and Hall the Dean and Canons of Windsor 22. E. 4. were incorporated by the name of Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor adjudged the variance of the Kings and Queens free Chappel was material although the lease was made in the time of Philip and Marie And he vouched also 44. E. 3. fo 3. and 38. E. 3. fo 28. and he said that it seemed to him that this presentation by another name had gained an usurpation by the Provost in his natural capacitie also it seemeth that notwithstanding it is not found that Doctor Airie was presented instituted and inducced yet the special verdict is good enough to have judgement of his part but he agreed that if the truth of the Case had been discovered by the pleading then it ought to be precisely shewed that such exact finding is not necessary in a special verdict as in pleading and he vouched Allens Case 33. Eliz. Banco Regis where the Iury found that Tenant for life made a lease for years and found not the lessor living nor dead and yet in this Case he was intended living and he cited also Haydons Case Cook lib. 3. and Hunts Case 5. Ma. Dyer 153. and he voucht the Case of West against Munson in a writ of error in the Kings Bench wherein the first action being an Assise in the Common Pleas it was alledged for error that the Iury did not finde the Plantiff was disseised but only the Defendant disseised him and yet the judgement was affirmed Dodderidge the Kings Serjeant for the Defendant he agreed that the name of a Corporation is essential to be alwayes used in their grants for thereby they are distinguished from other Corporations but he conceived that in this Case here is a sufficient supplying of that part of the name which is omitted and he said that although the special verdict in one place mentions the name of Queens Colledge yet when they nominate the Corporation it cals them the Provost and Scholers of the Hall omitting the words Queens Colledge and then they finde that the Provost and Scholers by the name of c. and he said that in so much the Iury found precisely that the same Corporation made the demise it is not material by what name they made it and therefore he said that if a Iury finde that I. S. had made a feofment by the name of R. S. this is good enough as it was holden in Shotbolts Case 10. 11. Eliz. and so in 13. E. 2. fitz tit Bastardy pl. 25. a Iury found that two daughters were heirs and that the Defendant was born in espousals a non suit and so 20. Eliz Dyer 361. the Iury found that Executors received rents incident to the reversion and so assets in their hands and he cited also Dyer 372. to the second matter he thought that the omitting of the name precisely of Doctor Airie made the special verdict vitious and will inveigle the Iudges so that they cannot give Iudgement for it may be that Doctor Airie was presented by the same name of Corporation as the other presentee was for he said in truth the Case was so also the special verdict is vitious because they found not any time of the Presentation of Doctor Airie for peradventure he was presented by the said Colledge when he was Provost thereof and then his presentation is not good by 22 E. 4. and to this purpose he cited Heckers case in 12. H. 8. and one Fuljambes case in 6. E. 6. in Bendlows and then admitting that Doctor Airie should be intended an usurper if he shall avoid this lease it was also moved that if a Corporation by a false name present and admission institution and induction is made by a true name if this make a Plenartie and Boswel and Greens case Cook lib. 6. was cited See more after fol. The Maior of Lincolns Case Huddleston and Hills case IN an Attachment against the Maior of Lincoln and the Steward of the Court there being Colshil it was said that if a writ of error be directed to an inferiour Court they ought to execute it in all things although that their fee be not paid nor tendered to them and Mr. Man Secondarie to Roper said that the fee which is demanded by them ought to be indorsed upon the return of the writ of error so that the Iudges may judge of it if it be reasonable and divers presidents warrant that accordingly Huddleston and Hill against Bows an Elegit upon a judgement issued at the suit of Hill and after Hill died and his eldest son sued a scire facias upon the said judgement and holden that it lieth not If a man sue in the Ecclesiastical Court for Tithes of Headlands the Defendant may have a Prohibition but by some he ought to suggest that they are but small Headlands and that there is a custome of discharge in consideration that he paid Tithes in kinde of Meadows and in this case Williams said that if a man keep sheep in one Parish until Shearing time and then sell them into another Parish in this Case the Vendee shall pay the Tithe wool to the Parish where they were depastured in the greater part of the time of the growing of the wool See the Tithing Tavle the fifth question Skelton against the Lady Airie IN a Prohibition the Plantiff saith that was seised of the Mannor of Calthrop and also of the Rectory of Haughton Calthrop and that the land whereof the tithe is demanded is Coppihold and holden of the said Mannor and that this was also found by special verdict accordingly and that it had been always discharged of payment of Tithes and it was argued that the Prohibition did lie for it was adjudged Mich 34. 35. Eliz. that a perpetual union of the Parsonage and the land charged is a sufficient discharge of the Tithes and a prescription may be well enough to be discharged of the payment of Tithes as it appears by a Case put in the Arch-Bishop of Canterburies Case Cook lib. 2. George Crook of Counsel on the other side and he conceived that a perpetual unitie was no perpetual discharge and he said there was no judgement given in the Case cited before and he also said that the Iury in this Case found not a discharge of payment of Tithes but only a new usage to pay by unitie of possession and he cited 10. H. 7. or 6. where the manner of Tithing is set down also he cited the Bishop of Winchesters Case Cook lib. 2. and he cited the Prior of D. Case to be resolved in 40. Eliz. that a Coppiholder may prescribe to be discharged of Tithes by pleading that he was alwayes Tenant by Copie to a spiritual Corporation also he cited the Case of Pigot and Hern mentioned in Cook lib. 2. in the Bishop of Wintons Case fol. 45. and he said that it was adjudged in Sheddingtons Case that if a
Baron answered that he should have them of right see Bartues case in Dyer but the Lord Treasurer said that he saw no reason to satisfie himself thereof Doillie against Joiliffe DOillie Plantiff against Joiliffe in an Action upon the case for false imprisonment of the Plantiffs wife the case was that Leonard Lovies was formerly Plantiff in an action in the Common Pleas against Julian Goddard a feme sole and in this action the Plantiff and Defendant were at issue and a venire facias was awarded and before the return thereof the said Julian took to husband Doillie now Plantiff and after upon a special verdict found in the suit judgement was given in the Common Pleas for the said Julian against th◠said Leonard upon which judgement Leonard brought error in the Kings Bench and a scire facias was awarded against Julian by the name of Julian Goddard as a feme sole and she appeared by Attorney as a feme sole and this as the Defendant said in his answer was by the consent of her husband now Plantiff and after judgement was given to reverse the judgement in the Common Pleas and the entrie of that judgement as it was pleaded by the Defendant here was quod praedict Leonard Lovies recuperet c. versus praedict Julianam c. and costs and damages were taxed c. upon which judgement the said Lovies sued a Capias ad satisfaciendum against Julian Goddard and by vertue of that writ the Defendant here the Sheriff or Devon took the said Julian being the Plantiffs wife and imprisoned her until the Plantiff paid 10. l. which was the cost taxed by the Kings Bench for her deliverance upon which imprisonment the husband only hath brought his action against the Defendant being Sheriff Davenport of Grayes Inne argued for the Defendant and first he thought that between the parties to the error and the first action in the Common Pleas there is an estoppel and admittance that the said Julian continued a feme sole for the process in all the proceedings ought to be as it was in the Original and he vouched 18. Assise pla 16. by which book it appears that if a man bring an assise for lands in the Countie of O. and the Tenants plead a Common recovery of the same land in the Common Pleas this doth conclude the partie to say that the lands did lie else where c. also if an original be depending and before the first Capias or process awarded the Defendant intermarrieth and after a capias issueth against her as a feme sole this is well awarded lib. 5. E. 4.16 and also 5. E. 3. fo 9. and 10. also he said that such a thing as is done between the plea and not after the judgement is not material to alter the proceedings in that course it was begun for the same partie against whom judgement is given shall error have against him for whom the judgement is given except she had married after the judgement for then he agreed that the writ of error shall be brought by the husband and wife in case judgement had been given against the wife while she was sole 35. H. 6. fo 31. and 12. Assise pla 41. and it also appears by 18. E. 4. fo 3. if Trespas he brought against a married wife as against a feme sole and she appears as a feme sole and judgement is given and execution accordingly this is good until it be reversed by error and the Sheriff in such case never ought to examine if it be evil or nor no more then if Trespas be brought against A. my servant by the name of B. and A. is taken in execution the Master shall not take benefit of this misnaming admitting that A. should punish the Sheriff for it also he vouched one Shotbolts case 10. and 11. Eliz. Dyer and 15. Eliz. Dyer 318. in the Earl of Kents case which prove that the Sheriff is to be excused for taking me by a false name and if the Iudges admit this false name yet this judicial writ ought not to be examined by the Sheriff and it was adjourned Shoftbey against Waller and Bromley SHoftbey brought an action upon the case against Waller and Bromley and declared that the Defendants conspired that the said Bromley should commence a suit against the Plantiff and that the Plantiff was then worth 5000. l. and that he was then dwelling in Middlesex and that the Defendants knowing thereof maliciously and falsely agreed that the said Bromley should lay his action in London and prosecute it until the Plantiff were outlawed in the said suit to the intent that his goods should be forfeited to the King and after in performance of the agreement aforesaid the Plantiff suggested that he was dwelling in London and laid his action here which was prosecuted until the Plantiff here was outlawed to his damage c. Tanfield chief Baron thought that if the suggestion was by Bromley to make the process into a wrong County it seemed that the Action should lie against him only but in regard it is shewed in the Declaration that the said suggestion was made by him in performance of the precedent agreement that the action lieth against both which the Court granted Godfrey in this action moved in arrest of judgement and that for two causes the action lieth not upon the matter here it appears by the 4. Eliz. Dyer 214. that a man may say his action wherein an outlawry lies in London and then by the Statute of 6. H. 8. cap. 4. proclamation shall issue into the Countie where he dwelleth therefore the suing of him in another Countie is no such act wherefore an action should be brought no more then if before the Statute of W. 2. cap. 12. a man had brought an appeal Maliciosè yet no remedy before the said Statute as appears in the 13. H. 7. in Kellawaies case because it was lawful to bring an appeal and so notwithstanding the said Statute no action did lie against him who brought an appeal if it abated 9. H. 5. cap. 1. also the Statute of the 18. H. 6. provideth remedy for false appeals or judgement in another Countie maliciosè c. by action of the case whereby it appeareth that in such case the Common Law allowed no action also the Statute of the 18. H. 6. provideth another remedy then that Statute and therefore no action lies against us no more then in the case aforesaid at the Common Law Secondly here is no issue joyned if the Defendants be guiltie of the execution of this practice but only if they be guiltie of the agreement and this is found for the Plantiff but clearly such agreement without execution giveth no cause of action and the word Practizatione comprehends only the going about and not the executing of this conspiracy and therefore the issue should have been general if the Defendants be guiltie or not and therefore he prayed judgement might be stayed and he cited Owen
adjudged in the Exchequer chamber and in this case the scire facias ad audiendum errores and all the writ and this scire facias in our case ought to have been made against the said Julian as against a married woman and the writ of execution which is the warrant to the Sheriff is not in such words as the judgement in the Kings Bench is upon which it is founded viz. that he should take the aforesaid Julian c. but that he take the said Julian Goddard then the Sheriff shall not say in his defence that all the proceeding in the writ of error was against the person and aided himself by entrie in the roll of the Court viz. quod praedict Julianum capiat c. but he ought to rely only upon the writ and if in this case he would save himself then he should have inquired upon the delivery of the writ unto him by Lovies who was that Julian Goddard and if thereupon Lovies had informed him that it was Julian Doillie then the Sheriff should have an action upon the case against Lovies upon this false information viz. if A. prosecute a replevin to replevy his Cattle and thereupon he cause the Sheriff to deliver unto him the Cattle of B. for this here B. hath his remedy against the Sheriff and the Sheriff against A. for this false information also he said that if a fieri facias cometh to make execution of the goods of B. if the Sheriff take others goods in execution a Trespass lieth and therefore to secure himself he ought to impannel an inquest to finde if they be the goods of B. or not and then as he conceived it is good but the opinion of the Iudges in the Kings Bench in Mich. 5. Jac. in Trespass between Rookwood and Beal was to the contrary for there a Trespass was brought by Rookwood and the Defendant justified the taking and so forth as Sheriff by vertue of a fieri facias as of the goods of Edward Rookwood father of the Plantiff and upon the execution of this writ the Defendant impannelled a Iury who found the goods to be the goods of the said Edward Rookwook for which c. the Plantiff in the replication Traversed that they were his goods absque hoc that the Iury found that they were the goods of Edward Rookwood c. whereby it seemeth that the finding of the Iury in this case is not material and so the Court then conceived therefore quaere the opinion of Tanfield chief Baron in that point and see the 17. E. 2. pl. 373. and 31. E. 3. Assise pla 378. and 7. H. 4. fo 27. Trespass pla 279. what acts a Sheriff may justifie by reason of a commandment and authoritie from the Court which commanded him Snig Baron seemed that the action did lie for the writ of capias ad satisfaciendum maketh no mention that Julian Doillie is the same person against whom judgement was given in the Kings Bench by the name of Julian Goddard and although that the entrie in the Roll is against the said Julian c. yet the writ is directed that he should take Julian Goddard and then the Sheriff had not done according to the writ in the taking of Julian Doillie and he said that if A. binde himself by the name of I. and judgement is given against him by the name of I. without appearing in person and execution is granted against him by the name of I. in this case an action lies against the Sheriff if he take the said A. in execution for it appears not to him that it is the same person but for the other cause it seemeth that the Plantiff shall not have judgement for the Sheriff is no such person who ought to be priviledged here and therefore the Plantiff should have his remedy else where and he said that such a case hath been reversed in the Exehequer Chamber for error for the under-Sheriff is but an Attorney for a partie priviledged that is for the Sheriff but all the Clarks of the Court and the other Barons were against him in that and also all the presidents Altham Baron had never heard it argued before and therefore he respited his opinion till another day at which day he said that the arrest is not justifiable and so for the matter an action well lieth for by him the arrest ought to be in this case with a special recital that whereas judgement was given and so forth as in the 1. and 2. H. 6. if an Abbot hath judgement to recover and after he is deposed a scire facias lieth not against him as Abbot to reverse this judgement and see 10. E. 4. a capias against A. the son of R. c. see the 19. of H. 6. fo 12. Summons against Iohn S. c. see 18. H. 8. fo 1. a replevin was brought in the Countie Palatine against A. widdow and after she married D. and the plaint was removed into the Common Pleas mentioning her marriage c. and so here the scire facias ought to mention all the special matter and thereupon the writ of execution upon the reversal of the judgement ought to be against Iulian Doillie and not being so the Sheriff is punishable c. but it seemed to him that in this action the wife ought to have joyned with her husband for the false imprisonment or at the least if the husband had brought the action alone there ought to have been a special mention of the loss which the husband particularly had sustained as per quod consortium uxoris suae amisit or otherwise clearly it lieth not for the husband alone and he resembled this case to the cases in the 9th of E. 4. fo 51.22 Assise pla 87.46 E. 3. fo 3. where husband and wife ought to joyn in an action or at the least the declaration ought to be special as aforesaid and so are the books of the 20. H. 7. and Kellaway to be intended and for this cause he thought the Plantiff shall not have jugement here Tanfield chief Baron as I conceived said unto him that the writ ought to have been with a special averment but a surmise ought to have been made against Iulian Doillie as she now is for as the writ is the Sheriff may safely return she is not to be found and thereupon c. quaere if he intended the writ of scire facias ad audiendum errores or the writ of execution awarded upon the judgement in the Kings Bench for he did not mention any particularity of the writ but it seemeth that he intended the writ of execution and then the surmise whereof Tanfield spoke ought to be made upon the roll of the judgement given upon the writ of error and Tanfield chief Baron said as to the joyning in action that clearly for a battery made upon the wife the husband and wife ought to joyn in the action as the books are cited before by Baron Altham and so
of the 28. Eliz. according to this opinion there was a judgement now lately in the Common Pleas as the chief Baron Tanfield said but if a Recusant be not convicted of Recusancy an informer may have advantage against him according to the Statute of the 23. Eliz. notwithstanding any thing in the Statute of the 28. Eliz. Jacksons Case UPon a motion made by Sir John Jackson in a suit by English Bill between Jackson and another Tanfield said that it had been decreed in the Chancery betwixt one Gore and Wiglesworth that if A. agree with me to lease black-Acre for certain years to me and after before he makes my lease according to his promise he infeoffes B. of that Acre for a valuable consideration and B. had notice of this promise before the feofment made unto him now B. should be compelled in the Chancey to make this lease to me according to the promise and by reason of his notice and so the Court agreed upon a motion made in the like case by the said Jackson for as before the Statute of 27. H. 8. a feoffee upon valuable consideration should be compellable in the Chancery to Execute an use whereof he had notice so here Sir Edward Dimocks Case argued before BRomley the puisne Baron thought judgement should be given for Sir Edward Dimock against the King for the matter in Law he argued but three points First that the lease made to Queen Elizabeth in the year 26. is not good clearly without a matter of Record for although that he agreed that personal Chattels may be conveyed to the Queen without matter of Record yet Chattels real can not for they participate in divers qualities with inheritances and freeholds and therefore if a man possest of a Term for years demiseth it to A. for life the remainder over to B. that this is a good remainder adjudged now lately in the Common Pleas but otherwise it is of Chattels personal as it appears by 37. H. 6. the case of the devise of a Grail Secondly the acknowledgement of the lease before Commissioners and the prayer of the Bishop to have it inrolled makes it not a record before inrolment for it appears by the 21. H. 7. that if the Sheriff by vertue of a writ doth any thing yet it is no matter of Record until it be returned and so is the 9th of Ed. 4. fo 96. that if the Phillizer of a County enter Process of outlawry in the room of a Phillizer of another County this is not a Record in judgement of Law although that it be a thing recorded and so he conceived that it was no sufficient Record in regard the Commissioners have not certified this recognizance and the prayer of the Bishop Lessor in the life of the Lessee and Lessor whereby as he said he admitted that if this were certified by the Commissioners in the life of the Lessor and Lessee that then without inrolment this had been a sufficient record to intitle the Queen who was Lessee Thirdly he argued that the inrolment subsequent in this case in time of the King that now is maketh not the lease good which was made to the Queen for he thought that the interruptions hindred the operation of this lease by interruptions he meant the death of the Bishop Lessor and of the Queen Lessee as it seemeth and the lease in possession of Sir Edward Dimock by force thereof without inrolment and therefore he said it was adjudged if a man covenant to stand seised to the use of his wife which shall be and there he makes a lease of the land and then takes a wife this lease by him is such an interruption that the use shall not arise to the wife but in Wintors case in Banco Regis 4. Jac. and also in Russels case although it seemed to be there agreed that the lease for years should be good yet it was not resolved but that the wife may have freehold well enough by vertue of that Covenant and he also vouched and agreed to Bret and Rigdens case in Plowden Com. where the death of the devisce before that the devisor died did frustrate the operation of the will and so of the death of the Queen being Lessee also he vouched the Duke of Somersets case 19. Eliz. Dyer 355. First as to the exceptions taken to the Bar by the Attorney general which were two it seemed to him that notwithstanding them the Bar is good for whereas it was objected that the Bar is that the Commission and acknowledgement of the lease were not returned by Hamond and Porter who were the two Commissioners who returned it to that he answered that the information mentions the acknowledgement and the return before them two and therefore there needeth no answer to more then is within the information also it cannot be intended to be returned by the other two Commissioners in regard that they were only to the connizance Secondly as to the other exception viz. that where the information saith that May Bishop of Carlisle by his certain writing of demise had demised c. for the Bar is that the said Bishop made a certain writing purporting a demise c. that this shall not be intended the same writing mentioned in the information and 6. E. b. Dyer 70. Ishams case for Ilebrewers Park vouched in maintenance of this exception and he said that it cannot be intended but that the Bar intends the same demise mentioned in the information for here the lease mentioned in the information and the lease mentined in the Bar agree in eight several circumstances as it was observed by the Councel of Sir Edward Dimock see the argument of Bandrip and 1. H. 6. fo 6. where a scire facias was brought against I. S. the Sheriff returned that according as the writ required he had made known to I. S. and doth not say the within named I. S. Altham Baron accordingly as to the matters in Law there are five points to be considered in the case First he said that the making of the lease to the Queen without acknowledgement is not good nor matter sufficient to intitle the Queen and he vouched 5. E. 4. fo 7. and 7. E. 4. fo 16.4 H. 7. fo 16.21 H. 7. fo 18.1 H. 7.17 and 3. H. 7.3 the same Law when awardship is granted and so an use cannot be granted to the King without matter of Record 6. E. 6. Dyer 74. that the Kings Lessee for years cannot surrender without matter of Record Secondly it seemeth that the confirmation of the Dean and Chapter is good notwithstanding it wanteth inrolment and notwithstanding the confirmation made before the inrolment and so before the being of the lease for here is only an assentor the Dean and Chapter for the Bishop hath his land in right of his Bishoprick and an assent may be aswel before the lease as after insomuch no interest passâ—th so also may an attornement be good before a grant of the reversion
Slade and Morleys case a case was put which proves it to be according Snig Baron agreed that Iudgement ought to be given for the Plantiff and by Tanfield if I take your goods and detain them until I have caused you to pay me 10. l. a general Action of Trespass lieth and not an Action upon the case and it is cited 7. H. 4. or 7. E. 4. to be accordingly but yet he agreed that judgement should be entred and so it was appointed to be done but then Chibborn for the Defendant said that here is a mistrial for if this trust be not material because it is not effectually shewed in the Declaration as you have argued then the Venue shall come only from the parish where the Wares were laid upon the land and not from the parish also where the appointment or trust was made by the Plantiff and therefore the trial also being from both parishes is a mistrial and the Court agreed that this is a mistrial upon that reason for now the appointment or Trust is but an inducement and therefore needs not to be shewed within what parish it was made and therefore a new Venire facias was granted and upon that a new trial and damages more then before and judgement was given accordingly Arden against Darcie NOta a good case of Attornament which was decreed in the time of Baron Manwood betwixt Arden and Darcie and it was this one Arden was seised in fee of divers lands in the County of c. and made a lease for years and after made a feofment with words of Grant of those lands to A. and B. to the use of the feoffor and his wife for their lives the remainder to Arden his son in tail and after the feoffor said to the Lessee that he had conveyed his land which the Lessee held in lease to the uses aforesaid and the Lessee said I like it well and after he paid his rent to the feoffor generally and it was decreed in the Exchequer Chamber that this is no Attornament because the Attornament ought to be to the feoffees and it appeareth not that the Lessee had notice of the names of the feoffees and therefore it cannot be said to amount to an Attornament but notwithstanding that Decree Arden the same to whom the remainder was limited had his Action depending in the Kings Bench to trie the point again as he said to me also this Term a point concerning the said Decree was in question upon another Bill exhibited in the Exchequer Chamber by Sir Edward Darcie against Arden and the case was as followeth Sir Edward Darcie exhibited his Bill here in the nature of a scire facias against Arden to shew cause wherefore the said Edward Darcie should not have execution of a Decree made in the time of Baron Manwood and the Defendant shewed that Darcie in his first suit supposed by his Bill that he had a grant of the land then and now in question from Queen Elizabeth rendring rent as it appears by the letters Patents and in facto there was no rent reserved upon the Patent and that the Defendant gave answer to the said Bill and admitted the Iurisdiction of the Court and after a Decree was made against the Defendant and the Defendant now having shewed this special matter demurred upon this Bill in respect that by his pretence the Court had not jurisdiction to hold plea in the first suit and here it was shewed that the first decree was made upon a matter in Law not properly examinable by English Bill and that in facto the Law was therein mistaken and therefore the Defendant prayed that the decree may be re-examined Tanfield chief Baron it is usual in the office of Pleas that if an action be brought as a debtor of our Lord the King this is good although that de facto no suggestion be made thereof if it be not shewed on the other side and therefore a writ of Error for this falsity shall not cause the judgement to be reversed as it was resolved in a case in which I was of Councel and so here as it seemeth Altham Baron here we are in equity wherein we are not tied to so strickt a course as if it were in the office of pleas Brock of the Inner Temple for the Defendant in a Court of equity it is in the discretion of the Court to deny Execution of a decree if good cause be shewed and in 18. E. 4. fo 1. judgement was given against a married wife by the name of a feme sole and reversed although she did not shew in the first suit that she was married and in 8. E. 4. judgement was given in the Kings Bench in a suit and by writ of error was reversed although the Defendant had admitted the Iurisdiction of the Court and the chief Baron and all the Court inclined that Arden may exhibit a Bill to reverse this Decree made against him and may shew what point in Law the Iudges mistook in the Decree or otherwise we should not do as Law and Iustice requireth for it is not expedient to be examined by way of Bar to this Bill in the nature of a scire facias and after Arden according to the Decree of the Court and their direction did exhibit his Bill in the nature of a writ of error Comprising how the first decree was erroneously made and prayed that the said decree might be reversed and in his Bill he shewed the point in Law which was decreed and that upon divers long conveyances appears to be thus and so it was agreed by Councel on both parties that Arden the father was seised of the Mannor of Cudworth in the County of c. and was also seised of the Mannor of Parkhal in the same County and of Blackclose c. which was parcel of the Mannor of Cudworth but lying neer unto Parkhal and alwayes used and occupied with it and reputed parcel thereof but in truth it was parcel of Cudworth and that Arden the father made a Conveyance of the Mannor of Parkhal and of all the lands thereunto belonging and reputed as parcel thereof or occupied with it as part or parcel thereof and of all other his lands in England except the Mannor of Cudworth to the use of Arden his son that now is Plantiffe here and if Blackclose will pass to the son by this conveyance or if by intendment it shall be excepted by the exception made it was the question here and was decreed in the time of Baron Manwood that it is excepted by the exception but all the Barons now thought it to be a strong case that Blackclose is not excepted by the exception of the Mannor of Cudworth and so the first decree was upon a mistake out of the Law and Tanfield chief Baron said that the point is no other but that I infeoffe you of Blackacre parcel of the Mannor of D. exceyt my Mannor of D. this doth not except the King
ought to take notice as it was said by Damport who was of Councel with the Plantiffe in the Error for this word capiatur is of course entred in the Roll for the Kings fine which is due by him who is convicted of Trespass as it appears by Cook lib. 3. in Sir William Harberts case and in this case the fine was pardoned therefore pardonatur ought to be entred as it was in Vaughans case Cook lib. 5. but the Iudges resolved that of these general pardons they are not bound to take notice without pleading for in regard there are divers exceptions in them the partie ought to shew that he is none of the parties excepted as the Book is in E. 4. but if they will they may take notice thereof without pleading as it seems by Vaughans case and so said the Iudges in the Common Pleas this Term and so here the judgement was affirmed Calvert against Kitchin and Parkinson Trin. 7. Jac. in the Exchequer IN Trespas by Calvert against Kitchin and Parkinson upon a special verdict these points were moved and argued by the Councel at Bar and first â—â—e case in substance was that one Parkinson was a devisee of the next avoidance of the Parsonage of D. the which Church became void by the death of the Incumbent and after one A. and the said Parkinson Simoniacally agreed that the said Kitchin should be presented by the said Parkinson to the said Church aforesaid and that after Kitchin not knowing of this Simoniacall agreement was presented instituted and inducted to the Church aforesaid and all this was after the Statute of 31. Eliz. cap. 6. and after Queen Eliz. intending that this presentation belonging to her by reason of this presentation for Simonie by force of this Statute of the 31. Eliz. presented one D. and before that B. was admitted and instituted the Queen died and now the King presented Calvert with out any recital or mention of the presentment made by the Queen and without any Revocation actually made of the said first presentation and thereupon Calvert is admitted and instituted and for the Tithes as Parson he bâ—ought Trespass Hitchcock intended three questions as he said but moved also other things First if a devisee of the next avoidance be a Patron within the intent of this Statute of the 31. Eliz. cap 6. Secondly it within the said Statute here be Simonie in the Patron and not in the Parson if this ought to prejudice the Parson or not Thirdly if the King ought to present by this laps after the Queen had made presentment without recalling of the former presentation or if the presentation of the Queen ought to be adjudged a Turn to the first matter he said that a next avoidance is a thing devisable well enough within this Statute for the truth is it is not a thing of any value in the accompt of Law and therefore it is no prejudice although that the third part do not descend to the Patron for the Common Law intends it to be of no value and he said that the form of conferring to a benefice was ad ecclesiam c. as appears by 7. E. 3. fo 5. and he vouched Bracton to prove that the Patron had nothing but to provide that the Church should be full c. and to prove that this is a thing devisable he said that it was so adjudged in the Common Pleas Mich. 33. and 34. Eliz. Rot. 2122. but admitting that here was not any Patron by reason of any devise then if he who presented be a disturber and had acquired this Patronage hac vice by Vsurpation then that also is given to the King within the intent of this Statute by reason of this agreement for Simonie and therefore he said that if he who had but a nomination corruptly agree to make a presentation or nomination this nomination shall be forfeited to the King within this Statute as it is said in Plowden in Hare and Bickleys case he who hath the nomination hath the effect of the Advowson and also he observed the words of the Statute which say that if any person do for money c. present any one c. that every such persons presentation shall be void and it shall be lawful for the King to give the same benefice for that turn c. so that if he had title or not yet this turn is forfeited to the King as by the Statute of 1. Jac. cap. 33. it is provided if any goods which ought to pay subsidie be laid on the land the subsidie not paid c. the same goods shall be forfeited it hath been agreed that if a stranger who had nothing to do with these goods cause them to be laid upon the land that they shall be forfeited against the owner as it was admitted in Levison and Kirks case in 7. Jac. and so here in respect that the true Patron suffers a Vsurper to present and his presentee to be admitted and inducted this turn shall be forfeited to the King by reason of the Simonie against the rightful Patron and he conceived that although that the Presentee in this case was not partie to this corrupt agreement yet he shall be prejudiced by it although not so prejudiced thereby but that he may be capable to be presented again to the same benefice but hac vice the presentation of him is void for as Littleton saith the presentee ought to accept the Parsonage subject to such charges as the Patron pleaseth who in the time of Vacation hath power to charge it and so by his Act had made it subject to the forfeiture and therefore the person who cometh under him shall be prejudiced and therefore he vouchâ—â— the case in the 19. H. 8. fo 12. if a stranger agree to disseise an infant to the intent to infeoffe the Infant although that the Infant were not knowing of the Coven yet he shall not be Remitted because he came in under a wrong deer To the third matter he said that the King may revoke his presentation and by the same reason he may present another before his Presentee is instituted and to prove it he said that a Common person may recal his Presentation before the institution c. and he vouched the Book of the 31. E. 1. Tit. quare impedit 185. the Abbot of Leicesters case although that Dyer citing of it 12. Eliz. fo 292. conceives the Book contrary but it seems to be in reason that the Law is cleere that a Lay person may change although that a Spiritual person cannot and the reason is because a Lay person did not know his sufficiency peradventure at the first but a Spiritual person by intendment may inform himself thereof wel enough and therefore he vouched 18. H. 7. and 1. H. 8. Kelloways Reports which proves that diversity plainly as he said then he thought by the same reason if the King present one and dye or vary before institution that here he himself or
be construed to be conditionall because the consideration intended is executed viz. that he hath assumed c. Dyer 76. and 44. Eliz. in the Kings Bench Sir William Lees case in consideration that he had assumed to make a release another promised to pay him 10 l. an action may be brought for the 10 l. without averment of making the release because the consideration is a thing executed viz. the Assumpsit c. but if Executory then the Grant is conditionall as 9. E. 4.19 15. E. 4.9 If an Annuity be granted pro concilio impendendo this makes the Grant conditionall and void for not giving counsell but otherwise it is if it be pro consilio impenso 4. But admitting that here it was conditionall yet the Queen cannot avoid it without Office and so the Plaintiff had no title to enter for an avoidance which was before his grant and so the lease is in esse at the time of the Grant made to the Plaintiff your Grant is without recitall thereof and therefore is void see Knights case Coo. lib. 5. If there be a condition to re-enter for non-payment an Office ought to be found but if it be upon condition to cease for non-payment then it is void to the King without Office as it was agreed in this Court in Sir Moyle Finches case and he vouched Cook lib. 1. Altonwoods case to prove that the lease ought to be recited in the Grant of the reversion or future interest and here although there be a non abstante in your Patent this doth not aid you because it is not found in the speciall Verdict Also for another cause the Plaintif shall not have judgement here for it is not found that the Queen died seised neither that it came to the King that now is and so it cannot come to the Plaintiff and although a fee-simple shall be intended to continue in the same person yet without shewing it shall not be intended to come to the heir 7. H. 7. 3. and so he prayed judgement for the Defendant Tanfield chief Baron said that the case here is by Verdict therefore we ought to intend such circumstances if they be not expressed to the contrary also the seisin of the Queen is shewed to be in Jure Coronae and therefore the intendment that it may be devised by disseisin or abatement between common persons holdeth not here Carew against Braughton Mich. 7. Jacobi in the Exchequer THomas Carew Exequetor of William Carew brought debt against Morgan Broughton Sherif of the County of Cardigan and the case was that John Wyner was in execution upon a Iudgement for William Carew and that after William Carew dyed and that John Wyner brought an Audita querela against Carew Executor of William Carew and upon that Writ he had a venire facias against Thomas Carew and thereupon as the Stat. apoints of 11. H. 6. cap. 10. he put in baile by recogni-zance in the Chancery to the said Thomas Carew and one of the parties for his baile was Thomas Wyner and after upon the Audita Quaerela Iudgment was given against the said Wyner and a Scire facias awarded issued against Thomas Wyner as Bail and after the said Thomas Winer was in execution upon this Recognizance as Bail to the said Thomas Carew and the said Morgan Broughton being Sheriff suffered him to escape upon which escape Thomas Carew brought debt against the Sherif in the debet and detinet and had a verdict to recover and now in arrest of judgement it was moved by Jefferies that the action ought to be brought in the detinet only and he said that if an Action be brought as Executor this alwaies ought to be in the detinet only and he vouched Hitchcock and Browns case remembred at the end of Hargraves case lib. 5. where the case was that one Anthony Brown Executor brought debt against one Lister and that Lister being in execution the wife entermarried the said Lister escaped the Husband and Wife brought debt for his escape in the debet and detinet and there it was resolved that it ought to be in the detinet only and so here and see the custome to plead mentions that the Recognizance acknowledged was to the use of the Executor and not to the use of Thomas Carew by his name but Wild of the Inner Temple prayed judgement and said that the Action is well brought in the debet and detinet and he vouched 9. H. 6. and 20. H. 6. if an Executor recover and after upon the Iudgement he brings debt it ought to be in the detinet but if an Executor sels goods of the Testator and takes an Obligation in his name as Executor yet here the Action upon this Obligation ought to be in the debet and detinet because it is upon his own contract and 1. E. 3. Brooke Executor pla 287. although it appears there and so by 9. H. 6. fo 11. That is good either way and 41. E. 3. Brook pla 545. that if a debt be brought against the Executor upon a contract made by them it ought to be in the debet and detinet or otherwise the Writ shall abate and as 9. H. 6. is at his pleasure to name him Executor or not and therefore c. Snig the second Baron if the Executors bring an Action of goods carried away in the life of the Testator c. and hath judgement to recover 20 l. and dammages for them and upon this judgement he brings debt this shall be in the detinet Altham 3. Baron if an Executor sells the goods of the Testator and an Obligation is made to him for the money for which they were sold without doubt this action shall be in the debet and detinet for the action concerns him in his person and so if he with his own money redeem goods which was pawned by the Testator c. and the Stat. of the 11. H. 6. cap. 10. is that upon an Audita Querela the party who sueth it shall put in Bond to the party c. and the Testator is not party at the time of this Audita Querela but Thomas Crew who is the Executor and it is not as a Proces of execution pursuant c. but is a new thing and so for his opinion suddenly it is good in the debet and detinet Bromley the 4. Baron seemed cleer that if a Bond be made to an Executor upon a simple Contract made with him for the goods of Testator there the action ought to be brought in the debet and detinet but this account is conceived upon a dependency of a duty to the Testator and therefore it ought to be detinet only Tanfield chief Baron the case is doubtfull and therefore it is good to be advised but for this time it seemeth there is a diversity where the Recognizance is Legally forced and where it is voluntary for in our case the Law compels this Recognizance upon the suite which the
Executor prosecureth as Executor c. and for the Testator and there it ought to have a resemblance of the Regionall debt and although that the Statute appoints that the sayl shall be to the party as Altham Baron remembred yet here as the pleading purports the Bayl is to the aforesaid Executor which implies a legall dependency upon the first suit Then it hath been granted and the Law is so that if an Executor recover a debt which was due to the Testator and hath judgement for it now if you will have an action upon this judgement this ought to be in the detinet because it is a legall pursuance of a thing given to the Testator and not voluntary as a bond for further security or assurance and so here the Bayl being pursuant and compulsory but by 5. E. 3. if it be voluntary then it ought to be put in the Kings Bench to an Executor which is to be resembled to our case if an Executor bring debt upon a Bayl it ought to be as Executor and not as I. S. cleerely Altham the Bayl in the Kings Bench is upon the originall suit and so it is not here wherefore c. to which it was not answered but for that matter it was adjourned see H. 6. in the Kings Bench if a Feme c. take Husband and one of the Debtors of the Testator promise the husband if he will forbear his suite to pay the debt if the Husband will commence his action upon this promise it ought to be in the name of his Wife also because the action pursueth the Originall debt Williams contr it was agreed that if the Law were such that the Action ought to be in the detinet only then the bringing of it in the debet and detinet is such a Ieofaile as is not aided by the Statute of 18. Eliz. Nichols case and Chamberlains case Cook lib. 5. Tanfield chief Baron said in this case that it is proper that the Action ought to be brought in the detinet only but as our case is here is no issue joyned because here is not a negative and an affirmative for the declaration is that he oweth and detaineth and the Bar whereupon the issue is joyned is that he oweth not so where if his Action ought to be in the detinet then there is not any Nâ—gative and so no issue which was not denyed at another day they agreed that the action ought to have bin in the detinet only and therefore judgement was given that the Plaintif take nothing by his bill Sir Henry Browns case touching the Countesse of Pembrook SIR Henry Browns case wherein Hawkins and Moore were parties was this the Plaintif declared of an ejectment of the Mannor of Kiddington Dâ—le Sale and doth not mention them to be adjacent to any Ville and also of an 100. Acres of Land lying in the same Ville of S. and that upon not guilty pleaded the Iury at the Assises at Oxon were ready and then the Defendant pleaded that the Plaintif after the last continuance had entred into a Close called Well Close parcell of the Tenements mentioned with conclusion and this in the Declaration he is ready to aver and demanded judgement if it c. and this was before Yelveton Iudge of Nisi Prius there and now the Plea here was debated And 1. in this case it was upon conference with all the Iudges allowed that this plea may be pleaded at the Assises well enough and the Iudge there accepting of it had done well but as Tanfield chief Baron said the Iudges may allow it or not for if they perceive that it is Dilatory they may refuse it for it is in their discretion and therefore c. But by Dodderidge the Kings Serjeant the Iudge of Nisi prius is not Iudge thereof if it be well pleaded or not but is to give day to the Parties in Court where the Suit depends to maintain this Plea for he is only appointed Iudge to take the issué and upon such Plea he ought to discharge the Iury of the matter in issue and record the Plea and this is all his duty and by him in this case here is a Discontinuance for the parties have no day given upon the Roll as it ought to be for the day in bank in judgement of Law is all one with the day of Nisi prius and this is of course given to the Parties to hear Iudgement only concerning the matter in issue and here is other matter and therefore the Iudge c. Nota that in all Cases where a thing is pleaded triable before other Iudges the Iudge before whom it depents ought to give day to the Parties to be before the Iudges where the matter is tryable 12. E. 3. Voucher 115. and Title Day 25. and 34. and Assise pla 14. a Lord demands Cognizance of Pleas day ought to be given to the Franchises or otherwise it is a discontinuance of the Nisi prius for there ought to be a speciall day for the parties here to hear judgment in this Plea 10. H. 7. fo 26. so if at the Nisi prius a protection be cast the Iudges shall give day to the Parties in Bank to hear judgment if this protection shalve allowed or not for the Iudg of Nisi prius is no Iudg therof Also the Iudg in this case ought to have discharged the Iury it appears not here that he had done so therefore upon the whole matter it is a discontinuance but admitting that here was no discontinuance it seemeth that the plea was good and I agree that in all cases of Pleas issuable the plea ought to be expresly shewed or that which Tantamounts and here is shewed that which Tantamounts for when the Plantiffe in his Action had shewed the names of the Mannors and the Towns in which the acres lies then the Venue to try it for every parcel shall come de vicineto from all together and by consequence it is reasonable that the Venue for the trial of one particular to be parcel or not parcel shall come from all for if the plea in this case were that the Plantiff hath entred into the premises this had been good and then if it be good for the general it seemeth it should be good for every particular also it is clear that two may be parcel of all the three Mannors as in this case it is admitted to be parcel of all the premises by the demurrer if so c. Coventry the plea here is not good for the plea is to the writ and the conclusion ought to be pursuant to the premises of the plea or otherwise the plea is not good 36. H. 6. if a man plead to the writ and conclude to the Action it is evil 20. Eliz. Dyer 361. also the plea is not good because it is not shewed where the land lies wherein the entrie is alledged and therefore if the Plantiffe had denied it then is there no
certain place from whence the Venue should come c. Walter of the Inner Temple it seemeth that the plea is good First this plea although it is but to the writ yet it is peremptory as other pleas to writs are see l. 5. E. 4. fol. as to the conclusion of the plea it is but matter of form which the Clark ought to amend and therefore upon your general demurrer you shall not take advantage of it and by the Court this is but matter of form and not being alledged for one of the special causes agreed that notwithstanding the demurrer be special yet the Court ought to apply the conclusion alwayes as the matter of pleading will bear it and therefore if a man plead to the Iurisdiction of the Court and demand judgement of the writ yet it is good by Newton 7. H. 6. for if the Bar be good the writ is not maintainable and it was said by Popham in a case in the Kings Bench 34. Eliz. that one c. had two issues in one plea. First if one thing be once repeated in a plea repetition thereof will supplie all the residue for avoiding infiniteness in repetitions Secondly one c. will serve to supplie the defect in matter of form as here and as to the Objection that the plea is not good because no certaintie is shewed where the entrie was it seems to me the plea therein is good because here is no need in our case to mention the certainty in the Declaration for here by our plea we offer two things issuable viz. the entrie or not entrie Secondly if it be parcel of the premises or not and when divers things issuable are specified it is not necessary to shew the place of any for it is time enough to shew it in the rejoynder 3. H. 7.11.3 H. 6.8.41 E. 3.8.10 H. 6.1.14 H. 6.31 And therefore it was agreed in the Kings Bench that if one pleads in Bar divers matters issuable the Replication ought not to take issue upon any of them but leave it to the rejoynder to the intent that the place may be shewed therein and so here Secondly here a place is sufficiently shewed by awarding of a venire facias for it is certain enough to shew it to be parcel of the Mannors as it was resolved in Bailies case Trin. 7. Iac. in the Court of Wards then by the same reason it is good enough to shew it to be parcel of all the three Mannors for the Venue shall come from all as it shall be to trie the issue of all and by the demurrer here it is admitted to be parcel of all and therefore c. Thirdly he said that the omission of the place is but matter of form and such a thing is within the Statute of 27. Eliz. and ought to be specially set down or otherwise the partie who demurreth shall take no advantage thereof and to prove that it is but matter of form he vouched the case of Hall and Goodwin in the Kings Beuch Hill 31. Eliz. and he said that a Replication makes not the plea good which is evil in matter of substance and yet a Replication made to a Bar which wanteth a place maketh the plea good which proveth it to be but form also he vouched the case of 34. H. 6.2 in debt the Defendant pleads the receipt of parcel hanging the writ and 34. Eliz. in the Kings Bench between Noy and Midldeton such a plea was in Bar. Stephens the plea is not good in matter for the place where the entrie was made after the last continuance ought to be shewed for alwayes the most certainty ought to be observed for the Venue to arise as 6. H. 7. if Trespass be brought upon the Statute of R. 2. for entring into the Mannor of D. in D. the Venue shall come from the Ville and so here if the place be not parcel of any Mannors yet if it lieth in any Towns mentioned in the Declaration the Venue shall come from the Ville and not from the Mannor 32. H. 6.15 three several places are mentioned and one pleaded a deed dated at the place aforesaid it is not good also here it seemeth if the party will plead and not demur the want of place ought to be shewed in the rejoynder as it hath been conceived on the other side but if he will not replie but demur upon the Bar the plea in Bar is not good Trin. 40. Eliz. in B. R. Rot. 1023. an Action of Covenant was brought by a Bishop of a Lessee and no place alledged where the assignment was made and a demurrer thereupon and adjudged that the plea was not good and there it was also agreed that it was not matter of form and so here see after Tanfield chief Baron excepted to the form of an entrie for the King which was that Postea the Iustices of Assise Deliberaverunt Tenorem placiti c. for by him the Presidents in the Kings Bench are quod deliberaverunt recordum praedictum which as he thought was the best but after upon the view of a President shewed where an exception was taken in Baron Manwoods case upon a writ of error in the Exchequer Chamber after judgement given here and the entrie then allowed to be good and upon the view also of divers Presidents shewed by Turner Master of the pleas the chief Baron and all the Court agreed and resolved that the entrie of Tenorem placiti or Tenorem recordi is as good or better then recordum praedictum c. and therefore nothing was spoken to that exception see the President of pleading in Stradling and Morgans case Plowden where it is Tenorem placiti Sir Anthony Ashleys case IT was agreed by all the Court in Sir Anthony Ashleys case that if the King be intitled to the profits by an outlawry and after B. assigns a debt to the King and the King had granted the profits which accrued by the outlawry to Ashley yet the lands of Ashley may be extended for this debt for the King had no interest in the land but only the profits for the outlawry and therefore it may be extended for debt per Curiam quaere if so for a common person Hill 8. Jac. in the Exchequer Ewer against Moil Hill 8. Jac. in the Exchequer THe case was this that a Commission issued out of the Chancery to Baron Sotherton and others and this was in 7. Iac. to inquire what lands and Tenements the late Prior of Bister in Com. Oxon. had in Caversfield in the County of Bucks and to inquire if a rent reserved upon a grant made to Banbury of the lands of the Priory be arrere or not and by vertue thereof the Iury of the County of Bucks found that the Church of Bister in the County of Oxon. was founded by the name of the Church of Saint Mary and Saint Egbert and that Thomas Banbury Prior in the year c. made a lease to one Banbury of the moitie of
touching the premisses Also peradventure if he will assign the place this may fall out to be in another County then where the Action was brought for so it may be and yet parcell of the premisses and so he may give us cause to demur Also to say cleerely that the Plaintiff had entred c. is not good for it ought to be that the Plaintif also expelled or amoved the Defendant as appears in the book of Entries Tit. Debt or Lease fo 11. or 12. and fo 175. B. also here the Plea is double to say in one close called Well Close and this is matter of substance whereof we may take advantage notwithstanding this general Demurrer And also he saith it is parcell of the tenements mentioned in the Declaration this may be and yet never parcell of the thing whereof the Action is brought for there are other Writs therein comprehended within the pernosme And as to the objection of Serjeant Dodderidge that here is a discontinuance because the Plea is not continued by the Iudge of Nisi prius into this Court here if seemeth that this needs not notwithstanding that it be a collaterall Plea in this Court in Trin. Term at the Assises but it is that the parties aforesaid do attend in Octab. Mich. and the continuing untill the Assises is but with a Nisi prius c. and by expresse words the the Parties have day to attend to hear judgement and at the Assises to try the issue and this is a sufficient continuance and as to that the Iudges of Nisi prius ought upon this Plea to discharge the Iury to that it seemeth that the relinquishing of the issue joyned and the acceptance of this new Plea is a discharge in Law Also the Iudges of Nisi prius have no power to give day in the Court here to the Parties for the Court here is to appoint the day in the book of the other part 37. H. 6. fo 2. is only that the Iudgs of Nisi prius give to the parties their day viz. the ordinary day and not another day and the cases tit Voucher and tit Journ in Fitz. cited of the other part are where the Plea is to be put in another Court as Durham c. where the parties have no day before and there a day ought to be given but that is apparantly different from our case Nichols Serjeant to the contrary admit that the Action had been brought of the Mannor of D. only and the entry had been alledged in parcell as here it is then it had been good see the Book of Entries tit Debt or Lease 11. or 12. accordingly and by the same reasons it seemeth the Action being brought for the ejectment of three Mannors the entry was pleaded to be in one Close parcell of the Tenements and good for the venue shall come from all as well from one Close as from the other Also here the entry is alledged to be in parcell of the Tenements and not of the premisses and so the venue for the tryall ought to be from the three Towns where the odde Acres lye and not from the Mannor also and by a reasonable intendment it may be conceived that the place where c. lyeth in all the three Towns 36. H. 6. fo 17. the Defendant saith that the place where c. is parcell of the Mannor of B. that he intitled himself unto he needs not shew where the Mannor lyeth and yet it shall be intended in the same County and although that in such case it is said to be shewed in certain by the Book in 6. E. 6. Dyer fo 76. yet this doth not prove that it ought to be of necessity and here by the shewing of the Plaintiff he had confest the matter of fact which is an entry into parcell of the Premisses and by consequence he falsified his Writ for if he confesse that he had entred into any parcell thereof whereof he brought his Action he had falsified his Writ cleerely he vouched 21. H. 6. fo 8. and 6. Eliz. Dyer 226. in a Ejectione firme against Nevell and others it is said that by a Demurrer to such a Plea the Plaintiff had confessed the Entry but otherwise it should be if he had imparled see Bowld and Mullinexes case in Dyer fo 14. for the shewing of a place c. and l. 5. E. 4. fo 138. an Executor pleads fully administred and at the Nisi prius he pleads that the Plaintiff recovered part of the Debt in D. after the last continuance and a good Plea although it be not shewed in what County D. is Also it seemeth that day ought to be given in this Plea or otherwise it is a discontinuance for the day given upon the Roll is to hear judgement upon the verdict and this plea is Collateral wherefore c. and he vouched 10. H. 7. fo 27 and 7. E. 3. fo 338. by Herl where a difference was taken when a day in Bank shall be given and when not and he vouched 4. and 5. Eliz. Dyer 218. where Fitz. Iustice gave day in Bank Tanfield chief Baron true it is that if it be in an Assise which commenteth originally before the Iudge of Assise he may give day Nichols also vouched 33. H. 6. and 11. E. 4. fo 13. Hobert Attorney general the demurrer doth not confess the plea when it is insufficient but if upon the demurrer the plea be adjudged sufficient then the fact is confessed for the demurrer only confesseth the matter of the plea conditionally viz. if it be good in the matter of the case in 6. Eliz. Dyer 226. the Plantiffe conceived that the plea there ought not to be pleaded in an ejectment after the last continuance and did not demur for the form and a demurrer doth not confess the plea good although that the matter is true and the Book in 21. H. 6. doth not prove against me for that was of an actual confession but in 37. H. 6. the issue joyned was if he who prayes to be received may plead the entrie of the demandant after the last continuance and the cause of the demurrer there was only if he could plead that plea or not because it appears not if he had any thing in reversion or no and so it seemeth that we might have demurred specially and this had been no confession and therefore the general demurrer shall not prejudice us for the matter of confession Bromley Puisne Baron it seemeth the plea is not good because a place is not assigned in certain in what Town the entrie is divers Towns being alledged it seemeth that it is no discontinuance for there needs no special day to be given but the day of return of the nisi prius for they cannot give any day being delegate only to a special purpose and it seems to me that the demurrer doth not confess the plea of the Defendant but conditionally viz. if the plea fall out to be good for otherwise
the Plantiffe shall be outed to take advantage of a bad plea and so upon the whole matter it seems that judgement shall be given in the ejectione firme for the Plantiffe Altham second Baron to the same purpose there needs no special day to be given by the Iudge of nisi prius although that it be upon a Collateral matter or plea for by the record in this Court a day is given to the Iurors conditionally viz. if the Iustices of nisi prius at the Assises do not come c. but to the parties it is given absolutely fee 6. Assises pla 7. and L. 5. E. 4. fo 2 3 and 4. where there are several cases to this purpose see 9. E. 3.21 H. 6. fo 10. if the Defendant make default at nisi prius a new distress shall issue to the same Iurors to be here in Bank and 3. H. 6. fo 8. and 9. if a man appear and plead he shall never take advantage of any discontinuance Also it seemeth that the plea is not good and to say that the word Tenementorum refers only to the odde acres and not to the Mannor it seemeth that it refers to all but if it shall be taken to refer only to the odde Acres yet this is not good and this is proved by the Book in L. 5. E. 4. fo 110. for a plea to the writ ought to be alwayes certain and this case also answereth that which hath been said that the demurrer confesseth the matter against the Plantiffe for I say if you plead a release in Bar of a debt and shew no place where the release was made this demurrer is no confession of the release except that the cause of the demurrer fall out against me wherefore in respect that the plea is not good and is peremptory to the Defendant as other pleas to the writs are for this cause I conceive Iudgement shall be given for the Plantiffe Snig Baron accordingly that the plea is not good for the not shewing of a place certain wherein the entrie was as by the matter of discontinuance it seemeth that the day of nisi prius is all one with the day in Bank and therefore there needs no day to be given and for that the death of any of the parties after the verdict and before the day in Bank shall not stay the judgement the Books which were cited on the other parts are different from our case for there the suit was adjourned into another Court and the Courts in the Country are not as the Courts here and therefore it was necessary that in such cases a day ought to be given for the manner of pleading we ought to give judgement against him who pleads the plea notwithstanding the matter admitted by the Plantiffe wherefore judgement shall be given for the Plantiffe Tanfield chief Baron accordingly the plea whereupon the issue was joyned was for three Mannors and lands in three Towns and entrie is alledged to be in two Closes called c. parcel of the premises in Bar of the Action if the Defendant in liew of not guiltie plead an affirmative plea and at nisi prius he pleads another plea then the entrie ought to be that the Defendant relicta verificatione c. but in our case such an entrie needs not the plea here ought to be more certain then others for two reasons First it is pleaded in abatement of the writ Secondly it is in delay of the Plantiffe and to which no rejoynder can be made as to the plea it seemeth it is not good for by 10. H. 7. fo 16. a quare impedit was brought by an Administrator of a grantee of a next avoidance and shewed that the Bishop of Sarum granted Administration to him the Defendant saith that the intestate had bona notabilia in divers Diocesses and so the Administration void and shewed in what Diocesses the goods were but shewed no place where they were and therefore it was adjudged that the plea was not good because he did not shew a place c. see 2. R. 3. and 5. H. 7. accordingly and this plea shall not be amended by a rejoynder as is 21. H. 7. also to say parcel of the premises this cannot be intended that parcel of three Mannors or of the three Towns in certain and therefore the plea cannot be good because there is no place from whence the venue should come and it is inconvenient that the venue should come from all if the place where c. lies but in one Town for as it appears in Arundels case Cook lib. 6. if a Mannor be alledged to be within a Town the venue shall come from the Town because it is a place more certain as to the general demurrer that the plea aforesaid is lesse sufficient in Law c. in 18. E. 4. it appears that in debt upon an Obligation the Plantiffe doth not shew a place where the Obligation c. and the Defendant confessed the Action yet notwithstanding this fault Iudgement ought to be given against the Defendant but this differeth from our case because here is an express confession and in our case here is not also here needs not to be shewed any special cause of demurrer but advantage may be taken well enough upon the general demurrer but if the demurrer were that the plea amounted to the general issue only there ought to be shewed a special cause or otherwise no advantage to be taken and he cited the agreement of seven Iudges to be at Serjeants Inne in Fleetstreet this Term in a writ of Error in Dickensons case the case intended was between White and Priest parties in an Action upon Trover and conversion and the Record thereof is in the Kings Bench Trin. 7. Jac. Rot. 843. as to the matter in Law touching the discontinuance for want of a doy given by the Iudge of nisi prius it seemeth there is no discontinuance in this case for there needs not to be any day given as our case is yet in some case the Iudge of nisi prius ought to give day but that shall not be a new day but only the day within contained and that but in special cases viz. if the issue be joyned and at the shewing of the evidence there is a demurrer here the Iudge giveth to the party the day within contained as it appears in 10 H. 8. Rot. 835. and Hill 11. H. 8 accordingly in the Common Pleas but Hill 36. Eliz Rot. 448. upon non-suit at the Assises no day given so if the party confess the Action and so if there be a bill of exceptions yet no day shall be given Hill 38. Eliz. Rot. 331. in the Kings Bench but peradventure it will be said that these Authorities do not match with our case because it is upon a material plea but I say it is all one and therefore in case of a release pleaded after the last continuance this is recorded and yet no day given as appears Hill 4. H. 8.
was in a Formedon in remainder and it was moved now by Serjeant Harris if the partie against whom it was given may sue in the Exchequer Chamber by Bill or petition to the King in the nature of a writ of false judgement for the Reversal of that judgement Tanfield seemed that it is proper so to do for by 13. Rich. 2. if a false judgement be given in a base Court the partie grieved ought first to sue to the Lord of the Mannor by petition to reverse this judgement and here the King being Lord of the Mannor it is very proper to sue here in the Exchequer Chamber by petition for in regard that it concerneth the Kings Mannor the suit ought not to be in the Chancery as in case a Common person were Lord and for that very cause it was dismissed out of the Chancery as Serjeant Harris said and Tanfield said that he was of Councel in Pettishals case in the time of the Lord Bromley where it was debated at large if such a judgement ought to be reversed by petition in the Chancery in case where a Common person was Lord and at last it was decreed that it should be as in that case of Patshal and for the same reason here the King being Lord and therefore day was given till the next Term to shew their errours and Serjeant Harris said that the errors are in effect no others then were in the case 9. Eliz. Dyer fo 262. and in Godmanchesters case and it was adjourned Scot and his wife against Hilliar SCot and his wife Plantiffs against Hilliar for these words spoken of the wife viz. she would have cut her husbands throat and did attempt to do it Hutton Serjeant in arrest of judgement said that these words are not actionable for the will or attempt is not punishable by our Lawe and he vouched Cockains case Cook lib. 4. cited in Eaten and Allens case but by the Court an Action lies for the attempt is a cause for which the husband may be divorced if it were true and it is a very great slander and Baron Snig said that in the same Term a judgement was given in the Kings Bench and was affirmed in the Exchequer Chamber upon a writ of error for these words He lay in the high way to rob me and therefore let judgement be entred for the Plan̄tiffe but it was adjudged in the principal case that for the words she would have cut her husbands throat no Action would lie Gooches Case A Coppyholder surrenders into the hands of the Customary Tenants to the use of Anne his Wife and after before any Court the said Coppyholder surrenders the Land into the hands of other Customary Tenants to the use of the said Anne for her life the remainder to Percie in Fee upon condition that he in remainder his Heirs should pay 20. s. per annum at Michaelmas for ever the first payment to commence immediacely after the death of the said Anne viz. at the next feast of St. Michael and this to be paid in the Church Porch or D. to the Church Wardens of D. in the presence of four discreet Parishioners or otherwise that a stranger should re-enter and at the next Court both these surrenders were present and the Steward admitted the said A. according to the second surrender and she dyed and now upon pretence that the rent of 20. s. was not paid by the Heirs of him in remainder the Heir of Gooch who made the surrender had entred and thereupon an Action was brought and upon the evidence the Jury to the County of Bedford now at the Bar These matters were moved by Serjeant Nichols That a surrender into the hands of Customary Tenants cannot be Countermanded and therefore the second surrender void and the admittance shall work to such uses as the first surrender was made as in Anne Westwicks Case Cook Lib. 4. And to prove that a surrender into the hands of Customary Tenants is not countermandable he said that it is not countermandable by death nor surrender Cooke lib. 4. in his Coppyhold Cases That a presentment in the Court may be after the death of the surrenderer and the admittance thereupon is good and he compared it to the Case of the delivery of a Deed as an Escroll which may be delivered as his Deed after the death of the Maker as it is in Jennings and Braggs case Cook lib. 3. which was not denyed by the Court Serjeant Dodderidge said that when a surrender is made upon condition that he shall pay a summe of money to a stranger these words make an estate conditionall and give power implyedly to the Heirs of the party who did surrender to re-enter for non-payment and the words which give power to a stranger to re-enter are meerely void neverthelesse the precedent words shall stand and make the estate conditionall Tanfield Littleton saies that such a re-entry is void for a re-entry cannot be limited to a Stranger Nichols Serjeant said that if a surrender be made that he shall pay so much money that this makes the estate conditionall and gives a re-entry to the Heirs of him who did surrender But when it goes further and doth not leave the condition to be carried by the Law in such case all the words should be void because it cannot be according to the intent as in the case of a reservation of rent the Law will carry it to the Reversion but if it be particularly reserved then it will go according to the reservation or otherwise will be void and so here Tanfield Admit that here was a conditionall estate by vertue of the Surrender last made and this condition is also to be performed to a stranger which generally ought to be taken strictly yet as it is here he who will take advantage thereof ought to prove a voluntary neglect in the party in the not performance of the Condition and inasmuch as there is no certain time appointed when the payment of this Annuall rent should be made but generally at Michaelmas next after the death of the said Anne thereby in this case the Chuch-wardens ought to notifie the death of the said Anne before the first day of payment by reasonable space or otherwise the condition is not broken and also it is appointed here to be paid in the presence of four discreet Parishioners by the party who should perform the condition yet by intendment he hath no notice who are discreet or who are not especially he being an Infant as in our case he is and therefore although the condition is to be performed to a stranger which generally ought to be performed strictly according to 12. E. 3. Yet this is to be intended only in such cases where the party had certain notice of all circumstances requisite for payment thereof and therefore he directed the Iury that for want of knowledge of such circumstances they should give a Verdict that the condition was not broken And Dodderidge
Recusant may be seised after his death Thirdly if they shall be charged by the Statute of 1. Iac. as to the first it seems they are not wherein I shall endeavour to prove three things First that such land was not liable to debt by the Common Law Secondly that they are not liable to debts by the general words of the Statute Law Thirdly that they are not liable to debt by any word within the Statute of primo Iac. as to the first he observed that here is no fraud put in the case but that these lands and leases were never in the Recusant so that before that they were conveyed to the Defendants they were not liable to this debt and I alwayes observed that which the common law calleth fraud ought to be of such nature as shall be tortious and prejudicial to a third person and put him in a worse estate and condition then he was before and then he who is so prejudiced in some cases should avoid such conveyances by the common Law 22. Assises 72.43 Ed. 3.2 and 32. the Defendant in debt after judgement aliens his goods and he himself takes the profits yet the Plantiffe shall have them in execution so that if a man binde himself and his heirs in an Obligation and dies and assets descend to his heir who by Covin aliens those assets yet he shall be charged in debt for in these cases the Plantiffe had a lawful debt and such lands and goods before the alienation were liable and that former interest was intended to be defeated by those alienations and therefore they are void but of the other side where no former interest of the partie is wronged there no fraudulent conveyance was void at the Common Law and therefore if Tenant in Knights service had made a fraudulent Feofment to defraud the Lord of his wardship this was not aided by the Common Law until the Statute of Marlebridge for the title of the Lord was not prejudiced or wronged by this Feofment because it was subsequent to the Feofment also after the said Statute the Lord was without remedy for his release for it is agreed in 17. Ed. 3. fo 54. and 31. Ed. 3. Collation 29. and therefore at the Common Law if cestuy que use had bound himself and his heirs in an Obligation and died if the use descended to his heir none will say this use was assets to the heir and so was Rigler and Hunters case 25. Eliz. as to the second point it seems that the general words of a Statute shall be expounded according to the rule and reason of the Common Law and by the Common Law such confidence is not extendible therefore c. Westmin 2. cap. 18. which gives the elegit hath these words medietatem terrae and within those words an use was never extendible by that Statute 30. Ed. 3. because it was not an estate in him and so if a man be indebted for Merchandise or money borrowed and makes a gift of his lands and Chattels to defraud Creditors and takes the profits himself and flieth to the Sanctuary at Westminster or Saint Martins and there abideth by conclusion to avoid the payment of his debts it is thereby enacted that Proclamation shall be made at the Gate of the Sanctuary where such person resideth by the Sheriffe and if such person doth not thereupon appear in person or by Atturney judgement shall be given against him 2 Rich. 2. Stat. 2. cap. 3. 1. Rich. 3. cap. 1. and execution awarded aswel of those lands and goods given by fraud as of any other out of the same Franchise these words are more particular then the Statute of Westminster the second and yet it was doubted if it did extend to executions for debt as it appears by 7. H. 7. and 11. H. 7.27 and therefore in 19. H. 7. cap. 15. an Act of Parliament was made that execution for debts Recognizances and Statutes should be sued of lands in use As to the third it seems that that Statute doth not make lands in use liable to debts the words of the Statute are that the King shall seise two parts of the lands Tenements and Hereditaments leases of Farms of such offendors so that they are as general as the words of the Statute of Westminster 2. cap. 18. and here those lands and leases were not the Recusants for he had but a confidence in them the first clause of the Statute doth not extend thereunto for two causes First in regard that it never was in the Recusant and this clause extends only to such conveyances which are made by any man which hath not repaired or shall not repair to some Church for the disjunctive words do not extend throughout that branch but to the last part thereof viz. that which cometh after the word and for otherwise this would extend to conveyances made at any time without limitation which should be against the meaning of the Act. Secondly this Branch provides what shall be done concerning the King touching the levying and paying of such summes of money as any person by the Lawes of the Realm ought to pay of else to forfeit c. and by the Statutes before made nothing was forfeited but for such time as is mentioned in the Indictment which in our case is but 6. moneths but out of this branch a strong argument may be made in respect that the Statute avoids all conveyances made by Recusants in trust by express words but saith nothing to conveyances made by others to the use of Recusants and therefore this Statute doth not extend unto it if Tenant by Knights service infeoffs his heir within age and dies the Lord may enter upon the heir without suing an action but if a Feofmenche made to a stranger there he cannot enter but ought to bring his Action according to the provision of that Statute because it may be to the use of the Feoffee but no such provision is made for the heir the Statute of 3. Jac. cap. 4. provides by express words that the King shall seise two parts of all the lands Tenements and Hereditaments Leases and Faims that at the time of such seisure shall be or afterwards shall come to any of the hands of the said offendors or any other to their use or in trust for him or her or at his or her dispose or disposition or whereby wherewith or in consideration whereof such offendors or their families or any of them shall or may be relieved maintained or kept c. the different penning of these Statutes proves the diversitie of the meaning thereof this Statute is a new Law which gives to the King this penalty which he had not before and in new manner for it appoints that the partie shall be convicted by Proclamation and that being so convicted he shall alwayes pay the said penaltie until his submission without any other conviction 3. Jac. cap. 4. and also limits a manner how this new penaltie shall be levied viz.
by seisure of two parts of the land c. then when a Statute gives a new thing which was not at the Common Law and limits a course and means whereby it shall be levied that course ought to be pursued and it cannot be done in any other manner the Statute of 8. H. 6. cap. 12. makes the imbesting of a Record Felony and that this shall be inquired by Iury whereof one halfe shall be Clarks of some of the same Courts and that the Iudges of the one Bench or of the other shall hear and determine it and the case was that part of the offence was done in Middlesex and part in London so that the offence could not have such proceeding as the Statute appointed and therefore it was holden that it should not be punished at all Mich. 41. et 42. Eliz. Betwixt Aggard and Standish the Statute of 8. Ed. 4. cap. 2. inflicts a penaltie upon him that makes a retainer by parol and moreover it is thereby ordained that before the King in his Bench before the Iustices of the Common Pleas Iustices of the Peace Dyer and Terminer every man that will may complain against such person or persons doing against the form of this ordinance shall be admitted to give information for the King and it was holden that the informer could not sue for himself and the Queen upon this Statute for an offence done in any Court not mentioned in that Statute the Statute of 35 Eliz. cap. 1. appoints that for the better and spedier levying and Recovering for and by the Queens Majestie of all and singular the pains duties forfeitures and payments which at any time hereafter shall grow due or be payable by vertue of this Act and of the Act made in the 23 d. year of her Majesties Raign concerning Recusants that all and every the said pains duties c. may be recovered to her use by Action of debt Bill plaint or information or otherwise in any of her Courts of her Benth Common Pleas or Exchequer in such sort in all respects as by the ordinary course of the Common Lawes of this Realm any other debt due by any such person in any other case should or may be recovered wherein no essoin c. Note that this Statute extends not to any penaltie upon the Statute of 28. Eliz. cap. 6. also the Common Law doth not give any means to levie a debt upon a trust and as to the general point it seems that no land can be seised after the death of the Recusant 23. Eliz. cap. 1. enacteth that every person of the age of 16. years which shall not repaire to some Church c. but forbear the same contrary to the Tenor of the Statute made in the first year of her raign for uniformity of common prayer and being thereof lawfully convicted shall forfeit to the Queen for every moneth which he or she shall so forbear 20. l. And that statute doth give no forfeiture at all for Lands And also it giveth no penaltie without conviction so that the death of the party before conviction dischargeth all and so without question it was at that day This last Point seems to be remedied in part by the Statute of 28. Eliz. cap. 6. for thereby if the party be once convicted he shall alwaies pay after without other conviction and this Statute gives also a Seisure but before any seisure Three things ought to concur 1. Recusancy 2. Conviction 3. Default of payment And the last of these was the tâ—ue cause of the seisure viz. That is the contempt of not payment Therefore it was adjudged in Sir William Greenes case that this seisure shall not go in satisfaction of such debt but the King shall hold it as a penalty for the contempt untill the debt be paid so that when a Statute imposeth a penaltie for a contempt as the contempt is personall so is the penalty And therefore the death of the party before that it be excuted or turned in rem judicatam dischargeth all and I shall prove it by the different plea in an Action upon a penall Statute and other common Actions and therefore in debt not guilty is no plea but in debt upon a penall Law it is a good Plea for in truth untill it be adjudged it is no debt but a contempt Michaelmas 41 42. Eliz. betwixt Car and Jones and in debt upon the Statute of 2. Ed. 6. not guilty was adjudged a good plea Trin. 42. Eli between Morley Edwards 2. It may be proved by the different forms of judgment for in common actions the judgment is Quod quaerens recuperet c. But in informations the usuall form is Quod defendens foris faciet 41. Ass which implies that it is not perfect untill the Iudgement and before it is only a contempt and if so then by the death of the party it is discharged Thirdly I shall prove it by Authority that the death of the parties before Iudgement dischargeth aswell the contempt as the penaltie of a penall Law 40. Ed 3. Executor 74. debt lies not against the Executors of a Iaylor who suffers Prisoners to escape 15. Eliz. Dyer 322. in the like Case the opinion of the Court was that an Action did not lye against the Executors of the Warden of the Fleet. but there ought to have been a Iudgement against him in his life time for the Offence is but a Trespass by negligence which dies with the Person 18. Eliz. Dyer An Action brought against the Heire and ruled that it doth not lie for it is a Maxime that no Law or Statute chargeth the Heir for the wrong or trespasse of his Father Also it is to be observed in the Principall Case that the Statute limits the seisure to be by Proces out of the Exchequer so no seisure can be without Proces as it may be upon some other Statute But a judiciall course is hereby prescribed whereupon the Partie may plead with the King for his Land and therefore if that course be not pursued in the life of the party it is too late to pursue it after his death Also the words are that he shall seise all the goods and two parts of the Lands of such Offendors But after his death the goods are not his but his Executors and the Lands are not his but his Heirs and a seisure by way of penalty relateth no higher then to the time of the seisure also the words of the subsequent Proviso explame it further for it it be demanded when the King shall seise two parts it is answered at the same time when he leaveth the third part and when must be leave the third part it is auswered in the life of the Recusant That it may be for the maintenance of his Wife Children and Family and after his death he hath neither Wife Children nor Family for in a Writ of Dower the Demandant shall say that she was Wife and not that she is Wife As to the
to be paid before induction 20 Forfeiture by Tenant for life by what Acts 38 Forfeiture by a contempt for not returning upon a command by Privy Seale and what and how long the forfeiture continueth an excellent Case 42 43 False imprisonment see Action Fine if void for uncertainty 55 Where it shall be directed by the Covenant ibid G. GRant of the King what shall be a good surrender thereof 1 And what shall be a good consideration therein 4 Where such a Grant is aided by 43. Eliz. cap. 1. ibid Grant by the King of a reversion nec non manerium de Skipton 39 I. INformation upon 3. 4. E. 6. for buying of Butter against two and one found guilty 19 An information against one for refusing to pay Impost for Currants a famous Case 23 An information for ingrossing 1000. quarters of Corne one Defendant found of 700. only 59 Informer where he shall have a moity upon 23. Eliz. but not upon 28. Eliz. against a Recusant 60 Judgement must be paid before a debt to the King 65 Judges if bound to take notice of a generall pardon 71 Injunction to enjoy possession no hindrance to him that claimeth Common therein 96 Information of intrusiion into a Close and for asportation of 9. Cart loads of wheat between the 24. of March and 1. of October the Jury found him guilty of 3. loads the 24. of March and dammages taxed for all no judgement can be given for any part 97 98 Indentures severall with severall powers therein to declare uses how to be expounded 118 119 K. THE King where he may extend for outlawry after alienation 20 The King where he may take without inrolment and what Acts amounts to an inrolment 31 35 60 The King where he shall have his rent of the Assignee in trust in the Interim before a reassignment made 39 The King where he may extend a Term conveyed in trust 50 51 The King shall not charge the successors of a Bishop for a subsidie but the Executor or the heire 51 The King where he shall be ordered in equity to perform a trust by an English Bill 54 King see Judgement 65 King what interest he hath by an outlawry 83 King where he shall have his debt of his Debtor or Trustee 91 King cannot distrain the Cattell of one Tenant in Common for the debt of the other 96 97 King may charge the debtor of his debtors Debtor 112 113 L. LIvery and seifin of Lands in 2. Towns by Letter of Atturney countermanded by livery in one by the Lessor himself 97 Livery if it can be made upon the Queens Lessee 114 M. A Memorandum in the Exchequer and the operation thereof 5 Misnomer of a Corporation where it voids a Grant 15 33 Mistriall and a venire facias de novo awarded 68 Misnomer of a Corporation 35 N. NOtice of an use or promise maketh a man lyable to execute the same 60 Notice see Judges 71 Notice of payment upon a condition ought to be givea to an infant 100 101 O. OYer of a Deed must be demanded the same Term in the Common Pleas but otherwise in the Kings Bench note the diversity 39 Outlawry in Northumberland for a debt in Durham if the King or the Bishop be intitled 90 P. PAtent of Denization what words therein make it conditionall 58 59 Patent where void for false recitall or want of consideration 75 76 and 108 109 Pleas before a Justice of Nisi prius what allowable and what not 81 82 86 Plea discontinued for want of a day given 89 A Parliament pardon the debt being agreed withall relates ab initio 118 R. A Remainder where contingent 22 Rent where it must be demanded and where not 56 57 Record what makes a double matter of Record to make the party sue by Petition 58 59 Recusancie see S. Remitter in what cases 93 94 c. Recusant if chargable for lands bought in trust and if seisible after his death and if liable by 1. Jacobi 104 105 S. THe Statute of 43. Eliz. cap. 1. well expounded 5 c. The Statute of 33. H. 8. cap. 39. well explained 51 Simony in what Cases and excellent matter thereof 71 72 100 Statutes of 23.28 Eliz. and 1. Iacobi expounded concerning Recusants 91 92 Surrender where countermandable 99 Statute of 1. Ed. 6. of Chantries and the meaning thereof amplie debated by the Barons 113 114 T. TIthes where due for Head-land 16 Tithes where discharged by unity of possession 17 Traverse where good 18 Trust where a Recusant convict is capable thereof 39 Tithes a prescription therein for the Kings Coppyholder it must be tried in the Exchequer 39 Trust where forfeitable 54 55 The tenth according to the Statute leviable only upon part of the lands out of which c 56 Tenorem platiti or Tenorem recordi as good as Recordum praedictum 83 A trust in a Term by the Wife belongs not to the Husband after her decease 113 V. USes where fraudulent against a Purchasor 22 Venire facias de Vicineto of a forrest 33 Vses see Indentures 118 119 A Catalogue of LAVV BOOKES and such as appertain to the LAVV. AShes Tables 2. Volumes Folio Ashes Tables to Cooks Reports Epeciea or table of equity Fasiculus Florum Arguments on the Writ of Habeas Corpus Assise of Bread Atturnies Guide Atturney of the Common Pleas. BRooks Abridgement Readings on Magna Charta Cases Reading on the Stat. of Limitations Boultons Justice Bulstrodes Reports Bracton Brownlows Reports 2. parts Pleadings in 2. parts Judiciall Writs Lord Bacons Elements of the Law Cases of Treason Ordinances Reading of the Statute of Uses Britton Book of Oaths Bollewes Reports of R. the 2d Blunts Glossographia expounding Terms of the Law Boones Examen Legum Angliae Cooks Reports 11 parts French 12th Report English Entries on Littleton the first part of his Institutes 1. on Magna Charta 2. Pleas of the Crown 3d. Jurisdiction of Courts 4th Compleat Coppyholder of Baile and Mainprise Cragge de Feudis Customes of Normandie Mr Cooks Vindication of the Law Pooremans Case City Law Cromptons Justice Iurisdiction of Courts Cowells Interpreter Institutes Callis Readings on Sewers Ignoramus Crook and Hultons Arguments on Ship-money Compleat Clerk and Scriveners Guide Calthrops Relation of Mannors and Coppyhold Cases about the customes of London Conference about the liberty of the Subject Clerks Vade Mecum Presidents Clerks Guide in 2. parts Collins Summary of the Statutes Compleat Justice Caries Reports in Chancery Claytons Reports Topick of the Law Compleat Atturney 2. parts Charter of Rumney Marsh Chancery Orders Court Leet DAvis Reports of Impositions abridgement of Lord Cooks Reports Daltons Justice Office of a Sherif Abridged Dyers Reports Abridgement in French Abridgement in English Doderidges English Lawer Principality of Wales Compleat Parson Deggs proposals Declarations and Orders 4º Dr and Student in Lattin idem in English Abridged Davenports Abridgement of Cook on Littleton Deerehams Mannuall Dallison
in 1. Jacobi and no other conviction ever was and yet de facto he continued a Recusant untill his death and his Land viz. two parts thereof were seised in his life and the King answered of 200. l. thereof which incurred in the moneths contained in the Indictment and now a Writ is issued which supposeth the said Robert to be indebted to the King in 20. l. for every moneth be lived after 28. Eliz. untill 1. Jacobi for his Recusancy which amounted to 4000. l. which Writ also commands to enquire what Lands the said Robert Becket had at the time of his death and thereupon it was found that he had divers Lands c. and upon a Scire facias to the Terretenants to shew cause wherefore two parts of the Lands of the said Robert Becket should not now be seised for the debt of the Recusant aforesaid one Henry Becket as Terretenant or Tenant of the Premisses pleaded that the King is satiefied of all the 20. l. and for all the moneths that the said Robert was convicted to be a Recusant and he vouched the Constat thereof under the hand of the Deputy of the Pipe Office and for the residue he said that by 28. Eliz. cap. 6. it is amongst other things enacted that if any person which hath not repaired or shall not repaire to some Church Chappell or usuall place of Common Prayer but hath forborne or shall forbeat the same contrary to the Tenor of the Statute of 23. Eliz. cap. 1. and hath been heretofore convicted for such offence shall forfeit c. provided that it he hath made submission and been conformable according to the true meaning of the said Statute or shall fortune to dye that then no forfeiture of 20. l. for any moneth or for seisure of the Lands of the same offender from and after such submission and conformity or death and full satisfaction of all the arrerages of 20 l. monethly before such seisure due or payable shall ensue or be continued against such Offendor and traverseth without that that there is any Record besides this Writ to charge the said Robert Becket deceased of or for the summe of 4000. l. towards our said Lord the King c. and so prayeth to be discharged thereof Vpon which Plea the Kings Atturney Generall demurred and Coventry argued that the Plea is good he said that there are three Points to be considered First that if a man be convicted of Recusancy in 28. Eliz. for 10. moneths then passed and de facto continueth a Recusant untill his death in 1. Jac. without other conviction if now the King can claim 20. l. a moneth for more moueths then are contained in the Indictment whereupon he is convicted Secondly admit that the King may have the forfeiture for every moneth whereof no conviction was as well as if a conviction had been then if the King can seise the Lands for the payment thereof after his death no seisure being had for it in his life by the Stat. of the 28. Eliz. or if the power of seisure be altogether gone by the death of the Recusant Thirdly admitting that the King shall have more then is contained within the Indictment if the Debt it self be not gone by the death of the Recusant To the first Point there is no President to be found that any man convicted before 28. Eliz. was charged to the Payment of more then that which was within the Indictment and the words of the Statute of 28. Eliz. contained within this Clause which provides for the payment due since the Conviction do not inforce any construction to the contrary and in this Clause the words being do yet remain unpaid are not proper words but for a thing payable before this Statute for so many moneths whereof he was convicted of Recusancy and the words without any other conviction are to be understood for so much as was unpaid of that contained in the Indictment and the last Clause of this Branch of the Statute hath not the words without any conviction and the other Clause provides that by expresse words for the future time every person who shall be once convicted shall forfeit c without other conviction and it was resolved Hill 4. Jacobi in the Kings Bench between Grinstone and Oliver that the Statute of 28. Eliz. alters and adds three things to the Statute of 23. Eliz. 1. That all the money due for Recusancy shall be paid into the Exchequer 2. This limits a time for payment thereof yearly viz. in the four Terms of the year 3. This giveth a penalty viz. power to seise all the goods and two parts for non-payment but all that is only for that which was payable before the conviction and therefoâ—e the words in the Branch which contains our Case have apt words of construction that he shall pay all due for the paine of seisure for 23. Eliz. gives no seisure but imprisonment if payment be not made within three moneths after judgement and so in our case Conviction ought to precede the duty To the second Point it seemeth that the power of seisure within this Statute is gone by the death of the Recusant for before the Statute of 1. Jacobi the power for seisure was but a penalty that if the party fail in payment of 20. l. a moneth then c. and in all cases upon penall Laws if the party die before the penalty inflicted this shall not be inflicted at all and that this is but a penalty he vouched one Grayes case in 1. and 2. Jacobi to be adjudged accordingly Also the words in this Statute which give the seisure of Land appointeth a levying to be of the 3. part for the maintenance of the Offendor his Wife Children and Family and after his death he hath no Wife so that if it be demanded when the seisin must be the answer is then when a third part may be left for his use which cannot be but in the life of the Recusant Also it appoints that the seisure ought to be by Processe which ought to be in the life of the party by intendment Also the Proviso of the Statute of 28. Eli. saith that if any person shall dye no seisure shall insue or be continued aâ—d out case is within those words for in regard there hath been no seisure in his life therefore after his death no seisure ought to insue and the words which purport another semblance of construction viz. and satisfaction of all arrerages are to be understood only in case where there was a former seisure that is in the life of the party and have reference to the words to be continued and that the intent is so he said that the words are so that the Heir shall pay no more but so much as the Land was seised for To the third it seemeth that in this case the debt it self is gone by the death of the party At the Common Law a penalty shall never be recovered against the
Heir except that judgement be given against the Ancestor and for that see 40. E. 3. Executors 74. and 41. Ass pl. 15. and 15. Eliz Dyer 322. And also if a Recusant had been convicted upon the Sat. of 23. Eliz. and dyed before judgement cleerely this forfeiture shall never be charged upon the Heir for the words are that a Recusant shall forfeit 20. l. a moneth and if he doe not pay it then appoints the recovery by Bill Plaint or Information and this ought to be alwaies in the life of the party then the Stat. of 28. Eliz. maketh not a new debt or Forfeiture but gives a penalty for the non-payment of that which was a debt within 23. Eliz. and that the intent of the Stat. of 28. Eli. was but such this is proved by the Title of the Act. viz. for the more speedy and due execution c. 2. It is proved by the first words of the Act for the avoiding of all delaies c. so that it appears that this Act is but as a penalty meerly Also he said that this Stat. of 28. Eliz. dispenceth with the conviction as to the penalty but doth not take away the Conviction also he said that conviction without Iudgement maketh not a Debt Also he who is convicted by proclamation and dieth is discharged Also he said that our Case hath been compared to a Debt upon an Obligation but this is not like for the Stat. stands not indefinite but hath reference to 23. for otherwise a Recusant may be doubly charged that is upon both the Statutes for there is no means to recover the Debt but by this Statute of 23. Eliz. See Sir Edward Walgraves case Dyer 231. Wentworth and others against Stanley WEntworth and his Wife and Rich and his Wife brought an Ejectione firmae against Stanley and shewed in their Declaration how one Edward Stanley was seised in Fee and infeoffed the Earl of Darby others to the use of himself for life the remainder to the use of the Plantiffs wife for 100. years and died and the Plantiffs entred and the Defendant ejected them c. and this Feofment was made in 40. Eliz. the Defendant saith that long before one Richard Stanley was sesed in Fee and gave it to the said Edward Stanley in tail and that he so seised made a Feefment to the uses as is alledged and died and the Plantiffs entred and the Defendant as issue of the Feoffor re-entred and so by his pretence his is remitted whereupon it was demurred and upon the opening this case the Barons were clear of opinion that the issue in tail is remitted and came paramount the lease and so the lease for years is gone also by the chief Baron and Baron Snig there needs no Traverse to be alledged by the Plantiffe because it was but of a fee gained in an instant by the feofment of a Tenant in tail and a fee-simple gained in an instant needeth not to be Traversed 5. H. 7. and 2. E. 4. wherefore the Court said that judgement ought to be given against the Plantiffs but yet at the desire of the some the Court gave day to the Councel on both parts to argue the case at which day came Heneag Finch for the Plantiffs and he argued to the matter in Law and therein he said that by the feofment of Tenant in tail the use to himself for life the remainder to his daughters for years without limiting the residue of the use that in this case the residue of the use shall be in the feoffes and not in the feoffor for by him there is a difference between a feofment by him who had a fee with limitation of an use as above and a feofment made by him who derives an estate out of a fee for when Tenant for life or Tenant in tail makes a feofment and limits an use for part of the estate as above there the residue of the issue shall be to the feoffee and he vouched Castle and Dods case adjudged in the Common Pleas 8. Iac. that if Tenant for life grant over his estate without limiting of an use it shall be to the use of the grantee more strong here in a tortious act as our case is but if Tenant in tail will levy a fine with limitation of uses as above there the residue of the use shall be to the use of the Conusor Secondly admit that the residue of the use in this case shall he to the feoffor yet he shall not be remitted to the use as it seemeth the words of the Statute of 27. H. 8. are that cestuy que use shall have like estate in the land as he had in the use and therefore it is clear that the first taker of the use shall not be remitted as it is resolved in Amy Townsends case in Plowden and although the words of the Statute mention not heirs or issues yet by the intent of the Statute they are in equal degree but the Books which are against this opinion are two viz. 33. H. 8. Dyer fo 51. but there it is not expresly said that the issue is remitted but 34. H. 8 Br. remitter 49. is expresly against me but the same year in Dyer fo 54. it is there made a quere and in Bevils case it is only said that the first taker of the use cannot be remitted but of my opinion was Baldwin and Shelley in 28. H. 8. Dyer 23 24. and in Sanages case and 29. H. 8. it is resolved that if a man hath land by Act of Parliament there shall be no remitter and so here wherefore c. and he said if Tenant in tail be the remainder in fee and Tenant in tail makes a feofment to the use of himself in tail the remainder to him in remainder in fee in this case he in the remainder in fee shall not be remitted for then the first taker should be remitted to the pleading it seemeth that the bar is not good and first the general demurrer here doth not confess the matter of fact no more then in Gawins case in 29. H. 8. fo 40. by Brown a demurrer upon account in an appeal is no confession of the fact and in 44. Eliz. in Crisp and Byrons case accordingly see Sir Henry Browns case before a good case to this purpose then as to the Bar it seems it is not sufficient for want of a Traverse of a seisin in fee alledged in the feoffor who was Edward Stanley for it is a rule that two affirmatives cannot be allowed in a Declaration and the Bar without Traverse of that which is mentioned in the Declaration is not good except there be cause of some impossibilitie or inconvenience but yet this is to be understood where the affirmatives are express and not by implication as in Moiles case if the Defendant in his Bar confess a fee determinable he needs not Traverse the fee alledged by the Plantiffe but in our case here is an allegation made by the