ratione calumniae praedict ac praedict jurament tenebat proficua inde provenientia diutius quam aliter si praesens Triatio habita fuisset sine aliqua calumnia tenere potuisset See the Statute of 5 Eliz. against Perjury the words are grieved letted or molested c. LIV. George ap Rice 's Case Mich. 30 Eliz. In the King's-Bench George ap Rice Tenant in Tail after possibility of Issue extinct assigned his Estate to one A. against whom he in the Reversion brought a Quid juris clamat and it was adjudged that he should Attorn for although Tenant in Tail after possibility of Issue extinct himself is not compellable to attorn yet his Assignee shall attorn for the privilege is knit to the person who is in truth Tenant in Tail after possibility of Issue which cannot be the Assignee for by the Assignment the privity and the privilege are destroyed 1 Len. 290.291 And where the Defendant in a Quid juris clamat is adjudged to attorn Distress infinite shall issue forth against him to compell him to attorn and if he when he appears doth refuse to attorn he shall be imprisoned until he doth attorn And this Iudgment That the Assignee of Tenant in Tail after possibility should attorn being given in a Court in Wales was afterwards affirmed in a Writ of Error brought upon it in the King 's Bench. LV. Lucas and Picrost 's Case 30 Eliz. In the Common Pleas. THE Case was 3 Len. 137. That an Assise of Novel disseisin was brought in the County of Northumberland of two Acres of Land and as to one Acre the Defendant pleaded a Plea tryable in a Foreign County upon which the Issue was adjourned into the Common Pleas and from thence into the Foreign County where by Nisi prius it was found for the Plaintiff And now Snag Serjeant prayed Iudgment for the Plaintiff and cited the Book of 16 H. 7. 12. where Assise is adjourned in Bank for difficulty of the Verdict they there may give Iudgment But the whole Court is of contrary Opinion for here is another Acre the Title of which is to be tryed before the Iustices of the Assise before the Tryal of which no Iudgment shall be given for the Acre for which the Title is found And the Assise is properly depending before the Iustices of the Assise before whom the Plaintiff may discontinue his Assise And it is not like unto the Case of 6 Ass 4. 8 Ass 15. where in an Assise a Release dated in a Foreign County is pleaded which was denyed for which cause the Assise was adjourned in Bank and there found by Inquest not the Deed of the Plaintiff now the Plaintiff if he will release his damages shall have Iudgment of the Freehold presently But in our Case Postea 199. 14 H. 7. part 118. parcel of the Lands put in view doth remain not tryed which the Plaintiff cannot release as he may the damages And therefore the Court awarded That the Verdict should be sent back to the Iustices of the Assise LVI Povye 's Case Mich. 30 Eliz. In communi Banco POvy an Attorny of the King's Bench brought an Action of Trespass there against the Warden of the Fleet who came into the Common Pleas and demanded the Advice of the Court because he is an Officer of this Court and therefore ought not to be impleaded elsewhere But it was said by the Court 3 Cro. 180. That because that the Plaintiff hath also his Privilege in the King's Bench as well as the Defendant hath here this equality of Privilege shall render the parties at liberty and he shall have the benefit of the Privilege who first begins Suit and so the Warden of the Fleet was advised to answer LVII Inchley and Robinson 's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae it was found by special Verdict Owen Rep. 88. 3 Len. 165 That King E. 6. was seised of the Manor and hundred of Fremmington and by his Letters Patents granted the same to Barnard in Fee rendering 130 l. per annum and also to hold by Homage and Fealty and afterwards Queen Mary reciting the said Grant by E. 6. and the Reservation upon it granted to Gartrude Marchioness of Exeter the Manor of Fremmington and the said Rents and Services and also the Manor of Camfield and other Lands and tenements to be holden by the twentieth part of a Knight's Fee Gertrude so seised devised to the Lord Montjoy the Manor of Fremmington the Manor of Camfield c. and also bequeathed divers sums of money to be levied of the premisses and they farther found That the said Rent of 230 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by those words of the Devise Of the Manor of Fremmington the Rent and Services of the Manor did pass i. the Rent and the Homage and the Fealty reserved the Grant of King E. 6. of the Manor and Hundred of Fremmington and if the said Rent and Services are issuing out of the Manor for if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full and third part of the value the King and the Heir is fully answered and satisfied and then the Inheritance of the residue discharged and settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entitled by the Statute to a third part of the whole Shuttleworth Serjeant If the Marquess had devised by express words the said Rent and Services they could not have passed for as to the Services they are entire things as Homage and Fealty and they cannot pass by Devise in case where Partition is to follow for such things cannot receive any Partition or Division therefore they are not divisible for the Statute doth enable the Proprietor or Owner to devise two parts of his Inheritances in three parts to be divided i. as Catalla Felonum cannot be devised for the reason aforesaid which was granted by the whole Court. And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineax 15 H. 7. 12. where every Will ought to be construed and taken according as the words do import or as it may be intended or implyed by the words what the meaning of the Testator was out of the words of the Will. See thereof a good Case 19 H. 8. 8. and 9. and he relied much upon the Case of Bret and Rigden Plow 342. So he said in this case because the intent of the Devisor doth not appear upon the words of the Will that this Rent should pass it shall not pass for there is not any mention made of any Rent in all the Will. Fenner contrary and he argued much upon the favorable construction which the Law gives to Wills 14 H. 3. Reversion for Remainder
Writ of Account against Robston Hil. 29 Eliz. Rot. 1. and now Robston brought a Writ of Error and assigned for Error That whereas the said Writ of Account was brought against the said Defendant as Receiver of Monies for to render Account quando ad hoc requisitus fuerit the said Writ ought to have been more special But the opinion of the Court was That the Writ in his generalty was holden good And so it was adjudged in the Case of one Gomersal scil quod reddat ei rationabilem computum suum de tempore quo fuit Receptor Denariorum ipsius A. Another Error was assigned That the Iury had assessed damages which ought not to be given in an Action upon Account which see 2 R. 2. Acco 45. and 2 H. 7. 13. But see the Book of Entries fo 22. In a Writ of Account against one as Receivor to Account render damages were given For if my Bailiff 1 Leon. 302. by imploying of my Moneys whereof he was the Receivor might have procured to me profit and gain but he neglects it he shall be chargeable to me in right and shall answer for it And here in our case damages shall be given and afterwards notwithstanding all objections made to the contrary the Iudgment given before was affirmed CLXI Yates 's Case Hill. 30 Eliz. In the King ' s-Bench 3 Len. 231. A Writ of Error was brought by Yates and others upon a Iudgment given in a Writ of Partition and it was assigned for Error that the Writ of Partition was not sufficient for it is there set forth That the Plaintiffs insimul pro indiviso tenent cum defendente c. and do not shew of what Estate or whose inheritance See F. N. B. 61. 5. and 62. a. insimul pro indiviso tenent de haereditate quae fuit A. matris of the Plaintiff and the Defendant 1 Cro. 759 760. And yet see F. N. B. 62. A. A Writ of Partition betwixt strange persons without naming haereditate in the Writ And see also that a Partition of Lands in London without shewing of what Estate Courtney and Polewheel's Case Finch and Firrel's Case L. Cheney and Bell's Case See Register 76. 6 Eliz. in a Partition by Courtney against Polewheel no Estate shewed in the Writ so betwixt Finch and Firrel and betwixt Fry and Drake 14 Eliz. Devon. 26 Eliz. betwixt the Lord Cheney and Bell and Mich. 4 and 5 Ph. and Ma. Rot. 208. It was holden That it is not necessary in such a Writ to shew the Estate and such also was the opinion of the Court in the principal Case but Tenants in common ought to shew it in the Count And the Iudgment given was affirmed CLXII Phillips and Stone 's Case Mich. 29 and 30 Eliz. In the King's-Bench IN Debt upon an Obligation the Defendant pleaded the Statute of 32 H. 6. upon which this special matter was found That one J. S. had heretofore recovered against him 100 l. in an Action of Debt and upon the Capias ad satisfaciend he was taken and committed to the Plaintiff who was Gaoler c. to the Sheriff and so being in Execution he escaped and afterwards he was re-taken by the Plaintiff and kept in prison and so being in prison made the Bond upon which the Action is brought It was said by the Court That if a Prisoner being in Execution escapes with the permission of the Gaoler the Execution is utterly gone and extinguished and the Plaintiff at whose Suit he was taken in Execution shall never resort to him who escapes but shall hold himself to the Goaler for his remedy but if such a Prisoner escapeth of his own wrong without the privity or consent of the Gaoler the Gaoler may well take him again for his indemnity untill the Plaintiff hath determined his Election whether he will have his remedy against the Gaoler or that he will maintain his Execution 13 H. 7. 1 and 2. But as unto the Statute of 23 H. 6. the Court was of Opinion That posito that the party who escapes cannot be taken again yet being taken the Bond which is taken colore Officii is within the said Statute because the party was retaken colore Executionis and so the Bond was void CLXIII Gering 's Case Mich. 29 30 Eliz. In the King 's Bench. IN Debt upon an Obligation against one as Executor 1 Len. 87. the Case was That the Testator of A. by his Will appointed certain lands and named which should be sold by his Executor and the monies thereof coming to be distributed betwixt his daughters when they have accomplished the age of one and twenty years The lands are sold and if the monies thereof being in the hand of the Executor untill the full age of the daughters shall be Assets to pay the debts of the Testator was the question and it was the opinion of the whole Court that the said monies should not be Assets for they said that that money is limited to a special use Quaere of this Case For I have heard that it was afterwards resolved in another Case that the monies in the like Case remaining in their hands should be Assets CLXIV Davies and Percie 's Case Mich. 29 30 Eliz. In the Common Pleas. BEtween Margaret Davies and one Perce the Case was 2 Roll 284. Goldb 58. That one Anth. Perce upon speech of a marriage to be had betwixt the said Anthony and the mother of Margaret covenanted by Indenture with certain friends of the mother to pay to all the daughters of the mother 20 l. a piece at their several ages of four and twenty years and to perform the Covenant was bound to the said friends in an Obligation Anthony Perce made his Will and willed that his Executors should pay to each of the daughters 20 l. at their several ages of four and twenty years in discharge of the said Covenant and died Now the said Margaret sued the Executors in the Spiritual Court for the 20 l. bequeathed to her and upon this matter the Executors prayed a Prohibition And by the Lord Anderson a Prohibition will lie for here is no Legacy but the Will refers to the Covenant and is in discharge of the Covenant As if A. be indebted to B. in 20 l. And if A. by his Will willeth that his Executors shall pay to the said B. 20 l. in discharge of the said debt the same is not any Legacy but a Declaration that the intent of A. is that the debt shall be paid Periam Iustice was of the same opinion as the Lord Anderson and Anderson said If a Legacy be bequeathed to me and the Executor covenants to pay me the said Legacy and afterwards J. sueth the Executor in the Spiritual Court he shall have a Prohibition Quod caeteri Justiciarii negaverunt See F. N. B. 44 Br. If the Testator by his Will charge his Executors to pay his debts and his creditors they do
adjudged by the whole Court that the Covenant did not lie by one of them onely but ought to be brought by them both LXI Carter 's Case Mich. 33 Eliz. In the Common Pleas. A Being seised of the Manor of Staple in Odiham 1 Cro. 208. Owen Rep. 84. 8 Co. 119. and of divers other Lands in Odiham suffered a common Recovery of the whole and by Indenture expressed the uses in this manner viz. of all his Lands and Tenements in Odiham to the use of his wife for life the remainder over c. And of the Manor of Staple to the use of his youngest son in tail but by the clear opinion of the whole Court although the Manor of Staple was in Odiham yet the wife shall have nothing therein for the intent of the party was that the son should have the same and his wife the residue and accordingly Iudgment was given LXII Cobb and Prior 's Case Mich. 33 Eliz. In the Common Pleas. THE Case betwixt Cobb and Prior was this A man seised of Lands in Fee devised the same to his Wife during the minority of his Son upon condition that she should not do Waste during the minority of the said Son and died The Wife married a Husband and died the Husband committed Waste It was holden by all the Iustices That the same was not any breach of the Condition and Iudgment was entred accordingly LXIII Taylor and Brounsal 's Case Trin. 33 Eliz. in the Common Pleas. IN an Information upon the Statute of 32 H. 8. by Taylor against Brounsal the Case was That John Brounsal was seised and gave the Lands to T. B. and the Heirs of his body c. the Remainder to R. B. and the Heirs male of his body the Remainder to the right Heirs of J. B. T. B. died having issue a Daughter and R. B. made a Lease for years of the Lands And it was holden by the Court to be no maintenance within the said Statute for he in the Remainder might make a Lease for years Then it was given in Evidence That a common Recovery was had against the Husband and Wife with a single Voucher and so the Remainder limited to R. B. destroyed and that after that Recovery R. B. made the Lease To which it was said by the other side That the said Recovery was never executed and no discontinuance of the Remainder and then the Lease made by R. B. was good and the truth of the Case was That such a Recovery was had and an Habere facias seisinam awarded and retorned but no Execution was in truth had upon it nor the Recoveror never entred And if R. B. who is a stranger to the said Recovery shall be admitted against the Recovery to say That no Execution was thereof was the Question and therefore all the matter was found by special Verdict It was also given in Evidence That the Land was given to T. B. and the Heirs males of his body and then when the Daughter which is not in truth inheritable entereth if that Entry she being privy in bloud to R. hee Vncle shall be a Disseisin or Abatement c. as in the Case of Littleton where the youngest Brother entreth after the death of the Father for in such case the youngest Son doth not get any Freehold but is but a Tenant at sufferance Anderson When the Daughter enters and takes a Husband who leaseth for years and the Lessee entreth the same is a Disseisin Periam doubted it for he said When the younger Son entred the Freehold was in him which Anderson doubted LXIV Maunsel and Vernon 's Case Trin. 33 Eliz. In the Common Pleas. IQ Debt by Maunsel against Hen. Vernon Esquire who came in by Capias i. compulsary Process and pleaded That he was Hen. Vernon Lord Powis and so a Baron of the Parliament and demanded Iudgment of the Writ Note some said That if the Defendant had come in by Issue joyned or gratis and not by compulsary Process he could not have pleaded this Plea or any other Misnosmer The Plaintiff replyed That the Defendant is an Esquire absque hoc that he is Lord Powis and a Baron of the Parliament and as the Iury was ready at the Bar to try this Issue this matter was objected And Anderson conceived That this Plea to the Writ was not good for the name of Lord is not any degree as Knight Duke Earl nor is it parcel of the name nor parcel of addition and therefore it is no Plea in abatement of a Writ and all the Writs of Parliament directed to Barons to summon them to Parliament shall have their Names Sirnames and Additions as if they be Knights Knights and if Esquires they shall be named Esquires and if a Bond be made by J.S. Lord R. the Writ shall not be so for the King by his Writ doth not name any one Lord but otherwise it is of Duke Earl c. for these are Offices of Dignity and parcel of their Names and not onely Additions Windham and Periam contrary and they conceived that there was no difference in this point betwixt a Lord and an Earl for which cause the Court being in doubt although that the Exception was entered of Record would have saved the same to the party and taken the Iury de bene esse but afterwards because it appeared it was joyned in the prejudice of Sir Edward Herbert who was a stranger thereunto and whose Title was concerned therein and there was none on his part to inform the Iury the Iury was at last dismissed by the Court. LXV Penruddock and Newman 's Case Trin. 28 Eliz. In the King's-Bench IN an Ejectione Firmae by Penruddock against Newman 1 Leon. 279 the Plaintiff declared of a Lease made by the Lord Morley and upon Not-guilty pleaded the Iury found this special matter scil That W. Lord Mounteagle seised of the manner of D. whereof c. became bound in a Statute in such a sum of Money to A. who died the Executors of A. sued Execution against the said Lord scil Extendi facias a Liberate issued upon which the said Manor was delivered to the Executors but the said Liberate was not retorned and it was farther found That the Executors being so possessed of the Manor the Lord commanded a Court Baron to be holden there which was done by sufferance and permission of the Executors and in their presence at which time the Executors said to the Lord the Conusor We have nothing to do with this Manor And upon this Verdict several matters were moved 1. If the Execution were well done because the Writ of Liberate was not retorned and as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And there is a difference betwixt a Liberate and a Capias ad satisfaciend and Fieri facias these Writs are Conditional Ita quod habeas corpus c. Ita quod habeas denarios hic in Curia 32 H. 8. ca. 28. 16 H. 7.
in execution it was adjudged in this Case that the Conusee should have the Corn sowed The same Law in case of a Recognizance LXXVI Smalman and Lane 's Case Trin. 29 Eliz. In the Common-Pleas THE Case was a Capias upon an original Process was delivered to the new Sheriff of Warwick against Lane at the suit of Smalman And the Sheriff informed the Court that before that the Process was directed to him That the said Lane was taken in Execution by the old Sheriff upon a judgment given against him in the King's-Bench and that the said old Sheriff had imprisoned the said Lane by force of the Execution in his own house and there he remained and prayed the advice of the Court what retorn he should make upon that matter because the said Lane was never in his possession for all the other prisoners which were in the Gaol and in the ordinary Prisons were delivered to him and the old Sheriff would not bring Lane to the place where the other Prisoners were delivered And it was the opinion of all the Iustices That by the Law the old Sheriff ought to deliver the body of him who is in his custody by view to the new Sheriff and such Prisoners ought to be brought unto him to view and from that time the Law shall adjudge such Prisoners to be in the possession of the new Sheriff and not before for he is not bound to go to them not being in the ordinary Prison of the County Anderson The new Sheriff may retorn That the said Lane is in Execution in custodia sua and so charge himself For although the Office of the old Sheriff be determined yet it is not an escape so long as the party be in custodia and not at large Periam contrary It is an escape in the old Sheriff as soon as his authority is determined the Prisoner not delivered See now C. 3. part 71. Wesby's Case LXXVII Megot and Broughton and Davie 's Case Mich. 29 Eliz. In the King's-Bench 1 Cro. 105. IN an Action upon the Case upon Assumpsit it was found by Nisi prius for the Plaintiff and afterwards before the day in Bank one of the Defendants died and after Iudgment given the other Defendant brought a Writ of Error in the same Court where the Iudgment was given and assigned an Error in fact scil the death of one of the Defendants pendant the Writ Roll 798. b. 3 Len. 96. Vide 2 E. 3. 21. It was said that the Case is not like the Case of an Action of Trespass for every Trespass done by many is several by each of them but every Assumpsit is joint and not several Another point was moved If the Court could reverse their own Iudgement Quaere LXXVIII Farrington and Fleetwood 's Case Trin. 29 Eliz. In the Exchequer THE Case upon the Statute of 31 H. 8. of Monasteries was this 3 Len. 164 165. ante 333. Plus The Abbat and Convent of A. c. 29 H. 8. made a Lease of certain Lands for three lives to begin after the death of one F. if they so long live and afterwards 30 H. 8 within a year before the dissolution they make another Lease to Fleetwood If the first Lease in the life of the said F. be such an Estate and Interest as by virtue of the said Statute shall make the second Lease void was the Question for it was not in esse but a future Interest Manwood All the reason that hath been made for the second Lease is because the first Lease is but a possibility for F. by possibility may survive all the said three and so it shall never take effect But notwithstanding be it a possibility or otherwise it is such a thing which may be granted or forfeited and that during the life of F. And note the words of the Statute If any Abbat c. within one year next before the first day of this present Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Manors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance and hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of the Lease to Fleetwood And of such Opinion were all the Barons and divers other Iustices and therefore a Decree was made against the Lease c. LXXIX Beaumont 's Case Trin. 29 Eliz. In the Exchequer NOte it was holden by all the Barons in the Exchequer Owen Rep. 46. That a Duty which is not naturally a Debt but by circumstances onely as Debt upon a Bond for performance of Covenants or to save harmless may be assigned over to the Queen for a Debt but in such case a present Extent shall not issue but a Scire facias shall issue forth to know if the party hath any thing to plead against such Assignment LXXX Goddard 's Case Trin. 29 Eliz. In the Exchequer IT was moved in the Case of Goddard concerning the Manor of Staple in Hampshire 11 Leon. 8. If the Tenant of the King of Lands holden in Capite be disseised and the Disseisor aliens the Lands and afterwards the Disseisee doth re-enter Manwood said That the Land shall not be charged with a Fine for alienation without licence because the Title of the Alienee grew under the wrong of the Disseisor but the person of the Disseisor shall be charged with such Fine Tenant of the King in Capite makes a Lease for life the Lessee for life makes a Feoffment in Fee without licence the Lessor re-entreth neither his person nor the Land shall be charged But if my Feoffee upon Condition maketh a Feoffment without license and I re-enter for the Condition broken now my Land shall be charged with the Fine upon Alienation for the Feoffee was in by me by good and lawfull Title because he had power to make a Feoffment over although subject to the Condition So if Tenant in tail or the Husband seised in the Right of his Wife make a Feoffment in Fee and afterwards the Land is recontinued the Fine accruing for Alienation without licence shall bind the Land And if Tenant for life loseth issues and dieth the Lands shall be charged with the same LXXXI The Lord of Northampton and Lord St. John 's Case Trin. 29 Eliz. In the Exchequer 2 Roll. 195. Co. 12. 1 2. Co. 4. 95. Dyer 262. THE Lord of Northampton had by ancient Letters Patents bona catalla felonum fugitivorum within the Isle of Ely and one dwelling within the Island was attainted of Felony to whom another was indebted by Obligation and the money by the Condition of the Bond was to be paid at a Manor of the Lord St. John's who within his Manor
Disseisor the Disseisee entereth in the life of Tenant in tail who afterwards dieth the warranty works nothing for the cause aforesaid And also he put this Case Tenant in tail of Land grants a Rent-charge in Fee and an Ancestor collateral releaseth to the Grantee with warranty and dieth the Tenant in tail dieth now the issue is bound but if Tenant in tail dieth before him who maketh the Release now the Rent is determined by the death of Tenant in tail and then the warranty cannot attach upon it At another day the Case was moved and conceived in these words scil Tenant for life the Remainder in tail Tenant for life leaseth for years a Recovery is had against him in the Remainder in tail living Tenant for life the Recoverors enter and oust the Lessee for years the Son and Heir of him in the Remainder in tail releaseth with warranty to him to whom the Recoverors have assured the Lands the Lessee enters he against whom the Recovery was had dieth the Releasor dieth c. It was holden that the Entry of the Lessee before that the warranty had attached upon the possession which passed had avoided the warranty And the Lord Anderson conceived That the Recovery should not prejudice the issue in tail but that the issue shall Fauxifie the same And if Tenant in tail be disseised and so disseised suffereth a common Recovery his issue shall not be barred quod fuit concessum per omnes And afterwards another matter was moved scil That the Release is pleaded to be made to Lincoln College by the name of Custodi sociis Scholaribus Lincolniensis Collegii in Oxonia where the true name of the College as is confessed by the Record in the Plea pleaded is Custos sive Rector Socii Scholares Lincolniensis Collegii in Oxonia c. It was adjourned See this Case reported 3 part Lincoln College Case LXXXIII Hall and the Bishop of Bath 's Case Mich. 32 Eliz. In the Common Pleas. HAll brought a Quare Impedit against the Bishop of Bath and others The Incumbent pleaded Quod ipse nihil habet nec habere clamat c. nisi de praesentatione Georgii Sidenham militis not named in the Writ and demanded Iudgment of the Writ upon which the Plaintiff did demur in Law And it was argued by Drew Serjeant for the Plaintiff That the Writ was well brought without naming the Patron for if a Quare Impedit be brought against the Patron and Incumbent and the Patron dieth 1 Leon. 45. pendant the Writ the Writ shall not abate 9 H. 6. 30. It might be that the Plaintiff did not know nor could tell who presented the said Incumbent but he findeth the Incumbent a Disturber by his Incumbency and if of necessity such Patron ought to be named then if such a Vsurper should die before the Writ brought he which hath cause of Action should be remediless And by Anderson and Periam the Writ is good enough for the reason aforesaid And Anderson put this case If A. wrongfully by Vsurpation doth present and his Clark is received and afterwards A. having gained the Patronage grants it over to B. Against whom shall the Quare Impedit be brought Walmsley Against B. which Anderson doubted LXXXIV Hughe 's Case Mich. 32 Eliz. In the Common-Pleas IN a Formedon the Writ was That A. Dedit Aliciae filiae suae and to J.S. and to the Heirs of their two bodies begotten and it was shewed in abatement of the Writ That the name of the Wife is put before the name of the Husband To which it was said by the Court that if such a Writ be brought against the Husband and Wife and the name of the Wife be put before the name of the Husband the Writ shall abate and if in the Case at Bar it had appeared That the Donees at the time of the Gift were Husband and Wife upon such a matter disclosed the Writ should abate but that doth not appear plainly to the Court. LXXXV Mich. 32 Eliz. In the Common-Pleas NOTE It was holden by the Court 1 Cro. 567. 3 Cro. 224. Post 189. That if a Writ of Dower be brought against an Infant who loseth by default at the Grand Cape that he may reverse the same by a Writ of Error but where an Infant appeareth by Guardian and afterwards loseth by default there he shall never avoid it for if any default be in the Guardian the Infant shall recover against him in a Writ of Deceit And afterwards the Iudgment in the first case was reversed LXXXVI Mich. 32 Eliz. In the Exchequer-Chamber NOTE In the Exchequer-Chamber before the Lord Chancellour The two chief Iustices and the chief Baron a Writ of Error was cast upon a Iudgment given in the Court of Exchequer and it was agreed Quod propter absentiam Dom. Thesaurarii Angliae They ought not nor could receive the said Writ and the Statute of 31 Eliz. doth not help the matter for that extends but to discontinuances which before the Statute many times hapned for the not coming of the Chancellour or Treasurer and not to give Conusance in a Writ of Error in the absence of the Treasurer c. LXXXVII Lacy and Fisher 's Case Mich. 32 Eliz. In the Common-Pleas IN a Replevin by Lacy against Fisher The Defendant pleaded that the place where c. is called Spicold and holden of the Manor of Easthall by certain Rent and made Conusance as Bailiff of the Lord of the said Manor and issue being joined hereupon It was tried by the Iury of the Visne of Spicold and it was moved in arrest of Iudgment that the issue was mis-tried For the Visne ought to have been of Spicold and Easthall also Web and Richmond's Case And a Case was cited to have been adjudged accordingly betwixt Webb and Richmond M. 31 Eliz. in the same Court. LXXXVIII Corbet 's Case Mich. 32 Eliz. In the Common-Pleas THE Case was That an Action of Debt was brought by original Writ against an Administrator in another County than where the Administrator was dwelling and before notice of that suit he paid divers other debts of the Intestate due by specialties so as he had not Assets to pay the debt in demand having Assets at the day of the Teste of the original and now the Defendant appearing pleads the same special matter and concluded And so nothing remained in his hands And it was holden per Curiam to be a good Plea See 2 H. 4. 21 22. LXXXIX Sir William Pelham 's Case Pasch 31 Eliz. In the Exchequer 1 Co. 41. THE Case short put was this A. Tenant for life of a Messuage c. the remainder in tail to B. with divers remainders over A. by Deed indented and enrolled bargained and sold the Messuage c. so conveyed to Sir William Pelham in Fee who afterwards suffered a common Recovery thereof in which A. is vouched and so a common Recovery is had and executed and
Iudgment and upon that a Levari facias and then a Capias ad satisfaciendum upon which Paston the Defendant a Sheriff of Norfolk to whom the Capias was directed took the party and afterwards suffered him to escape The Defendant pleaded That before the said Capias the said Francis Woodhouse was committed to him and in his ward continued for Felony and after the Capias was endicted thereof and arraigned and found guilty after which he escaped And all this was found by special verdict First it was argued if upon a Recognizance acknowledged in the Chancery an Action lieth and it was said by Bois That it doth not lie in the mouth of the Sheriff to say that this Capias doth not lie in the Case As if a Iustice of Peace maketh a Warrant to a Constable which Warrant is not good in Law yet the Constable is not to examine that or to dispute the validity of it 5 H. 7. And a Capias hath lain in such case and so it hath been the course for the space of 200 years and he said That although Francis Woodhouse was convict of Felony yet the same is not any discharge of the execution as 35 H. 6. 8. although the husband be attainted of Felony yet he is not so dead in Law but if the King pardon him afterwards he shall be restored and his wife shall have Dower and if he be killed his wife shall have an Appeal 12 H. 4. My Villain is attainted the same is no discharge of his villainage as to me But if the King pardon him after he shall be my Villain 6 E. 4. 4. One is in Execution pro fine Regis and afterwards is outlawed for Felony and hath his Charter of pardon for the Felony yet he remains in Execution for the interest of the party for there the Execution is not extinct but onely suspended Godfrey contrary Capias doth not lie upon a Recognizance but if Debt be brought upon a Recognizance and the Plaintiff recovereth then a Capias lieth which see 14 Eliz. Dyer 306. Puttenham's Case 2 H. 4. 6. In Dower the Demandant recovereth her Dower and damages and prayeth a Capias ad satisfaciendum for the damages but she could not have it for no Capias lieth upon the original and to the same purpose see 8 R. 2. Fitz. Execution 164. 15 H. 7. 15. Capias pro fine lieth for the King where no Capias lieth in the Original but no Capias ad satisfaciendum for the party no Capias in Debt before the Statute of 25 E. 3. and see the Stat. of West 2. cap. 18. cum debitum fuerit recognit si in electione sequent execut habere per Fiere facias or Elegit therefore no other manner of Execution for the Statute hath provided ut supra And he said That debt doth not lie upon a Statute Merchant or Staple See 15 H. 7. 16. Another reason why a Capias doth not lie in such case is upon the words of the Recognizance Et nisi fecerit tunc concedit quod summa praedict levetur de bonis catallis terris tenementis Ergo not of the body And when Woodhouse was convict of Felony the Queen had an interest in his body and upon the pardon the Execution which was suspended during the conviction is now received And he confessed the case of Villainage that during the attainder the Lord cannot meddle with the Villain in the presence of the King See 27 Ass 49. and see 2 H. 4. 65. A. was condemned to B. in certain damages upon an Action of Trespass brought by B. against A. and A. was committed to Newgate in Execution upon a Capias ad satisfaciend and afterwards was arraigned of Felony and thereof attainted and committed to the Ordinary as Clark Attaint And the Iustices commanded the Ordinary That after that the prisoner had made his purgation that he should not let him go at large but should conduct him to the prison of Newgate again And there is a Quaere made by the Reporter If after purgation the Ordinary might suffer him to escape and if he at whose suit he was condemned in Trespass shall have debt against the Ordinary for such escape At another day the matter was argued by Coke for the Plaintiff at the Common Law No Land was subject to Execution i. no Lands of the Debtor himself but yet the Lands of the Debtor being descended to his heir should be chargeable to the Obligee of the Debtor in which he and his heirs were bound and that seemed to be very strange and he conceived That in that point custome and usage had encroached upon the Common Law The Statute of West 2. c. 13. gave Elegit of the moyety of the Lands but yet there was no Capias in Debt before 25 E. 3. cap. 17. before which Statute it was a general Rule That no Capias lay at the Common Law but where the King was to have a Fine See 35 H. 6.6 At the Common Law Capias did not lie but where the Action is vi armis or that the King is to have a Fine For there was Outlawry at the Common Law in such case It will be objected That the Statute of 25 E. 3. which gave Capias in Debt doth not extend to a Scire facias upon Recovery That such Process shall be made in a Writ of Debt as is used in a Writ of Accompt and here is no Writ of Debt but a Scire facias onely If my Debtor upon an Obligation cometh without a Writ and confesseth the Debt I shall have a Capias against him and yet the same is not in a Writ of Debt Ergo so in case of Recognizance Where a Statute speaks precisely of a Writ Original yet oftentimes by Equity it shall extend to a Scire facias and other judicial Process As upon the Statute of 25 E. 3. cap. 7. which enables the Incumbent to plead in a Quare Impedit It shall extend to a Scire facias upon a Recovery in a Quare Impedit 46 E. 3. 13. And in our case a Capias doth not lie by the Letter yet it lieth by Equity And he said That Statute which helps the Subjects to get their debts and rights are to be and have been taken beneficially and liberally expounded in advantage of the Creditors And see 48 E. 3. 14. Where a Scire facias is sued upon a Recognizance a Capias doth not lie but there it is holden that in a Scire facias upon a Recovery in debt a Capias lieth And as to this Capias the Sheriff is but the minister to the Court and he is not to controll the Court but to accept of the same as the same is directed to him It is a common learning in our Law That although the Court doth proceed inverso ordine yet it shall not be utterly void 36 H. 6. 34. Iudgment given at the Common Law of Lands within the five Ports for the five Ports in times past
Scire facias shall issue forth against the Sureties and thereupon a Capias And this question If the Capias in this case lieth or not is to be decided either by Audita Querela in the Chancery or by Error in the King's Bench for the said Courts have authority to affirm the proceedings or to disaffirm them And here the Question was If Woodhouse were imprisoned or no and not if the Capias erronice emanavit or not And he took a difference where Process is awarded out of a Court which hath not authority of the Principal cause there it is coram non judice and the Process is void and if the Sheriff taketh the party by force of such Process it is meerly void and he a Trespassor but contrary if the Court hath authority of the principal cause there if the Process be misconceived it is onely erroneous 10 Co. 76. An unskilfull man in Chancery makes an Appeal of Murther retornable in the Common Pleas and there an unskilfull Clark makes a Capias upon it the same is coram non-judice and not all together void But if in a Writ of Entry in the nature of an Assise the Demandant hath Iudgment to recover Debt and Damages and thereupon issueth a Capias the same is not void for it is but a misawarding of the Process provide emanavit If out of the Common Pleas immediately a Writ issueth to the Sheriff of Chester which is a County Palatine where the King 's Writ doth not run the same is void and false imprisonment lieth upon such a taking A Formedon brought in the King's Bench and upon that a Capias is void coram non judice and the Sheriff is bound to take notice of the Law in such cases that those of the King's Bench have not authority to hold plea in real Actions As to that That Woodhouse was convict of Felony the same shall not avoid the Execution but I grant that the King shall be satisfied before the subject c. And he relied much upon the said Case cited before 13 E. 3. Bar. 253. as to the matter of the Capias 19 H. 9. In Escape the Defendant pleaded a Release of him who recovered to the Prisoner being in Execution and it was holden no Plea. And in the principal Case Iudgment was given for the Plaintiff CXIII Bridget Clark 's Case Antea 30 31. Mich. 29 Eliz. In the Exchequer THE Case was Clark was indebted to Archdel by Obligation and afterwards delivered to Andrews certain Hogsheads of Wine to satisfie the said Archdel the said Debt and afterwards the Obligation of Clark is assigned to the Queen for the Debt of Archdel And if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the Assignment was the Question Egerton Solicitor The property is not altered for the Bailor might have an Action of Account against Andrews before that he hath delivered the same over according to the Bailment but if he hath delivered them over the same is a good bar in an Account But if one be accountable to me upon a Bailment and afterwards I do require him to deliver the Goods over to A. the same is not in bar of Account but is good in discharge of account before Auditors for the same is matter after the Bailment not upon the Bailment If Goods be bailed to bail over upon a consideration precedent of his part to whom they ought to be bailed the Bailor cannot countermand it otherwise it is where it is voluntary and without consideration but where it is in consideration of a Debt not countermandable contrary if it be to satisfie the Debt of another Manwood Where the Debtor of the King is sufficient there a Debt due to him ought not to be assigned to the King but onely where the Debt of the King is doubtfull and that was the ancient course but now at this day multi videntur habentur divites qui tamen non sunt and therefore omnis Ratio tentanda est for the Recovery of the King's Debts But as to the Case before us The Wife is Executrix to her Husband who was indebted to Archdel and she delivers the Goods to Andrews to satisfie Archdel and all that is before the Assignment And I am of Opinion That the property of the said Goods is altered for as the case is Andrews was Surety for Clark and hath a Counter-Bond of Clark to save him harmless If I borrow 100 l. and deliver unto the Lender Plate for the security of it the property general of it is in me yet the Bailee hath a special interest in it untill he be paid If Goods be delivered to A. to pay unto B. A. may sell them An Executor hath Goods of the Testators and he with his own Monies payeth the Debts of the Testator he shall retain the Goods and the property is altered And here in our case Andrews may by virtue of this Bailment sell the Goods and with the Monies arising thereof pay the said Archdel And afterwards Iudgment was given accordingly that the property of the Goods by the delivery over by Andrews was altered CXIV Foskew 's Case Mich. 29 Eliz. In the Exchequer FRancis Foskew seised of the Manor of Foskew in his Demesn as of fee in consideration of a Marriage to be had with Francis his Son with M. Daughter of Sir Edw. Huddleston 9 Feb. 25. Feb. covenanted to levy a Fine of the Manor aforesaid and that the said Fine should be to the use of himself and his Wife for their lives and after their deaths to the use of the said Erancis their Son and M. and the Heirs of their bodies begotten with remainders over The Fine was levied accordingly afterwards 19 Octob. 27 Eliz. Francis the Father acknowledged a Recognizance to the Queen and died his Wife died and now this Manor is extended for the Debt to the Queen by force of the Statute of 33 H. 8. And now Coke came into Court and prayed that the said Manor might be discharged of the Debt to the Queen because it is not chargeable by the said Statute the words of whicih Statute are All Manors Lands Tenements c. which hereafter shall descend remain or revert in Fee-simple tail general or special by from or after the death of any his or their Ancestor or Ancestors as Heir or by Gift of his Ancestor whose Heir he is which said Ancestor or Ancestors was is or shall be indebted to the King or any other person or persons to his use by Judgment Recognizance Obligation c. In every such case the said Manors c. shall be charged c. This Statute was made for the benefit of the King in two points 1. To make Lands entailed liable to the King against the issue tail for the Kings Debts in the cases aforesaid where they were not liable 2. To make Bonds taken by the Officers of the King to the use of the King as
upon the floor there so as vi ponderis it fell down To which the Defendant hath said That the walls were ruinous in occultis partibus and doth not answer to the surcharging scil Absque hoc that he did surcharge it Clark Baron It is a general Rule That every material thing alledged in the pleading ought to be traversed confessed and avoided which the Defendant hath not done here but he would excuse himself through the default of another and answer nothing to that with which he himself is charged And afterwards Iudgment was given in the Court of Exchequer for the Plaintiff Whereupon afterwards the Defendant brought a Writ of Error in the Exchequer Chamber where the Case was argued again But there the Iudgment given in the Court of Exchequer was affirmed See this Case reported short in Popham's Reports lately published CXVII Linacre and Rhode 's Case Trin. 31 Eliz. In the Common Pleas. Co. Rep. Blomfield's Case 3 Len. 230. THE Case was That Linacre was bound in a Statute and his body taken in Execution and the Sheriff voluntarily set him at large and afterwards the Conusee sued Execution of the Lands of the Conusor who thereupon brought an Audita Querela It was moved by Yelverton Serjeant That by that voluntary discharge of him by the Sheriff the whole Execution was discharged for the Execution is intire See 15 E. 4. 5. Where the Conusee in a Statute Merchant hath the body and lands of the Conusor in Execution and afterwards the Conusee surrendreth his Estate which he hath by Extent now the Execution of his body is discharged and the Conusor shall have a Scire facias or Audita Querela to discharge his body So if three Conusors be in Execution and the Conusee doth discharge one of them the same is a discharge of them all and in the principal Case the body is the principal and therefore the discharge of the principal part of the Execution is the discharge of the whole Hammon Where the Conusee himself dischargeth the Execution in part it is good for the whole but where discharged by the Sheriff Nihil operatur Anderson If the Conusor dieth in Execution yet the Conusee shall have Execution against his Heir of his land for the having of the body in Execution is not any satisfaction to the party for his body is but a pledge untill the money be paid and there is no reason that the act of the Sheriff should discharge the Execution Windham to the same intent And if the Conusee sueth Execution and hath the body of the Conusor in Execution this day he may the next day sue Execution of the lands and the next day after of the goods and if the Conusee doth discharge the body the whole Execution is discharged and it is true That if A. recovereth against B. in an Action of Debt and B. is taken by a Capias ad satisfaciendum and afterwards the Sheriff permitteth B. voluntarily to escape here B. is discharged although it be not the act of the party for there the Plaintiff had a full Execution which is not here for in Case of Execution upon a Statute-Merchant the Execution by the body is not the full Execution and therefore although the Sheriff hath discharged the body yet the Conusee may have Execution of the goods and lands but not of the body and afterwards Iudgment was given against the Plaintiff That the Audita Querela did not lie and that Execution might be sued of the goods and lands but not of the body CXVIII Webbe and Mainard 's Case Trin. 32 Eliz. In the Common Pleas. IN Ejectione firmae The Case was Walter Goldsmith seised of certain lands made a Feoffment to the use of himself for life and after to the use of John his eldest son in Fee Proviso That after his death his said son shall pay unto his younger son William 30 l. by 3 l. per ann at the Feast of St. Michael untill the entire sum be paid and if he fail of payment then to the use of the said William and his heirs Will. Goldsmith the Feoffor dieth the money is not paid but afterwards the said younger son makes an Acquittance and thereby acknowledgeth the Receipt of the said money according to the Proviso John dieth Now if the younger son may enter And first if the younger son be concluded by that Acquittance to say that the 30 l. was not paid And if he be not concluded Then if because that the words are but words of limitation the younger brother hath Title of Entry and then if this Entry be bound by the descent from John to his Heir or if John by continuance of the possession after the breach of the Proviso be a Dissesor or not were Questions propounded to the Court which the Court took time to consider of yet it was then said That the use was settled in William and the possession executed unto it but not such a possession upon which an Assise or Trespass lieth CXIX Willis and Jermine 's Case Hill. 31 Eliz. In the King's Bench. Rot. 647. IN Ejectione firmae It was found by special Verdict 1 Cro. 167. Roll Tit. Estate 830. That the Dean and Chapter of Exeter Leased the Land where c. to Jermine rendering Rent to be paid at their Chapter-house at Exeter and for default of payment that such Lease shall be void and cease and that the said Jermine conveyed his interest to the Defendant and afterward the Rent was demanded at the Chapter-house but not paid and afterwards The Dean and Chapter by the name of Dean and Chapter of St. Mary of Exeter where they are incorporate by the name of Dean and Chapter of St. Mary in Exeter make an Indenture of Lease for forty years in their Chapter-house to Willis and thereunto put their seal in the Chapter-house and made a Letter of Attorney to another to enter and to make Livery of the said Deed which was done accordingly it was moved by Harris Serjeant That this Lease made in manner c. is not good for the Corporation is misnamed i. of Exeter for in Exeter but the Court disallowed that Exception for there is not any material variance and so it was said it hath been ruled And he said that for another cause the Lease is not good for when the Dean and Chapter in their Chapter-house make this Indenture of Lease Davis Rep. 42. and set their Chapter-seal to it It was their Deed presently without other delivery and then Jermine being in possession at the time of the putting of the seal to it they were out of possession thereof and so the new Lease void because they were not in possession at the time of the making of it for no delivery is necessary to the Deed of a Corporation but the date of the sealing of it makes it a perfect Deed and then the delivery of the same by the Attorney is of no effect Wiat to the
them away and that he had offered that matter by way of Plea in the Spiritual Court but they there would not allow of it And the Court was clear of opinion That the suggestion was good for if the Parishioner setteth out his Tythes and the Parson will not take them or if they be destroyed by Cattel by his Laches he shall not have Tythes again and therefore if the Ecclesiastical Court will not allow that Plea it is reason that the party have a Prohibition for after severance transit decima in Catalla But it was said by the Court That if the Parishioner doth set forth his Tythes and takes them again he may be sued for Tythes in the Spiritual Court and the setting forth shall not excuse him CXXV Walter against Pery and Springe Mich. 32 Eliz. In the King's-Bench WAlter brought a Scire facias against Pery and Springe Sureties for one Brook upon Bail in an Action of Debt The Defendants pleaded the death of Brook before Iudgment given against him And all the Iustices except Wray held that the Plea was not good for it is a surmise against the Iudgment for Iudgment cannot be given against a dead man. Wray The same is Error in fact and of such Error the party may have advantage in this Court. Gawdy The Surety cannot take advantage of Error nor plead it for he is a stranger to the Record Wray He may plead that the Defendant is dead after the Iudgment quod fuit concessum but it was ruled That the Defendants should be sworn that their Plea was true CXXVI Aldersley and Duparrie 's Case Mich. 32 Eliz. In the King's-Bench IN Debt upon an Obligation bearing date 4. Julii 30 Eliz. The Defendant pleaded that it was endorsed with condition to pay 50 li. before 15 Octob. 31 Eliz. and pleaded that he had paid it before the 15. of Octob. aforesaid scil the ninth of June 30. Eliz. which is three Weeks before the date of the Obligation upon which the Action is brought And they were at Issue That the Defendant Non solvit before 15 Octob c. And the Iury have found That the Defendant had not paid it before 15 Octob. and that matter was assigned for Error for that Plea is contrary and repugnant in it self to alledg the payment before the date of the Obligation But it was moved That here the day of payment is not material and but matter of surplusage for the Issue is Whether the Defendant paid the money before the 15. day of October and the Iury have found the negative so as the day in the Scilicet is not material and the alledging of that is matter of surplusage As 20 H. 6. 15. Trespass Quare clausum fregit herbam consumpsit continuand transgress from such a day usque ad diem impetrationis brevis praedict Scilicet 14 F. 17 H. 6. whereas the date of the Writ fuit 12. Octob. 17 H. 6. scil the October before February But it was not allowed for the day of the Writ brought is certain enough and the mistaking in the Scilicet is not to any purpose Wray Payment before the day is not a good Plea if he doth not shew the day and place It was adjourned CXXVII Parker and Burton 's Case Trin. 31 Eliz. In the King's-Bench IN an Action upon the Case for slanderous words scil That the Plaintiff was perjured The Defendant doth justifie That whereas a suit was prosecuted in the Exchequer-Chamber at Westminster betwixt the Defendant and another and from thence a Commission was awarded out of the said Court to divers persons to examine certain Witnesses at B. in Berk. and there by virtue of the said Commission the Plaintiff was deposed false deposuit praetextu cujus he spake the said words Antea 811. The Plaintiff replicando saith De injuria sua propria absque tali causa upon which Issue was joined and tried in Berk. and found for the Plaintiff And it was moved by Coke in Arrest of Iudgment That the said Issue ought not to be tried in Berks onely but by both Counties Mid. and Berks for all the matter of justification doth arise out of both Counties the Suit and the Commission which was in Midd. and the Execution of the Commission and the Oath which were in Berks all which matters is but one Case as 2 H. 7. 3. and 4. Atkinson The Trial is well for the manner for the matter of the justification is the Perjury and the Suit and Commission are but induction and conveyance to the Action Also the Defendant hath not shewed that the Exchequer-Chamber is in the County of Midd. as he ought As where a man pleads a thing done in any Court except in the Common-Pleas he ought to shew in what County the said Court was at the time that such thing was done for Communia Placita teneantur in loco certo Gawdy and Wray When the Defendant doth justifie by reason of the Perjury and the Plaintiff replies without such cause the same amounts to as much as if he had traversed the Perjury which being supposed to be committed there shall be tryed there Coke It was the Case of one Loveday 25 Eliz. In an Action upon the Case for slanderous words the Defendant did justifie by reason of a Robbery committed by the Plaintiff in another County and the Plaintiff pleaded De son tort demesne sans tiel Cause the same shall be tryed by both Counties See 2 H. 7. 3. Also it was moved that here it is not shewed in what County the Exchequer Chamber is Admit that it be in Berks yet it ought to be tryed by both Counties and that was Chelderlie's Case And although it be not shewed in what County the Exchequer Chamber is the Plaintiff had Iudgment to recover and the Tryal was held good enough CXXVIII Sir Tho. Bacon 's Case Hill. 31 Eliz. In the King 's Bench. A Writ was awarded out of the Court of Admiralty against Sir Thomas Bacon and Sir Thomas Heyden to shew cause whereas the Earl of Lincoln late High Admiral of England had granted to them by Letters Patents to be Vice-Admirals in the Counties of Norfolk and Suffolk why the said Letters Patents ought not to be repealed and adnulled and so the said Writ was in the nature of a Scire facias And now it was made by Coke Postea 114. That although the Admiral had but an Estate for life yet the Patents did continue in force after his death As the Iustices here in the Common Pleas although they have their places but for life yet they may grant Offices which shall be in force after their deaths c. And because this matter is determinable at the common Law he prayed a Prohibition for in the Admiral Court they will judge according to the Civil Law and the Court gave day unto the other side to shew cause unto the contrary or otherwise a Prohibition should be awarded CXXIX Weshbourn and Mordant
60 years and afterwards enfeoffed Oxenbridge to the use of the said Cheney and his wife for their lives with divers remainders over and it was adjudged in the Court of Wards that by the Feoffment the term was not extinct And he put the case of the Lord Paget in the King's Bench adjudged A Feoffment was made unto the use of the Feoffor for life the remainder to him whom the Feoffor should name at his death in Fee the Feoffor and the Feoffees for good consideration levied a Fine unto a stranger and afterwards the Feoffor named one and died the party named by the Feoffor shall have the land notwithstanding the Fine Beamount The contingent use here is utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Act of 27 H. 8. That the makers of the Act did not favour Vses but their intent was utterly to extirpate Vses And if contingent Vses which are not nor cannot be excused by the Statute should stand in force The mischief would be That no purchasor should be secured and safe in his purchase but should always be in danger of a new born Vse not known before and he grounded his farther argument upon the reason of Manwood and Dyer Where a man makes a Feoffment in Fee to the use of himself and his Wife which shall be and afterwards he and the Feoffees and those in remainder make a Feoffment to divers new Feoffees and to new Vses and afterwards he takes another Wife and dieth It was the opinion of the said two Iudges That by that Feoffment ut supra the contingent Vses are destroyed For when the Estate which the Feoffees accept is taken away which was the root and foundation of the Vses which are the branches and fruit of the body of the said Tree it necessarily followeth That they be also taken away and because the Feoffees by their Livery are barred to enter to recontinue the Estate which should yield such Vses they also are gone and extinguished Yelverton was of opinion that notwithstanding the said Feoffment that the Vse should rise in his due time according to the limitation of it It was adjourned CCXIX. The Lord North 's Case Trin. 30 Eliz. In the King's-Bench THE Queen granted unto the Lord North and his heirs the Fines pro licentia concordandi and one would not pay him the Fine for which cause the Lord North brought an Action upon the Case against him and declared upon Indebitatus assumpsit c. Godfrey moved this matter to the Court to know their opinion if such Action would lie for the matter or not Fenner For a Fine in a Court-Baron or Court-Leet debt lieth but as he conceived 1 Leon. 249 250. 3 Len. 56. 234. here this Action doth not lie for it is a real Fine and there is no contract betwixt the parties but the same is given by the Law and some were of opinion that debt lieth for a relief for there is a contract by Fealty Gawdy conceived That the Action doth well lie for it is not any casual profit and therefore debt lieth for it although it be an inheritance And see Dyer 28 H. 8. 24. The heir shall have an Action of Debt upon a Nomine poenae reserved by his Ancestour Wray I do not see that he hath any other remedy and therefore I am of opinion that this Action will lie CCXX Mrs. Paschall 's Case Trin. 31 Eliz. In the Exchequer MIstress Paschall was bound with sureties for her appearance before the high Commissioners that she should not depart without licence under the hands of three of them and she pleaded the general Pardon at the last Parliament in which there is an Exception of all Bonds and Recognizances except onely such Bonds and Recognizances as are for appearance And Atkinson argued That she ought to be discharged by the Exception for although the departure without licence be not specially named yet it is within the sense for the not departure without licence is no other thing than to continue her appearance Popham contrary For The Non departure without licence was set down in the Condition to this purpose That she should not go into the Countrey to be corrupted there or to corrupt other and receive Seminaries c. therefore it is another thing than appearance Between Hore and Hare the Case was One was bound to make his appearance at such a day and in the mean time thrice every Month to repair unto such a Preacher to be better informed in Religion although the Non appearance was pardoned yet the other point i. the resorting to the Preacher is to be answered Atkinson There the resorting to the Preacher is collateral and a several point from the appearance But in the Case at Bar the not departure is pursuant to the appearance And the opinion of all the Barons was That the pardon did not extend to the same CCXXI Trin. 31 Eliz. In the Common-Pleas 1 Len. 205. AN Action was brought against an Executor who pleaded That he refused the Executorship upon which the parties were at issue The Bishop certified Quod non recusavit whereas in truth he had refused before the Commissary of the Bishop Fenner Serjeant moved to have the advice of the Court upon this matter and argued That the Court ought to write to the Commissary which was denied by the Court for he is not the Officer to this Court as to that purpose but the Bishop himself is our Officer and the party cannot have an Averment against the Certificate of the Bishop no more than against the Retorn of the Sheriff And the Court also held That the onely remedy for the Defendant was by an Action upon the Case against the Bishop for his false Certificate But it was moved That the issue joined upon the refusal ought to be tried by the Countrey and not by the Certificate of the Bishop and such was the opinion of Windham and Walmsley Periam Where the issue is that the Executor refused before such a day or after there the issue shall be tried by the Countrey contrary Where the issue is upon the refusal generally for the refusal is before him as Iudge as also resignation is CCXXII Giles 's Case Mich. 28 and 29 Eliz. In the King's-Bench A Writ of Error was brought in the King's-Bench to reverse a Iudgment given in an Action upon the Case in the Court of Common-Pleas where the Writ brought against the Defendant there in that Case was Quare exaltavit stagnum per quod pratum of the Plaintiff was inundatum The Defendant in the Action there pleaded Not guilty and the Iury found That the Defendant Erexit stagnum and they said That if the Court shall judge That Erectio and Exaltatio be all one then they find that the Defendant is guilty and afterwards Iudgment was given in the said Court of Common-Pleas for the Plaintiff Whereupon this Writ of Error is brought And Glanvile Serjeant who
land and that he and all those whose Estate c. have common of pasture in 16 acres of land called D. from the time that the corn was reaped untill it be sowed again and also common of pasture in lands called R. omni tempore anni as appendant to the said Messuage and land and that the Defendant had plowed the said lands and so disturbed him of his common and found for the Plaintiff and it was moved in stay of Iudgment That here it appeareth that the Plaintiff was seised in Fee and so he ought to have an Assize and not an action upon the Case but the exception was disallowed per Curiam See 2 H. 4. 11. 8 Eliz. Dyer 250. 11 H. 2. Action upon the Case 36. CCXXX Hore and Wridlesworth 's Case Mich. 32. Eliz. In the King 's Bench. HOre brought an Action of trespass against Wridlesworth Quare clausum domum suam fregit The Defendant pleaded and put the Plaintiff to a new assignment i. a House called a Stable a Barn and another house called a Carthouse and Garnier and that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy The same is good enough for Domus in the Declaration contains all things contained in the new Assignment But if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Domus est nomen collectivum and contains many buildings as Barns Stables c. and so was the opinion of the whole Court. CCXXXI Savacre 's Case Mich. 32 Eliz. In the King 's Bench. A Writ of Error Ante 4. was brought by Savacre and the Bishop of Gloucester M. 31 and 32 Eliz. upon a Iudgment given in a Quare Impedit for the Queen And Error assigned 1. An Attachment was awarded against the Defendant in the Quare Impedit retornable Quind Pasch at which Savacre appeared and cast an Essoin and notwithstanding that a Distringas was awarded against them both retorned Crast Trin. and the awarding the Distringas was erronious for the Essoin was as an appearance for to save c. and therefore against him no Distringas ought to have been awarded And upon alledging of Diminution the Record of the Essoin was certified for the same did not appear upon the Plea Roll. 2 The Record is Ipsi in Misericord and so both of the Defendants are amerced for the default of appearance Quind Pasch whereas Savacre was then Essoined and so no cause of amerciment of him Coke The original Writ was here sued Mic. 26 Eliz. retornable Quind Hillar and then both the Defendants made default for which an Attachment was awarded retornable 15 Pas and then Savacre appeared and Iudgment was given Quod ipsi sint in Misericord in which point the Error is assigned But I conceive that it is not Error for upon the Attachment the parties ought to put in sureties for their appearance and the said sureties took upon them that the Defendants and each of them should appear and if they or one of them maketh default the sureties should be amerced and so here this Iudgment Ideo ipsi in Misericord shall refer to the sureties not to the parties for the Defendants shall not be amerced untill the end of the suit and but once onely in one action which see Book of Entries 464. where there was but one Defendant and therefore If the amerciment shall refer to the Defendant then it should be Ideo ipse not ipsi c. and that is the reason wherefore neither the Queen nor an Infant shall find pledges for no amerciament shall be upon their default therefore in vain for them to find pledges c. And if the pledges be amerced where they ought not to be amerced by the Law yet the Defendant shall not have Error upon it for he is not the party grieved by that amerciament And upon this reason it is That in a Scire facias against the bail if erronious Iudgment be given against him the Defendant in the Action shall not have a Writ of Error The awarding of the Distress upon the Roll against both where the one of them onely makes default is not error especially as this case is for though that one of them was Essoined untill the day aforesaid yet at the said day they make default and so the Distress is well awarded against him and although that the Writ were ill awarded yet when they appear Cr. Trinit at the day of the retorn of the Distress all mean defaults in the Process are saved and so the misawarding of the Distress by appearance afterwards is supplyed As 39 E. 3. 7. The Law requires that in an action grounded upon the Statute of Praemunire 27 E. 3. the Defendant hath warning by two Months yet if the Defendant having not had such warning appeareth the Process is well enough So 9 E. 4. 18. Where upon any Process the Defendant appeareth although the day of appearance be not lawfull yet the parties shall be put to answer and see many cases there to the same purpose and such was the opinion of the Court in the principal Case And as to the second Error that the Iudgment Ideo ipsi in Miseric shall be referred to the sureties onely and not unto the party and that the Defendant shall be but once amerced in one action the same is true that he shall be but once amerced for one default but if many defaults be the Defendant shall be severally amerced for every default And it should be unreasonable that the sureties should be amerced and that the Defendant who is as principal should go free See the Book of Entries 193. Ipsi plegii sui in Misericordia c. CCXXXII Farnam 's Case Mich. 32 Eliz. In the King's-Bench FArnam Schoolmaster and others were Indicted upon the Statute of 8 H. 6. for entring In domum Rectoriae de Putney ac in cert terras eidem domui part jacen in Putney c. Exception was taken to the Indictment because it recited the two parts of the Statute 1 Expulsion and Disseisin with Force 2 Holding out and there is not any offence in it contained as to one of them scil Holding out and although it was not necessary to recite the Statute yet the party meddles with it and doth not apply it to the special matter the same is naught See for that the Case between Strange and Partridge Plow Com. 2 The entry is supposed In domum certas terras eidem domui pertinen jacen in Putney which is incertain as to the lands and it is naught for the house also for it is not shewed in what Town the house is for this clause ac certas-terras eidem domui pertin jacen in Putney is a distinct clause by it self and refers onely to the lands and doth not extend to the house As to the first exception is was disallowed for it is not like unto Partridge's Case for there the
Statute and it was moved If it should not be a good Indictment for the assault so as he might be fined for it and by Sands Clerk of the Crown and the whole Court The Indictment is void for the whole for the conclusion of the Indictment is contra formam Statuti and there the Iury cannot enquire at the Common Law. CCXXXV Mead and Cheney 's Case Mich. 32 Eliz. In the King's-Bench MEad brought an Action of Debt upon a Bond against Cheney Executor of one Skipwith and recovered and upon a Fieri facias the Sheriff did retorn Devastavit and it was moved to have an Elegit and the Iustices would advise of it and afterwards at another day a Precedent was shewed to the Court of 17 Eliz. and thereupon the Elegit was granted CCXXXVI Tompson and Trafford 's Case Trin. 32 Eliz. In the King's-Bench Rot. 910. Poph. 8 9. IN an Ejectione firmae the Case was That the Warden and Fellows of New College in Oxford 8 Eliz. leased a Mansion house in the Burrough of Southwark to one Standish for 21 years and afterwards 25 Octob. 21 Eliz. they demised the same Mansion house to the said Standish for 21 years to commence the Michaelmas after And the Stat. of 14 Eliz. cap. 11. and 18 Eliz. cap. 11. were also found And if this second Lease shall be said a Lease in Reversion and so be void by the Statute of 14 Eliz. was the Question Foster moved That it is a Lease in Reversion for the first Lease doth continue untill Michaelmas and so was the opinion of the Iustices of Assise at the trial Towse contrary For when Standish accepteth the second Lease the same is presently a surrender of the former Lease for he giveth power unto the Lessor for to contract for the house presently and to that purpose he cited Corbet's Case 8 Eliz. Coke It is a surrender presently for you cannot apportion the Term. It was adjourned CCXXXVII Wood and Avery 's Case Mich. 32 Eliz. In the King's-Bench DEBT upon a Bond by Wood against Avery the Condition was That where the Plaintiff had demised to the Defendant for term of years two Messuages c. If the Defendant at all times during the term shall maintain sustain and repair the said two Messuages with good and sufficient reparations that then c. And the Defendant pleaded That he had performed the Conditions in all but as to one Kitchin which was so ruinous at the time of the Demise that he could not maintain or repair and therefore he took it down and rebuilt it again in so short a time as he could possible in the same place so large and so sufficient in breadth length and heighth as the other Kitchin was and that the said Kitchin all times after the re-edifying of it he had sustained and maintained and well repaired and demanded Iudgment c. upon which Plea the Plaintiff did demurr in Law and by the Court the Plea were a good Plea if it were in an Action of Waste but here where he hath by his own Act tied himself to an inconvenience he ought at his perill to provide for it And here it was said That if the Condition be impossible the Bond is single contrary where a man is charged by an Act in Law. CCXXXVIII Bostwick and Bostwick 's Case Mich. 32 Eliz. In the Common-Pleas DOrothy Bostwick brought Dower against Bostwick an Infant Ante 59. and the Case was That the Husband of the Demandant was seised of certain Lands holden by Knight's-service of M. C. and by his last Will devised two parts of the Premisses to his Executors during the non-age of his heir and died his heir within age after whose death M. C. entred into the third part descended as Guardian in Knight's-service and the Executors into the other two parts upon which the Demandant brought one Writ of Dower against the Guardian to be endowed of the third part and another Writ of Dower against the heir within age in whom the Freehold of the two parts was The heir appearing by Attorney pleaded to issue which was found for the Demandant but the Iudgment was afterwards reversed because the heir being within age did not appear by Guardian but by Attorney for which cause she again brought a Writ of Dower against the heir and the Sheriff did retorn him summoned but the heir made default for which cause the Court was moved in the behalf of the Demandant to have the aid of the Court in this Case for if upon default of the Tenant a Grand Cape should issue forth and so a Recovery by default should follow the same would be Error which see 6 H. 8. Br. Liver Defaul 50. And therefore it was prayed that some person be appointed Guardian to the heir who may appear and plead for him for otherwise the Demandant is at great mischief for the Guardian now will not suffer the heir to appear in person And if the Widow now Demandant should stay for her Dower untill the heir should come of full age it would be a great mischief But by Walmesley Periam and Windham We cannot appoint a Guardian to the heir for his appearance here unless the heir be here in person in Court before us and he was appointed to be brought in person into Court. CCXXXIX Sir Anthony Denny 's Case Mich. 32 Eliz. In the Common-Pleas SIR Anthony Denny seised in Fee of the Manor of Chessam extending into Chessam and in the Town of Hertford and also of other Lands in Hertford by his last Will devised the Manor of Chessam to Henry Denny his son and heir in tail and his Lands in Hertford to Edward Denny his younger son c. It was holden by Walmsley Periam and Windham absent Anderson That the younger son should have that part of the Manor of Chessam which lieth in the Town of Hertford Another point in the Case was That upon the death of Sir Anthony and Office was found without any mention of this Devise for which cause the Queen seised and leased all the Lands so devised to a stranger during the minority of the heir The heir comes of full age and hath Livery of the whole and without any express entry leaseth the Lands for years rendring Rent the Lessee entreth and payeth the Rent to the heir the heir dieth the Lessee assigns over his term and the Rent is yearly paid to the right heir of Sir Anthony And how Edward Denny entred and per Curiam his entry is lawfull for if the heir entreth in this Case and many descents follow yet the Devisee may enter at any time for his entry doth not make any abatement or wrong but may well stand with the Devise for if the Devise be waved or the Devise doth defer the execution of the Devisee 1 Inst 111. a. 240. b. 3 Cro. 145. Ow. 86 87. it is reason that the heir enter and take the profits untill the Devisee entreth But if
6. All the Inhabitants of a Town do prescribe to have common in such a field every year after Harvest If one particular man who hath Freehold land with the said field sowed will not within convenient time gather in his Corn but suffer the same to continue there of purpose to bar the Inhabitants of their Common The Inhabitants of the Town may put in their Cattel into the said field and therewith eat his Corn and he shall have no remedy for their so doing and he put the Question What remedy the Commoner should have for the eating and destroying of his Common which his Cattel should have for that he can neither distrain them damage-feasance nor impound them for a Replevin doth not lie of Conies and therefore he said he hath no other remedy but to kill and destroy the Conies See 19 E. 3. and F. N. B. If the Lord doth surcharge the Common the Commoner may have an Action against him but in this Case he can have no Action Gawdy Iustice The Commoner cannot destroy or kill the Conies because he may have other remedy Shute Iustice A Commoner cannot take or distrain the beasts of the Tenant of the land for damage-feasance therefore he cannot take or destroy the Conies which are upon the land because he may have other remedy for he may have an Action upon the Case or an Assize for putting of the Conies upon the land if the owner of the land leave not sufficient Common for the Cattel of the Commoner and afterwards Iudgment was given for the Plaintiff CCLV. Manwood and Burston 's Case Hill. 29 Eliz. In the Exchequer-Chamber MAnwood chief Baron of the Exchequer brought an Action upon the Case against Burston and declared That whereas Agnes Griffin was possessed of the third part of the Manor and Rectory of Higham for term of years by Demise of the Master and Fellows of St. John's College in Cambridge made to Worthington and whereas John Sutton was possessed of another third part of the said Manor and Rectory by the same Demise and whereas John Palmer was possessed of another third part of the said Manor and Rectory for the same term The said Burston 20 Aprilis 28 Eliz. in consideration that the said Plaintiff Obtinuisset de praed Agnet totum terminum suum assurari ipsis Rogero Manwood and the Defendant scil Unam medietatem dictae tertiae partis dicto Rogero alteram medietatem unto the said Defendant apud London in such a Ward Assumpsit eidem querent Quod si idem querens procuraret dictam Johannem Palmer to assent and sell his third part the one moyety to the Plaintiff and the other to the Defendant for 320 l. That the Defendant solveret aequam portionem inde scil 160 l. And licet the Plaintiff had procured the said Palmer 22 Aprilis an supradict to assent and sell the third part for 320 l. to be paid 3 Maii the same year and the rest at another day and licet the said Plaintiff was ready to pay his part and offered the same scil 160 l. And licet the said Palmer was ready and offered to sell and convey his term aforesaid c. yet the said Defendant solvere aequam partem suam scil 160 l. Non fuit paratus sed recusavit for which the said Palmer Noluit vendere his part or interest by which the Plaintiff was damnified c. The Defendant pleaded That after the Assumpsit the Plaintiff did discharge the Defendant of the said promise upon which they were at issue and it was found for the Plaintiff who had Iudgment to recover Vpon which Burston brought a Writ of Error in the Exchequer Chamber And divers Errors were assigned 1. It is not shewed at what time the term of Agnes Griffin did begin 2. The Lease of the College is not shewed to be by writing 3. It is not shewed for what term Palmer was possessed 4. It is not shewed at what time the Plaintiff had obtained the part of Agnes 5. The Assumpsit is laid to be apud London in Warda de Farrington extra and so apud London and extra London which is repugnant 6. The Plaintiff hath declared That the Colledge had leased to Worthington and that A. and B. were possessed Virtute dimissionis praed To these Errors the chief Baron put in his answer in writing As to the two first they are in the recital and but matter of induction to the consideration and not traversable nor otherwise material to be alledged for the commencement of them or for the Rent but onely the ending of the term to come is sufficient As in an Action upon the Case That whereas the Defendant was indebted unto the Plaintiff in divers sums of money amounting to 40 l. the Defendant in consideration thereof promised c. the Plaintiff needs not to shew any certainty of the Contract or other circumstance how or in what manner the Debt did accrue or begin As in an Action upon the Case The Plaintiff declares That whereas he hath married the daughter of the Defendant the Defendant in consideration that the Plaintiff would assure to his said Wife Land to the yearly value of 20 l. for her jointure as shall be advised by the Council of the Defendant That he will pay unto the Plaintiff 100 l. And licet the Plaintiff hath made such a jointure of Land in S. unto such yearly value for the use of his Wife by the advice of the Council of the Defendant c. Here the Plaintiff needs not to shew what manner of Conveyance or Assurance was advised for it is sufficient if the consideration recited be proved in evidence with the circumstances but in pleading it is not traversable nor issuable The third Error is mistaken The fourth is answered as the two first for it is but matter of recital and the consideration past and executed before the Assumpsit and not at the time of the Assumpsit and but an Induction or conveyance to the Promise The fifth matter is mis-construed for there are two Wards of Farrington infra extra infra the Walls and extra the Walls and yet both apud London and extra is to be referred to Farrington and not to London and there ought to be made a point after extra as Farrington extra London The sixth is mistaken for there is no Error in that for the Assignee is possessed Virtute dimissionis for the original Lease is the virtue and strength of the possession of the Assignee But if these exceptions had been material yet forasmuch as the issue is not upon the Assumpsit for that is confessed by the Defendant and by that the recital consideration and all the special matters confessed to be true But the Defendant hath pleaded a new matter after the Assumpsit in discharge of the Assumpsit which discharge is found against him all the particulars in which the Errors are assigned are out of the Book and now the matter of
moved the Case That the Plea is good and Iudgment was entred accordingly CCLXXI. Richmond and Butcher 's Case Mich. 33 Eliz. In the Common-Pleas 1 Cro. 217. IN a Replevin the Case was this A man made a Lease for years reserving Rent to the Lessor his Executors and Assigns where the Lessor had a Fee-simple in the Lands it was holden by the Court That the Rent should go to the heir notwithstanding the special Reservation because the words of the Reservation are During the term and the other words To his Executors and Assigns shall be void and then the Rent shall go with the Reversion to the heir which see 27 H. 8. 19. by Awdley And it was said by some That a Rent reserved during the term shall go to the heir with the Reversion and 12 E. 4. was cited where a Rent reserved to the Lessor and his Assigns should not go to the heir and that these words During the term did not mend the matter for the Lessor might well overlive the term But in the principal Case it was said by Periam Iustice That the Executors should not have the Rent for they have not the Reversion but if the Lessor grants over the reversion the Grantee shall have the Rent And afterwards Iudgment was given against the Plaintiff for it was in a Replevin and Iudgment was given for the Avowant who was heir to the Lessor CCLXXII Mich. 30 Eliz. In the Common-Pleas IN an Action of Trespass brought by a poor woman for breaking of her Close she declared of a Continuando of the Trespass by six years and upon Nihil dicit pleaded she had Iudgment to recover upon which issued forth a Writ of Enquiry of Damages and now came the poor woman and shewed to the Court That the Iury had found too little damages i. e. but 10 s. whereas the Land is worth 4 l. per ann and the Trespass had continued by six years together and prayed that the said Writ might not be received and that the Court would grant her another Writ to have a Melius inquirendum of the damages but the whole Court denied to grant any such Writ for so there might be infinite enquiries But sometimes at the prayer of the Defendant when excessive damages are found or any misdemeanors alledged in the Plaintiff procuring or using such a Writ of Enquiry of damages we use to relieve the Defendant by granting and issuing forth of a new Writ but to the Plaintiff never because the suing forth of the Writ is his own act And by Rhodes Iustice The late Countess of Darby brought a Writ of Dower and had Iudgment to recover and she surmised that her husband died seised and prayed a Writ of Enquiry of damages and had it granted unto her and because too small damages were found she would have suppressed the said Writ and procured a new Writ but she could not obtain it and at last she was driven to bring in the first Writ and so it was done CCLXXIII Scrog 's and Griffin 's Case Hill. 30 Eliz. In the King 's Bench. IN an Action upon the Case upon a promise by Scrogs against Griffin The Plaintiff declared That whereas such a day one Brown and another did run for a wager from Saint-John-Street to High-gate That he of the said two that first got thither and came again should have 5 l. which wager the said Brown did win and whereas after the said match so performed the said Plaintiff affirmed that there was deceit and covin in the performance of the said match upon which the Defendant in consideration of twelve pence to him delivered by the Plaintiff promised that if the Plaintiff can prove that any deceit or covin was used or practised in the performance of the said match that then upon request he should pay to the Plaintiff 5 l. And upon Non Assumpsit pleaded it was found for the Plaintiff and it was moved by Foster in arrest of Iudgment That here is not any request set forth in the Declaration and also that this deceit is enquired of in London whereas it ought to be in Middlesex where the Race was run and it was agreed by all the Iustices That the proof ought to be made in this Action as in the common Cases of voyages and that request now is but matter of conformity and not of necessity Wray Iustice It is clear That always proof ought to be as it is here if not that the matter be referred to a special proof before a person certain And as to the trial The deceit is not in issue but onely the promise and therefore the issue is well tried in London Also this Action here includes proof and request for there cannot be made any other proof and the proof is the effect for which cause he concluded that Iudgment should be entred for the Plaintiff which was done accordingly CCLXXIV Fuller and Trimwell 's Case Pasch 29 Eliz. In the Common Pleas. IN a Replevin by Fuller against Trimwell who made Conusance 1 Roll 46. â—… as Bailiff to one house for damage fesance The Plaintiff in Bar of the Conusance shewed That one A. T. did pretend right to the land where c. and the Defendant in the right of the said A. T. took the cattel c. Absque hoc that he took them as Bailiff to the said House upon which the Defendant did demur in Law and it was argued by Shuttleworth Serjeant That the traverse is not good which see 26 H. 8. 8. 5 H. 7. 2. Not his Bailiff but if the truth of the Case be so he may plead of his own wrong without such cause c. And see also 28 H. 6. 4. The Commandment is not traverseable but in special Cases where the Commandment determines the interest of the other party which see 13 H. 7. 12 13. Antea 196. in the Case of the Earl of Suffolk in Trespass the Defendant pleaded That before the trespass the Plaintiff was seised and thereof enfeoffed one B. by whose commandment he entred to which the Plaintiff said That after the Feoffment and before the trespass the said B. leased to the Plaintiff to hold at will Absque hoc that the said B. did command him and that was holden a good traverse for the commandment determines that Lease at will and in the principal Case all the Iustices were of clear opinion That the traverse is good and they all said That the Custos Brevium had shewed to them many presidents thereof See 15 H. 7. 17. and see also 7 H. 4. 101 102. In trespass for taking of cattel the Defendant did justifie as servant to such a one for Rent arrere due to his Master The Plaintiff Replicando said That the Defendant was not Bailiff at the time of the taking where it is said by Gascoigne That if the Defendant takes the cattel claiming property as a Heriot due to himself although that afterwards the Lord agrees to the distress
Rot. 509. Hubbart and Windsmore's Case in Hubbart and Windsmore's Case II. Thatcher and Damport 's Case Mich. 32 and 33 Eliz. In the King's Bench. Rot. 19. THatcher recovered against Damport as Administrator of one Zouch 1 Cro. 145. 215. ib. Error The Defendant put in Bail and afterwards Iudgment was given against the Defendant in this manner Ideo videtur Justiciariis quod querens recuperet debitum suum versus c. and thereupon a Scire facias was sued against the Bail Judgement against the Bail. and a good and lawfull Iudgment given against them And they brought a Writ of Error to reverse the Iudgment given against them and assigned Error because Iudgment was entred against them before a good and lawfull Iudgment was given against the Defendant himself For Videtur Justiciariis quod querens recuperet c. is not any Iudgment and the Court held that the Iudgment given against the Bail ought to be reversed but that the other Iudgment should stand such as it is neither affirmed nor disaffirmed but the Bail should not cause the same Iudgment for their discharge to be entred And afterwards came Thatcher and surmised the nullity of the said Iudgment and prayed that Iudgment might be entred for him in forma juris habuit And now upon this new Iudgment Damport brought a Writ of Error and assigned for Error the entry of that new Iudgment for before a Iudgment was entred tiel queb and Thatcher proceeded upon it and had a Scire facias against the Bail and Iudgment thereupon given against the Bail Also the Record was removed by Writ of Error and this second Iudgment is merely erronious for then there should be two Iudgments and they should give Iudgment upon a Record which was not before them Gawdy Iustice The Writ of Error is to remove the Record Si Judicium inde redditum sit by which if Iudgment be not given the Record doth remain unremoved and then they may well enough give Iudgment For the former pretended Iudgment was no Iudgment at all and the Record is not removed As 4 Eliz. Dyer 206. a Certiorari to remove a Record capt in Curia nostra whereas it was in Curia of the predecessor the Record is not removed The former Writ of Error was to remove the Record of the Scire facias against the Bail which might be removed although the other Record did remain for they are two distinct Iudgments And such was the opinion of the other Iustices And afterwards upon advice of the whole Court the Iudgment against the Defendant himself was affirmed but that which was given against the Bail was reversed because given before Iudgment given against the Defendant himself III. Werdman and Yate 's Case Trinit 32 Eliz. In the King 's Bench. Partition 1 Cro. 155. 281. WErdman brought a Writ of Partition against Yates and others who all appeared and confessed the Action and afterwards brought Error which was entred Pasch 27 Eliz. Rot. 43. and they assigned Errors and the opinion of the Court was against them and they seeing it did discontinue their Writ of Error and now they sued a new Writ of Error out of the Chancery Error directed to the Lord Anderson being dated 19 Nov. 31 Eliz. containing That whereas a Writ had been directed to him to remove such a Record That all the Record is not yet removed wherefore this was to remove the residue of the said Record Vpon which Writ was sent hither a small parcell of the Record upon which the Plaintiffs sued a new Writ of Error out of the Chancery Coram vobis residet and that was Hil. 31 Eliz. and it was entred upon a new Roll of the same Term and not upon the ancient Roll and thereupon new Errors were assign'd in the judicial proces out of the body of the Record 1. That the Plea was discontinued for Pone was awarded against three of the Defendants and idem dies not given to the other two nor any thing spoken of them 2. Because there were not fifteen days betwixt the date of the Pone and the Retorn of it scil the first day of the Retorn i. the first day of Essoins as ought to be by Law. 3. Iudgment was given that the Defendants should be amerced where they appear upon the first Proces and thereupon the Plaintiff sued a new Writ of Diminution one to the Lord Anderson and the other to the Custos Brevium And now came and pleaded all the matter aforesaid viz. the former Writ of Error the proceeding in it and the discontinuance of it and demanded Iudgment if the Plaintiff should have a new Writ of Diminution upon which the Plaintiff did demurr Coke this second Writ of Error is not maintainable For the first Writ sent to the Lord Anderson could not be sued out of the Chancery for it is not a Writ of Error but a Writ of Diminution For in the Register there are but two Writs of Error the first to remove Record the second Quod coram vobis residet 2 H. 7. 19. and in the Writ there is not any mention of Error and therefore it cannot be a Writ of Error and if there be not any such Writ in the Register then it is a good argument to say there is no Writ at all as the Lord Dyer argued in the Lady Hale's Case 5 Eliz. 262. in Plowden in the Case of the Writ of Escheat Also it is against all the precedents that a Writ of Error Quod coram vobis residet should be otherwise entred than upon the first Record and not upon a new Record and the Writ of Diminution is not an Original Writ and ought always issue out of the Court where the Writ of Error is depending And also the party cannot now alledge Diminution i. after a Scire facias ad audiendum Errores which see 22 E. 4. Diminution 45. by Hussey For by the Scire facias ad audiendum Errores he affirms the Record to be full So 7 E. 4. 25. After the Defendant in the Writ of Error hath pleaded in nullo est erratum he shall not alledge Diminution for the parties are agreed upon the Record 28 H. 6. 10. after a Scire facias the Plaintiff shall never assign Errors in fact c. Tanfield contrary he agreed that a Writ of Diminution cannot be sued out of the Chancery but that will not hurt us for it is idle and utterly void And when the Record is removed it is not material how it comes in so as it be here for they are both the King's Court as it is in the common Case of Indictments and then the Writ of Error is to examine the Record Quod coram vobis residet And although the same be in divers Rolls the same is no matter of Exception Entry of Records but if the Roll be entred in a wrong Office it is not good but if all be in one Office the misfiling
of the Roll will be no hurt So here it is not so formal as it ought yet it is not any prejudice to us But the great matter is if the Plaintiff may assign new Errors and have a new Writ of Diminution two of the Errors assigned in the Mesne Proces but the third is in the Record it self i. the Iudgment And there is no doubt but that a man may have divers Writs of Error but he shall have but one Supersedeas and so divers Errors but one delay Also it is not a Writ of Diminution which we have sued for I do not say that it is a thing below which is not here but I say that is not a thing below which ought to be viz. there is not any discontinuance but the Court awarded that Writ for their satisfaction for the non esse of the thing shall come on the other side and 9 E. 4. the Court awarded a Certiorare to enform themselves And he said that after a Scire facias the Plaintiff may assign new Errors Trin. 20. H. 7. Rot. 84. betwixt Edge-Court and London a Writ of Error was brought against two and after Errors assigned one of the Defendants died before a new Writ of Error could be assigned But here the first Record is discontinued and determined for which there is not now any Record which may be objected against us nor any thing in it as 20 H. 7. A man avows for a Rent due at such a day and is nonsuit Now he may avow for the same Rent and suppose the same to be due at another day Estoppell for he shall not be estopped by the Record upon which he was non-suit and so here upon the whole matter the Writ out of the Chancery is not material and the Roll is not misplaced but is in the right Office Also this is not a Writ of Diminution but a Writ to inform the Iustices Wherefore upon the whole matter the Writ of Error will well lie It was adjourned IV. Savacres Case Rot. 7. Mich. 31 and 32 Eliz. In the King's-Bench Error Post 185. A Writ of Error was brought by Savacre and the Bishop of Glocester upon a Iudgment given in a Quare Impedit for the Queen and Errors assigned 1. Attachment was awarded against the Defendants in the Quare Impedit retornable Quind Pasc at which day Savacre appeared and cast an Essoyn and notwithstanding that a Distress was awarded against them both retornable Crastin Trinit and this awarding of the Distress was erroneous for the Essoyn was as appeareth to save c. and therefore against him no Distress ought to have been awarded And upon alledging of Diminution the Record of the Essoyn was certified but the same doth not appear upon the Plea Roll. 2. This Record is ideo ipsi in misericordia and so both the Defendants are amerced for their default of appearance 15 Pasch whereas Savacre was then Essoyned and so no cause to amerce him Coke The Original Writ was sued Mich. 26 Eliz. retorned 15 Hillarii and then both the Defendants made default for which an Attachment was awarded retornable 15 Pasc and then Savacre appeared and Iudgment given quod ipsi sint in misericordia in which point the Error is apparent but I conceive that it is not Error for upon the Attachment the parties ought to put in Sureties for their appearance and the said Sureties took upon them that the Defendants and each of them should appear and if they or any of them make default they shall be amerced And so here this Iudgment ideo ipsi in misericodia doth refer to the Sureties not to the parties for the Defendants shall not be amerced until the end of the Suit and but once onely in an Action which see Book of Entries 464 where there was but one Defendant and therefore if the amercements shall be referred to the Defendant then it shall be ideo ipse not ipsi c. And that is the Reason wherefore the Queen nor an Infant shall not find Pledges for no amercement shall be upon their default therefore it were in vain for them to find Pledges c. If the Sureties be amerced where they ought not to be amerced by the Law yet the Defendant shall not have a Writ of Error thereupon for he is not the party grieved by the amercement and upon that Reason it is if in a Scire facias against the Bail erroneous Iudgment be given the Defendant in the Action shall not have a Writ of Error The awarding of the Distress upon the Roll against both where one of them only made default is not Error especially as this case is for although one of them was essoyned until the day aforesaid yet at that day they make default and so the Distress well awarded against them and although the Writ was not well awarded yet when they appear Crastin Trinit at the day of the Retorn of the Distress all mesn defaults in the Process are saved and so the misawarding of the Distress by appearance after is supplyed as 39 E. 3. 7. The Law requires that in an Action founded upon the Statute of Praemunire c. 27 E. 3. the Defendant gave Garnishment by two Months yet if the Defendant not having warning appear now the Process is good enough So 9 E. 4. 18. where upon any Process the Defendant doth appear although the day of appearance be not lawful yet he shall be put to answer and see many Cases there to that purpose And so was the Opinion of the Court in the principal Case As to the second Error That this Iudgment ideo ipsi in misericordia shall be reserved to the Sureties onely and not to the party and that the Defendant shall be but once amerced in one Action True it is he shall be amerced but once for one default but if there be many defaults the Defendant shall be amerced severally for the several defaults for every offence and it should be unreasonable that the Sureties should be amerced and that the Defendant who is the principal should be freed which see in the book of Entries 193. ipsique plegii sui in misericordia c. V. Nevil and Cook 's Case Trinit 32 Eliz. Rot. 76. In the King's-Bench IN an Action of Covenant the Plaintiff declared Covenant That where it was covenanted betwixt the Plaintiff and the Defendant That each of Them upon request should be accountable to the other for all the Corn growing upon such a place and that upon such account the one of them should deliver to the other the moiety of the Corn or the profit of it and whereas the Defendant had taken all the said Corn scil twenty loads of Wheat forty loads of Barley and thirty loads of Pease growing upon the said Lands and had been required to render account of the said Corn which he refused to do The Defendant traversed the request upon which they were at issue and it was hereupon
made the Reservation and he relied much upon the last Reason urged by Harper upon the Statute of 27 H. 8. that this was limited to the Executors Co. 13. Rep. and not to him who limited it and therefore the possession shall be executed to the Executors to whom the use was limited and this term shall not be Assets in the hands of the Executors And he said That he had seen a Record 2 H. 8. setting forth That A. having Feoffees to his use devised that his Feoffees should sell his Lands who did accordingly now the money coming by the sale shall be Assets c. but it is not so limited in our case therefore it shall not be Assets A Lease is made to A. for life the Remainder to the right Heirs of B. B. purchaseth the Estate of A. the Estate in Remainder is not executed for it is not conveyed by the Grant of the first Grantor but by the Act of another person after the Grant. A Lease for life to A. the Remainder to a Feme sole for years they entermarry Waste is committed the Lessor brings an Action of Waste he shall recover as well the Estate for years as for life A. Leaseth unto B. for life the Remainder unto the Executors of A. for years the Remainder over in Fee to a stranger the Remainder for years is good for the Lessor cannot limit such an Estate to himself and the Executors shall take the Estate as Purchasors and the term shall be in abeyance untill the death of A. There was a case before the Lord Brook in the time of Queen Mary viz. A Lease was made for life Proviso that if the Lessee dieth within the term of sixty years that the Executors shall have the Lands as in the Right and Title of the Lessee pro termino totidem annorum which do amount to the number of sixty years to be accounted from the said Indenture The Opinion of the Iustices of the Common Pleas upon the Case was That the term was not in the Lessee for life So this future term in the principal Case was not in Tho. Cranmer But see that Case cited by Dyer reported by himself 4 Ma. 150. and there the opinion of the Court was That the same was not a Lease but a Covenant And afterwards in the principal Case Iudgment was given for the Plaintiff That the future term was not forfeited by the Attainder of Cranmer VIII 7 Eliz. In the Common Pleas. THE Case was Dyer 317. b. 318. a. J. S. is seised of a Close adjoyning to the Close of J. D. and J. S. ought to enclose against J. D. J. S. leaseth his Close to another for years rendring Rent J. D. puts in his cattle into his own Close who for want of enclosure escape into the Close of J. S. and before that they be levant and couchant Distress for Rent J. S. distrains them for his Rent It was said by Manwood Iustice that the distress was not well taken Doctor Student 150. 1 Inst 476. Brown 1 part 170. Roll Tit. Distress 1 part in toto for there is a difference when the cattel come upon the Lands of another in the default of the owner of the cattel as by escape or stray and where in the default of another For in the first case the Lord may distrain them before they be levant and couchant but in the latter case not Also a Rent reserved upon a Lease for years is a new Rent and not like unto an ancient Rent due upon an ancient Tenure betwixt the Lord and the Tenant For for a Rent reserved upon a Lease for years Roll 1 part 672. acc Hob. 265. Brown part 2 170. or for a Rent charge a man cannot distrain the cattel before they be levant and couchant upon the Lands although they come upon the Lands by escape estray c. Dyer The Lord cannot distrain the cattel which escape into the Land of his Tenant for want of enclosure of his Tenant before they be levant and couchant and yet the seignory is favoured for the antiquity of it But here is new Rent not in respect of any seignory but of reservation upon a Lease for years and therefore no distress before the cattel be levant and couchant upon the Lands Quod Harper Mounson concesserunt and Iudgment was given accordingly IX 17 Eliz. In the Common Pleas. Writ of Entry in the Per. THE Case was In a Writ of Entry in the Per against A. and B. A. pleaded several tenancy It was holden by Dyer chief Iustice that it is not any plea. Harper Iustice In Assise it is no plea for here the Land is not in demand Several Tenancy where no good Plea. but here it is a good plea and the Demandant ought to maintain his Writ Manwood In no action founded upon disseisin is this good For although the Demandant by policy will bring his Writ against the Tenant of the Land and another who he will name in the Writ upon trust and confidence and that he will not agree with the Tenant of the Lord in Dilatories for the Tenant of the Lands shall not be received to plead Dilatories Yet in that case several Tenancy is no plea for the Tenant but in a Formedon or other such like action which is not grounded upon disseisin if the Writ be brought in such manner as above the Tenant by policy that he may have the view and other reasonable delay may plead several Tenancy and so enforce the Demandant to maintain his Writ but contrary in the Case at Bar and so it was adjudged per Curiam X. Creswell and Cokes Case 19 Eliz. In the Common Pleas. Dyer 351. CReswell brought Debt against Coke and demanded 200 Marks upon the Statute of 13 Eliz. of fraudulent Deeds Gifts c. upon the second clause of the Statute Debt viz. That all parties or privies to such fraudulent Deed willingly putting in ure avowing c. as true simple Custome and given bona fide shall forfeit c. And shewed that one A. held of the Plaintiff 12 acres of customary Lands and died seised And that by the custome of the Manor Heriot the Lord was to have for a Heriot the best beast whereof his Tenant died possessed and farther shewed that the said A. in his life time and a little before his death being possessed of 30 Horses of the value of 200 Marks gave the said Horses to the Defendant with intent to defraud the Plaintiff and other Lords of their Heriots and that he went to the Defendant's house to seise his Heriot and the Desendant then strained the said Horses by reason of the Gift aforesaid for which the Action is brought To which the Defendant pleaded that the Plaintiff had seised one of the Horses nomine Herioti and as to the rest he did demurr in Law. Mounson Iustice was of opinion that the Plaintiff should recover the whole 200 Marks
Iudgment of Action and not rein luy doit and the Court advised the Defendant to plead accordingly XV. Beamont and Dean 's Case Hillar 20 Eliz. In the Common-Pleas Dower Dyer 361. IN Dower brought by the wife of Beamont Master of the Rolls in the time of E. 6. The Defendant said that he himself before the Writ brought did assign a rent of 10 l. per ann to the Demandant in recompence of her Dower upon which the Demandant did demur in Law and the cause was because the Tenant had not shewed what Estate he had in the Lands at the time of the granting of the Rent as to say that he was seised in Fee and granted the said Rent so as it might appear to the Court upon the plea that the Tenant had a lawfull power to grant such a Rent which was granted by the whole Court and the demur holden good XVI Hinde and Sir John Lyon 's Case Hill. 20 Eliz. In the Common-Pleas IN Debt by the Plaintiff against the Defendant as Heir Dyer 124. a. 3 Len. 70. 3 Len. 64. he pleaded That he had nothing by Descent but the third part of the Manor of D. The Plaintiff replied Assets and shewed for Assets that the Defendant had the whole Manor of Dale by descent upon which they were at issue and it was given in evidence to the Iury That the Manor was holden by Knight's-service and that the said Sir John the Ancestor of the Defendant Devises by his Will in writing devised the whole Manor to his Wife until the Defendant his Son and Heir should come to the age of 24 years and that at the age of his said Son of 24 years the Wife should have the third part of the said Manor for term of her life and her Son should have the residue and that if his said Son do die before he come to his age of 24 years without Heir of his body that the Land should remain to J. S. the Remainder over to another The Devisor died the Son came to the age of 24 years and the Question was If the Son hath an Estate-tayl for then for two parts he is not in by Descent And by Dyer and Manwood Iustices here is not any Estate tayl for no tayl was to rise before his said age and therefore the tayl shall never take effect and the Fee-simple doth descend and remain in the Son unless he dieth within the age of 24 years and then the Entail vests with the Remainders over But now having attained his said age he hath a Fee-simple and that by Descent of the whole Manor and a general Iudgment shall be given against him as of his own Debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from the same Ancestor as any else and a Capias lieth against him But Manwood conceived That if general Iudgment be given against the Heir by default in such a case a Capias doth not lie although in case of false Plea it lieth Dyer contrary and the Writ against the Heir is in the Debet Detinet which proves that in Law it is his own Debt and he said that he could shew a precedent where such an Action was maintainable against the Executors of the Heir XVII Hil. 20 Eliz. In the Common-Pleas A Man made a Lease of Lands by Indenture Roll. 1. part 870. to begin after the expiration of a Lease thereof made to one Duffam and in an Action of Covenant brought by the second Lessee against the Lessor Covenant the Lessor said That there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam it was argued Estoppell That this Plea doth not lie for the Lessor for he is estopped to say against the Indenture That there is no such Duffam c. And also if no such person was then the first Lease was void and then the second Lease shall begin presently which Manwood and Mounson granted and by Manwood the Defendant shall be estopped by the Recital of the first Lease to say That there was no such Duffam And although the common Ground is That a Recital is not an Estoppel yet where the Recital is material as it is here it is otherwise for here the second Lease is to begin upon the expiration of the recited Lease and therefore in this case it shall be an Estoppel XVIII Mich. 20 Eliz. In the King's-Bench Action upon the Stat. of 5 Eliz. for Perjury 3 Len. 68. IN an Action upon the Statute of 5 Eliz. for a Perjury by three the Plaintiffs declared That the Defendant being examined upon his oath before Commissioners If a Surrender was made at such a Court of a Copyhold to the use of A. and B. two of the Defendants The Defendant swore there was no such surrender made c. Exception was taken to the Declaration because that the certainty of the Copyhold did not appear upon the Declaration for the Statute requires that in such Case the party grieved shall have remedy so as it ought to appear in what thing he is grieved quod fuit concessum per totam Curiam Another Exception was taken because the Action is given in this Case to the party grieved and it appeareth upon the Declaration that the Surrender in the negative deposing of which the Perjury is assigned Abatement of Writ was made to the use of two of the Plaintiffs onely and then the third person is not a party grieved for he claims nothing by the Surrender and therefore forasmuch as the two persons grieved have joined with the party not grieved the Writ shall abate against them all which Wray and Southcote granted XIX 19 Eliz. In the Common-Pleas Action upon the Stat. of 13 E. 1. of Winchester 2 Inst 569. IN an Action upon the Statute of Winchester 13 E. 1. against the men of the Hundred of A. Barham Serjeant took Exception to the Declaration because it appeareth upon it that the half year after the Robbery is not yet come for by the said Statute it is ordained that the Countrey have no longer time than half a year after the Robbery done within which time facent-gree of the Robbery or respondent the body of the Misfeasors And here the Action is brought within the half year And for this cause the Declaration was holden to be insufficient by the whole Court. And the Lord Dyer spake much in commendation of that Statute being made for the publick benefit of the whole Commonwealth for the Law intends when a Robbery is done That if the Countrey will not pursue the Malefactors that some of them are Receivers or Abettors of the Felons Manwood Iustice said When I was a Servant to Sir James Hales one of the Iustices of the Common-Pleas one of his Servants was robbed at Gadds Hill within the Hundred of Gravesend in Kent and he sued the men
remain in the Feoffees who are put in Trust with it and therefore have interest in the Lands until all the Trusts be performed and therefore the second Wife was advised by her Council to make her Entry in name of the surviving Feoffee and the interest which the Feoffees have in the interim untill the execution of all the uses is a Fee-simple determinable for the whole interest is not devested or driven out of the Feoffees untill the whole Trust be accomplished i. untill all the uses limited upon the Feoffment are executed and have their full perfection And whereas it hath been alledged on the other side That upon the second Feoffment nothing passed out of the Feoffees for which it shall not be said in Law their Livery but that the Attorney shall be said the sole Disseisor As to that I conceive That whatsoever was lost in the Feoffees passed by that Livery If he in Reversion upon an Estate for life makes a Charter of a Feoffment and a Letter of Attorney to make Livery of seisin without words ad expellendas omnes c. if Livery be made by force thereof the Fee-simple shall pass And he cited a Case which was argued before all the Iustices of England reported by himself 2 and 3 Ma. 131. Divers Leases for years were made of the Demeans of an Abby after which the Reversion was granted to the Countess of Richmond for life after which King Edw. 6. granted the Reversion in Fee to the Earl of Warwick who made a Feoffment of all to certain persons to the use of his eldest Son and his Wife for her Iointure with a Letter of Attorney to make Livery and seisin the Attorney made Livery accordingly and by that Feoffment and Livery it was adjudged that the Fee-simple did pass So in our Case upon this second Feoffment a Disseisin is done to D. the first Wife and yet the right of the Feoffees doth pass thereby and although it shall not be taken in Law their Livery yet it shall be adjudged their confirmation because they have joined in the Deed and that shall bind their right to establish the same in the new Feoffees as if the Disseisee join in a Feoffee by Deed with the heir of the Disseisor And as to that which hath been objected that because at the time of the Feoffment the Feoffees had not any thing c. and therefore nothing shall pass and they have likened to the Case where the Father is disseised and the Son and heir doth release to the Disseisor the same shall not bind the heir after the death of his Father The same is not like our Case for there is a great difference betwixt a Release and a Feoffment for if the Son disseise the Father and maketh a Feoffment in Fee in the life of his Father notwithstanding that he had not any right at the time of the Feoffment yet he is bound XXVI Thurkettell and Tey 's Case Trin. 29 Eliz. In the King's-Bench Rot. 342. 1 Cro. 110 111. IN Debt by John Thurkettell against Edw. Tey and Mary his Wife Executrix of Robert Thurkettell the Case was That Agnes Thurkettell Mother of Robert the Testator devised certain Lands to Robert and afterwards devised 40 l. to the Plaintiff John upon condition that the said John Cum requisitus esset acquietaret retaxaret praedict Roberto omnes actiones reales personales querelas c. praedict 40 l. per dict voluntat legatis tantummodo exceptis Agnes died Robert made two Bonds to John The first was endorsed to pay 20 l. parcell of the said Legacy within a year after the death of the said Agnes so as the Plaintiff release according to the will of the said Agnes The second Obligation was with the same condition to pay 20 l. residue of the said Legacy within two years after the death of the said Agnes upon condition to release ut supra and all this matter was pleaded in barr And farther That Robert required the said John to make the Release c. which he refused and they were at issue upon the request and it was found for the Plaintiff i. Quod dict Robert. non requisivit c. upon which Verdict Iudgment was given for the Plaintiff upon which the Defendants brought Error because it appeareth upon the Record here quod Billa praedict prosecuta fuit infra duos annos post mortem dict Agnet sic ante diem solutionis For the second Bond see 46 E. 3. 28. by Finchden and Persay and see there by Persay That if my Writ be brought before the day of payment and doth depend in suit till after the day of payment that my Writ is made good for at all times the Defendant was my Debtor And afterwards in the principal Case the Iudgment was affirmed in the Exchequer-Chamber and note that the day of payment did incurr pendent the Writ XXVII Lightfoot and Butler 's Case 29 Eliz. In the Exchequer IT was said in this Case by the Solicitor General That if one holdeth of the Queen as of her Manor he shall not have the privilege of the Exchequer for that cause But if the King grants Tithes and thereupon reserveth a Rent nomine decimae and a Tenure of him there he shall have the privilege The principal Case was Co. 4. Inst 118 119. that one of the parties claimed the Lands in question as his Freehold but holden of the Queen as of such a Manor and the other claimed it as Copyhold holden of the same Manor And the Freeholder did suggest in the Exchequer That the demands of the Manor are not indifferent Clark Baron If it be so this Court shall have jurisdiction Manwood If the matter pass against you wrongfully wherefore may you not have an Assise And the Case of Beaumorris was cited but I remember not to what purpose i. The Mayor and Commonalty of Beaumorris were Patrons of a Chantry and they and the Chantry Priest made a Lease for years by Indenture in the end of which was this Clause In cujus rei testimonium tam the Priest quam the Mayor and Commonalty have put their common seal and it was moved that there was not any seal for the Priest for he could not have a common seal with the Mayor and Commonalty Clark Twenty men may seal with one seal and they may also seal with one seal upon one piece of Wax onely and that shall serve for them all if they all lay their hands upon the seal together Manwood They may all seal with one seal but upon several pieces of Wax Gent when many are parties to a Deed the words are Sigilla omnia which cannot be aptly said in this Case where all seal upon one piece of Wax XXVIII Barns and Smith 's Case 29 Eliz. In the Exchequer EManuel Barns Executor of Barns late Bishop of London 3 Len. 171. brought Debt for arrerages of Rent reserved upon a Lease for years of certain Mines demised
well in the case of a Subject as in the case of the Queen That nothing can be an Inducement to a Traverse but such a thing as is Traversable and here the Descent induceth the Traverse being not Traversable in this case Also it was holden That the place where the party dieth seised needs not to be shewed in pleading a Descent And afterwards Manwood at another day mutata opinione conceived That as to plurima Recorda there needed no Traverse although there were many presidents to the contrary Diu ante transgressionem fieri sup is a good Plea in Trespass in Case of a common person not in the King's Case diu ante Intrusionem c. XXXVIII Robinson and Robinson 's Case 31 Eliz. In the Exchequer Chamber IN the Case betwixt Robinson and Robinson in the Exchequer-Chamber by English Bill concerning the Manor of Draiton Basset The Defendant pleaded in Bar a special Plea to which the Plaintiff replyed and afterwards the Defendant when he should have Rejoyned would have relinquished his special Plea and pleaded the general Issue Manwood In the Common Pleas and King's Bench and in the Court of Common Pleas in the Exchequer before the Issue joyned the Defendant might relinquish his special Plea and plead the general Issue for the Pleadings there are in paper until Issue be joyned and therefore at any time before Issue joyned the Plea might be withdrawn But in the Chancery Court of Requests and here all Pleas put in are in Parchment and filed and therefore it cannot be so done and therefore here if the Plea be once ingrossed into Parchment and filed the Defendant cannot relinquish his Plea and plead the general Issue contrary where the Plea is yet in Paper Gent Baron That if upon the Plea in Paper an Issue be offered with an Absque hoc c. the other party cannot relinquish it although it be but in Paper But afterwards the Barons asked the Clarks what was their course in such cases who answered That if the Plea be in Parchment and upon the File it shall never afterwards be taken from off the File but with the consent of the parties and Order of the Court. And afterwards Manwood with the assent of the rest of the Barons gave a Rule That the Defendant should rejoyn to the Replication or otherwise a Nihil dicit to be entred XXXIX The Lord Cromwel 's Case 31 Eliz. In the Exchequer IN the Case of the Lord Cromwel upon the Statute of 33 H. 8. for levying of the King's Debts A Debt came to the Queen by Attainder of the Creditor upon which an Extent issued against one of the Ter-tenants liable to the Debt and not against all It was moved That upon a branch of the said Statute all the Ter-tenants ought to be charged But it was the Opinion of divers that such a Debt which cometh to the King by Attainder is not within the said Statute for although the Attainder is by a Iudgment yet Debt by Iudgment it cannot properly be said but where a Debt is recovered by Iudgment And that was the Case of the Lord Norris for a Debt due to Heron by the Lord Williams which Heron was attainted XL. Machel and Dunton 's Case Hill. 29 Eliz. Rot. 631. in the Common Pleas. IN Ejectione Firmae the Case was That one Machel 1 Crō 288. Owen 54 92. Poph. 8. Alderman of London was seised and Leased for years with clause of re-entry for non payment of Rent and in the Indenture of Lease there were divers Covenants on the parts of the Lessee And afterwards the said Machel by his Will willed That the Lessee should retain the Land-demised for thirty one years reckoning the years of the first term not expired as parcel of the said term of thirty one years yielding like Rent and under such Covenants as the Lessee held the former Lease and by the same Will devised the Inheritance over to a stranger It was first moved If here the Lessee for years had a new interest accrued to him by the Will If it shall vest in him as an interest by it self or that both Estates as well the former Lease as the Estate for years devised by the Will should be united by way of Surrender Another matter was because that the Devise is yielding such Rent and under such Covenants c. Now because the meaning of the Devisor was That the Devisee should hold over the Land for the term encreased as he held before if here the Law shall give construction to this Devise as near the intention of the Devisor as it may be and so construe the words of the Will to amount to a condition But by the Opinion of the whole Court the words of the Devise cannot make a Condition for a Condition is a thing odious in Law which shall not be created without sufficient words Another matter was moved If the Fee-simple should pass by this Devise in point of Reversion or Remainder And by the better opinion of the Court it shall pass in point of Reversion for if it should be a Remainder then the Rent which is reserved upon the Lease by the Will shall not be incident to such Remainder and therefore the Law shall qualifie it into a Fee-simple Another matter was moved Admitting that the words of the Devise ut supra are Condition If here in this Case there be a Grantee of the Reversion intended within the Statute of 32 H. 8. As A. seised of Lands in Fee deviseth them to B. for years rendering Rent with clause of Re-entry and by the same Will deviseth the Reversion to another If because that it was never in the Devisor a Reversion or a Condition If the Devisee be within the said Statute to take advantage of it And the Opinion of the whole Court was That the Devisee of the Fee-simple should take advantage of this Condition XLI Trin. 29 Eliz. In the Common-Pleas Postea 210. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the same Plea was held and determined before the Vnder-Sheriff in the absence of the Sheriff It was moved by Puckering Serjeant If a Writ of Error or a false Iudgment lieth in this Case And it was resolved by the Iustices That the Sheriff himself in his person ought to hold Plea of a Justicies and if he make a Precept or Deputation to another it is meerly void 34 H. 6. 48. See the Case there abridged Fitz. Bar. 161. And a Justicies is not an Original Writ but a Commission to the Sheriff to hold Plea above 40 s. And upon a Iudgment given upon a Justicies a Writ of false Iudgment lieth and not a Writ of Error See 7 E. 4. 23. And it was the Opinion of the Lord Anderson That the Iudgment given in the principal Case was utterly void coram non Judice XLII The Queen and Jordan 's Case Trin. 29 Eliz. In the Exchequer 11 Co. 89 90 c.
15 E. 4. 29. And he agreed the Case That if the Lord doth improve part of the common that he shall not have common in the residue of the Land for the Lands improved because That he cannot prescribe for that which is improved as the Book is in 5 Ass But here in the principal Case he doth not prescribe in any person certain or in or for any new thing but he sets forth that the use of the Town hath always been that the inhabitants should have common there And this common is not common appendent or appertinent but common in gross See Needham 37 H. 6. 34. b. And he said That if the house of a Freeholder which hath used to have such common doth fall down and he erecteth a new house in another place of the Land that he shall have common to that new erected house as he had before And he took a difference betwixt the case of Estovers where a new Chimney is erected and this Case and he stood much upon the manner of the prescription Gawdy Serjeant contrary And he took exception to the prescription For he said that it is said therein That it is Antiqua Villa but he doth not say that it hath been so time out of mind c. and so it ought to be said as the Book is in 15 E. 4. 29. a. And then if it be not an ancient Town time out of mind the parties cannot prescribe as Inhabitants of the said Town to have common time out of mind c. And he said That if such a prescription as is said in this Case be good in Law viz. That every one who erected a new house within the said Town should have common to his said new house the same should be prejudicial to the ancient Town and to the utter overthrow and manifest impairing of the common there and it might so happen that one who had but little Lands in the said Town might erect twenty new houses there and so an infinite number of houses might be newly erected there and there should be common allowed to every Inhabitant within the said new erected houses which should be inconvenient and unreasonable Anderson chief Iustice He who erects a new house cannot prescribe in the common for then a prescription might begin at this day which cannot be and he insisted much upon the general loss which should happen to the ancient Tenants if such a prescription for new erections should be good Periam If it should be Law That he should have common in this Case That all the benefit which the Statute gives to the Lord for improvement should be taken away by such new edifications and erection of new houses which were not reasonable And such was the opinion of the other Iustices and therefore they all agreed that in the principal Case the Plaintiff should not have common to this new erected house but the entry of the Iudgment was respited untill the Court had seen the Record and after they had seen and considered upon the Record Anderson and Periam were of opinion as before But Windham did not encline to the contrary but they all agreed That he who set up again a new Chimney where an old one was before should have Estovers to the said new Chimney and so if he build a new house upon the foundation of an old house That he should have common to his said house new erected So if a house falleth down and the Tenant or Inhabitant sets up a new house in the same place Also if a man hath a Mill and a Water-course to it time out of mind which he hath used time out of mind to cleanse if the Mill falleth and he erecteth a new Mill there he shall have the Watercourse and liberty to cleanse it as it had before and afterwards the same Term Iudgment was given for the Defendant to which Windham Iustice agreed LIX Rous and Artois Case Hill. 29 Eliz. In the King's-Bench THE Case was large but the points in this Case were but two Owen Rep. 27. 4 Co. 24. The first was If Tenant per auter vye after the death of Cestuy que vye holdeth over If he be a Disseisor or not The second point was If Tenant at will or at sufferance be such a Tenant of the Manor as he may grant Copyhold Estates to Copyholders For the first point It was agreed by Godfrey and he held that the principal Case was That if Tenant pur auter vye holdeth over the life of Cestuy que vye that he thereby gaineth the Fee But he granted the Cases That where a man holdeth at the will of another that after the Estate determined if he holdeth over he hath not thereby gained fee for he is Tenant at sufferance and as Littleton saith in his Chapter of Releases 108. Tenant at sufferance is where a man of his own head occupieth the Lands and Tenements at the will of him who hath the Freehold and such an occupier claims nothing but at will But he said That in the principal Case he otherwise claimed than at the will of the Lessor for that it appeareth that he hath granted Copy and he said that this difference doth give answer to the Case which is t. H. 8. br t. per Copy 18. where it is said for Law That none is Tenant at sufferance but he who first enters by authority of Law As if a man makes a Lease for years or for the life of another and he holdeth the Lands after his term expired or after the death of Cestuy que vye If he claim nothing but at the will of him who hath the Freehold he is a Tenant at sufferance But if he holdeth in the Lands against the will of his Lessor then he is a Disseisor and so if he do act after such continuance of possession contrary to the will of his Lessor he is a Disseisor 10 E. 4. If an Infant maketh a Lease at will and the Lessor dieth and the Lessee continueth in possession and claims Fee the Heir shall have Mortdancester 18 E. 4. If Cestuy que vye dieth and the Tenant hold in and was impleaded The Lessor shall not be received and he conceived the reason of the Case to be because that the reversion was not in him but that the Fee was gained and rested in the other 22 E. 4. 39. g. by Hussey If a Termor holdeth over his term there an Estate in Fee is confessed to be in him because he holdeth the possession of the Lands by wrong but there is a Quaere made of it if he be a Disseisor or not but I conceive that he is for Trespass doth not lie against him before the Lessor hath made his entry and therefore if the Lessee doth continue in the possession of the Lands by reason of the first entry that is the reason as I conceive that the Writ of Entre ad terminum qui praeteriit lieth against such a Termor who holds so over his Term and
cited a Case adjudged upon a like Act scil the Statute of 35 H. 8. by which it was enacted That the Lady Katharine Wife of the said King should be as a Feme sole and that she might make Leases c. In that case the Leases should not bind the King or his successours for the said Act did not extend to make the Leases good but onely against Coverture And it was observed by Clench Iustice that in the Act of Parliament now in question It is expresly provided that the Rent reserved by the Marchioness should go to the lady Bourcher but no provision made that it should go to the King and therefore it is not reason that the King should be bounden But another matter arising upon the pleading the point did not fall in judgment LXVIII Backhouse and Spencer 's Case Trin. 29 Eliz. In the King's-Bench SAmuel Backhouse brought a Writ of Annuity against Alderman Spencer of London 1 Roll. 228. and declared upon a Grant of an Annuity for term of years and depending the Action the term expired And it was the clear opinion of the whole Court that the Plaintiff could not have Iudgment for the Iudgment in this Writ is Quod querens recuperet annuitatem praedictam and now there is not any Annuity in being See 34 H. 6. 20. 6 Co. Higgin's Case 1 Inst 285. a. 14 H. 7. 31. 19 H. 7. 16. LXIX Mich. 29 Eliz. In the Common-Pleas IN a Writ of Partitione facienda The Defendant prayeth Aid and the Plaintiff counterpleads the Aid upon which counterplea they are at issue and it is found for the Plaintiff It was adjudged that same is peremptory to the Defendant and the Iudgment shall be Non quod respondeat sed quod Partitio fiat c. LXX Rolston and Chamber 's Case 1 Leon. pa. 282. Mich. 29 Eliz. In the Common-Pleas ROlston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible entry against Chambers and upon issue joined it was found for the Plaintiff and damages assessed by the Iury and costs of suit also and costs also de incremento adjudged and all were trebled in the Iudgment with this perclose Quae quidem damna in toto se attingunt ad c. and all by the name of damages and it was objected against this Iudgment That where damages are trebled no costs shall be given as in Wast c. But afterwards it was clearly agreed that not onely the costs assessed by the Iury but that which was also de incremento adjudged should be trebled and so were all the Presidents as it was affirmed by all the Prothonotaries and so are many Books scil 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57. 12 E. 4. 1. Book of Entries 334. and Iudgment was given accordingly It was also agreed that the party so convicted of the force at the suit of the party should be fined notwithstanding that he was fined before upon an Indictment for the same LXXI Wren and Bulman 's Case Mich. 29 Eliz. In the Common-Pleas 1 Len. 282. Rolston and Chambers WRen brought an Action upon the Statute of 1 and 2 of Phil. Ma. for unlawfull impounding of Distresses against Bulman and was Nonsuit and it was moved by Shuttleworth Serjeant If the Defendant should have costs upon the Statute of 23 H. 8. and it was adjudged that he should not and that appears clearly by the words of the Statute c. For this Action is not conceived upon any such matter which is comprised within the Statute And also the Statute upon which this Action is conceived was made after the said Statute of 23 H. 8. which gives costs and therefore the Statute of 23 H. 8. and the remedy thereof cannot extend to any Action given by 1 and 2 Phil. Ma. And so Rhodes Iustice said it was adjudged 8 Elizabeth LXXII Mery and Lewes 's Case Mich. 29 Eliz. In the Common-Pleas MEry brought an Action upon the Case against W. Lewes 3 Len. 91. Executor of David Lewes late Master of St. Katharine juxta London and declared That the said David in consideration that Quaedam pars domus fratrum sororum Sanctae Katharin fuit vitiosa in decasu The said Mery ad requisitionem dicti Davidis repararet eandem assumed to pay to the said Mery all such moneys that the said Mery expenderet in such reparations And farther declared That eandem partem Domus praedict reparavit c. and upon Non assumpsit it was found for the Plaintiff In arrest of Iudgment it was objected That the count was too general Quaedam pars domus For the Plaintiff ought to have shewed specially what part of the house in certain as Hall Chamber or other Rooms but the same was not allowed Another objection was because it is set forth in the consideration that the Plaintiff Ad requisitionem dict Davidis repararet and the Plaintiff declared Quod reparavit generally without saying 2 Cro. 404. ad requisitionem dict Davidis reparavit and that is not the reparation intended in the Declaration scil Reparatio ad requisitionem but a reparation of his own head and at his pleasure and for that Case judgment was reversed LXXIII Brasier 's Case Mich. 29 Eliz. In the Common-Pleas NOTE It was agreed in the Case by all the Iustices and by the Prothonotaries That if the Disseisor levy a Fine and the Disseisee in the preservation of his right against the said Fine enter his claim in the Record of the Foot of the Fine that the same is not any such claim as shall avoid the Statute of 4 H. 7. See for this Case of the Lord Zouch in Plowden's Commentaries LXXIV Ralph Morris 's Case Trin. 29 Eliz. In the King's-Bench RAlph Morris and his Wife libelled in the Spiritual Court for that the Defendant called the Wife of one of the Plaintiffs Veneficam Sortilegam Incantatricem Daemoniorum and now came the Defendant into this Court and surmised that the matter of the Libell is determinable by the Common Law and thereupon prayed a Prohibition and it was holden by the Court That although the offence of Witchery be in some cases triable by Law yet the same doth not take away the jurisdiction of the Spiritual Court and therefore to call one a Witch generally an Action will not lie at Law as it hath been adjudged But to say that he hath bewitched such a one an Action will lie at Law. Wray Such Witchcraft as is made Felony by any Statute is not punishable in the Ecclesiastical Court but in case of slander of such Witchcraft upon such slanderous words of Witchcraft which is not Felony the Ecclesiastical Court shall punish the same and afterwards in the principal Case a Consultation was awarded LXXV Bardens and Withington 's Case Trin. 29 Eliz. In the Common-Pleas A. Is bound in a Statute to B. and sows the Land. B. extends the Lands which are delivered unto him
all this was before the Statute of 14 Eliz. And if the said Recovery should bind B. who was in the remainder in tail or if it be a forfeiture was the Question Altham of Gray's-Inn argued that here is a forfeiture First it is to see if a common Recovery suffered hy Tenant for life who is also Bargainor in this case be a forfeiture or not by the Common Law if no Execution be sued upon the same Recovery Secondly If the Recovery be executed if he in the Remainder may enter for the forfeiture When Tenant for life bargaineth and selleth the Messuage Post 65. acc 1 Len. 264. 1 Inst 251. b. acc 1 Inst 330. b. c. although upon it an Estate in Fee be limited yet nothing passeth from him but that which he may lawfully pass and that was the Estate for the life of the Bargainor for such Estate onely might lawfully pass and here the Bargainee is but Tenant for the life of another and when with his own consent he suffers a common Recovery and that without right the same is a forfeiture By matter in fact a particular Tenant may commit a forfeiture as well as by matter of Record By matter in fact he cannot commit a forfeiture if the Reversion be not thereby pulled out of him in the reversion As if Lessee for ten years maketh a Lease for 1000 years the same is no forfeiture for by that the Reversion is not touched but if he in matter of Record doe any thing which sounds to the disinheriting of him in the Reversion although in truth it doth not touch the inheritance yet it is a forfeiture which see 39 E. 3. 16. If Tenant for life plead any thing against the right of him in the Reversion it is a forfeiture And by Finchden and Belknap he cannot plead to the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution and the Lessor brought an issue and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the Reversion in another because it is an alienation to the disinheritance of the Plaintiff i. the Lessor 19 E. 3. t. Receit 14. where Tenant for life pleads in chief or doth not gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate but if a Rent be demanded against Tenant for life and he render the same it is no forfeiture 22 Ass 31. Tenant for life is impleaded by Covin betwixt him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the Reversion may enter In a Quid juris clamat against Tenant for life who pleaded faulty traversing the point of the Action he in the Reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. of default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In a Scire facias to execute a Fine against Tenant for life who pleaded to the Enquest whereas in truth the Land in demand was not comprised within the Fine and Iudgment is given for the Demandant in the Scire facias that he in the Reversion may enter In the principal Case here there is apparent and manifest covin for the Tenant for life is vouched without cause and this Recovery is by assent and is to the use of the Bargainee who is Tenant for the life of another and therefore by the Common Law he in the Reversion may enter before the Execution be sued And it is well known that these common Recoveries are used to dock a Remainder in tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the vouchee and it is found for him he in the Reversion hath no remedy but a Writ of Right and if such vouchee enters into the Warranty and loseth by Action tried or by default c. That Book is to be intended of a Recovery executed for there in such a case he in the Reversion may not enter but is put to his Writ of Entry by the Common Law vide Br. Tit. Forfeit 87. 24 H. 8. Tenant for life is impleaded and prayes in aid of a stranger he in the reversion may enter but if he doth not enter untill the other hath recovered then he cannot enter but he is put to his Writ of Entry Ad terminum qui praeteriit vel de ingress ad com Legem and therein shall falsifie the Recovery And there by Brook Voucher of a stranger is not a cause of forfeiture for he doth not disaffirm the Reversion to be in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the Right without aid prayer and so he argued That before execution he in the Remainder might enter but after execution he is put to his Action but in our Case although Execution be sued yet he in the Remainder may enter for it is found by verdict That at the time of the Recovery he was within age and then no Laches of entry shall be imputed unto him and then he shall not be driven to his Action As if Tenant by the Curtesie maketh a Feoffment with Warranty and dieth and the same descendeth to his Heir within age yet he shall enter although that he had not avoided the Warranty in the life of his Ancestor And he also conceived that the Statute of 32 H. 8. cap. 31. did extend to this Case For Sir William Pelham the Bargainee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life The words of the Statute are or otherwise for the term of life or lives quo ad nom As upon the Statute of 20 E. 1. which gives receit i. de defensione juris the words are Cum quis aliquod Breve Dom. Regis impetret versus tenentem per Legem Angliae vel feodum talliatum vel sub nomine Dotis vel alio modo ad terminum vitae c. Also although that he who entreth at the time of the recovery was not next in the Remainder to the particular Estate yet he is within the Statute of 32 H. 8. for he was in the Remainder at the time of the Recovery and at the time of the entry he in the immediate Remainder was dead and then he next in Remainder See 15 E. 4. 9. by Littleton If I grant my services to one for life and he in a Praecipe brought against him plead in the Right or granteth unto another the said services in Fee the same is not any
forfeiture because it is not any discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such Recoveries shall be utterly void and if so then he in the Reversion cannot be damnified and then no cause of forfeiture To that it was easily to be answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the Reversion by matter of Record although it doth not devest or otherwise prejudice the Inheritance yet it is a forfeiture Coke contrary Here in our Case there is not any Covin Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seised in tail at the time of the Bargain and it was lawfull for him to doe other act in the farther assurance of his bargain and it was also lawfull for him to vouch his Bargainor and although the Bargainor vouched a stranger yet it is not a forfeiture 39 E. 3. 16. Aid prayer of a stranger is a forfeiture and the reason thereof is because he acknowledgeth the Reversion to be in a stranger and that is the cause of the forfeiture See Book of Entries 254. Where upon aid prayer the party to have aid sheweth special matter but in our Case Sir William Pelham hath vouched his Bargainor and that not without cause for he hath a Warranty from him and the Demandant could not counterplead it for he had seisin by force whereof he might make a Feoffment As unto the Case of 14 E. 3. Tit. Receit 135. Lesse for life in a Praecipe against him without aid prayer pleaded to the Enquest at the first day in that case it is said that he in the Reversion may enter It is true that he may enter in the Receit but not into the Land for forfeiture for then Fitz. would have abridged the Case in title of Entry Congeable and not in the Title of Receit and the Book of 5 E. 3. is good Law for there the Tenant doth confess the Reversion to be in another but in our Case the Tenant voucheth which is a lawfull act done and according to the Covenants of his purchase And although the Recovery be by agreement yet it is not therefore a forfeiture for if the Tenant for life voucheth truly it is no forfeiture Before the Statute of West 2. cap. 3. which gave Receit to the Wife and to those in the Reversion where the particular Tenant is impleaded and maketh default vel reddere noluerit there was no remedy in such cases but by Writ of Right but no entry and that was for the reason of the credit which the Law gave to Recoveries for if they might enter wherefore is Receit given but that was in two cases onely But afterwards because it was found that many particular Tenants being impleaded would plead faintly the Statute of 13 R. 2. gave receit in such cases And upon what reasons were these Acts and Statutes made if in such cases the entry was congeable But after these two Statutes another practice was devised for such particular Tenants would suffer Recoveries secretly in such sort that those in the Reversion could not have notice thereof so as they could not before Iudgement pray to be received to remedy which mischief the Statute of 32 H. 8. was made by which all Recoveries had against Tenant by the Curtesie or otherwise for life or lives by agreement of the parties of any Lands whereof such particular Tenant is seised shall be void as Tenant by the Curtesie c. should be void against him in the Reversion and yet there was an evasion to creep out of that Statute for such particular Tenants would make a Feoffment with Warranty and then the Feoffee should be impleaded in a Writ of Entry and he vouch the Tenant for life who would aver and such Recovery was holden to be out of the Statute of 32 H. 8. For the Recovery was not against such particular Tenants c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it is provided That such Recoveries had where such particular Tenants are vouched shall be void if such Recovery be by Covin betwixt them And he conceived That the forfeiture is not in respect of the Recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it is found that this Recovery was with their assent and that was lawfull as the case is for they might agree to have such a Recovery for farther assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but he had also a Remainder in tail although not immediately depending upon the Estate for life which he had cut off there it was not meerly a feigned Recovery See 5 E. 4. 2. and 24 H. 8. br Forfeit 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger the same is no Forfeiture for the same doth not disaffirm the Reversion but contrary of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to both the chief Iustices to know their Opinions upon this point and they were of Opinion That the Voucher of a stranger was not any Forfeiture and also that after the Recovery was executed he in the Remainder could not enter but they conceided that the Right of him in the Remainder was not bound And he said That after the Recovery was executed that he in the remainder could not enter See 24 H. 8. Br. Forfeit 87. For if Entry in such Cases should be lawfull infinite Suits would follow thereupon which would be much to the Discredit of common Recoveries which are now the Common Assurances of the Land. As to the objection of the Enfancy the same will not help the matter Br. Sav. Default 50. 6 H. 8. A Recovery had against an Infant in which he voucheth and loseth is not erroneous contrary of a Recovery upon a default And if an Infant Tenant in tail suffer a common Recovery the same is a discontinuance for in such Recoveries Infancy is not respected And in a Scire facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a case out of Bendloe's Reports 5 Eliz. Tenant for life the Remainder over to a stranger in Fee Tenant for life is disseised by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who enters into warranty generally and voucheth over the common Vouchee It was adjudged That the Recovery was out of the Statute of 32 H. 8. for the Recovery was not had against the particular Tenant for he
years is out of the Book for by the Statute of 21 H. 8. cap. 15. he may falsifie the Recovery but no Receipt lieth in the case of a common Recovery for that he who recovers cannot put out the Termor As to that which my Brother Clark hath said That the bargain and sale in this case is not any forfeiture but when the bargain and sale is enrolled then it is a forfeiture I am not of such Opinion for although that the Enrolment be of Record yet the Deed is not of Record for against a Deed enrolled a man may plead Infancy although none can plead Non est factum Also he held That although by the bargain and sale and the Enrolment of it the Bargainee had not a fee for by such act the Reversion is not removed yet by the Recovery and the Execution of it the Bargainee hath gained a fee out of the Lessor for the Recovery is to the use of the Bargainee against whom it was had It hath been objected that here is onely a Voucher which paradventure was lawfull in this case by reason of a warranty paramount or of a Release or Confirmation with warranty and two Cases have been vouched to that purpose viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe voucheth a stranger the Demandant counterpleads the Voucher which is found for him he in the Reversion hath no remedy but a Writ of Right so if the Vouchee had entred into the warranty and lost c. As to that book we ought not to conceive That every Case reported in our books is Law but let us observe of what authority that case is truly it is the conceit of the Reporter himself for he puts the Case and resolves the case but no Iudge or Serjeant is named in the case c. The other case is 5 E. 4. 2. b. Note by Heydon clearly If my Tenant for life voucheth a stranger who entreth into the warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the Reversion of that which he hath in value shall be in me in lieu of my former Reversion as a Release to the Tenant for term of life shall enure to him in the Reversion But that is but the Opinion of one Serjeant c. But I answer to these books If the demandant in such recovery hath a good Title so as the Tenant or the Vouchee as Heydon saith do not know how to bar the Demandant there such Voucher of a stranger is no forfeiture nor such Recovery suffered upon it for against his Will volens nolens he suffered it but if the Tenant hath good matter to bar the Demandant and no good cause of Voucher nor any warranty as the matter is in the case of a common Recovery there the Voucher of a stranger or suffering of a Recovery is a forfeiture of his Estate And here in our case if the Demandant hath not any Title the Tenant or Vouchee hath not any warranty but the Tenant might have barred the Demandant if he would And he said That the Voucher onely doth not make the forfeiture but rather the recovery for when Iudgment is given and Execution is had then the Fee is plucked out of the Reversioner vide 6 R. 2. If Tenant for life claimeth a Fee the same is a forfeiture but here Sir William Pelham hath done more for he hath gained Fee by the Iudgment therefore à fortiori it shall be a forfeiture But let us see a little what meddlings or attempts by the particular Tenants are causes of forfeiture and what not 5 Assis 3. A. brought a Writ of Entry against Tenant for life by Collusion to oust B. of his Reversion supposing that the Tenant for life held of his Lease the Tenant confessed the Action upon which Iudgment is given B. enters and his Entry adjudged lawfull for this Recovery is adjudged in Law but an alienation to the disinheritance of him in the Reversion and there it appeareth that such Recovery by Covin is but an alienation and without any strength of a Recovery And he cited many other cases cited before by Altham 14 E. 3. Recept 135. where Tenant for life pleads in chief and prays in aid of a stranger where he might bar the Demandant and would not the same is a forfeiture Also 2 E. 3. 2. and 27 E. 3. where Tenant for life in a Quid juris clamat attorned to the Conusee upon a Fine levyed by him that had not any thing in the Land the same was a forfeiture and yet the Attornment doth not devest the Reversion out of the Lessor 50 E. 3. 7. and 8. Land was given by Fine in tail the Remainder over to a stranger in fee the Donee took a Wife and died without issue the Wife accepted Dower assigned by a stranger he in the remainder brought a Scire facias against the Wife she is Tenant in Dower of the assignment of a stranger and pleads to the Title the Demandant recovereth she hath lost her Dower for she hath not pleaded as she ought being a particular Tenant c. H. 4. Tenant for life loseth his Land in a Recovery against him against his Will and thereupon brings Quod ei deforceat and declares upon an Estate-tail and recovers the same is a forfeiture because he hath challenged a higher Estate than he had 5 H. 5. Tenant for life joyns the Mise upon the meer right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger upon condition come ceo c. all these are forfeitures In the principal Case here the Tenant who suffers his Recovery doth not plead at all to defend the Right but whereas he might have barred the Demandant he giveth strength to his pretended Title and makes it a perfect Title and by suffering this Recovery and Iudgment to pass upon it he hath taken the Reversion out of the Lessor to whom he owed Fealty and therefore he shall forfeit his Estate And without any doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title but the Recoverors in such cases are but as Assignees or Purchasors which appears by the Statute of 7 H. 8. ca. 2. which gives Distress and Avowry to Recoverors c. As to the inventing of Recoveries it was a necessary device for it was to take away Estate-tails which were the causes of great mischiefs and inconveniencies in this Realm and there was great reason for it for Tenant in tail might by the common Law alien his Lands post prolem suscitatam and now he hath an Inheritance and may do Waste But he was so restrained by the Statute of West 2. that all the Realm and the Subjects in it were inveigled thereby Ioyntures of Wives Leases of Fermors Mortgages to Creditors Statutes and other Assurances were defeated by the deaths of Tenants in tail which
was both against the common Law and also against all Conscience These matters coming to the knowledge of the Iustices and the mischiefs thereupon following being very frequent and it appearing that the Tenant in tail was a dangerous fellow and that there was no safe dealing with him they took consideration of them and considering also with themselves That Lineal Warranty and Assets and Collateral Warranty without Assets did bar the Entail upon this consideration they grounded the practice and usage of common Recoveries So as by that means Tenant in tail hath Potestatem alienandi as he hath at the Common Law and by this means right was done to the Common Law because its authority was restored and thereby injury was done to no man But as for Tenant for life he never had Potestatem alienandi And as to that which hath been said That the recovery shall stand in force untill after the death of Tenant for life and in our Case here Tenant in tail is alive Truly if the Law should be such great mischiefs would follow For then great Iointresses the Widows of great persons having assurances to them of great and stately Houses and of Lands furnished with Timber of great yearly value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit waste and the same should be dispunishable which would be an intolerable mischief and so he concluded that the suffering of a Recovery was a forfeiture and Iudgment Trin. 21 Eliz. was given and entred accordingly XC Noon 's Case Trin. 31 Eliz. In the Exchequer DEBT was brought in London against one as Executor and upon fully administred pleaded it was found for the Plaintiff who assigned the same to the Queen whereupon a Scire facias issued out of the Exchequer against the Defendant into the County of Dorset The Serhiff retorned Nulla bona c. which Scire facias was upon a Constat of goods in another County It was agreed by all the Barons that the Debt was well assigned to the Queen And also that the Scire facias might issue forth of another Court than where the Record of the Iudgment remained and that upon a Constat of goods in another County than where the Writ is brought or where the party is dwelling he may well have a Scire facias in another County But the Retorn was challenged because contrary to the verdict As in a Replevin No such beast is not a good Retorn but Averia elongata or Nullus venit ex parte querentis ad monstrand averia And here the Sheriff might have retorned Devastavit which well stands with the Verdict 5 H. 7. 27. But as to that it was said by the Barons That it is true that the Sheriff of the County where the Writ was brought is concluded by the Verdict to make any retorn contrary to it but the Sheriff of another County shall not so be but the Sheriff of the County where the Writ is brought ought to retorn Devastavit c. and thereupon the Plaintiff shall have Process into another County But the Question farther was If a Scire facias upon Testatum shall issue into another County before that the Sheriff of the County where the Writ is brought had retorned a Devastavit for some conceived That a Devastavit where the Writ was brought ought first to be retorned and then upon a Testatum Process should issue forth into any County within England But others were of opinion That without a Devastavit retorned upon a Testatum Process might be sued forth immediately into any other County Williams said If I recover goods by Action brought in Midd. I may upon a Testatum have a Capias into any foreign County XCI Western and Weild 's Case Trin. 31 Eliz. In the Exchequer IN a Writ of Accompt brought in London the Defendant pleaded Never his Receiver c. which was found for the Plaintiff and Iudgement given that the Defendant should accompt Afterwards the Defendant brought his Writ of Privilege and if the same should be allowed after Iudgment was the Question Coke It shall be allowed for the Defendant hath not surceased his time This Iudgement to accompt is not properly a Iudgment for no Writ of Error lieth upon it before the accompt be ended Manwood Regularly after Iudgment no privilege shall be allowed but that is to be intended of a Iudgment ended but here notwithstanding this Iudgment the Action is depending and therefore he conceived that the privilege should be allowed in this case It was objected That then the Plaintiff should be at great mischief for he should lose the advantage of his Trial for he must begin again and plead again and have a new Trial. Clark the Plaintiff shall have benefit of his former Trial by way of Evidence XCII Brian and Cawsen 's Case Trin. 27 Eliz. In the Common-Pleas Rot. 1353. 3 Len. 115. IN an Action of Trespass by Brian and his Wife and others against Cawsen That William Gardiner was seised in Fee according to the custome of the Manor of C. of certain Lands and surrendred them to the use of his last Will by which he devised them in this manner i. I bequeath to John Th. my House and Land in M. called Larks and Sone To Steph. Th. my House and Land called Stokes and Newmans and to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said John Stephen or Roger live till they be of lawfull age and have issue of their bodies lawfully begotten then I give the said Lands and Houses to them and their Heirs in manner aforesaid to give and sell at their pleasure but if it fortune one of them to die without issue of his body lawfully begotten Then I will that the other brothers or brother have all the said Houses and Lands in manner aforesaid and if it fortune the three to die without issue in like manner Then I will that all the said Houses and Lands be sold by my Executor or his Assigns and the money to be given to the poor The Devisor dieth John Stephen and Roger are admitted according to the intent of the Will Roger dieth within age without issue John and Stephen are admitted to his part John comes of full age and hath issue J. and surrenders all his part of the whole and his Estate therein to the use of Stephen and his heirs who is admitted accordingly Stephen comes of full age John the father dieth Stephen dieth without issue John the son as cosin and heir of Stephen is admitted according to the Will and afterwards dieth without issue The Wives of the Plaintiffs are heirs to him and are admitted to the said Lands called Larks and Sone and to the moyety of the Lands called Lakins and Brox parcell of Lands where c. by force whereof they enter into all the Lands where the Trespass is done and it was found That A. sole Executor died intestate and that Cawsen
where the Case was That Davis being Lessee for years devised that his Wife should have and occupy the Land demised for so many years as she should live nor unto the Case of Paramour and Yardley 21 Eliz. Plow 539. for there the Lesse devised That his Wife shall have the occupation and profits of the Lands untill the full age of his Son For in these two Cases the Land it self is quodam modo devised but in our Case all the Estate is devised i. the Lease it self And also in those two Cases a certain person is assigned and named in the Will who should take the residue of the term which should be expired after the death of the Wife But in the Case at Bar there is not any person certain appointed c. but the Devise as to that is conceived in general words to Children unpreferred therefore neither any possibility nor Remainder in any person certain therefore all the term is wholly in the Wife and then she might well dispose the whole But all the Court was to the Contrary and that in this case the possibility should rise well enough to the death of the Wife to that Daughter unpreferred Another matter was moved If the said term being sold in the possession of the Wife of the Devisor by force of the Execution aforesaid If now the judgment being reversed the sale of the term be also avoided for now the party is to be restored to all that which he had lost And it was argued by Coke That notwithstanding the reversal of the Iudgment the sale did stand good for the Iudgment for the Plaintiff in a Writ of Error is That he shall be restored to all that which he hath lost Ratione judicii praedict and the Iudgment was That the Plaintiff should recover 140 l. and therefore by the Iudgment in the Writ of Error he shall be restored to so much but the mean act scil the sale of the Lease shall stand and shall not be defeated or avoided As 7 H. 6. 42. A Statute Staple is bailed in Ouster le main the Conusee brings Detinue against the Bailee and hath Iudgment and recovers the Statute and upon that hath Execution The Baylee brings a Writ of Error and reverseth the Iudgment given in the Detinue yet the Execution shall stand and Audita Querela doth not lie for the Conusor And see 13 E. 3. t. Bar. 253. Accountant found in Arrearages committed to the next Gaol escapes and reverseth the Iudgment given against him in accompt by an Ex parte talis yet the Action upon the escape lieth and the Court as to that point all agreed but that point did not fall in Iudgment for by the sale nothing shall pass but the interest in praesenti which was in the Wife of the Devisor but the possibility to the children unpreferred was not touched thereby And afterwards the Iudgment was affirmed CXVI Edwards and Halinder 's Case Mich. 36 Eliz. In the Exchequer RIce Edwards brought an Action upon the Case against Halinder See the Case reported in Popham's Reports fol. 46. very short but not with the Arguments and declared That whereas one Banister had demised unto the Plaintiff a Cellar to have from week to week Quandin ambabus partibus placuerit And also whereas the said Banister had leased to the Defendant a Shop directly over the said Cellar there the Defendant had laid so great a burthen upon the floor of the said Shop that there by the said floor fell down and brake certain vessels of the Plaintiff's full of Wine by reason whereof the Plaintiff lost his Wine to the value of c. to his damages c. The Defendant said That before the charging of the floor ut supra The said floor had sustained greater weight and farther that the said Banister let unto him the said Shop for to lay there the weight of 30 Tun and he had laid there but the weight of 12 Tun and also that the Walls of the said Cellar are so weak that the floor of the said Shop fell by reason thereof upon which there was a Demurrer in Law. It was argued by Godfrey for the Plaintiff Where injury or wrong is done unto any the Law gives remedy to the party grieved and although that the Shop was let unto him to lay wares there which he hath done and that it was not his intent to surcharge the said Warehouse although the event be contrary yet forasmuch as by the laying of wares there a wrong and damage follow to the Plaintiff the Defendant shall be punished for the rule is Sic utere tuo ut alienum non laedas If I have a house and another buildeth so high over me that rain-water descends and falls from his house upon my house an Action upon the Case lieth See F. N. B. 184. So if by his building he stops my light as it was lately adjudged in the King's-Bench in the Case betwixt Bland and Mosely See 6 E. 4. 7. 8. Damages recovered for a wrong done against the will of the party and see other Cases upon this Learning 13 H. 4. t. Action upon the Case 48. The Plaintiff had sold certain trusses of Hay to the Defendant within such a Meadow to be carried away from the said Meadow within a certain time but the Defendant let the Hay lie there without carrying the same away so it putrified the Meadow by reason whereof the Plaintiff lost the profit of his Meadow for a great time and thereupon brought an Action of the Case against the Defendant and the Action was adjudged maintainable See 22 E. 4. 8. where the owners of the Plough in turning of the Plough according to the custome in the common fields upon the Land of another one of the Plough Cattel against the will of the driver takes a mouthfull of Grass the same is justifiable but if the driver of the Cattel suffereth the same to continue an Action will lie against him So 22 E. 4. 49. Where I am bound to enclose my Land against another and in default of enclosure the Cattel of the other escaped into my Land and Close I shall not punish him but if he after notice doth suffer them to continue there he shall be punished although it be through my default Also it is alledged in our Declaration That the Defendant intending to hurt and spoil the Plaintiff's Wines did lay such a weight c. And the Defendant answers thereunto That the floor fell in default of repairing of the walls of the Cellar or for the ruinousness of them where he ought to have pleaded farther Absque hoc that the Shop was surcharged with the intent to hurt the Plaintiff's Wines In an Action upon the Case upon a Trover The Defendant pleads that the goods whereof c. were pawned unto him for the security of certain money not yet paid The same is no plea without saying farther Absque hoc that he did convert c. See
the Lessee entred 29 Sept. which is before the Term begins For the words of the Habendum are From the Feast of St. Michael therefore the Feast of St. Michael is no part of the Term and then was the Defendant a Disseisor and the day after the Term began which cannot alter his Estate but that he continueth a Disseisor and then he is not in by force of the said Lease and so no Rent can be due Williams As the Declaration is here the same is not any disseisin for the Plaintiff set forth in his Declaration That the Lessee the Defendant hath occupied the Land demised the whole year and so hath not admitted any Disseisin it being in his election to make it a Disseisin or not Clench Iustice Be it a Disseisin or not or be it that the Defendant entreth or not he is to pay the Rent Gawdy The Lessee is a Disseisor and continueth a Disseisor and yet Debt lieth against him for the Rent by reason of the privity of Contract which see Rysden's Case 24 H. 8. Dyer 5. And so in our Case Quod fuit concessum per totam Curiam and afterwards Iudgment was given for the Plaintiff CXXII Monings and Worley 's Case Hill. 32 Eliz. In the King's-Bench Rot. 561. Error IN Debt upon an Obligation brought by Mary Worley against Monings in the Common-Pleas The Condition was That if Mary Worley the Plaintiff in the said Action doth not depart out of the service of the Defendant without license of the Defendant Monings nor marry her self but with his consent Then if the Defendant shall pay to the said Mary within twenty eight days after demand by her made of Monings at his house at Waldersey 100 l. That then c. And the Defendant in the said Action pleaded That the said Mary the Plaintiff in the said Action 4 Maii 30 Eliz. departed out of his service without licence The Plaintiff Mary by Replication said That 6 Septemb. the same year she departed out of his service with licence and that 4 Octob. after she demanded the said 100 l. at Waldersey aforesaid and he refused to pay it Absque hoc that she departed out of his service 4 Maii 30 Eliz. without licence and the Writ bare date 18. of October next after the demand And it was found for the Plaintiff and Iudgment given for her in the Common-Pleas and now a Writ of Error is brought by Monings Tanfield The Iudgment ought to be reversed for always the Replication in such cases ought to contain sufficient Cause of Action and sufficient breach of the Condition or otherwise the Plaintiff shall not have Iudgment although that the Issue be found for him as 7 E. 4. 31. In trespass for taking of goods of A. and B. A. pleads Not guilty B. justifies the Plaintiff makes Title to the goods by a gift B. traverseth the gift and it is found for him against the Plaintiff A. is found guilty Now although A. be found guilty yet the Plaintiff shall not have judgment against him for it is found that he hath not any Title to the goods As in Debt upon a Bond against A. and B. A. pleads Non est factum B. pleads the release of the Plaintiff and it is found the Deed of A. and that the Plaintiff hath released to B. the Plaintiff shall never have Iudgment for upon the Verdict it appears that he hath not cause of Action And here in the Replication there is not a sufficient breach shewed of the Condition for although that Mary hath not departed from the service of the said Defendant yet the same is not material but the Defendant had twenty eight days after the demand to pay the 100 l. but the same is not so here for the Plaintiff hath prevented the Defendant for the demand is alledged to be 4. Oct. and the Writ bears date 18. Octob. the same year and so the Defendant had not his time allowed him Gawdy The issue is taken upon the departure out of his service so as the demand is not now material and therefore the alledging of the same is surplusage and shall not hurt And the Defendant hath pleaded in Bar the departure of the Plaintiff out of his service upon which he relieth and the demand set forth in the Replication is not to be regarded as to prejudice the Plaintiff As 3 Ma. Dyer 115. Lessee for years covenants that he will not cut any Trees The Lessor assigns the breach of the Covenant in succidendo twenty Oaks The Lessee pleads that he did not cut the twenty Trees nor any of them The Iury found that the Defendant had cut down ten Trees The Plaintiff upon that Verdict shall have Iudgment for the rest is but surplusage and more put in issue than there needs to be Fenner It is not any full Plea to say That the Plaintiff did not depart out of the service of the Defendant 4 Maii for if she departeth at any other time she shall not recover for which cause she ought to have pleaded That she continued in his service untill such a day and then she departed with his licence and the inducement to the traverse ought to be sufficient matter otherwise it is not a full Plea nor the Traverse is not good And if it be surplusage yet if it be not matter against her self it makes the Plea naught which see 1 H. 7. 29. 6 H. 7. 16. Gawdy conceived that the Iudgment was well given for the Defendant was at his liberty to plead the departure of the Plaintiff without his licence or to stand upon the demand And now although he pleads the departure yet the demand is not confessed And afterwards the Iudgment given in the Court of Common-Pleas was affirmed CXXIII Bashpool 's Case 27 Eliz. In the King's-Bench THE Case was this The Father seised of Lands Stiles Rep. 148. is bound in an Obligation and deviseth his Lands to his Wife untill his Son cometh to the age of twenty one years the remainder to the Son in Fee and dieth and no other Lands descend or come to the Son from his Father It was moved by Godfrey That the Heir in that case at his Election might wave the Devise and take by descent or è contra See 9 E. 4. 18. by Needham But Gawdy and Shute Iustices 3 Len. 118. were of opinion That the Son should be adjudged in by Descent Clench contrary CXXIV Bennet and Shortwright 's Case Trin. 30 Eliz. In the King's-Bench THE Case was 1 Cro. 206. The Defendant sued the Plaintiff in the Spiritual Court for Tythes in kind and now the Plaintiff prayed a Prohibition and suggested That they had used in the said Parish time out of mind c. to take the tenth Sheaf in satisfaction of Tythe of Corn c. and in those years in which the Plaintiff had supposed the subtraction of his Tythes he had severed the tenth Sheaf from the nine parts and the Parson would not take
side if the Plaintiff had any remedy the same ought to be against the Executors of the Father of the Defendant and the Plaintiff hath not allowed that the Defendant is Executor to his Father and therefore he hath not any colour of Suit against him nor therefore is there any consideration Fenner The Defendant by the Law is not chargeable nor in conscience upon this matter he shall be charged for by the same reason he should be charged for the simple Contract of his Father and a promise to pay it will not bind him And afterwards Iudgment was given against the Plaintiff CXXXIV Veal and Robert 's Case Trin. 32 Eliz. In the King 's Bench. IN an Ejectione Firmae the Plaintiff declared 1 Cro. 199. How that John Veal leased to him 30 Eliz for twenty one years ten Acres of Land called M. The Defendant pleaded That before the Demise and Ejectment one John Roberts was seised of the said ten Acres called M. in Fee and 14 Eliz. demised the same to one John Cox for life and afterwards 25 Elizab. John Roberts dyed and the Reversion descended to the now Defendant Cox demised the Land to John Veal for thirty years who leased unto the Plaintiff as in the Declaration of which he was possessed quousque c. Cox dyed 30 Eliz. after whose death the Defendant entred and ejected prout was lawfull for him to do c. The Defendant by replication saith That before John Roberts had any thing one Wall of P. of Glocester was seised of the said ten Acres inter alia and 29 H. 8. demised to John Veal Father of the Lessor of the Plaintiff the said Land inter alia by the name of two Messuages and two Yard Lands in the County of Glocester nuper in tenura J. S. and of two other Houses in a Yard Land tunc in tenura E. H. nec non de ten acres vocat M. lying inter C. I. tunc in occupatione E. W. for term of years yet during Habendum dict four Messuages and three Yard Lands in tenura I.S. E.H. nec non the said ten acres to the said John Veal à tempore mortis sursum redditionis forisfactur vel determinationis status vel terminor praedict I.H. W. in eisdem for sixty years by force of which he was possessed of the interest of the term aforesaid and afterwards 14 Eliz. the Estate of the said E. W. in the said ten acres ended for which the said John Veal entred and 25 Eliz. dyed intestate and Administration was committed to J. S. Lessor of the Plaintiff by force of which he entred and Leased to the Plaintiff and so he was possessed untill ejected The Defendant did rejoyn and said That long before John Roberts had any thing William Roberts was seised in Fee and enfeoffed the said John Roberts before the Ejectment supposed who demised unto John Cox and so as in the Bar absque hoc That the said Abbat demised to the said John Veal modo forma prout the Plaintiff replicando allegavit the which matter he is ready to aver petit Judicium The Plaintiff said That the Abbat demisit ut supra hoc petit quod inquiratur per patriam and it was found for the Plaintiff And it was objected by Snag That this issue was not well taken for the Estate of John Veal was not to begin before all the Estates being in esse at the time of the making of the Lease by the Abbat of Glocester are expired Coventry contrary and that the Estates do begin severally and singulatim as the Estates precedent shall end and shall not expect untill the other Estates be determined which see Iustice Needham's Case now reported by Coke 5 part 37 Eliz. and see Pollard's Case there cited At another day it was objected by Snag That the new Estate could not begin in any part untill all the former Estates be determined for if this new Lease be made reserving Rent and one part thereof is now come in possession then he should pay for that part all the Rent But the Court was clear of Opinion That the Lease in the ten Acres did begin presently without having regard to the other Estates in demand for the intent of the Lessor was That no mean time should be betwixt the expiration of the Lease for ten years and the beginning of the new As in the Case betwixt Wrotesley and Adams 1 Eliz. Plo. Com. 198. A Lease is made to begin after the expiration of a former Lease for years the first Lessee takes a new Lease of the Lessor which was a Surrender of the former Lease If the Lease scil the second Lease shall now begin was the question or should expect untill the first Lease shall end by expiration for the former Lease is ended but not expired i. by effluction of time And it was holden that the said second Lease should begin presently for the intent of the Lessor was that no mean time should be betwixt the end and beginning of the said Estates And afterwards Iudgment was given for the Plaintiff CXXXV Pasch 32 Eliz. In the King's-Bench NOTE If a Record be removed out of the Common-Pleas into the King's-Bench by Writ of Error and the Plaintiff shall not assign his Errors then a Scire facias shall issue forth quare executionem habere non debet and upon summons or two Nichels retorned the Plaintiff shall have Execution yet the Plaintiff may assign his Errors And to such a Scire facias Exception was taken because the Writ was coram nobis apud Westm where it should be ubicunque fuerimus in Anglia and for that cause a Supersedeas was granted It was also holden That although a Writ of Error doth not lie here upon a Iudgment given in London yet upon a Iudgment given at Newgate which is upon Commission in their Sessions Error lieth here CXXXVI Bows and Vernon 's Case Pasch 32 Eliz. In the King's-Bench DEBT upon an Obligation was brought by Bows against Vernon and Hennington who pleaded the Statute of 23 H. 6. and shewed that Vernon was in Execution and that the Bond was made for his deliverance against the Statute The Plaintiff replied and said That at the time of the making of the said Bond the said Vernon fuit sui juris and at large absque hoc that he was in Prison tempore confectionis scripti praedict modo forma c. Egerton Solicitor moved that the Traverse was not good for if a man be in Prison in Execution and makes a promise to make a Bond for which he is inlarged and within an hour after he makes the Bond the same is within the Statute and therefore this issue is not well joined but it ought to be absque hoc that it was pro deliberatione c. and of such opinion was Fenner and Gawdy Iustices See Dive and Manningham's Case 4 E. 6. Plo. Com. 68 69. acc CXXXVII Hunt and Sone 's
And the Statute doth not respect the way of carriage but that altogether and to all intents it be the distance of four miles betwixt the place where c. and the said Town of Rye and here it is not material which is the common and usual way to Rye for carriages but the nearness of the place where c. Quomodocunque is the matter and therefore the Defendant ought to have pleaded That the place where c. is every way distant four miles from Rye and as to that that he hath answered four miles with 4000 paces the same is well enough for although he doth not answer the direct the words yet if he doth answer in effect it is well enough for 1000 paces and a mile are all one in substance Wray The distance shall be accounted the nearest way not as a Bird may fly CLII. Wellock and Hammon 's Case Trin. 31 Eliz. In the King's-Bench 3 Co. 20. 1 Cro. 204 205. THis Case is reported by Sir Edw. Coke in his 3 Reports See the principal case there Here is a Limitation and not a Condition for if it should be a Condition it should descend to the Heir at the Common Law which is the Devisee and so shall be extinct in his person and then the restraint is of no effect for there shall be then no means to compell the Heir who hath the Land to pay the Legacies nor have the Legatories any remedy to compell the son to pay the Legacies which shall not have effect if it be not taken by way of Limitation and to that intent Scholasticas Case was cited 15 Eliz. Dyer 317. And this word paying in a Devise shall never be construed to be a Condition And it was holden by the Iustices That where a man deviseth lands to his younger son paying such a sum unto such the Devisee hath a Fee-simple and if he do not pay the monies accordingly his Estate shall determine by the same Limitation and shall go to the heir without any other limitation and the quantity of the monies be it great or small is not material And they were of opinion also that here the monies were not payable but upon request Coke 2 Cro. 56 57. 1 Roll 439. If a man be bound to perform Covenants and one Covenant is to pay Legacies there he needs not pay them without a demand But where one is expresly bounden to pay such a Legacy there he must pay it at his peril And he said That the Case 28 H. 8. Dyer 33. is not Law for there it is holden by Fitz-herbert and Baldwin That where land was devised unto the Prior and Convent of S. Barthol Ita quod reddant annuatim Decano Capitulo Sancti Pauli 5 l. and they fail of payment of it that their Estate shall cease and the Dean and Chapter c. shall have c. such conditions void And that upon one Fee-simple another Fee-simple cannot be limited For by Coke Common experience is otherwise That upon a Fee-simple determinable another Fee-simple may be limited which Gawdy Iustice granted And as to the principal Case Iudgment was given with the limitation CLIII Parker and Harrold 's Case Pasc 28 Eliz. Rot. 485. In the King 's Bench. 3 Len. 142. IN Debt upon an Obligation The Condition was That whereas the Plaintiff and Defendant be now joyntly seised of the Office of the Register of the Court of Admiralty If the Defendant shall permit the Plaintiff to use the said Office and take the profits of it wholly to his own use during his life without lett or interruption done by him that then c. The Defendant Pleaded That the custome of the Realm of England is That the Lord Admiral for the time being might grant the said Office and that such grant should be good but for the life of the Grantor antea 103. and shewed farther That the Lord Clinton Lord Admiral granted the said Office unto the Plaintiff and the Defendant and died and that the Lord Howard was appointed Lord Admiral and that he 27 Eliz. granted the said Office to one Wade who ousted and interrupted him before which time the Defendant did suffer the Plaintiff to enjoy the said Office and to take the profits of it upon which the Plaintiff did demur in Law Coke argued for the Plaintiff That the Plea of the Defendant is not good for he hath not entitled the Lord Admiral to grant the Office for he hath said That the custome of the Realm of England is and that cannot be good for it cannot be tried for a Visne cannot be from the Realm of England Also if it lie through all the Realm then the same is Common Law and not custome which see Br. Custome 59. and see 4 5 Ph. Ma. 152 153. an express Case of the same Office and there he prescribed Per consuetudinem in Curia c. and also that such grant is good but during the life of the Admiral who granteth it Also he doth not answer to any time after the grant of the Admiral Howard for if we were lawfully put out by Wade yet the Defendant against his Bond shall not put us out or interrupt us As 5 E. 4. 115. In a Quare Impedit against an Abbat and the Incumbent who make default upon the distress upon which a Writ was awarded to the Bishop for the Plaintiff upon which the Bishop retorned That the Incumbent had resigned of which he hath given notice to the Prior and lapse incurred and the Bishop collates the former Incumbent and then this Writ came to him Now although the Incumbent be in by Title yet he is bound by the Iudgment So here although the Defendant hath another Title and the former Title of the Plaintiff be determined yet against his own Bond and Deed he shall not put out the Plaintiff c. And the Court was clear of opinion That Iudgment should be given for the Plaintiff but afterwards the Cause was compounded by order of the Lord Chancellour CLIII Bedel's Case Trin. 32 Eliz. In the King's-Bench THE Case was 3 Len. 159. That A. leased to B. certain Lands for 40 l. per ann and a stranger covenanted with A. that B. should pay unto him the 40 l. for the Farm and occupation of the said Lands A. brought an Action of Covenant the Defendant pleaded That before the day of payment the Plaintiff ousted B. of his Farm It was moved by Godfrey that it was no Plea because this is a collateral sum and not for Rent issuing out of Land Also the Defendant is a stranger to the Contract for the Farm But the opinion of the Court was to the contrary for the Defendant hath covenanted that the Lessee shall pay for the said Farm and occupation 40 l. so it is as a conditional Covenant and here is Quid pro Quo and here the consideration upon which the Covenant is conceived scil the Farm and the occupation
to sue to the King by Petition if he will have his Land yet he conceived that before the Statute of 18 H. 6. the King might grant the Land before Office as it appeareth by Thirning 13 H. 4. 278. who was before the said Statute So if the King's Tenant makes a Lease for years the Remainder over to another in Fee who dieth without Heir the Remainder is in the King without Office because a common person in such case cannot enter but a claim is sufficient and therefore it shall be in the King without Office. As to the pardon he said That it doth not extend to this Estate for this is a Freehold ergo not within the pardon As if the King's Tenant be attainted of Felony and the King pardons him all offences and all things which he may pardon these words shall not go nor extend to Freeholds but onely unto personal matters and such punishments and peins which do concern Chattels But it may be objected That by this pardon Title of Quare Impedit and Re-entries for Conditions broken are excepted and therefore if they had not been excepted they had been remitted by the pardon and therefore this pardon shall extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of H. 4. and yet Inheritances and Freeholds were not taken to be within such pardons and such Exceptions did begin 5 Eliz And he said he had been of Council in such Cases where it hath been taken that such pardons did not extend to Freeholds As an Abbat was disseised and afterwards during the Disseisin the Abby is dissolved the King makes such pardon the same doth not transfer the Right of the King and in that Pardon are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that the pardon doth extend to Freeholds And see the said Act of pardon The Queen grants all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures Sums of Moneys which word Forfeiture shall be intended of a personal Forfeiture non aliter for it is coupled with things of such nature And as to the Traverse he said It did not lie in this Case for the Office is not untrue but true in substance although void in circumstance And also the King here is entituled by double matter of Record scil the Attainder and the Office and he said that the Statutes of 34 and 36 E. 3. which gave Traverse are to be intended of Offices found virtute Officii and not virtute Brevis for then Efcheators were very troublesome And the Statute of 2 E. 6. doth not give Traverse but where the Office is untruly found as if Tenant of the King be disseised and the Disseisor be attainted the Queen seiseth the Land Now the Disseisee hath not remedy by Traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for the Office is true But if I be Tenant of the King and seised of Land accordingly and it was found that J. S. was seised of my Land and attainted c. whereas in truth he had not any thing in my Land there Traverse lieth for the Office is false and so in our Case for the Traverse it is at the Common Law and it was true that Venables was seised Coke to the contrary and he said That by the Attainder the Queen hath gained but a Chattel and that notwithstanding this Forfeiture if Venables had been in possession a Praecipe should be brought against him And where it hath been said by Mr. Attorney That Writs set down in the Register are the best Expositours of our Law the same is not so for the Register saith That Waste lieth notwithstanding a Mesn Remainder which is not now Law but it hath been clearly ruled to the contrary and see accordingly 50 E. 3. the Register therefore and the Writs are subject to the Iudgment of our Law and the Writ of Diem clausit extremum is not to the contrary for I confess that in such case the Land shall be seised into the hands of the King but the King shall not have but a Chattel therein It hath been argued It may be granted Roll. Tit. Grant. 4 Len. 112. ac Godb. 351. a. therefore it may be forfeited Nego Consequentiam for a man seised in the right of his Wife may grant but not forfeit Gardian in Socage may grant but not forfeit the Husband may grant a term for years which he hath in the right of his Wife but he cannot forfeit it A woman Inheretrix taketh a Husband who afterwards is attainted of Felony the King pardons him they have issue the Husband shall be Tenant by the curtesie which proveth that the King hath not the Freehold by that Attainder Before the Statute of Westm 2. Tenant in tail post prolem suscitatam might forfeit his Lands but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested even a Fine levied by him ipso jure nullus although as to the possession it be a Discontinuance and that is the reason wherefore Tenant in tail shall not be seised to another's use See Stamford 190. The Husband seised in the right of his Wife is attainted of Felony the King shall have the profits of the Lands of the Wife during the life of the Husband c. So if Tenant in tail be attainted of Felony and that is but a Chattel in the Lands of the Wife and also in the Lands of the Tenant in tail and if the possessions of a Bishop be seised into the Queen's hands for a Contempt in such case the Queen hath the possession and not the profits onely the same Law of the Lands of Tenant in tail or for life being attainted of Felony so of seisure for Alienation without license or of the possessions of Priors Aliens See Brook Reseiser 10. So where the Seisure is for Ideocy And he said That in the principal Case nothing is in the King until Office and as to the Case of 13 H. 4. 6. he confessed the same for at that time many and amongst them Lawyers and Iustices were attainted by Parliament and so was Sir John Salisbury whose Case it was and their Lands by Act of Parliament given expresly to the King and therefore I grant that their Lands were in the King before Office. Tenant in Fee of a common Lord is attainted of Felony his Lands remain in him during his life until the Entry of the Lord and where the King is Lord untill Office be found but in the Case of a common person after the death of the person attainted they are in the Lord before Entry and in the Case of the King before Office for the mischief of abeyances And see the Lord Lovel's Case 17 and 18 Eliz. 485 486. Plow where it is holden That upon Attainder of Treason by Act of Parliament the Lands were
Covenant wherein the breach was assigned was That if R. W. Brother of the Plaintiff should say Make assurance of such a Manor to the Defendant as the Council learned of the said Defendant should advise Then if the Defendant pays unto the Plaintiff 50 l. the Obligation to be void The Defendant by advice of Council demanded a Release with Warranty c. And by Periam and Windham The same is not any Assurance but a means to recover in value Anderson contrary That it was a Collateral Warranty c. CLXXIII Cropp and Hambleden 's Case Hill. 28 Eliz. In the King 's Bench. 1 Cro. 48. IN Trespass by Cropp against Erasmus Hambleden upon the special Verdict the Case was That one Martin Hastings was seised of the lands where c. in the right of his wife for the life of the wife and that they both did Lease unto the Defendant for years rendring Rent payable at the Feast of S. Michael and the Feast of the Annunciation c. with clause of re-entry if the Rent be behind by a Month after any of the said Feasts and after the feast of S. Michael 26 Eliz. and before the Month expired the Lessee the now Defendant sent his servant unto the house of the Lessor for to pay to him the Rent then due the servant went unto the house of the Lessor and there asked for him to whom it was answered by one Mary Briggs daughter of the wife of the Lessor who there dwelt in the said house with her mother that the Lessor was not at home for which the said servant delivered the said Rent to the said Mary requiring her to deliver the same over to the Lessor upon his retorn to the house in the name of his servant Mary reserved the said Rent and upon the retorn of the Lessor at his house told him all the matter aforesaid and that the servant of the Lessor the Defendant had required her to tender the said Rent to the Lessor in the name of the Defendant and thereupon offered and tendered to him the said Rent and the Lessor refused it And the Iury found That the third half year before the tender mentioned before the Lessor commanded the said Mary to receive the Rent then due who did accordingly and that the next half year then following the said Mary did receive the said Rent without commandment of the Lessor but after the Lessor agreed unto it and that the immediate half year before this tender in question the Defendant paid the Rent then due to the Lessor himself who received it And it was the opinion of Wray chief Iustice that this tender was good and it is not like unto the case of an Obligation for there the Obligee cannot have an Action of Debt before the last day but here the Lessor might have distrained or have had an Action of Debt before the Month expired and so the Lessor is bound by this tender and by Gawdy Iustice This tender cannot be said a tender by a stranger for here Mary came in privity of the servant of the Lessee and as it is found by Verdict Mary tendered it to the Lessor as being requested by the servant of the Lessee And afterwards upon consideration had betwixt the Iustices themselves the Iustices viz. Clench Gawdy and Wray for Shute was then sick it was clearly resolved against the Plaintiff and that the said tender as it is found in the Verdict is a good and sufficient tender and the Lord Wray delivered the reason as before and farther said That if the said Rent had been reserved payable at the feasts aforesaid or within a Month after each of them there the tender as above had not been good nor should bind the Lessor for in such case the Lessor could not distrain or have an Action of Debt for the said Rent before the Month expired And this is a case of extremity and deserves no favour and here is no mischief to the Lessor for he might have had his Rent in due time if he would and his captious refusal shall not avail him And Iudgment was given accordingly CLXXIV Bostock and Covert 's Case Trin. 33 Eliz. In the Common-Pleas BOstock and his Wife brought a Writ of Dower against Covert son and heir of her former Husband who pleaded That the Husband of the Demandant was seised of Lands amounting to the number of 300 Acres and held the same by Knights-service and died seised after whose death by virtue of the Statute of 34 and 32 H. 8. he entred into 100 Acres of the said Lands as the third part of the said Lands descended and held the same in severalty being the third part of the clear yearly value of the whole discharged of a Dower and that the Wife ought to have all her Dower out of the two parts devised And Anderson said That the Plea was not good for the heir who will take advantage of the Statute in that point ought to enter generally as Tenant in common with the Devisee and then in a Writ of Dower it is a good Plea so if after his entry as Tenant in common Partition be made betwixt him and the Devisee such a Plea is good but here he hath entred severally into a third part distinct from the residue and so hath ousted the Devisee of a third part severally for which cause he cannot have advantage of this Plea To which the rest of the Iustices Non contradixerunt CLXXV Sir John Southwel 's Case Pasch 37 Eliz. In the Exchequer 3 Len. 147. SIR John Southwel of the County of Lancaster 7 Julii 19 Eliz. made a Conveyance of his Lands to divers Feoffees and their Heirs upon condition that they should find him and his Wife and so many persons in his house c. prefer his Daughters in marriage pay his debts c. And if there fell out at the years end upon accompt made by the Feoffees any surplusage that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and profits of his said Lands with clause of revocation c. Afterwards the said Conveyance being in force came the Statute of 23 Eliz. concerning Recusants upon which Statute the said Southwel is now endicted and afterwards upon a Commission issuing out of the Exchequer to the Sheriff of Lancaster to enquire of the Lands of the said Southwel although against the said Conveyance it was given in Evidence That after the said Conveyance the said Sir John Southwel had granted Trees from off the said Lands and had received Fines and Incomes for Leases c. yet the Iurors charged to enquire would not find that the said Sir John Southwel had any Lands c. And by special command from the Queen it was referred out of the Exchequer to all the Iudges of England If the Lands of the said Sir John Southwel conveyed as aforesaid were subject to the said
Tho. Henage Hungate's Case the Queen leased for years unto Hungate provided that he should not do Waste Waste is done the Queen granted the Reversion to Sir Tho. Henage Office is found the Grantee entred and his entry was adjudged lawfull and that the Queen should have the mean profits from the time of the Waste done untill the time of the Grant. Some say Sir Walter Mildmay's Case that that case was not adjudged but compounded And he vouched Sir Walter Mildmay's Case The Lord Sturton held Lands of the Queen in Knights-service and was attainted of Felony by which the Lands escheated to the Queen who granted those Lands and it was holden that the Queen should have the mean profits betwixt the time of the Felony committed and the Grant. And after in the principal Case Iudgment was given for the Plaintiff scil the Patentee of the Queen against the Lessee who cast in a Writ of Error and by his Council prayed That the Writ of Error be not broken open untill the Iudgment be entred Manwood The Iudgment hath reference and relation unto the first day of this Term and therefore do not doubt of that CLXXIX Sted 's Case Mich. 32 Eliz. In the Exchequer 3 Len. 259. STed of Great Melton in the County of Oxford was assessed to 7 s. for Fifteens and upon refusal to pay it the Collectors distrained the Beasts of Sted and sold them Sted brought Trespass thereupon in the King's-Bench and the Collector exhibited his Bill into this Court against Sted who shewed by his Council That the Statute of 29 Eliz. which enacted this Fifteen provideth That the said Fifteen shall be levyed of the movable Goods and Chattels and other things usual to such Fifteens and Tenths to be contributary and chargeable and shewed farther that the Cattel distrained were tempore districtionis upon the Gleab Land of a Parsonage presentative which he had in Lease which Gleab Land is not chargeable usually to Fifteens granted by the Temporalty nor the Chattels upon it But it was the Opinion of the whole Court Although that the Parson himself payeth Tenths to the King yet the Lay-Farmor shall pay Fifteens and his Cattel are distrainable for it even upon the Gleab Land of the Parsonage and therefore it was adjudged that in the principal Case the Distress and Sale were good and lawfull CLXXX The Dean and Chapter of Winsors Case Mich. 32 Eliz. In the Exchequer 3 Len. 258. IN this Case it was moved If one hath a Rectory impropriate and by the Statute of 26 H. 8. cap. 3. is to pay an annual Rent for the same in the name of a Tenth and by that is discharged of Tenths and first fruits If he shall have the Privilege of the Exchequer for he is to pay the same sum yearly And the Barons were of Opinion that he should not for so every one who is to pay any Tenths or first fruits should draw another who sueth him into the Exchequer and so all Controversies concerning Tithes and Parsonages should be drawn hither which should be a great prejudice to the Spiritual Courts But Egerton Conier's Case Solicitor vouched a Case scil Conier's Case where the King gave a Parsonage to a Priory in Frankalmoign and the Tithes thereof being withdrawn the Prior impleaded him who withdrew his Tithes in the Exchequer and in that Case it was holden that the Prior should have the Privilege for the King is in danger to lose his Patronage or rather his Foundership if the Rectory be evicted Gent Baron The Tenant of the King in chief or he who pays first fruits or he who holds of the Queen in Fee-Farm shall not have in such respect the Privilege here Quaere CLXXXI Cony and Beveridge 's Case Mich. 30 Eliz. In the Common Pleas. 3 Len. 216. IN Debt upon a Bond the Case was That the Plaintiff leased unto the Defendant certain Lands lying in the County of Cambridge rendring Rent and afterwards the Defendant became bounden to the Plaintiff in a Bond for payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton to which the Defendant pleaded payment of the Rent without shewing the place of payment and upon payment they were at issue and found for the Plaintiff by Nisi prius in the County of Northampton In Arrest of Iudgment it was moved that the issue was mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge See 44 E. 3. 42. Anderson was of opinion that no Iudgment should be given for the cause aforesaid Rhodes and Windham contrary for it doth not appear that the issue is mis-tried because that no place of payment is pleaded and it might be for any thing is shewed that the Rent was paid in the County of Northampton CLXXXII Berry and Goodman 's Case Trin. 30 Eliz. In the King's-Bench IN an Ejectione Firmae upon a special Verdict the point was Ow. 95 96. One intruded upon the possession of the Queen into Lands in Kisgrave in Suffolk and during this Intrusion the Queen granted these Lands to A. B. by her Letters Patents and the Patentee before any Entry made in the said Land granted the same over Some held that the Grant was good for the Intruder had gained nothing against the Queen and by the Grant of the Queen and the assignment over nothing accrued to him and where a man hath possession of Lands his continuance therein cannot gain to him any interest or increase his Estate without some other act done of later time If the Guardian do continue in possession after the full age of the Heir he is not a Disseisor nor hath any greater Estate in the Lands and upon the Book of 21 E. 3. 2. this Case was collected The Tenant of the King dieth his Heir within age a stranger intrudes the Heir at full age sueth his Livery out of the King's hands the Intruder dieth in possession the same descent shall not take away Entry Coke contrary The Intruder cannot be Tenant at sufferance for at first he enters by wrong and none can be Tenant at sufferance but he who comes in by Title And it is clear That the Intruder by his first Entry doth not gain any Estate in possession upon which he can have an Action of Trespass but after the Grant of the Queen he hath presently Fee by wrong 8 H. 4. 129. A stranger enters upon the King to which he hath right in the right of the Ward yet the Freehold doth remain in the Heir And he said that if A. levyeth a Fine to B. sur Conusans de droit c. now the Conusee hath possession in Law but not in fact and if before the entry of the Conusee W. entreth and dieth seised he hath no remedy for he had not possession
therefore by Devise the Fee-simple shall pass without the word Heirs And he said that the opinion of Wray chief Iustice was in the Case of the Dean of Pauls If I devise that my Executors shall assign my Lands to J. S. the same implicative is a Devise of the Lands themselves to my Executors for otherwise they could not assign So if I will and devise That A. shall pay yearly out of my Manour of D. to J. S. 10 l. the same is a good Devise of the Lands to A. So if in the Case at Bar this house had been devised to the Cordwaynors by the name of the Society of Cordwaynors such Devise had been good enough Cooper contrary and he said That the intent of the Devisor ought to agree with the Law otherwise the Iudges are not to regard it in point of Iudgment and he put the Case of 39 H. 6. 10. 1 Rolls 616. A. deviseth his Lands and afterwards is disseised and before any entry dieth now notwithstanding the intent of the Devisor the Devise is void and he said The defect of a Will in words in making of an Estate shall be supplied by intent but the defect in words in naming of the Devisor or Devisee shall never be supplied See 49 E. 3. 3. 4. the Case of Whitavers And he cited a Case 25 H. 8. A stranger of the Low-countries being made a Denizen in England returned into his Countrey and dwelling there became sick and in making of his Will he was advised by Council that by Devise of all his goods his lands deviseable would pass and therefore by such words he declared his Will with the intention aforesaid scil to pass his Lands and died and afterwards the States of the Low-countries wrote unto King Henry the 8. acquainting him with the intention of the Devisor and also of the opinion of their Laws there upon the said Will and all in favour of the Devisee whereupon the King referred the consideration of the matter to Norwick then Lord chief Iustice who declared his opinion to the King to be That by that Devise the Lands did not pass notwithstanding the intent of the Devisor CXCIX Crabdell 's Case Pasch 26 Eliz. In the King's-Bench CRabdell was bound by Recognizance to his good behaviour upon which the Queen brought a Scire facias and surmised that after the Recognizance acknowledged the said Crabdell was arrested and taken by the Constable for suspicion of Felony and of his own wrong escaped It was objected on the part of Crabdell because it is not alledged by matter in fact that a Felony was committed But the whole Court was of a contrary opinion For it is not material if the Felony were committed or not for if a Subject be arrested by a lawfull Officer it is not lawfull for him to escape but he ought to stand to the Law and to answer unto the matter with which he is charged And so Crabdell was forced to answer CC. Basset and Prowe 's Case Pasch 26 Eliz. In the King's-Bench IN Debt upon a Bond the Case was That Basset was bound with Prowe as his surety to one Preston in a Bond of 500 l. and that was upon a corrupt and usurious contract against the Statute and Prowe was bound unto the Plaintiff in a Bond as a counter-bond to save the Plaintiff harmless from the said Bond of 500 l. Basset is sued by Preston upon the said Bond and so damnified and thereupon sued Prowe upon the counter-bond 1 Cro. 588 642 643. 3 Len. 63. Goldsb 174. who pleaded against Basset the Statute of Vsury pretending that all assurances depending upon such usurious contract as void by the Statute but by the opinion of Wray chief Iustice the same is no Plea for the Statute is That all Bonds collateral assurances made for the payment of Money lent upon usury shall be utterly void But the Bond here upon which the Action is brought was not for the payment of the Money lent but for the indempnity of the surety CCI. The Vicountess Bindon 's Case Pasch 26 Eliz. In the Exchequer More 213. 1 Cro. 250 251 252. THE Executors of Thomas late Viscount Bindon brought Detinue in the Exchequer against the Widow of the said Viscount and declared upon the detainer of certain Iewels The Defendant did justifie the detainer of them as her Parophornalia And it was said by Manwood chief Baron That Parophorn ought to be allowed unto a Widow having regard unto her degree and here the Husband of the Defendant being a Viscount 500 Marks is a good allowance for such matter CCII. Offley and Johnson 's Case Pasch 26 Eliz. In the King's-Bench More 136. OFfley and Johnson were bound as sureties with one A. to B. who recovered against Johnson in London and had Execution against him and now Johnson sued Offley to have of him contribution to the said Execution ut uterque eorum oneretur pro rata according to the custome of London Offley removed the cause by privilege into the King's-Bench whereupon came Johnson and prayed a Procedendo and because upon this matter no Action lieth by the course of the Common Law but onely by custome in such cities The cause was remanded Hob. 264. More 135. 3 Len. 148. for otherwise the Plaintiff should be without remedy See the Book of Entries 160. CCIII Litchfield and Cage 's Case Pasch 26 Eliz. In the King 's Bench. IN an Ejectione firmae the parties were at issue 3 Len. 100. and by the order of the Court the Trial was stayed and yet the Plaintiff against the Order did privily obtain a Nisi prius of which Gawdy Iustice being informed of it after the Term awarded a Supersedeas unto the Iustices of Assise before whom c. and yet notwithstanding that the Enquest at the instance of the Plaintiff was taken and found for the Plaintiff and all this matter was shewed to the Court in the King's-Bench and there examined and proved and it was ordered by the Court that the Verdict should not be entred of Record nor any Iudgment upon it And so it was put in ure in a Case between Vernon and Fowler And then the Plaintiffs Council took exception to the Supersedeas because it was not subscribed with the hand of Gawdy but non allocatur for the Seal is sufficient CCIV. Scott 's Case Pasch 26 Eliz. In the King 's Bench. WIlliam Scott was indicted upon the Statute of 23 Eliz. of Recusants by the name of William Scott of Southwark Gent. and upon that Indictment Iudgment given for the Queen upon which Scott brought a Writ of Error and assigned for Error That in the Indictment Scott is not named of any Parish but generally of Southwark for within Southward there are divers Parishes and by the said Statute it is ordained that the penalties accruing by the said Statute ought to be divided in three parts whereof one part is to be applied to the
conjugem matrimonium non esse c. Eosque praecipimus ab invicem seperari Vid. secundum partem Summae Sylvestrianae Si Ecclesia sit decepta in hoc quod ille in quo erat impedimentum carnalem copulam cum alia perfecerit redintegrabitur praecedens matrimonium dirimetur secundum quamvis de sententia Ecclesiae factam Et alibi Si Ecclesia se deceptam invenierit ex hoc quod impedimentum quod judicavit perpetuum apparet temporale redintegrabitur primum matrimonium c. And afterwards the Case was adjourned Afterwards that is to say Mich. 30 and 31 Eliz. the Case was moved again and Iudgment was prayed for the Plaintiff and then the Lord Anderson Ex assensu sociorum commanded that Iudgment should be entred for the Plaintiff and shewed unto the Council of both parties That about the Certificate which the four Doctors have shewed unto us of their opinions upon the point we our selves have conferred with the said Doctors who have given us their answers That the said sentence of Divorce being yet in force not reversed is peremptory and not subject to the success and although in the examinations and depositions taken in the Ecclesiastical Court no matter appeareth upon which such peremptory Divorce might be granted yet it might be as we are informed by the said Doctors that upon the examination of Physicians and Matrons sufficient matter did appear to the said Ecclesiastical Iudges which for modesty sake ought not to be entred of Record and that appeareth within the sentence i. Habito sermone cum matronis medicis which speech not entred of Record causa qua supra might be the cause that induced the Ecclesiastical Iudges to give sentence for the Divorce notwithstanding that the matter within the Record be too general to prove naturalem frigiditatem generandi but rather maleficium and afterwards Iudgment was given for the Plaintiff and so the sentence is bound by the Divorce as long as the sentence doth continue in force See this Case in Coke 5 Part. Where upon a Writ of Error brought 41 Eliz. the Iudgment was affirmed CCVIII Gittinson and Tyrrel 's Case Trin. 29 Eliz. In the Common-Pleas GIttinson brought an Action of Debt against Tyrrel Warden of the Fleet by a Bill of Privilege but he would not appear and the Court was in great doubt what remedy the Plaintiff hath to compell the Defendant to appear For he cannot be fore-judged the Court because he hath an Estate of Inheritance in the said Office And afterwards it was surmised to the Court That the said Tyrrel had made a Lease of his said Office to another for three years and then the Court was clear of opinion That the said Tyrrel should not have the Privilege for now during the Lease he is not Officer but the Lessee CCIX. Harris and the Lord Mountjoy 's Case Trin. 29 Eliz. In the Common-Pleas HArris affirmed a plaint of Debt in the Guildhall in London Dalton's Off. of Sher. 105. against the Lord Mountjoy and made an Attachment of the goods of the said Lord in the hands of Sir Drew Drewrie The Lord removed the matter into the Common-Pleas by a Writ of Privilege If now the said Lord shall find Bail was the question because that he is a Lord of the Parliament c. And the opinion of the whole Court was that he should find Bail for that is the course of the Court whosoever is party And by Anderson admitting the Law to be That the Body of a Lord of Parliament shall not be taken in Execution which I do not believe yet notwithstanding that Bail shall be found in such case For the condition of Bail doth consist upon two points First that he render his Body to Prison in Execution if Iudgment be given against him Secondly or to pay the condemnation And therefore if the Body of a Baron of Parliament is not subject to Execution yet the Bail shall stand for the second i. e. to pay the condemnation and all the Iustices were of clear opinion That for Execution upon a Statute-staple Merchant upon the Statute of Acton Burnel or upon the Statute of 23 H. 8. The Body of a Baron of Parliament shall be taken in Execution for by these Statutes such persons were not exempted CCX Trin. 29 Eliz. In the Common-Pleas NOTE It was said That the division of a great Meadow into many parcels by making of Ditches is not waste for the Meadow may be the better for it and it is for the profit and ease of the occupiers of it Hob. 234. And by Windham and Rhodes Iustices If a Termor converteth a Meadow into a Hop-garden the same is not waste for it is imployed to a greater profit and it may be a Meadow again Periam Iustice Although it be a greater profit yet it is also with greater labour and charges And the conversion of a Meadow into an Orchard is waste although it may be to the greater profit of the occupier CCXI. Mich. 29 30 Eliz. In the Common-Pleas IN a Replevin the Defendant avowed for damage feasant and upon issue joined it was found for the avowant and damages assessed and now issued a Retorno habendo upon which the Sheriff did retorn Averia elongata whereupon a Withernam was awarded and now came the Plaintiff and tendred in Court the damages assessed by the Iury and prayed stay of the Withernam and threw the Moneys into Court but the whole Court was clear against it for in this Case the Plaintiff ought to pay a Fine because he had essoigned the Cattel which is a contempt wherefore the Court assessed a Fine of three shillings four pence upon the Plaintiff and then the Plaintiff had his Prayer CCXII. Shrewsbury and the Inhabitants of the Hundred of Ashton Pasch 29 Eliz. In the Common-Pleas AN Action upon the Statute of Hue and Cry was brought by Shrewsbury against the Inhabitants of the Hundred of the three Hundreds de Ashton in the County of Bucks It was moved on the part of the Defendants That if upon such Hue and Cry the Inhabitants do their endeavours as much as in them is to follow and take the Malefactors and yet they cannot apprehend them that in reason they ought not to be charged by the said Statute But the whole Court was strongly against it And by Anderson The Inhabitants of the Hundred in which the Robbery was done are bound to apprehend the Felons or satisfie the party robbed And the party robbed is not bound to give notice to the Inhabitants nor to direct them which way the Felons took their flight but the Inhabitants are bound to follow the Felons without any such instruction and after the Enquest was taken and gave a Verdict in this manner That whereas the Plaintiff had declared That the Robbery was done in the Parish of D. in the Hundred aforesaid the Iury found that the place where the Robbery was done is a Lane within the said
in the house of Robert not by the Will but by descent and this Devise shall not take effect otherwise and the Devise as to that is void and then the Common Law shall hold place and that is to descend to the issue of the one sister and the surviving sister And here the survivor hath but an Estate for life in the house of Robert and then by the death of Robert the Fee-simple accruing to the surviving sister the moyety of her Estate for life is extinct And if one of the daughters had died without issue before Robert the house of such daughter had come to Robert and the other sister as coparceners for the son is to have all the Fee and a moyety of the same executed and a moyety expectant and the other sister should have a moyety for life and so the Devise not void And afterwards Iudgment was given against the husband of the surviving daughter CCXLIV Hurlston 's Case Hill. 29 Eliz. In the King 's Bench. 4 Len. 160. HUrlston brought a Writ of Error against the Queen upon a Iudgment given for the Queen in the County Palatine of Chester It was moved by Gawdy the Queens Serjeant that the Writ did not lye for he ought to sue to the Queen by Petition which see 23 E. 3. 22. A Writ of Error cannot be granted Absque speciali gratia Dom. Regis See also 22 E. 3. 3. And the case was That Iudgment was given for the Queen in a Scire facias to reverse the Patent of the Constableship of the Castle of Chester and by him in Chester there are many Courts King's-Bench Common-Pleas Exchequer Chancery And here a Iudgment or Decree in the Chancery cannot be reversed but by Parliament and so he conceived of a Iudgment given in the Chancery at Chester and it cannot be reversed in the King's-Bench Also they have a custome in Chester that they may reverse within certain Months the Iudgment before Clench There needs no Petition for both the Patentees claim from the Queen and whether there be Error or not the Queen is not prejudiced Coke There needs no Petition for it is now past for the Queens Attorney's hand is to it 11 Eliz. In one Haunce's case a Writ of Error was brought against the Queen and they were compelled to sue to the Queen by Petition Coke In the Exchequer If an erronious Iudgment be given for the Queen in a Bill of Intrusion the party shall have a Writ of Error against the Queen without any Petition It was the case of one Eliz. Mordant 15 Eliz. she brought a Writ of Error to reverse a Fine levyed by her during her minority against the Queen and the proceeding in it was stayed because she had not sued to the Queen by Petition first Wray Many Outlawries have been reversed by Error without any Petition and yet in such case the Queen hath an immediate interest CCXLV Gomersall and Gomersall 's Case Mich. 29 Eliz. In the King 's Bench. IN an Account The Plaintiff charged the Defendant as Bailiff of his Shop Curam habens administrationem bonorum The Defendant answered to the goods onely and said nothing to the Shop Tanfield moved the same matter for Error in arrest of Iudgment As 14. H. 4. 309 310. One charged another as Bailiff of his house Et curam habens bonorum in eo existen the traverse was That he was not Bailiff of the house Pro ut that is good and goeth to all but he cannot answer to the goods and say nothing to the house See 49 E. 3. 7. Br. Accomp 21. A man brought an Accompt against one as Bailiff of his Manor Habens curam of twenty Oxen and Cows and certain quarters of Corn And by Belknap If he have the Manor and no goods yet he shall accompt for the Manor and it shall be no Plea to say that the Plaintiff sold him the goods without traversing without that that he was his Bailiff to accompt render And as to the Manor he may say that the Plaintiff leased the same to himself for years without that that he was his Bailiff Another exception was taken by him That the Plaintiff chargeth him with moneys Ad merchandizandum And he traverseth that he was not his Receivor denarior ad computandum pro ut and so he doth not meet with the Plaintiff and so it is no issue And it is not helped by the Statute of Jeofailes 32 H. 8. but mis-joining of issue is helped by that Statute 19 Eliz. W. an Attorney of the Common-Pleas did charge another Attorney of the same Court with a Covenant to have three years board in marriage with the Defendant's daughter and he pleaded that he did not promise two years board and so issue was joined and tried and the same could not be helped by the Statute because it was no issue and did not meet with the Plaintiff So if one charge in the Debet detinet and he answers to the Detinet onely it is no issue and therefore it is not helped by the Statute In 29 H. 6. in trespass for entring into his house and taking of his goods the Defendant pleaded Non intravit and the issue was tried and damages given and because the taking of the goods was not also in issue all was void 4 E. 3. One shall not accompt by parcels because the Action is intire See 3 E. 3. 8. and Book of Entries 202. A Precedent 14 H. 7. That the Verdict was not full and did not go to the whole and therefore was void Hele Serjeant contrary And as to the first point he said That there is a Case in 9 E. 3. Accompt 35. where the Plaintiff chargeth the Defendant in accompt as Bailiff of his house and that he had the administration of his goods viz. Forty sacks of wooll and upon issue joined the Iury found that he was not Bailiff of his house but they farther find that he had received the forty sacks of wooll to render accompt of the same and the Plaintiff in that Case had Iudgment for the sacks of wooll although there was no Verdict found for the house See 5 H. 7. 24. Where if a Iury be charged with several issues and the one of the issues is found and the other not that the same makes no discontinuance or if one of the issues be discontinued yet it is no discontinuance as to the whole But admit the same be not helped by the Common Law yet he said it is helped by the Statute of 32 H. 8. of Jeofailes which is Non obstant discontinuance or miscontinuance Daniel to the same purpose And he said that the Books before cited of 14 H. 4. and 49 E. 3. are not ruled nor the Cases there adjudged in the one Book the Defendant pleaded That the Plaintiff gave the goods unto him and in the other Book that he sold the said goods unto him and demanded Iudgment of the Action And he said That it is no
petentis And upon that Replication the Defendant did demur in Law and the opinion of the whole Court was That Iudgment should be given against the Plaintiff for if he should oust the Defendant of his prescription by the Law of the Forrest he ought to have pleaded the Law of the Forrest in such case viz. Lex Forrestae est c. for the Law of the Forrest is not the common Law of the Land and we are not bound to take notice of it but it ought to be pleaded or otherwise the Plaintiff ought to have traversed the prescription of the Defendant for here are two prescriptions one pleaded by the Defendant by way of Bar the other set forth by the Plaintiff in his Replication without any traverse of that with is alledged in the Bar which cannot be good but if the Plaintiff had shewed in his Replication Lex Forrestae talis est c. then the prescription of the Defendant had been answered without any more for none can prescribe against a Statute Exception was taken to the Bar because the Defendant had justified the cutting down of Oaks without alledging that there was not any underwood but the Exception was not allowed for he hath choice ad libitum suum Another Exception was taken because he hath not shewed that at the time of the cutting it was not fawning time Poph. 158. 2 Cro. 637 679. for at the fawning time his prescription did not extend to it and that was holden a good material exception but because the Plaintiff had replied and upon this Replication the Defendant demurred the Court would not resort to the Bar but gave Iudgment upon the Replication against the Plaintiff CCLIX Mich. 29 Eliz. In the Common-Pleas A Black-Smith of South-Mims in the County of Middlesex took a Bond of another Black-Smith of the same Town that he should not exercise his Trade or Art of a Black-Smith within the same Town nor within a certain precinct of it and upon that Obligation the Obligee brought an Action of Debt in the Common-Pleas depending which the Obligor complained to the Iustices of Peace of the said County upon the matter against the Obligee upon which the matter being found by examination the Iustices committed the Obligee to prison and now upon the whole matter Puckering Serjeant prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex and it was granted and Fleetwood Recorder of London being at the Bar the Court told him openly of this matter That by the Laws Iustices of Peace have not Conusance of such offences nor could meddle with them for their power is limited by their commission and the Statutes and the Recorder did much relye upon the opinion of Hull 2 H. 5. 5. But by the clear opinion of the whole Court although this Court being a high Court Owen 143. 2 Cro. 596. might punish such offences appearing before them on Record yet it did not follow That the Iustices of Peace might so do But as to the Bond the Court was clear of opinion that it was void because it was against Law. Ante 34. CCLX Trin. 29 Eliz. In the Common Pleas. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the Plea was determined before the Vnder-Sheriff in the absence of the Sheriff and it was now moved by Puckering Serjeant If a Writ of Error or a Writ of false Iudgment did lie in that Case And first the opinion of the Iustices was That the Sheriff himself in his person ought to hold Plea of a Justicies and if he maketh a Precept or Deputation to another the same is meerly void 34 H. 6. 48. And see the said Case abridged Fitz. Bar. 161. and it was said That a Justicies is not an Original Writ but a Commission to the Sheriff to hold Plea ultra 40 s. and upon a Iudgment given upon a Justicies a Writ of false Iudgment lieth and not a Writ of Error See for that 7 E. 4. 23. And it was the opinion of Anderson chief Iustice That such Iudgment is utterly void and Coram non Judice CCLXI Trin. 29 Eliz. In the Common-Pleas NOTE by Anderson chief Iustice That if Cestuy que use 3 Len. 196. 4 Inst 85. Kel 41. after the Statute of 1 R. 3. leaseth for years and afterwards the Feoffees release unto the Lessee and his heirs having notice of the Vse that this release is unto the first Vse But where the Feffees are disseised and they release unto the Disseisor although they have notice of the Vse the same is to the use of the Disseisor and that was the Case of the Lord Compton and that no Subpoena lieth against such a Disseisor See 11 E. 4. 8. CCLXII Hamper 's Case Hill. 31 Eliz. In the King's-Bench HAmper was indicted upon the Statute of 5 Eliz. of Perjury 1 Cr. 147. 3 Len. 230. and in the body of the Indictment The Record was That he Falsa deceptive deposuit whereas the Statute is Wilfully and although in the perclose of the Indictment the conclusion is Et sic commisit voluntarium perjurium Yet the opinion of the Court was that the same doth not help the matter and for that cause the party was discharged For contra formam Statuti will not help the matter nor supply it and yet it was moved and urged That contra formam Statuti would help it and it was holden in this Case That if a witness doth depose falsly but the Iury doth not give credit to it nor give their Verdict against his oath although the party grieved cannot sue him yet he may be punished at the King's suit CCLXIII Moulton 's Case Hill. 31 Eliz. In the King ' s-Bench IT was moved by Coke That one Robert Moulton Tenant in tail 1 Cro. 151. having issue two sons Robert and John died seised and that Robert his son and heir levied a Fine thereof and afterwards levied another Fine and died without issue and John brought two several Writs of Error to reverse both the Fines and the Tenant to the Writ of Error brought upon the first Fine pleaded the second Fine in Bar of it and in Bar upon a Writ of Error brought upon the second Fine he pleaded the first Fine and the Court advised him to plead That the Fine pleaded in Bar was erroneous 7 H. 4. 107. where a man is to annul an Outlawry his person shall not be disabled by any other Outlawry CCLXIV Broccus 's Case Trin. 30 Eliz. In the Common-Pleas BRoccus Lord of a Manor covenanted with his Copiholder 1 Roll. 15. Pordage versus Cole 20 Car. 2. B. R. to assure to him and his heirs the Freehold and Inheritance of the Copihold and the Copiholder in consideration of the same performed did covenant to pay such a sum And it was the opinion of the whole Court That the Copiholder is not tied to pay the money before the Assurance made and the