita Querela because that the 11 Ed. 1. it was Enacted That in regard that Merchants which heretofore had lent their goods to divers persons were fallen into poverty because they had not such speedy remedy provided for them for the Recovery of their Debts Ac ratione inde multi Mercatores desistebant venire in hanc terram cum Merchandizis
matters being of substance ought to be observed as in Trinit 37 Eliz. in this Court between Worsly and Charnock a Statute acknowledged which had but one piece of the Seal adjudged voyd and the same adjudged in the Case of Ascue and Hollingworth Trin. 37 Eliz. Rot. 343. and this is upon very good reason for when the King hath committed the Custody of the Seal to two scil to the Major and the Clerk and to each a part the part committed to one is not sufficient And all the other aforesaid substantial parts are material parts of the said Statute except the writing of the Statute with the proper hand of the Clerk Then the Question in this Case is no more then if there be a sufficient time limited for the payment and such a time as the Major may certifie to be incurred in case it be so required And I conceive there is for when he acknowledgeth the Debt to be due and no time is expressed the Law appoints the payment to be immediately and that is such a time as the Major by his Certificate may take notice of 44 Ed. 3. 9. a. If a Bond be made and no day of payment therein limited it is due presently 4 Ed. 4 49. B. 9 Ed. 4. 22. but he shall not recover damages without demand 14 H. 8. 29. 6. If one be bound in a Bond and no day of payment be limited and then the Obligor is bound in another Obligation to pay the mony at a day certain if the mony be not payd at the day he forfeits his second Bond and yet by the first Bond it was not payable before request But that request is because as I conceive that he shall recover no damages before request but the mony is due presently and when the Law appoints a time certain that is as good as if it had been exprest in the Bond it self As in the Statute of Westm 1. cap. 38. where it is ordained that in a Writ of Mortdancester the Demandant shall count of the seisin of his Ancestor from the time of the Coronation of King Henry the third Yet if an Infant brings a Mortdancester of the seisin of his Father or Mother he need not alledg this in his Writ because it appears to the Court. 16 Ed. 4.47 In an Action on the Case for disturbing the Plaintiff of holding a Fair and the Plaintiff prescribed to have a Fair in C. for three days scil ab hora nona in vigilia sancti Petri ad vincul and for two days and a half next following and this was held to be good because two days and two half days make 3 days And if the Statute had been in the hundred hour or the thousand hour after the making thereof here is no day limited and yet I conceive that no body will doubt but that this is a good Statute Cook Rep. Signior Montjoyes Case If one having authority to make Leases reserving the usual Rent does let Land whereof the ancient Rent was a Quarter of Corn reserving eight Bushels this is a good Lease for the Law respecteth not the forms of words but the substance and effect of the matter Object But it may be objected That if the Statute doth not mention a day of payment it is to no purpose to acknowledg such a Statute for if the mony be payable presently the Debtor may pay the mony and spare the making of the Statute I answer Respons that the Statute intends onely to provide assurance to the Merchant for his debt and not to give any day of payment to the Debtor but to leave that to the agreement of the parties and when the Merchant hath delivered his Goods there is reason he should have present security and not present payment for them unless it be otherwise agreed amongst themselves but if they agree upon a day of payment that may be put into the Statute or else to have a Defeasance but this is not of necessity There is a Rule in Law that every Lease ought to have a certain time of beginning and also of ending yet if one makes a Lease for twenty years and does not say when it shall commence this is a good Lease for the Law will suppose the Lease to begin presently And it is ordered by the Statute that the Writing obligatory shall be written with the proper hand of the Clark yet it is a good Statute although it be written by his Servant but otherwise in case of Authority to revoke as in Coke Rep. Scroopes case he who hath power under his hand to revoke cannot do it otherwise Mich. 18. Jac. Thair against Thair and Trin. 42. Eliz. Birde against Stride Furthermore these Statutes being taken for assurance of Merchants shall be expounded favourably for them so far as the variance if any be of the Letter shall not impeach it 5. Rep. 77. a 21. Edw. 3. 18. 10 Rep. 67. 27 H. 8. 10. 4 Rep. Vernons case And the form of the Statutes in Glocester Hereford and Bristoll and many other Towns is to mention no day of payment but some are made Sine ulteria dilatione some Immediate but the most usuall do run as in our case and the formes of Presidents are much to be regarded As in the Comment 163. Frogmorton against Tracy Two Iustices held that an Avowry by the Defendant was not good without averment as ought to be in every Plea but when all the Presidents were shewn without averment they were satisfied And the same case is put in the Comment 320. B. for a Rule that the Records of every Court are the most effectuall proofs of the Law of things treated in that Court and in the 39. H. 6. 30. In a Writ of Mesne the Tenant shewed the Tenure only between the Mesne and the Tenant and not the Tenancy between the Mesne and the Lord Paramount wherefore the Iudges held the Plea naught but when they had seen the Book of Presidents wherein it was usuall to omit this they changed their opinions and said that they would not alter the Presidents And in the 5. Ed. 4.19 B. Babintons case The custome and course in a Court and the Presidents in a Court do make a Law Vide Rawlins case Coke Rep. 14. And the Statute provides only for Merchants for their debts and yet none will deny that if such a Statute be acknowledged to one who is not a Merchant or never used Merchandizes yet it is good And Trin. 22. Judicium Jac. This case was argued by the Iudges on the Bench and Jones held the Statute good but Hutton contra and Winch and Hubbert held the Statute good Wherefore Iudgment was given Quod querens nihil Capiat per breve Garth against Ersfeild Knight in Cancellar In a Scire facias to have Execution of a Recognizance of eight hundred pounds acknowledged in the Chancery by Sir Thomas Ersfeild the Father of the Defendant the third of May 14. Jac. THE CASE SIr Thomas Ersfeild the
any Lands Tenements or Hereditaments parcel of their Bishopricks or any charge or incumbrance out of the same or of any other thing in their disposition to binde their Successors except onely Leases for 21 years or three lives of such Lands Tenements and Hereditaments which have been usually demised or whereupon the usual Rents have been reserved according to the said Act. And although such Lease be made of such Lands usually demised reserving the usual Rent according to the said Statute yet unless all the limitations prescribed by the Statute of the 32 of Hen. 8. be not pursued as if it be not all in possession or that the old Lease be not expired or surrendred within one year which is not prohibited by the first of Eliz. as it was adjudged in Foxes Case then such Lease will not binde the Successor unless it be confirmed by the Dean and Chapter And such construction as aforesaid hath been made to disable a Bishop to make any Estate except Leases for 21 years or for three lives as is aforesaid as concerning the binding of the Successor as the Grant of the next avoydance by a Bishop to another although it be confirmed by the Dean and Chapter is restrained by the said Statute of Elizabeth to binde the Successor as it hath often been judged and the reason is because it is such an Hereditament whereon no Rent may be reserved for all in the Statute that is not permitted in the Exception is restrained as to the Successor by the general purview of the said Act but yet such Grant will binde the Bishop himself although the Statute says that it shall be voyd against all intents and purposes for the makers of the said Act did intend not onely the advancement of Religion but also increase of good Hospitality and avoyding dilapidations and ruine of the Church which the Successor if the Acts of his Predecessor should binde him were not able to remedy and therefore the makers of that Act did rather regard the Successor And these words in the Act viz. Parcel of the possessions of his Archbishoprick or Bishoprick or united belonging or appertaining to the said Archbishoprick or Bishoprick may be very aptly construed That the Gift of this Office and all other such like things that are belonging to the Archbishoprick or Bishoprick for although the Bishop cannot exercise this Office himself yet hath he an inheritance in the gift and disposing thereof and so it is adjudged in Cooks 8 Rep. Earl of Rutlands Case And these words Belonging to the Archbishoprick or Bishoprick shall be expounded for Concerning the Archbishoprick or Bishoprick And therefore if a Writ of Annuity be brought against a Bishop upon a title of prescription or otherwise and Iudgment be given against him upon Verdict or confession this is restrained by this Act because the Bishop is charged with this Annuity in respect of his Bishoprick and therefore the Successor shall be charged with the arrears incurred in the life of the Predecessor 21 H. 7. 4. 48 Ed. 3.26 33 H. 6. 44. and yet is not the Annuity issuing out of the Bishoprick as appears in the 10 H. 6. 10. and 10 Ed. 4. 10. But because this does concern the Bishoprick and does tend to the diminution of the revenues and the impoverishing of the revenues this is restrained by the said Act of the first of Eliz. And therefore to answer to the Objection Wherefore such an Office should be granted to one solely I answer and it was also agreed to by all the Court That if the Office be ancient and necessary the Grant thereof with the ancient fee is no diminution of the Revenue or dispoverishing the Successor and therefore of necessity such Grants are exempted out of the general restraint of the said Act of Elizabeth For as Bracton saith Illud quod alias licitum non est necessitas facit licitum necessitas inducit privilegium quod jure privatur And if Bishops have not power to grant such Offices of service and necessity for the life of the Grantees but that their estates shall depend on incertainties as on the death or transmutation of the Bishop then no able or sufficient persons will be willing to serve them in such Offices or at least will not discharge their Office with any cheerfulness or alacrity if they may not have such estate in certain for the term of their lives as their Predecessors had but when an ancient Office is granted to one it is not of necessity to grant the same to two and therefore such Grant is not exempted out of the general restraint of the Statute no more then if the Bishop should grant an Office with the ancient fee to one and then he grants the Reversion to another this is restrained by the Statute because it is not of necessity and if the Bishop may grant such Offices to two he may grant them without any limitation of lives and by consequence ad infinitum and so if he may grant a Reversion to one so he may to others also without any limitation and by the same reason he may grant them in Tail or in Fee which is quite contrary to the intention of the said Act. And of such opinion was Popham Chief Iustice Michaelm 44 45 Eliz. in Stumblers Case and Dyer 23 Eliz. 370. where Horn Bishop of Winchester did grant to Dr. Dale during his life a Rent out of the Mannor of Waltham pro concilio impendendo the Bishop dyed and because the Rent was arrear Dr. Dale brought an Action of Debt for the arrears incurred in his life against the Executors In which two points are to be observed 1. That the Grant was not voyd against the Bishop himself The other That although the Rent was issuing out of the possessions and not parcel this was voyd by his death And Trin. 30 Eliz. Rot. 346. in this Court The Bishop of Chester after the Statute of 1 Eliz. did grant to George Boulton an Annuity of five marks per annum pro concilio impenso impendendo which was confirmed by the Dean and Chapter and then the Bishop dyed and Boulton brought a Writ of Annuity against the Successor and in his Count did aver that the Predecessors of the said Bishop had granted reasonable Fees but did not aver that this Fee had been granted before and did aver that he was homo consiliarius in lege peritus and the Opinion of the Court was against the Plaintiff But there it was resolved that although the said Bishoprick was founded but of late times to wit in the time of Hen. the eight yet a Grant of an Office of necessity to one in possession with reasonable fees the reasonableness whereof is to be decided by the Court of Iustice wherein the same doth depend is good and is restrained out of the general words of the said Act. And in our Case the avowant hath averred this Office to be an ancient Office and which hath
infeoff another of all the Lands whereof my Father died seised in an Action agâ—inst me I ought to set forth the certainty of the Land whereof he died seised And although the Executor does represent the person of the Testator yet the Act of the Executor is not the Act of the Testator not like to the Case of an Attorney 32. Ed. 3. Bar 264. If one be bound to enfeoff another it is sufficient if the Attorney be ready to make the Feoffment and so in the 19. H. 6. the same Law to confesse an Action but when an Executor does an Aâ—â— for the Testâ—tor it is otherwise as if the Executor sell Land it must be so pleaded for a dead person cannot sell Land And afterwards the Plaintiff discontinued his Suit Hillar 13. Jac. Norris Plaintiff against Henry Baker and Elizabeth Baker Defendants IN an Action of Trespasse for that the Defendants the 28. Octob. 13. Jac. by force and armes c. upon one Thomas Davis and Nicholas James Servants and Workmen of the Plaintiff did make an assaâ—â—t and them there labouring in the service of the Plaintiff did wound c. whereby the Plaintiffs lost their Service to his damage of forty pounds c. The Defendants as to the forme and according did plead not guilty whereupon issue was joyned And as to the residue of the Trespasse they say that at the time of the Trespasse the said Henry was and yet is possessed of an ancient House with the appurtenances in Worcester for divers years to come the which house doth joyn to a void peice of land in Worcester against the South and that at the time wherein c. and also time out of mind there were ancient Windows or Lights in and upon the South-side of the aforesaid house against the said peice of land through which the light did enter into the said house and the said Henry did enjoy great and necessary Easements and Commodities by reason of the open Ayre and light shining and entring into the said house by reason of the said Windows and Lights aforesaid and the said Thomas Davis and Nicholas Jones maliciously plotting and intending to deprive the said Henry of all the Easement and commodity of the aforesaid Windows and Lights Et Messuagium illud horrida tenebritate obscurare the said day and year did intend to build a house upon the said peice of land and did there then erect divers peices of Timber for the building of the said house which house if it had been built the said Henry should have lost the said easements and commodities wherefore the said Henry and the other Defendant who was his Servant by his commandment the said time wherein c. being in the said house did hinder the said Thomas Davis and Nicholas Jones from building the said house and the Defendants with a Staff did thrust down the said peices of Timber wherewith the said Thomas Davis and Nicholas Jones would have built the said house and did thrust and put away the said Thomas Davis and Nicholas Jones least they should build the said new house Prout eis bene licuit which is the same Assault and Battery of the said Thomas Davis and Nicholas Jones whereof the Plaintiffs complain Vpon which Plea the Plaintiffs demurred in Law And I conceive the Iudgment ought to be given for the Plaintiff Because the Defendants have made no answer to the first matter of the Action which is the losing of the Service for it is not shewne throughout the Bar that the said Davis and Jones did make the building as Servants to the Plaintiff or by his commandment and 2. H. 6. 13. In a Trespasse for cutting of Trees where the Defendant pleaded that the place where c. was the Freehold of I. S. who let the same to the Defendant at Will and adjudged no plea by the Court unlesse he had said by which he entred and cut the Trees and so justified the Action 3. H. 6. 54. In a Trespasse for beating of his Tenant the Defendant said he was his Servant and the Issue was whether he was his Servant or not 31. H. 6. 12. B. 5. H. 7. 3. 20. H. 7. 4. and 20. H. 7. 5. A Master shall not have an Action for beating of his Servant unlesse he saies Per quod servitium amisit The cause of Iustification is because the Servants did endeavour to erect a Building which is not issuable There is no cause of Iustification for how can the Defendant know that the building will be to his hurt or nusance to him untill the building be erected and if it be to his nusance he may abate the same by Law The Plea is double for first they set forth that they had Lights c. and then they alledge that the new house was built for the word if is wanting and 33. H. 6. 26. In an Action on the Case the Writ was good Cum ipse habeat quoddam Cheminum ratione tenurae c. the Defendant levavit murum per quod querens Cheminum habere non potest c. It was holden by Prisoit that the Writ was not good by reason of the Repugnancy And this Case was argued again by Barcley for the Defendant and by me for the Plaintiff Judgment Tr. 14. Jac. And all the Court held the Plea in Bar to be insufficient for which Iudgment was given for the Plaintiff Rot. 256. Hillar 13. Jacob. Edward Smith for the King and himself against Stephen Bointon IN an Information because the Defendant between the twentieth of June 12. Jac. and the fourth of July next after at Westminster in the County of Middlesex did buy ingrosse and obtain into his hands by buying and contracting of divers persons unknown three hundred quarters of Barley of the value each quarter of twenty pounds a hundred quarters of Beans of the value of twenty pounds every quarter Ad revendendum contra formam statuti c. whereupon an Action accrued to the King and the Informer to have of the Defendant foure hundred pounds viz. the value of the Barley and Beans whereof the Informer prayed a moyety c. The Defendant as to the Ingrosment between the twenty second of May 13. Jac. and the said fourth of July next after pleaded not guilty And as to the Ingrosment between the said twentieth day of July 12. Jac. and the said twenty second of May next after The Defendant saith that before the exhibiting of the said Information sc the twenty second of May 13. Jac. one Robert Beadow did exhibite an Information in the Exchequer for the King and himself against the Defendant because the Defendant between the first of June last and the day of the said Information did ingrosse five hundred quarters of Wheat of price every quarter thirty pounds five hundred quarters of Barley of price every quarter twenty pounds five hundred quarters of Oates of price every quarter twenty shillings and five hundred quarters of Beans and Pease
of age or not 29 Assise 67. In an Assise against Husband and Wife the Husband did answer as Tenant and the Wife would not but the Husband said that his Wife was within age and that she was taken away but did not say by whom and he did appear for himself and his Wife as her Guardian and pleaded in Bar and one of the Counsell said that the Wife had made default which is the default of the Husband and because that he answered as Guardian without Warranty by Record in this Court to do the same Iudgment c. And there Thoâ—â— said that he ought to have a Warranty in such case wherefore the Assise was awarded 35 H. 8. 56. In a Writ of Right by the Husband and Wife the wife being within age and she appeared by her next of Kin and was admitted by the Court. New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce and Joane his wife and John Pierce and Elizab. his wife the three first appeared in person and Elizabeth being within age by one Laurence Gibson her Guardian and admitted by the Court. And so in this Case forasmuch as the Land is the Inheritance of the wife which is demanded which she will lose by this Recovery she ought to appear by her Guardian notwithstanding the full age of the husband who is joyned only for form sake with his wife 30 31 Eli. Morseby against Charnock The husband and wife levied a Fine and after this was reversed by Error because that the wife was within age the husband shall not have the Land for all the Estate passeth from the wife and the husband joyned only for conformity Coke 2. Rep. Cromwels and Beckwiths Case But it may be objected also Object that this Error concerning the nonage of the wife is so appropriated to her person in privity that no stranger can take any advantage thereof I conceive not so Answer for the constituting of an Attorney is utterly void as to the wife and therefore every stranger shall take advantage there as is not like the Case where an Infant makes a Feoffment which is but voidable and therefore the Lord by escheat nor any stranger shall not avoid it 22 H. 6. 31. The Plaintiffs within age did sue by an Attorney and there it was ruled that the Defendants might have a Writ of Error and placit 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error against Dighton for that Dighton recovered against him in an Action of false Imprisonment in which he being within age did sue by an Attorney and adjudged that Iudgment should be reversed And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself and the same Law is of a Recognizance by an Infant and the reason of these Cases is because it is the Act of the Court to admit him to levy a Fine or to acknowledge a Recognizance and therefore this ought to be reformed by the Court and that must be by inspection of the Infant and therefore it ought to be done during nonage But the nonage in this Case ought to be tryed per pais as it was adjudged in the said cases of Bartholomew and Dighton and the case of Hobbs in which case the Infant was brought to the Bar to be inspected but adjudged by the Court that it should not be so because the matter was tryable per pais and 10. Rep Mary Portingtons case A common Recovery against an Infant although he appears by his Guardian shall not bind him for an Infant hath not such a disposing power of his Land as the Husbands wife have but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his minority And of late daies a common Recovery does appear to be a common conveyance and assurance of Land The third part of the Case is If the two matters pleaded in Bar of Part. 3 the Writ of Error or any of them be sufficient or not I conceive not And first as to the Fine with Proclamations levied before the Recovery had which is the Plea of Mary Taylor one of the Ter-tenants I conceive that it is utterly insufficient as well for the manner as the matter of the Plea for she hath disabled her self to plead this Plea for she sets forth that the twentieth of May 31 Eliz. Thomas Leigh and Katherine his wife did let to the said Mary a Cottage and three acres of Land parcell of the Tenements expressed in the Fine and Recovery for life but doth not shew in what Town the said Cottage and three acres do lye wherefore the Plea is altogether uncertaine and insufficient for the Tenements in the Recovery do lye in two Towns viz. In Alkington and Prestwick and it doth not appear by this Plea in which of these the Cottage and three acres do lye 5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres of Land and six of Wood in three Towns and the Issue being to be tryed the Tenant said that the Demandant had entred into the house and thirty acres of Land and three of wood And by the Court the Plea was naught because it did not appear in which Town the Entry was And in Moore and Hoskins case in the Exchequer 8 Jacob. In an Ejectment of Land in Overkiddington and Netherkiddington the Defendant pleaded not guilty and when the Issue came to be tryed by Nisi prius in the County of Oxon the Defendant pleaded an Entry of the Plaintiff in three acres of the Land contained in the Declaration since the last Declaration whereupon the Plaintiff demurred and adjudged that the Plea was insufficient and thereupon the Plaintiff had Iudgment to recover Secondly for the matter this Fine being precedent to the Recovery whereby the cause of this Action is given cannot extinguish it for it is a Rule in Law that one cannot give or grant that which one hath not 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father infeoffs another it is void as to bind the Land and Littleton Releases 106. These words in a Release Quae quo vis modo in futuro habere potero are void in Law for no Right doth passe but only the Right which the Releasor had at the time of the Release as if the Son release to the Disseisor of his Father all the right which he hath or may have and the Father dye the Son may enter because that he had no right in the life of his Father but only a descent to him after the Release by the death of his Father 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Strangers saving to the strangers such right claim and interest as they had at the time ingrossed so as they
pursue their claim by entry or action within five years next after the Proclamations and saving such Action Right Title Claim and Interest as first Shall grow remain descend or come after the Fine and proclamations by force of any Gift in Tail or by any other course and matter had and made before the said Fine levied so as they pursue within five years c. By which it appears that nothing is saved to the strangers but rights actions and interests arising by force of any cause or matter before the Fine and therefore nothing is barred by the Statute but former rights for what ever right is barred as to the Privies is saved to the strangers so as they pursue their claim within c. Sir Richard Shuttleworths Case between Barton and Lever 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations and then as Vouchee did suffer an erronious Recovery and died the Issue brought a writ of Error to reverse the Fine the Defendant pleaded the recovery afterwards and the Plaintiff to maintain the writ did alledge a default in the Recovery whereby he conceived the same to be void but resolved that it was but voidable by a writ of Error and therefore so long as it was in force the Issue was barred to reverse the Fine And therefore it was agreed there that the Issue ought first to reverse the Recovery by writ of Error and then he may reverse the Fine And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine they shall be without remedy although that the Fine be erroneous as I conceive it to be for if they bring a writ of Error to reverse the Fine first the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever 7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry the Attorney said he was outlawed at the Suit of another Hulls said there that he could not be received for when one is to adnull an Outlawry he shall not be disabled by another Outlawry although he be twenty â—imes outlawed for then it will follow that there shall be delay infinite 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law and after does levy another and the Queen being seignioresse of the Mannor did bring a Writ of deceit to reverse one of them she shal not be barred by the other especially by the first to reverse the second And as to the Warranty 2. Matter of the Bar. I conceive that it is no Bar for many reasons 1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made and not Rights and Actions which do accrue after the Warranty created but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery which wâ—s suffered after the creation of the warranty and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error 30 H. 8. Dyer 42. B. All the Iustices did agree that when a man does bind him and his Heirs to warranty they are not bound to warrant new Titles of any Actions accrued since the warranty but only such Actions as are in esse at the time of the warranty made 12 Assise 41. The Tenant in a Praecipe quod reddat made a Feoffment hanging the writ and after the Demandant had recovered by erroneous Iudgment notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment Vide 18 19 Eliz Dyer 353. But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land for although the Recovery be reversed Object yet the Plaintiffs shall be put to their Formedon to recover this Land in which they shall be bâ—rred by this warranty and so it shall be in vaine for them to reverse the recovery for by the warranty they shall be barred to have the Land I answer That notwithstanding the Collaterall warranty Answer yet a Right doth remain in the Plaintiffs which is bound by the warranty which Right is taken away from the Plaintiffs by this Recovery by which the Law would have given to them a Remedy which is by writ of Error to be restored to their Right for a collaterall warranty doth not extinguish the right of him who is bound by the warranty but only does bind the Right for the time that the warranty remains undefeated and this is proved by many Authorities 34 Ed. 3. Droit 29. If the Tenant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant he ought to plead it and not to conclude upon the Right for if he conclude upon the Right it shall be found against him because the warranty doth not give or extinguish the Right but only binds it 43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty by which it appears that the Right is not extinguished for if so it could not be revived by the Defeasance and with this agrees 43 Ed. 3. 20. Earle of Staffords Case 19 H. 6 59. B. Fortescue A collaterall warranty does not give Right for if Land be given to one and the Heirs Males of his body and he hath two Sons and doth alien and the collaterall Ancestor to the Son doth release with warranty to the Alinee and dies and the Donee dies now is the eldest Son barred but if he die without Issue Male leaving Issue a Daughter the younger Son shall not be barred by the warranty 24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by severall venters and dies and the Ancestor collaterall of the elder Son doth release with warranty and dies without Issue and the elder Son dies without Issue the younger Son shall recover by a Formedon because he is not Heir to the warranty And Littleton 160. B. Tenant in Taile hath three Sons and discontinues the second Son Releases to the Discontinuee with warranty the Tenant in Taile and the second Son dies now is the eldest Son barred because the warranty is collaterall to him but if he die without Issue the younger may have a Formedon and shall not be barred by the warranty because that the warranty as to him is lineall and to this purpose is the 8. of Rich. 2. Warranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty for if it could be so it can never be revived again This Warranty is executed and determined for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had was brought and they did vouch to Warranty Thomas Lea and Katherine his wife who made
But it may be objected That there is no place mentioned where the payment or acceptance was Answer I answer that it is not material for it is not issuable but onely evidence to prove the fraud which is the substance of the Plea and that is proved by the said Case of Turner And 42 Ed. 3. 14. Conspiracy shall be brought where it was done and not where the Indictment was And 44 Ed. 3. 31. Attachment upon a Prohibition lies where the summons is although the Plea be held in another County 1 H. 7. 15. B. Payment with Acquittance pleaded in an Action of Debt upon a Bond is not double because that acquittance onely is issuable and the payment is but evidence Then the Recognizance is no cause of the retaining the 100 l. as in Cook R. 5. Harrisons Case Green brought an Action of Debt upon a Bond of 40 l. against H. Administrator of Thomas Sydney the Defendant pleaded that the Intestate was bound in a Statute besides which he had no goods c. The Plaintiff replyed that there was an Indenture of Defeasance for performance of Covenants which hitherto were performed whereupon the Defendant demurred and it was adjudged against him for a Debt upon a Bond shall be payd before a Statute to perform Covenants when none of them then were nor perhaps ever shall be broken but are future and contingent things and therefore such possibilities which peradventure shall never happen shall not bar present and due Debts upon a Bond. And although the Condition of the Recognizance be to pay mony yet is it to be payd to a stranger and therefore it is not any Debt but the Debt is onely by the Recognizance Also it is not to be payd but upon a contingency to wit if the Infant comes to full age but if he dye before it shall never be payd 36 H. 8. Dyer 59. One devised 20 l. to his Daughter to be payd at her marriage or 21 years of age and she dyed before marriage yet it shall be payd 7 Ed. 4. 3. and 18. 36 H. 6. 9. Cook 9 Rep. fol. 108. In an Action of Debt against an Administratrix who pleaded Statutes and further that she had not sufficient c. The Plaintiff replyed that for one of the Statutes a lesser sum was accepted in satisfaction and as to the other that it was for performance of Covenants and that none was broken and the Defendant demurred and adjudged for the Plaintiff and that the general averment of payment and acceptance and that the Statute was for performance of Covenants was good because the Plaintiff was a stranger thereto And this case was argued again by me for the Plaintiff and by Crook for the Defendant Saturday the 24 of May Pasch 15 Jacob. at which day Mountague Doderidge and Haughton did agree that for the first matter Iudgment ought to be given for the Plaintiff but as to the last Mountague held for the Defendant but the other two on the contrary And Doderidge and Haughton agreed that the Plea of the Defendant was naught because he said that a Condition was annexed to the Recognizance and did not say that it was upon condition and Mountague replyed not Vide Com. Browning and Beestons Case 21 Ed. 4. 49. 28 H. 6. 3. Hillar 12 Jacob. Robinson against Greves Rot. 744. IN an Action of Trespass for that the Defendant the 6 of May 12 Jac. the House and several Closes of the Plaintiff did break and enter c. ad damnum c. The Defendant pleaded Not guilty The Iury found that the said Tenements were Copyhold parcel of the Mannor of Ecclesfield grantable time out of minde by the Lord or his Steward by Copy in Fee in Tayl or for life or years according to the Will of the Lord and according to the Custom of the Mannor And that before the Trespass Thomas Shercliff was seised in fee at the will of the Lord according to the custom c. And that the first of January 14 Elizab. by the hands of Nicolas Shercliff and Thomas Jepson two of the Customary Tenants Gilbert Earl of Shrewsbury then and yet being Lord of the said Mannor out of Court and according to the Custom of the said Mannor did surrender to the use of Nicolas Stanniland and his Heirs which Surrender at the next Court 11 Janua 40 Elizab. by the hands of the said N. S. and Tho. J. was delivered into the said Court and there by the homage of the said Court was presented and by William West then Steward was accepted and entered in the Rolls of the said Court and that a Copy of the Surrender under the hand of the said Steward was delivered to the said Nicolas Stanniland which Copy was found verbatim viz. Ad hanc curiam compertum est per homagium quod Tho. S. sursum reddidit ad usum N. St. haeredibus suis but they said that the said N. St. was no otherwise admitted By force of which the said Nicolas entered and the 6 Decemb. 1 Jac. out of Court by the hands of Thomas Jepson and Richard Shercliff did surrender according to the custom of the Mannor to the use of the said N. St. for life the remainder to William Stanniland and his Heirs which Surrender at the Court of the Mannor held the 17 May 14 Jac. was delivered into Court by the hands of the said Thomas Jepson and Robert Shercliff and was presented by the homage at the said Court and was there accepted and entered in the Roll by the Sheriff and that a Copy of the said Surrender under the hand of the Steward was delivered to the said N. St. which Copy was found verbatim in the said words with the former and found that there was no other admittance The sixth of November 2 Jacob. Nicolas St. dyed Thomas Shercliff entered at the Court 6 Maii 12 Jacob. did surrender to the use of the Plaintiff for ten years and payd his Fine and was admitted c. whereby the Plaintiff did enter upon whom the Defendant by the commandment of William Stanniland did enter and made the Trespass c. And so prayed the Opinion of the Court. And I conceive that the Plaintiff ought to have Iudgment And in this case are two matters considerable First if this Presentment of the Lord and the entry into the Roll and the delivery of a Copy entred by the Steward be any admittance or not And I conceive that it is no admittance For an admittance is a ceremony requisite to make a Copyhold Estate and is so necessary that before admittance he to whose use the Surrender is made hath no Estate as in Bracton 2. cap. 8. Si ipse ad alium transferre voluerit prius illud restituet domino vel servienti si dominus praesens non fuerit de manibus illorum fiat translatio ad alium c. And before admittance this is no perfect assurance but onely begins then as in Peryams Case Cook 5
Court of the Kings Bench was on the contrary But afterwards the case was resolved upon another point viz. That the Lease was voyd because that the words a die confectionis c. were razed by the Lessee himself But admitting that in this case the Lease should not begin until the end of the first Lease yet that is no proof that in our case the Lease shall not begin presently for in this case of the 9 of Elizab. the true Grant in the premisses does shew the intent of the parties to make a Lease in Reversion and that shall controul the words in the Habendum a die confectionis also these words are qualified by other words in the Habendum viz. termino praedict finito Thirdly the former Lease is recited as a good Lease without doubt but in our case the first Lease is not received as a Lease in truth but is termed a pretended Lease and yet in this case there were diversities of Opinions if the Lease shall commence presently or not And Mich. 10 Jacob. Thomas Moor brought an Ejectment against John Musgrave upon a Lease made to him by William Moor the fifth of May 10 Jac. of a Messuage c. in C. in the County of Cumberland habendum from the Feast of the Anunciation last past for 21 years whereby he entred and was possest until the Defendant the same day did eject him To which the Defendant pleaded Not guilty And the Iury found that William Moor was seised in Fee and made a Lease to the Plaintiff habendum from the Anunciation of the Virgin Mary last past for the term of 21 years next ensuing the date hereof c. And Iudgment was given for the Plaintiff whereby it appears that the term shall begin from the first limitation And after the Case was argued on the Bench by all the Iudges Judgment and Denham Bromley and Tanfield were of Opinion for the Defendant wherefore Iudgment was given against the Plaintiff Michaelm 14 Jacob. Standish against Short in the Exchequer IN an Ejectment on a Lease made by George Walker Parson of the parish of S. John Evangelist in London 14 Junii 14 Jac. of a Messuage called the Swan in the said Parish habendum from the Anunciation last past for three years whereupon the Plaintiff was possest until he was ejected by the Defendant the 15 Junii in the same year And upon Not guilty pleaded the Iury found That the said Messuage did lie within the City of London and that it was an ancient City and that by the Custom every Citizen being a Freeman of London by his Will in writing may devise all his houses and Lands and any part thereof in the said City as well in Mortmain without license as in any other manner in Fee in Tayl for life or for years c. and that the said Custom and all other Customs of the said City the 7 of Richard the second were confirmed by Act of Parliament And they found that William Daringre Citizen and Freeman of London the tenth of May 34 of Ed. the third was seised in Fee as well of the said Messuages as of other Lands in London in Fee and the tenth of May 1360. and in the 34 of Ed. 3. made his Will in writing and thereby did devise the said Messuages by the name of his Tenements in these words following And first he devised a Quit Rent of 40 s. a year to the Parson of St. John Evangelist and his successors to pray for Souls and he did devise to the said Parson and his successors a Chamber with two Cellars thereupon lying on the North-side of his Tenement to pray for Souls And then followed this clause Item lego ordino quod unus capellanus celebret in Ecclesia Sancti Johannis praedict statim post decessum meum pro anima mea animabus praedictis quod idem capellanus percipiet annuatim de Tenemento meo 8 Marks pro stipendio volo quod idem capellanus ad matutinas missas omnibus aliis horis Canonicis in Ecclesia praedict intersit per dispositionem Rectoris ejusdem qui pro tempore fuerit de residuo si quod clarum fuerit ultra solutionem dict tenementi Volo quod Richardus filius Elizabethae uxoris meae scolatizando adjuvetur quousque ad legitimam aetatem pervenit ad ordines Sacerdotales percipiend cum Sacerdos fuerit volo quod idem Richardus dictum cantarium occupet pro termino vitae suae si voluit si non de residuo praedicti tenementi neque de cantario nihil percipiet sed Rector antedictus qui pro tempore fuerit 4 magistri sufficient Parochiam praesentent invenient unum capellanum ad dictum Cantarium occupandum in perpetuum de tenementis meis in dominica Parochia non legatis salvo quod lego de dictis tenement meis Rectoribus Successor suis illam mansionem quam Johannes Sherman modo tenet reddend inde annuatim tot quiet reddit de omnibus tenementis meis exeunt Item volo quod si dominica Cantuaria pro defectu dicti Rectoris vel Successor suorum retardavit ultra 40 dies inoccupat fuerit quod dict camer solarii mansiones erunt Gardianis de ponte Et id quod clarum fuerit residuum ultra solutionem reparationem praedict volo quod ponatur sub custode Rectoris 4 Parochianorum ad providend ornamentum libros dominicae Ecclesiae And the Devisor dyed the same day seised of the said Tenements And they further found that the Messuages wherein c. is parcel of one of the Tenements in the Will out of which the Testator did ordain that the said Chaplain should have eight Marks for his stipend and that Henry Tyting was Parson of the said Church at the time of the death of the Devisor and that the Church was voyd by his death and that the Lessor was presented admitted instituted and inducted and that he entered into the said Messuages upon the Defendant and did expel him and made the Lease to the Plaintiff who entered and was possest until the Defendant ejected him And whether the Defendant was guilty or not they prayed the Opinion of the Court. And I conceive that the Plaintiff ought to have Iudgment And the Question is Whether the Parson by this Devise shall have the houses the said eight Marks are limited to be payd to the Chaplain or not And I conceive that the Parson shall have it In the Comment 4136. It is taken for a Rule that in expounding of Wills the Law shall interpret the words of the Devisor and shall direct their operation according to the intent of the Devisor so that to the matter form and order limited in last Wills the Law does submit to them and wills that they should be observed And although that in Conveyances or Deeds executed by men in their life-times the Law doth require apt words to make
he levyed the Fine according to the Charter and in the 21 H. 7. 8. a. When the King grants a License it ought to be strictly executed as if the King should License one to make a Feoffment by Deed he cannot make it without Deed and so e converso so that the License is always to be pursued or else there is no Warrant at all Vide Comment 68. Dive and Manningham If the King doth license one to alien the third part of his Land and he aliens all by Montague the alienation is without warrant And 23 H. 8. 6. Patent 76. If the King doth licence one to alien his Mannor of D. and he doth alien it excepting one acre the License shall not serve and if the King doth license one to impark an hundred acres and he does impark them and after adds ten acres this is no Park And 38 H. 6. 10. If the King grants a Leet to one in all his Land he shall not have it but in the Land which he had at the time of the Grant And this matter is enforced by the preamble of the Statute of the 7 Edw. 6. and the fifth which is For the avoyding of many inconveniences much evil rule and resort of disordered persons to many Taverns newly set up in very great number in Back-Lanes and suspicious places within London and otherwhere whereby it is to be presumed that the King did take notice of the House in which the parties did then inhabit to be a fit place and he trusted all of them but would not trust any one of them This License cannot be granted over 12 H. 7. 25. In a Trespass for hunting in his Park and killing of his Deer the Defendant justified by a License given to I. S. his Master under whom he as servant to him and by his commandment made the Trespass and resolved that a License doth not extend but to him to whom it is given and cannot be granted over and with this accords 18 Edw. 4. 14. and Dyer 34 H. 8. The Defendant hath not answered to the greatest part of the time contained in the Information for the Information is from the first of Novemb. 13 Jac. and a hundred other days between the first of Novem. 13 Jac. and the 26 Octob. 14 Jac. and then the Defendant pleads not guilty the first of November and all the other days between the first of November and the 26 Octob. saving fourty of the said days and for the fourty days he justifies by vertue of a License the last of August 14 Jac. so that it may be that the fourty days that the Information mentions were before this time for he hath the benefit of all days between the first of Novemb. and the 26 Octob. and the Not guilty at the first of November and an hundred days between that and the 26 October and the fourty days excepted in the Not guilty may be as well before the last of August as afterwards and it is at the election of the Informer to charge the Defendant with fourty days at what time he will between the first of Novemb. and 26 of Octob. As in a Trespass for breaking a Close the Plaintiff may after upon a new assignment or in evidence upon Not guilty pleaded assign the Trespass in what Land he will within the same Town although he hath many Closes there and therefore in this case the Defendant ought to have pleaded Not guilty for all the days until the last of August and then to have justified by his License As in a Trespass if the Defendant do justifie at another day by License he ought to traverse the time before and after for that the Plaintiff may charge him at what time he will The Plea is that the Defendant did sell his Wines at such reasonable prices as he could afford them which is utterly insufficient for he ought to have shewed what prices so that the Court might judg whether they were reasonable or not as in 22 Ed. 4. 40. the Lord Lisleâ— Case to shew a sufficient discharge of Rent And although it would be tedious to shew the price of every Quart and Pint yet he may alledg how he sells by the Quart of each kinde of Wine especially of so short a time And Michaelm 15 King James Judgment Judgment was given for the Defendant against the Informer because it was not averred that Tiverton was a Corporate or Market Town and the Statute gives several penalties one for keeping of a Tavern in such a Town without License and another penalty for keeping of a Tavern in other places without License Trinit 15 Jacob. Lee and his wife against Wood Knight Defendant IN an Action of Debt upon a Bond of 100 l. made by the Defendant to the Plaintiff Elizabeth when she was sole 7 Decemb. 13 Jacob. upon condition to pay 70 l. to the said Elizabeth the ninth of December 1616. The Defendant after Oyer of the condition said that the 17 Februa 13 Jacob. the said Elizabeth by Indenture reciting that whereas the Defendant with John and William Wood his sons were bound joyntly and severally to the said Elizabeth in a Bond of 1400 l. 6 December 13 Jacob. upon condition to pay 700 l. the eighth of October 1616. and by an Obligation of 120 l. 7 Octob. 13 Jacob. on condition to pay 70 l. the ninth of December 1616. and by five other several Obligations the seventh of December 13 Jacob. every one of them of 100 l. upon several conditions to pay 35 l. the tenth of June 1617. and 35 l. the ninth of December then next and 35 l. the 10 of June 1618. and 35 l. the ninth of December then next and 35 l. the tenth of June 1619. and 35 l. the ninth of December then next and 35 l. the tenth of June 1620. and 35 l. the ninth of December then next and 35 l. the tenth of June 1621. and 35 l. the ninth of December then next The said Elizabeth did agree covenant and grant with the said Defendant that if the Defendant should pay to Elizabeth the Daughter of the said Elizabeth the Plaintiff 500 l. due to her by the Will of Edmund Pigot her Father in full discharge of a Legacy or Portion given to her by the said Will or should procure to Elizabeth the Plaintiff a sufficient discharge for the said 500 l. of the said Elizabeth Daughter of the said Elizabeth and should provide and take course for fit maintenance for the said Elizabeth during her life and at all times upon request should save harmless the said Elizabeth and her Executors and Assigns of and from the payment of the said 500 l. and also shall pay to Susan the Daughter of Elizabeth the first of May 1621. if she shall then be living and not marryed 400 l. if the same shall then be due by the said Will and if the said Susan shall live until the first of May 1623. and then shall he marryed and her
50 l. for every month after such conviction and if default shall be made in any such payment that the Queen may by Proces out of the Exchequer take seise and enjoy all the goods and two parts as well of the Lands Tenements and Hereditaments Leases and Farms of such Offendor as of all other Lands Tenements and Hereditaments liable to such seisures or penalties leaving a third part onely of the said Lands Leases and Farms for the relief of such Offendor his Wife Children and Family And for the more speedy conviction of such Offendors it was enacted That upon the Indictment of such Offendor proclamation shall be made at the Assises or Gaol-delivery where such Indictment shall be made whereby it shall be commanded that the body of such Offendor shall be rendered to the Sheriff of the same County before the next Assises and Gaol-delivery and if such Offender does not appear at the said next Assises and Gaol-delivery that then upon such default recorded the same shall be sufficient conviction of such Offendor as if a Tryal by Verdict had been had and recorded And the Defendants further said that the 19 of March the first of King James the Iustices of Assise and Gaol-delivery at the Assises and the Iustices of Peace at the Quarter Sessions have authority to enquire and determine of all Recusants as well for not receiving the Communion as for not repairing to Church according to the form of the Lawes in such manner and form as the Iustices of Assises and Gaol-delivery may do and also shall have power to make proclamation whereby a Precept shall be had for the rendring the body of the Offender to the Sheriff before the next Assises or Gaol-delivery or the next quarter Sessions c. And they said that before the Information viz. at the Assises and Gaol-delivery held at Westminster 8. August 12 Jac. before Sir Henry Hobard chief Iustice of the Bench and Sir Laurence Tanfeild chief Baron of the Exchequer Iustices of Assise and Gaol-delivery in the County of Southampton the said Katherine by the Oath of Robert Pawlet Esquire c. scil nineteen in all which were sworn and charged to enquire for the King and the body of the County was indicted for that the said Katherine the first of April 11 Jac. was of sixteen years of ago and did not repair to the Parish Church of Porthchalford nor to any other Church Chappell or usuall place of Common Prayer and was there at the Common Prayer and Divine Service at any time within one month next ensuing the said first of April 11 Jac. but did abstain from the same from the said first of April for amonth contrary to the form of divers Statutes c. upon which Indictment at the said Assises and Gaol-delivery publick Proclamation was made that the said Katherine should render her body at the next Assises and Gaol-delivery to render to the King according to the Statute c. at which next Assises and Gaol-delivery the sixth of March 12 Jac. before the said Iustices the said Katherine did not render her body according to the said Proclamation nor appear upon Record whereupon the said Katherine of the Premisses whereof she was indicted was lawfully convicted and yet stands convicted according to the Statute And the Defendants further said that they the aforesaid Term of Easter next after the conviction aforesaid the said Katherine did not pay nor any of them did pay into the Exchequer according to the rate of twenty pounds for every week contained in the said Indictment nor did after the conviction in the said Exchequer so much as then did remain not payd according to the rate of twenty pounds for every month after such conviction but thereof made default which conviction afterwards viz. in the Term of S. Michael then next after the conviction as aforesaid by the said Sir Henry Hubbert and Laurence Tanfeild Iustices c. was extreated and certified into the Exchequer and so there did remain according to the form of the Statute c. and the said conviction yet does remain in full force and this they are ready to aver with that also that the said Katherine named in the Information and the said Katherine named in the Indictment are one and the same person Vpon which Plea Mr. Attorney demurred in Law and the Defendants did joyn And I conceive that Iudgment ought to be given for the King and the Informer against the Defendants In which first it is to be considered that neither the Statute of 28 Eliz. nor the Statute 35 Eliz. which give severall remedies to the King for the monthly forfeiture of twenty pounds given by the 23 Eliz. doe not restrain the Informer but that notwithstanding those Statutes any one may inform against any Recusant for not repairing to Church against the Statute of 23 Eliz. unlesse the King hath first taken his remedie against him for the same offence for that was adjudged by all the Court in Dr. Fosters Case 11 Rep. And as I beleive this will be granted and by the Defendants Councell so I will agree with them that if the Recusant be once convicted and punisht at the suit of the King he shall not be punisht for the same offence again at the suit of the Informer or otherwise for it is unjust to punish an Offender twice for one Crime And therefore the chief matter to be considered in this Case is the nature and force of this conviction against the wife and whether it be such a conviction as will bar the Informer of his Information or not And as to that first the woman is indicted here of Recusancy and proclaimed according to the Statute of 28 Eliz. and she did not render her body whereby she is convicted by this Statute but this conviction is not any Iudgment for the true words of the Statute are That if the party indicted shall not appear but make default after such Proclamation that then upon such default recorded this shall be a sufficient conviction in Law of such Offender as if a Tryall by Verdict had been had and recorded so that such default of appearance is made equivalent to a Verdict by that Statute but not to a Iudgment so that now it is to be understood that the woman in this Case is convicted by Verdict of Recusancy but no Iudgment is given And I conceive that such conviction is no Bar to the Informer For that this is a fruitlesse conviction and such a one as the King can take no advantage of and every conviction that shall make a discharge to the person convicted ought to be a legall and absolute conviction and such a one as thereby the party convicted may suffer the penalty imposed by the Law for such offence And that the King can have no benefit of this conviction is apparent for the remedy given to him by the 28 Eliz. for the penalty is to seise all the Goods and two parts of the Lands and
acts of his Servant but those which he does by his commandment as 9 H. 6. 53. by Rolphe If I have a Servant who is my Merchant and he goes to the Fair with an unsound Horse or other Merchandize and sells them the Vendee can have no Action against me Martin You say true for you do not command him to sell the Horse to him nor to no other person in certain Vide Doctor and Student 138. It does not appear that the Plaintiff was lawfully indemnified for it is onely alledged and found that he was imprisoned by the King until c. but it is not alledged or found that this was done by a legal course or according to the Law of that Country but onely by the absolute power of that King and therefore the Plaintiff can have no remedy although there had been a Warranty as Cook 5 Rep. Noke and Anders Case If Lessee for years be outed by a stranger without title he shall not have an Action of Covenant And this Case was argued by Crook for the Plaintiff and by me for the Defendant 29 Janua 15 Jacob. at which time the Court seemed to incline against the Plaintiff And Trinit 16 Jacob. The case was argued by Davenport for the Plaintiff and by Coventry the Kings Solicitor for the Defendant at which time Montague Doderidge and Haughton agreed that the Action would not lie and Crook was absent Judgment And afterwards Michaelm 16 Jac. Iudgment was given by all the Court Quod querens nihil capiat per Billam Trinit 15 Jacob. Lingen against Payn. IN an Action of Debt upon a Bond of 400 l. made the third of October 12 Jacob. and the Defendant demanded Oyer of the Obligation and of the Condition which was That whereas the Plaintiff had devised to Robert Hawkins the Farm of Williamsthorp in the County of Glocester until the Feast of St. Michael the Archangel next if the said Robert upon the said Feast day or any time after upon request made by the Plaintiff his Heirs or Assigns should deliver the possession of the said Farm to the said Plaintiff his Heirs or Assigns and permit the said Plaintiff his Heirs or Assigns to have and enjoy the same after such request and also if the said Robert in the mean time shall not give nor sell any Wood nor commit any waste in the said Farm that then the Obligation should be voyd The Defendant said that the Plaintiff or his Assigns Bar. upon the said Feast or at any time after and before the Bill did not require the said Robert to deliver to the Plaintiff the possession of the said Farm and that the said Robert from the time of the making of the said Bond unto the said Feast did not give or sell any Wood nor make any waste upon the premisses That the 13 of June Replication 12 Jacob. the said Robert being possest of the said Farm and the Plaintiff being seised in Fee of the Reversion of the said Farm the Plaintiff together with John Welford by Indenture made at W. between the Plaintiff and the said John Welford of the one part and Richard Powle and Henry Powle of the other part and inrolled in this Court within six weeks for 1700 l. payd to the Plaintiff did bargain and sell to the said Richard and Henry Powle the Reversion of the said Farm habendum to them and their Heirs And the 30 of Septemb. 13 Jacob. being the next day after the said Feast the said Richard and Henry Powle as the Assigns of the said Plaintiff at the said Farm in W. aforesaid did request the said Robert to deliver the possession of the said Farm to the said Richard and Henry which he did refuse That the said Richard and Henry Powle did not require the said Robert to deliver to them the possession of the said Farm the said 30 of September the 13 Jac. upon which they were at issue Rejoynder The Iury found the possession of the said Robert Hawkins and the seisin of the Plaintiff and the bargain and sale and that Henry Powle 31 Septemb. 13 Jac. did alone come to the capital Messuage of the said Farm without any notice given before of his coming to the said House and there then as Assignee of the Plaintiff did require the said Robert Hawkins to deliver the possession of the said Farm according to the effect of the condition aforesaid and that the possession of the said Farm was not delivered according to the tenor of the said writing but the possession of the said Farm was kept from the said Richard and Henry Powle And if it seems to the Court upon this matter that the said Richard and Henry did require the said Robert to deliver to them the possession of the said Farm then they found it so and did assess costs and damages and if not they found for the Defendant And I conceive that Iudgment ought to be given for the Plaintiff For in Tookers Case 2 Report by Popham Every act made by one Ioynt-tenant for the benefit of him and his companion shall binde the other as payment by one discharges the other and one may prejudice the other in the profits as where a Ward does happen to two Ioyn-tenants and one distrains for the services which is a waver of the Wardship by 1 Ed. 3. this shall binde the other And if two Ioynt-tenants be disseised and one enters this is in Law the entry of both and so it shall be pleaded for when an act is made by one the Law shall adjudg this to be made by him in whose right it is made as in 32 Ed. 3. Bar 264. If one be bound to infeoff another such a day if he be ready by his Attorny to do it it is sufficient for the Law takes the act of the Attorny to be the act of the party and so in the 19 H. 6. 78. to continue an Action and so in 10 Edw. 2. Dower 130. and 9 Ed. 3. 38. If there be two Ioynt-tenants in Fee and one seised in right of his Wife of Land to which the Wife hath title of Dower the one Ioynt-tenant or the Husband may assign the Dower and the reason is given because that when the Husband or one Ioynt-tenant does any thing out of Court that they are compellable to make it shall be intended to be the Deed of the one and the other And so if a Lord by Fealty onely does distrain for Rent and the Tenant brings a Trespass and the Lord justifies because he holds of him by Fealty and Rent and so justifies the Writ and the Tenant says that he does not hold of him moda forma c. and it is found that he holds by fealty onely yet shall the Plaintiff be barred for the matter of the issue is whether the Tenant held of him or not for then the Action lies And so here the matter of the issue is whether a legal request of the
inter vicinos suos apud Edmunton praedict which is not sufficient for that it ought to be alledged in fact that he made or caused lites discordia and not that he was like to make them And if an Indictment be insufficient although that the party does plead Not guilty and be acquitted yet he shall not have a Conspiracy or an Action on the Case for by such Indictment he cannot be in any danger and 9 Ed. 4. 12. If one be indicted on an insufficient Indictment and he does not take advantage thereof but pleads not guilty and is acquitted and brings a Writ of Conspiracy the Defendants may show how that the Indictment was insufficient so that the Plaintiff was not duly arraigned and they shall have advantage thereof Vide Cook 4 Rep. Vaux Case And 34 H. 6. 9. If the party indicted be misnamed and be acquitted he shall not have a Conspiracy because the Indictment was voyd as to him And Dyer 286. If the offence in the Indictment be pardoned by a general pardon and yet the party pleads Not guilty and is acquitted he shall not have a Conspiracy because he was in no jeopardy And this Case being moved by Chilborn Serjeant and George Crook for the Plaintiff the fourth of February 15 Jacob. I shewed to the Court that the Plea was good for the reasons and authorities afore cited and also that the Indictment was insufficient for the Reasons afore shewed Judgment And therefore Iudgment was given Quod querens nihil caperet per Billam Michaelmas 15 Jacob. Thomas Muschamp Knight and Margaret his wife and Thomas Lock Esq and Jane his wife against Colan Bluet Michael Sampson Edward Jenny and Elizabeth his wife In the Exchequer IN an Action of Trespass for that the Defendants the first of January 14 Jacob. by force and arms the Close of the Plaintiff at Tottenham did break and enter possessionem tenementorum praedict a praedicto primo Januarii usque diem billae scil 20 Maii 15 Jacob. habuerunt tenuerunt custodierunt ad damnum 40 l. Quo minus c. The Defendants pleaded Not guilty The Iury found that before the Trespass Sir William Lock Knight was seised in Fee of the said Tenements and held them in Socage and that he and Matthew Lock his son were Ioynt-tenants in Fee of other Copyhold Lands in Tottenham and that he had issue Thomas Matthew John Henry and Michael That the 15 Martii 1549. Sir William made his Will in writing and thereby did devise these Tenements to Henry and Michael in these words I give to Thomas Matthew Iohn Henry and Michael my five Sons my dwelling House in Bow-lane and my House at the Lock in Cheap and my House at the Bell in Cheap to the intent that they or some of them may dwell in them and keep the Retaining Shop still in my name to continue there Item I give to Iohn Lock my House that Paris dwelleth in I give to Henry Lock my House that Iohn Edwards dwelleth in I give to Michael Lock the three Houses wherein W. B. and P. dwell I give to Henry Lock the House that Kew dwelleth in I give to Matthew Lock the two Houses wherein S. and T. dwell I give to Henry and Michael Lock all my Houses in the Poultry Bucklersbury and St. Iohns and a House that Goodman dwelleth in I give to Matthew Lock all my Houses at Dowgate and in the Vintry I give to Thomas Lock all my Houses in Cheap lying in St. Peters Parish I give to Thomas Lock my Land at Martin and Wimbleton that I may give him except one Farm called Martin Holts which I give to Henry and Michael Lock I give to all my five Sons the half of the Leg Entry which I purchased of late And as touching my Lands at Tottenham my Son Matthew is joyned Purchaser with me of the most and the rest of all my Houses and Land there which is Freehold I give to Henry and Michael Lock upon this condition that if they shall sell it to any man but to Matthew Lock my Son then he to enter upon it as of my Gift by this my Will Item All the Houses and Lands that I have given joyntly betwixt my Sons is That they shall bear part and part-like going out of all my Houses and Lands upon my Blessing as well Freehold as Copyhold to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands and Houses as well Copyhold as Freehold for which Sum I am bound as appeareth by certain Indentures c. and which of my Sons refuseth to bear his part of the aforesaid Sum of 40 l. I will that he or they shall enjoy no part of my Bequest by me to them given in this my Will but my Gift given to him oâ— them to go to the rest of my well-willing Sons which be content to fulfil this my Will and Bond that I am bound in to be performed Sir William Lock dyed seised and Elizabeth his Wife did survive him Henry and Michael did enter into the said Tenements and payd their parts of the said 40 l. to the said Elizabeth Henry dyes and Michael payd his part of the said 40 l. Thomas Lock was Son and Heir of the said Sir William and had issue Matthew Lock his Son and Heir and dyes Matthew the Son of Thomas deviseth the said Tenements to the Plaintiffs habendum from the death of the said Michael for seven years The 28 of July 15 Jacob. Michael Lock dyed seised of the said Tenements And the said Colan Bluet Michael Sampson and Elizabeth Jenny the Defendants are the next Heirs of the said Michael and that the said Bluet Sampson and Jenny in the right of the said Elizabeth his Wife after the death of the said Michael Lock did enter upon whom the Plaintiffs did enter upon whom the Defendants re-entred and made the Trespass But whether the Entry of the Plaintiffs was legal or not the Iury did doubt and if legal they found for the Plaintiff if not for the Defendants And I conceive that Iudgment ought to be given for the Plaintiffs for I conceive that Henry and Michael Loâ—k had but an Estate for their lives by this Devise which by their deaths is ended so that nothing can descend to the Heirs of Michael being the survivor and by consequence the Lease made to the Plaintiffs by Matthew Lock the Heir of the Devisor is good and the Entry of the Plaintiffs is lawful The Case And the Case upon the whole matter I conceive to be this Sir William Lock being seised of certain Land in Fee and being Ioynt-tenant with Matthew Lock one of his Sons of Copyhold Land within the same Town had issue Henry Michael Thomas and two other Sons and by his Will did devise to his Sons divers Lands severally And after says Touching my Lands at T. my Son Matthew is joyned Purchaser with me already
bargain and sell 10 l. Land parcel of the Mannor no use is changed for the incertainty Trinit 18 Jacob. Ponesley against Blackman IN an Ejectment upon a Lease made by Richard Perriam the 19 of May 18 Jacobi of a Messuage and Land in Thacham and Colthrop in the Parish of Thacham Habendum from the Annunciation last past for three years whereupon the Plaintiff entered and was possest until the Defendant the 20 of May in the same year did Eject him ad dampnum c. The Defendant pleaded Not guilty The Iury gave an Especial Verdict viz. That before the Ejectment John Curre was seised in fee of the said Lands and the seventh of January 10 Jac. for 300 l. did bargain and sell the same to William Perriam and his Heirs upon Condition that if the said John Curre his Heirs Executors or Assignes should pay to the said William his Heirs or Assignes at the house of C. B. in Westminster 300 l. in manner following viz. 10 l. the 9 of July then next coming 10 l. the 9 of January next after which shall be in the year 1613. 10 l. the 9 of July 1614 10 l. the 9 of January next after 10 l. the 9 of July 1615. 10 l. the ninth of January next after 10 l. the ninth of July 1616. 10 l. the 9 of January next after 10 l. the 9 of July 1617. and 210 l. the 9 of January next after that then the Indenture should be voyd Proviso semper And it was agreed by the said Indenture and the said parties that the said William Perriam his Heirs and Assigns shall not take and intermeddle with the actual possession of the said Tenements or with the receit of the Rents issues or profits thereof until default were made of the payment of the said 300 l. or any part thereof contrary to the limitation in the said Indenture And they found likewise that the said William Perriam did not enter into the said Tenements And that afterwards and before the first day of the payment the said Curre did demise the said Tenements to William Dibley and Richard Carter by two several Demises habendum for six years and an half rendering Rent That the said Dibley and Carter by vertue of the said several Demises did enter and take the profits during the said term claiming nothing but by the said several Demises and that they payd the Rents during all that time to Curre and that at the end of the said term they surrendered the Estate to Curre That 11 Octob. 16 Jacobi William Perriam made his Will in writing and thereby did Demise the said Tenements c. to Richard Perriam and dyed That the said Richard Perriam the 19 Maii 18 Jac. did enter and made the Lease to the Plaintiff who entered and was possest until the Defendant did Eject him That the said Richard Perriam was yet living But whether the Defendant were guilty or not they prayed the advice of the Court and if it seemed to the Court that he was guilty then c. It was argued on behalf of the Plaintiff That this agreement by Indenture that the Bargainee shall not meddle with the possession is a Lease for years to the Bargainor Admitting it to be no Lease for years yet is the Bargainor Tenant at will and when he makes a Lease for years and the Tenant enters he is a Disseisor and then when the Bargainor enters he is Tenant at will again and so the Bargainee may very well Demise the Land And as to the first point to make a Lease the Law does require but the agreement of the parties that the Lessee shall enjoy the Land and take the profits and it is not necessary to have any precise words of a Demise or Grant as in 5 H. 7.1 by Frieux If I make one Bayliff of my Mannor for certain years and that he shall have the profits without interruption this is a Lease for years But it was objected that there is no express words that the Bargainor Object 1 shall have the Land or the profit but onely that the Bargainee shall not have it But it was answered that the words did amount to so much Respons for when the Land is sold to the Bargainee by the Law he ought to have the possession and profits but when by the same Deed it is agreed that he shall not intermeddle with the Land it follows that the Bargainor shall have it for he had it before and there was nothing to exclude him but onely this Deed and although by the Deed the Land is conveyed to the Bargainee yet when by the same Deed it is agreed that he shall not have the possession it follows that the possession shall remain in the Bargainor in whom it was before the making of the said Deed for no alteration is made thereof as to the possession As in the 8 Assis 34. one made a Feoffment on condition that if such an act were not done that the Land should return c. and the Feoffor re-entered for the condition broken and there it was objected that his entry was not congeable because he must recover the Land by Action but it was adjudged that his entry was good and the same Law if the words were that for not performing the Feoffor should retake the Land But it was objected That it could be no Lease for the intertainty Object 2 of the time It was answered that notwithstanding it was a good Lease Respons for first it is certain to continue until the time limited for the first payment and if that be done then it is a good Lease until the second payment and is like to the Case where one lets Land for a year and so from year to year as long as both parties shall please this is a good Lease for one year and for every year after when he hath entered before any disagreement And as to the second Point it is clear that the Bargainor is in at the will of the Bargainee because he enters by his agreement and then when the Tenant at will makes a Lease for years and the Lessee enters he is the onely Disseisor but if the Tenant at will infeoffs a stranger then both are Disseisors by the Statute of Westm 2. Cap. 25. And in the 12 Ed. 4. 12 B. If Tenant at will makes a Lease for years this is a Disseisin And the reason hereof is apparent for the Tenant at will hath no Estate in the Land and therefore he hath nothing to transfer to another And in the 23 H. 8. B. If I let anothers Land for years and the Lessee enters he is a Disseisor And 21 H. 7. 26. a. If Tenant at will makes a Lease for years and the Lessee enters this is a Disseisin to the first Lessor And if the Tenant at will be outed by the Disseisor and re-enters he hath reduced the Estate to the Lessor as in the Lord Abergevenies Case reported briefly by the Lord Dyer