Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	party_n	queen_n	3,298	5	9.4634	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A90794	An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden, an apprentice of the common law. Concerning diverse cases and matters in law, and the arguments thereupon; in the times of the reignes of King Edward the Sixth, Queen Mary, King Philip, and Queen Mary, and Queen Elizabeth, with the exceptions to the pleadings, and answers thereunto; the resolutions of the matters in law, and all other principall matters arising upon the same. By F.H. of the Inner Temple London, Esq;	Plowden, Edmund, 1518-1585.; Hicks, Fabian.	1650 (1650)	Wing P2609A; Thomason E1297_1; ESTC R208982	174,168	307

it ought to be conjoyned to certainty as 9. H. 7.3 by Fineux and 6. H. 4.7 Debt upon payment at two days whereof the one is come abates by shewing of the Plaintiff the same because he hath shewed falsity So 20. H. 6.30 one ought to reherse the Stat. upon which he bringeth Champerty for to Warrant this certainly which ought to appear alwaies to the Court but not in one manner as sometimes by the replication in Assizes sometimes by Verdict as in aquare impedit the value of the Church In Ward the value of the Marriage in Detinue the value of the goods as in 20. H. 6. Champerty was brought which was not Warranted by any Statute and there Newton said That if the party could not shew to them some Statute by which it is Warranted that they would award that the Writ should abate And for that which hath been said that he needs not to recite the Statute and therefore misrecital is not material it seemed to them That howbeit he need not yet if he recites it and there is none such then he hath failed of his substance for the Court will not aid him nor think he intendeth any other thing then what he hath shewed and by this abundance in reciting more then needs hurts the party many times And therefore in 20. H. 6. fol. 42. contrary to 8. H. 6.33 Fitz. H. Count 15. of forging of false Deeds the Writ was of Diversa facta and minimenta c. and he counted but of one onely and by assent of all the Justices it was awarded That the Writ should abate and so abundance abated the Writ And if one maketh Title in Assize in his plaint where he need not yet if it be not formall all shall abate and yet it was abundance and more then he was compelled to do So in the principal case And where it was said That the Defendants by their Demurrer have confessed such Act of Parliament as the plaintiff hath declared they held that admitting this to be a confession yet this binds nor the Court which is a third person as appears by 10. E. 4. Wherein Trespass of Cattle taken brought by the Lessee for years the Defendant said That the Lessor held of him by Rent which was Arear and he took the beasts for it the Plaintiff said nothing Arear and there although the Defendant had admitted the Writ good yet the opinion of the Justices was That the Writ should abate for that the Lord was Defendant And so if the Defendant will admit good an appeal brought by the wife of the death of her Father yet the Court ought to abate it although the party affirm it and a Demur-is a Confession of all matters in Fact but not of matters in Law For by the Demurrer he puts it to the Judgement of the Court and confesseth not the Law against himself although the King may wave the Issue and so Demur in Law and recover afterwards fol. 236. and he hath many other prerogatives yet shall he be bound by misrecitall or by misusing or misconceiving of his Action and there shall abate the Writs where he is sole party as in the case of a common person à fortiori where another is party with the King as here the Plaintiff ought to shew certainty of the Lease here by Cook by other Justices not In Decies tantum certainty of the Summ received here because he shall not recover ten times as much and may not without shewing in Champerty the certainty of the first plea here because privy to the Record So in Trespass if the Defendant pleads Franck-Tenenemt the Plaintiff intitles himself by a Lease made by him the Defendant will shew that he made a Feoffment and that he entred for Forfeiture he ought to shew the name of the Feoffee and certainty of the Feoffment because he is privy and in all cases of privies he ought to shew the certainty as 2. H. 7.6 in Bar of Dower the Heir pleaded detainer of evidences he shall shew certainty for he is privy to them that he affirms to appertain to him of a bag sealed with Charters not 18. H. 8.1 because the bag sealed is certain Indictment cujusdam ignoti good Stamford fol. 95. and after fol. 129. Statute penal here not taken by equity by all the Justices as an Attaint shall not 14. H. 7.13 nor the Statute which augments bread by evil making nor things out of the words shall not be taken by equity But the words may be expounded beneficially as Treason by the Statute 25. E. 3. for killing of a Master so of a Mistris are of one effect 19. H. 6.47 but not by equity but rather within words Plural number contains singular by Hales So here pretenced Rights and Titles as shall be punished for forging one false Deed yet 1. H. 5. cap. 3. speaks of false Deeds So for Entry into one Tenement yet 5. R. 2. cap. 7. speaks of Entry into Tenements under this word any the lesser Estate is contained in the greater as 23. H. 6.10 prohibits that a Sheriff shall Lease his County to farm in any manner shall not Lease part thereof after fol. 124. contrary by Hales This Lease here made by one in possession is out of the Statute because it is not averred to be a pretenced right viz. the bargain and Lease to be made for maintenance contrary Cook for this was the point of the Statute as 9. H. 6.26 if published onely yet the Stat. is in the Copulative for forging and publishing this within the Statute but ought to aver That it was published to trouble the possession and Title of the Plaintiff for this is the point of the Statute So here the Lease ought to be averred for maintenance for this is the point of our Statute Montague Chief Justice He that is in possession may buy the pretenced right of another he which is out of possession if he promise or bargain to depart with the Land when he shall get the possession is within the Statute and maketh it void by the Common Law wherefore the Statute affirms it and adds a greater pain to the thing done against the Common Law and the Statute shall be meant to avoid a bargain of Right when out of possession he which hath possession but one hour alwaies may sell or it shall be a hard Exposition Acts expounded against the words of the Statute because Law and Reason allows it As Tenant hanging a Precipe Infeoffs his Son and Heir 6. E. 3. fol. 274. after fol. 204. good contray to the words of the Articuli super Chartas cap. 2. because the Son may not maintain to the Father but is bound to aid his father So an Heir may abet his Mother for to bring an appeal as W. 2. Cap. 12. So a Trespass in a Park without hunting shall not be punished by a year before refers to the Clause before onely so that the Clause being in possession Reversion or Remainder

imbesseling of a Habcas Corpora upon a Formedon between the Plaintiff and another holden good whithout shewing the Original and certainty of the Land and all the Record in certain because the Record is but a conveyance to the suit of Deceit and therefore for this cause cannot be gainsaid as to say Nultiel Record But where a Record is pleaded in Bar all shall be shewed certainly and is Traversable there in Conclusion or general Demurrer as petit judicium if the Plaintiff shall maintain the Action one shall have advantage of all defaults and of every thing mentioned in the Record and of every point that the Law gives him In Conclusion speciall of defaults onely alleadged in certain as here petit judicium if the Plaintiff shall maintain the action there if it be void for another cause then this which is mentioned he shall not have benefit of this of a thing void ab initio as the Obligation here because void by Statute so in avoidance of a Deed That he was not a man lettered and that it was read to him in another form So 24. H. 8. 28. because delivered as an Escrow upon Condition the Conclusion shall be so not his Deed because the matter proves that it was never his Deed of a thing voidable where it was void after because once is was a Deed the Conclusion shall be Judgement if Action because the duty is now extinct as 1. H. 7. 15. by release 35. H. 6. 18. for nonage 7. E. 4. 5. by dures When the Conclusion is nought and the matter in Law good Officium Judicis est for to give Verdict against the Plaintiff if it appeareth that he had not cause of Action howbeit that the Defendant hath lost the advantage thereof as it is here So 7. E. 4. 31. Trespass against B. and C. B. pleads not guilty C. pleads the gift of B. found guilty and found for C. no judgement for the Plaintiff because found against him So. appeal of a woman for the death of her father 10. E. 4. 7. because she shall not have an appeal of the death of any man except her husband or Trespass against the Lord by distress where nothing is in arear because the Statute is Non ideo puacatur dominus abate ex officio although the Defendant accepts the Writ good for the Plaintiff shall be barted by the Court ex officio and shall not have judgement although the Defendant admits his Title or by his Conclusion hath concluded himself of his advantage if it appeareth that he had no Title 1. The first branch is commanding and authorising the Sheriff to let to Bail persons manipernable by the Common Law viz. persons taken by Writ Bill or Warrant upon an Action personall or indictment of Trespass for it was indifferent if they were guilty or not made in affirmance of the Common Law 2. The second Branch viz. The exception was also made in the affirmance of the Common Law before for such persons which were in by condemnation execution Capias ut legat c. were not bailable before 3. The third is onely the purview which relates to the second branch as well as to the first for before refers to all this spoken of before as well the thing excepted as otherwise as a Lease for years of a Mannor except a Close rendring Rent the Lessee binds himself to perform all Covenants Grants and Agreements expressed or recited in the Indenture and after disturbs the Lessor of a thing excepted he hath forfeletd the Obligation because it is an Agreement for when he excepted the Close the other was contented with it and that the Lessor should occupy it and recited goes to the exception as to the rest 45. E. 3. 4. contained and recited goes to every Covenant in the Indenture An Act done Colore officii is extortion as if an Officer takes more for Fees then he ought And an Obligation taken of a prisoner for meat and drink is void because it is colore officii for he nor the Plaintiff are not bound to give him sustenance as he which distrains is not bound to give although he be in for Felony because 7. H. 4. 47. his goods are his untill he be attainted by the Common Law which is confirmed by 1. R. 3. c. 3. Rastal Forfeiture fol. 15. and if he dies for want of sustenance it is his own fault because that by presumption his ill demeanor bringeth him to such imprisonment The Statute of R. 3. restrains the Sheriff and other Officers to take Obligations of their prisoners except the Warden of the Fleet and the Kings Pallace at Westminster A Sheriff lets to mainprise one taken by Capias upon an indictment of Trespass which for the surety of the Sheriff makes an obligation to a stranger to keep his day is 7. E. 4. 5. held to be void because taken to another and not to the Sheriff onely according to the Statute Also there it is held if the Obligation hath not the Conditions expressed in the Statute That it is not the Deed of the party ex quo sequitur that he ought to conclude not his Deed keeping without dammage shall be intended by the generalty for all things Treasons Felonies Accounts and for all times if another thing is added by the Statute to be given it shall make all void as if a Condition be made according to the Statute and hath another thing not according to the Obligation is void So to add other words in a Formedon or Writ of Waste which are given by Statute all is void So to alien all the Land when he hath licence for part the licence is void in all by the Statute of 32. H. 8. because he hath exceeded the Authority thereby given to him The Statute saith That the Sheriff shall let persons mentioned therein to bail upon reasonable surety of sufficient persons in the plural number and because there is but one surety here the Obligation is void Also because the Statute saith That if it shall be taken in any other manner then is contained in the Statute if shall be void Also here by Plowden yet taken by one at large by the words of the first branch and those aid then third branch every person which extends to those at large nor for any person in their Ward which extends only to prisoners Kidwelly against Brand. LEease for years rendring 40. s. Rent by the year at H. out of the Land at the Feast of M. and if the Rent be behind H. 4. 5. E 6. In the Common Pleas. and not paid by the space of 40. daies after the said Feast then it shall be lawfull for him c. for to re-enter the Reversion is granted for Life the Grantee cometh to the Land 40. dales after M. to demand the Rent aforesaid but demanded it not and for not payment re-entred and adjudged lawfull 1. A Grantee for Life of a Reversio is an assignee within the Statute of 32.

end and expiration of the first Term of years the Lessor maketh a Lease for life to the first Lessee for years during the first Term and the second Lessee Enters and upon an Ouster bringeth Ejectione firme and by the Court it well lyeth 1. By the Law by a Grant of the reversion of the Farm the Farm and all the Demeasnes of it pass because it is nomen collectivum and certain in its self and so it was adjudged in the case of Bridges That by the Demise of the Farm the reversion and rent incident to it passeth 2. That the word Reversion shall be intended land reverting in the premisses and the habendum and not the estate in reverter which hath his continuance but in respect of the Term and during it it is a Grant of the reversion habendum the farm or land or reversion after the particular estate ended are all one 3. That the second Lease for years commencing by any determination of the first Lease whether it be in Law or in Deed and the expiration refers to the Term and not to the years Term is an estate in or for years and is finished when the estate is finished and this may finish when the years remain If a man marry with a woman Termor and the woman dies her husband shall have the Term for notwithstanding that the marriage hath not divested this out of the woman during coverture yet by her death this is given to the husband by Act in Law because it is a thing in possession and not in Action The Law is the Common use in Letters Pleas and Judgements and the Common Law is but common use by Anthony Brown fol. 195. Stradling against Morgan EXceptions alleadged in arrest of Judgement 2 El. Exchequer debt upon not guilty pleaded by the Defendant and found against him 1. The Plantiff hath shewed in his Declaration That the Defendant was then receiver c. and saith not That the Mannors were the Queens then and therefore shall be intended more strong against him then it should be to a common person and by consequence the Defendant is Baily to a common person by the Court. 2. That no receiver or Baily accomptant of a common person shall be within the Statute of 7. E. 6. c. 1 but onely of the Queen by the Court. 3. That the Action was not maintainable and the matter well alleadged lieth in the Queens Courts at Westminster notwithstanding the Statute of 34. and 35. H. 8. for Wales for that they are in the Affirmative and not in the Negative 4. That by this Statute an Action of debt by original Writ lieth for the forfeiture in the Exchequer howbeit that the party hath not cause of priviledge there 5. The Plaintiff ought to make mention of the Statute of 38. H. 8. and 7. E. 6. in his count for that the one is founded upon the other 6. He ought to shew expresly in his Count That the Queen was seized and made him her Bedel 7. Jeofails remedies not mispleadings in counts adjudged in Moon and Cliffords case In Debt the Plaintiff counts That whereas he was Bedel and Collector of certain Mannors by vertue of Letters Pattents of H. 8. and had a Fee for it the Defendant being Receiver of the said Mannor in 3. and 4. P. and M. took extortion for the payment of his Fee viz. 4. d. for every pound against the form of the Statute of 7. E. 6. the Defendant pleads not guilty and found against him And yet judgement given against the Plaintiff because the Count was incertain to whom he was Receiver and shall be intended against him then done to a Common person and a Receiver of a Common person is not within 7. E. 6. yet within the words for the intent of the makers shall be observed in the exposition of Statutes and so acts general in words have been expounded to be but particular where the benefit hath been particular As the King shall not have Wardship of lands which discends to the youngest Son but of that which discends to the heir general 12. E. 4. Stamford fol. 8. yet the Tenant dyed seized of others in Fee because the Statute of Praerogativa regis cap. 2. intends where the land is holden of the King and a Common person discended to the same Heir where one is Heir to the Tenant And Praerogativa Regis cap. 3. intends not that Soccage in capite shall give to the King primer seisen of lands holden of a Common person yet the words are general before fol. 109. Stamford Prerogative fol. 13. So Marlebr cap. 4. intends where Signiory and Tenancie are in the same County and therefore the Lord may bring a Distress taken in one County to a Mannor in another County of which the land is holden 1. H. 6.3 30. E. 3.6 before fol. 18. So Glouc. cap. 1. giveth Damages to the Disseisee against him which is found Tenant after the Disseisor for that he is Tenant by his own agreement and therefore the Disseisee shall not recover Damages against him which agrees not to a Feoffment made to him and others by the Disseisor yet he is Tenant but not Tenant by his agreement Litl Remitter fol 153. so long 5. E. 4. fol. 142. if he hath view in a precipe and afterwards abates the Writ for false Latine or for some other cause apparent he shall again have another Writ because there the Court might have abated this without motion For W. 2. cap. 49. although general intends where the Tenant abates the Writ by exception not apparent by 25. E. 3. cap. 16. by non-tenure of parcel no Writ abateable but for the quantity intends if the thing demanded be several as Acres but all the Writ shall abate where the thing demanded is entire as a Mannor before fol. 109. and the intent of the Statute never was contrary to the Text. By W. 2. cap. 25. if one fail of a Record he shall be a Disseisor yet a woman Covert shall not be 11. H. 4.50 nor infant because excepted by the intent yee in words hath included all So extenders shall not pay presently according to the words of Acton Burnel which ought to answer presently c. but shall be debtors presently with the duty and chargeable with the payment and daies payable of the rent or Revenues receiveable So by Exposition it seems against the Text of the Statute and is not because the intent of the makers guides them to it Of the part of the Defendant it was argued That the Action shall be sued there in Wales where the receipt is alleadged although that Wales is united to England by 27. H. 8. because by the same Statute Wales is divided into 12. Counties and by 34. and 35. H. 8. four Justices are appointed for wales viz. one for every three Counties and hold plea of all things within their circuit and one seal appointed for every circuit and all Actions suable there by the words of

probat And by him the Ordinary ought not to suffer the Executor to refuse after he hath once medled with the Goods of the Testator for if before the probat he had released a Debt and after he proves the Will this hath made the release good Walsh probat maketh the Release of the Executor made before good because it is a consummation of the Will and refers to the death Dier Chief Justice If the Ordinary commit and after the Metropolitan commit to another because the intestate hath Goods of the value of 10 l. in diverse Dioces 10. H 7.18 this disproves the authority of the first Administrator and avoids his mean Acts and by Keeble the second Administrator shall have Trespass against the first for taking of the first Goods So 7. E. 4.12 Executor pleads that he hath proved the Testament the action of the Administrator depending against him a good Bar because the power of the Administrator disproved and mean acts avoided by Probat of the Testament and the Executor which is made not knowing of it if he agree after good seems to be 3. H. 7.14 The Ordinary ought to award Proces against the Executor to come in for to prove the Testament before he commits the Administration The Probat here disproves the Administration for ever and proves the Executor to be full Executor from the death of the Testator and is not like to the cases before fol. 239. because the mean time in which no Executor and this time the Ordinary hath authority The Seal of the Ordinary put to the administration is but matter in fact and no estopple and the executor shall not be inforced to sue in the spiritual Court to recall this but shall avoid it by Plea or by matter in fact as 44. E. 3.16 A. bringeth Debt against B. as administrator and sheweth certainly how his Deed was as he ought B. saith he and another are executors Judgement of the Writ and shew forth the Testament to prove it A. offers to aver that he died intestate B. saith to it he shall not be received contrary to the Testament proved and under Seal to take the Plaintiff from his averment but that he shall have it and try it by the Country also the taking of Letters of Administration discharges not a Suit against those which were executors of their own wrong before 21. H. 6.8 2. R. 3.20 So 34. H. 6.14 in debt by the Administrator the Defendant received to avoid Letters of Administration by saying the dead made an executor and taking issue upon it Chapman against Dalton A Man makes a Lease for 21. years by Indenture and Covenants with his Lessee Tr. 7. El. in the K. B. Covenant and his Executors to make a new Lease for 21. years after the expiration of the first to the Lessee and his Assignes the Lessee dies and the Executor of the Executor brings Covenant after the first Lease determined against the Lessor and adjudged good 1. That the executor is an Assignee in Law to whom the Lease ought to be made and so the executor of an executor by the Common Law 2. That the Lease ought to be made to the Lessee if he were alive or to his Assignes in Deed and if he die Assignee in Deed then to his executor and although that the Covenant be in the Copulative in the Letter yet it shall be expounded disjunctive in sense for to avoid absurdity or impossibility 3. Admitting that the word Assignee were void or omitted out of the deed yet this shall be made to the executor for that the intent was such which shall be performed where the words could not Baber and Wray argued for the Defendant as it is abridged by Ash fol. 50. Fleetwood and another apprentice for the Plaintiff Every Covenant and Grant shall be taken most strong against the Maker and most available to the other And if the words thereof have a double sense that which is for the benefit of the Grantee shall be taken then the word Assigned here shall be drawn to so effectuall sense for the avail of the Grantee And if the word Assignee as the Councel on the part of the Defendant would have it applied to a limitation viz. in the sense of an Habendum to him and his Assignes for 21. years it is void and conveys no benefit to the Grantee because if I Lease to A. for 21. years and his Assignes shall have this as largely as I do vest this Lease in him and his Assignes because the Law gives power to him to assign it to another Assignee hath two senses in the one it signifies the person to whom the thing granted or given shall be afterwards conveyed by him which hath the thing as the Lessor Grants to the Lessee for years That he or his Assignes shall have twenty Carts of Wood annually in such a Wood Assignee there hath the sense of the person to whom he shall Assign the Lease So one warrants Land to the Feoffee his Heirs and assignes there the second Feoffee shal vouch So I sell a Horse upon Condition That if I pay 40 s. to him or his Assignees that I shall have the horse again Assignee there is he to whom he grants the horse but such Assignee is not in our case because he hath not any estate first made and such a one is Assignee after the thing granted in the second it contains the person to whom the thing which is to be made and is not made shall be made as I am bound to make a Feoffment or give a horse to you or your Assignee there the Assignee is such a person which you shall name to me to receive and the Assignee in this sense is before the things done or granted and Assignes in this sense is in the first also But with this in the first sense we have not to do here there are Assignes in Deed and Law in Deed where you name such a one to whom I shall make the Feoffment or give the horse in Law where you name no man to receive then the Executor shall have it because the Law saith That they are your Assignes to such purpose and present your person as to receive any Chattels real or personal So 27. H. 8 2. Executor is an Assignee in Law to take a Rental where the Lessee bound himself to deliver it to the Lessor or his Assignes at the end of the Term a true rental and the Lessor made no Assignee he is an ill expounder which confounds the Text. And therefore here and the Copulative shall be taken for or the Disjunctive for otherwise the sense will be absurd that the Lessee if he had been alive at the end of the first Lease should not take a new Lease until he names his Asasignee or impossible as joyning his assignee in law with him because he cannot have an Executor in his life So in our Law a copulative is taken as a disjunctive and a disjunctive as a

in his grand father which is saved in him and his heirs by the first saving and therefore shall not be saved by the second And ths makers of the Act intended not to aide them by the second saving which were aided by the first nor on the contrary But to comprehend by the one saving those which were out of the other saving and therefore Stowell is not saved by the second saving because he entred not by his own right nor the right Discended Discended is such not such matter before the Fine that the makers of the Act intended and he shall not be aided by equity for no equity here because universality is more regarded then particularity one hath two defects as to present right or when future right happeneth all ought to be removed from him before the five years commence and if it happeneth within a moneth after in any of the defects again and so continue all the five years or to the end of the first moneth of the five years his heir dying within age before the five years Commence they do proceed and the not claim within the five years shall bind the party and his Heirs as well as if they had been void of all defects during all the five years if they had no defect when the Fine was Levyed but had before the last Proclamation and so continued when all the Proclamations incurred he shal not be bound to five years next after the last Proclamation but shall have new five years after all defects removed by Plowden Successors shall not be bound by 4. H. 7. by Fine or negligence of their predecessor as Bendlos would have it Sir Henry Nevils Case THe Arch Bishop of Canterbury Grants the Office of the keeping of a Park ● 2 Elia Exch upon a Petition with a Rent charge of three pounds per annum for the exercising of it to Sir Edward Nevil the Father and Sir Henry the Son and after Sir Edward the Father was attainted of Treason and the Park and the Mannor out of which the rent was Granted cometh to the King and Sir Henry being Survivor exhibits his Petition to the Exchequer for the Arrearages of the Rent incurred before and to be paid the Rent from this time forward and had Judgement according to his Petition in the Exchequer without suing to the person of the Queen 1. If an Office of skill and confidence which requires diligence and attendance be granted to one for life as the Custodie of a Park Stewardship Bailywick c. he may not Grant this over 21. E. 4.20 nor forfeit this to the King for Felony nor Treason otherwise it is if it be granted to one and his Heirs in Fee 1 H. 7.28 there he may grant this over because it is so intended by the generalty of the estate but where it is granted for life onely there no other is comprehended in the Grant but the Grantee himself so that he cannot make a Deputy without words and therefore much less may he Grant this over but if such Grantee for life be attainted of Felony or Treason or imprisoned or go over the Sea or becomes of Non compos mentis c. so that the Grantor hath prejudice by his absence or default of attendance this is a Forfeiture to the Grantor for the not doing or misdoing notwithstanding that he be pardoned after or the other defects removed but if the Grantor hath not any prejudice by his absence or default of attendance the Grantee shall have the Office again after his Pardon amp c. but otherwise it is of the Kings Grantee in such case for the Office Cesse and the person of the Officer was once discharged by the attainder and the King may grant the Office to another and he being the first Grantor shall not be kept out by his Officer by such Grant but otherwise it is in the case of a common person for the Queen shall be unknown of her Officer by such Grant of the Kings and then the confidence and other causes of the first Grant shall be broken by it which would be inconvenient 2. If one Office of skill and confidence be Granted to two for their lives and the one is Attainted of Treason this is not a Forfeiture of the Office but that the other shall keep it presently and the Fee also But admitting that the King shall have it during his life which is Convicted of Treason yet after his death the Survivor shall have it Adjudged but if the King Grant such Office to two and the one committeth Felony or Treason there the King shall have the entire Office by Forfeiture for that it shall be extinct in him and goes by way of discharge and is a thing entire but in the other case it is but a Transmutation from one to the other and the one shall not prejudice the other for his Free-hold 3. The King shall have an Office of service of an estate of inheritance by Forfeiture for that he may Grant this over although that he himself cannot use it but otherwise it is of an estate for life 1. H. 7.28 The Fee here shall not be Forfeited for that the Office shall not be Forfeit to him to whom it is appropriated for the Office is appropriate to the peeson and the Fee to the Office and so the Office and Fee are Concommitant as Estovers to be burned in such a house or Common granted in such a place to one for his Cattle Levant and Couchant in his farm of D. are made appurtenant and Estovers cannot be severed from the house 5. H. 7.7 Nor the Common from the Farm except by extinguishment 26. H. 8.4 Annuity pro consilio impendendo because it is a thing by reason of the person Annuity granted by reason of an Office is Determinable with the Office and continues with the Office as an incident and inseparable yet the estate in the Annuity is one and the other in the Office 7. E. 4.22 before fol. 161. if an Annuitty pro concilio c. be Granted to two and the one of them be attainted the other shall have the Annuity because it cannot be Forfeited Empsons Case if the King Grants the Office of Sheriff to two and one of them is Attainted the entire Office is Forfeited and the Survivor shall not have any thing because the Patent and the Office are entire and may not be severed and the King shall make it to extinct the Patent and to make a new Officer for he cannot be an Officer adjudged Breretons case The Earl of Leicesters Case THE Earl of Leicester was indicted before eight Tr. 1● El. in K.B. Tr. against Haydon upon a Commission awarded to 15. and after a new Commission was awarded to the Major of London and others to send for the indictment taken before the 15. whereas in truth it was taken before 8. of those onely and thereupon arraign the said Earl and moreover the second Commission recites That he

their Husbands is contrary to the intent of the Statute and the intent ought to be thought on because the Purviewe extends not further then the intent of the makers of the Statute as the Wife infeoffs the Father of him with whom she intends to marry for to regive the Land to them after their intermarriage for lives or remainder in tayle to the Wife the Father doth so they have issue the Wife after the death of the Husband levies a Fine to other uses their issue may not enter yet it is with in the words of the Act of 11. H. 7. because the Father gave it to them But this cometh from the Wife her selfe by circumstance And the Father was but as an Instrument of it and therefore out of the intent of 11. H. 7. which restraineth the generalty of the letter of the Statute and maketh the Cases within the words out of the penalty of the Statute by the intent of the Makers As Infants and mad Men are excepted out of the Cases of Fellonies made by any Statute so neither those nor a Fem covert shall be concluded in the intent of the Statute which maketh them accessary which shall give them Meat Drink or other ayde to them which shall commit such an Act. So if a bargaine for Land be made before a Writ brought against him and the suite depending Livery and Seisen is made It is not Champarty 19. R. 2. because he ought to performe the bargaine made upon just consideration notwithstanding W. 2. Cap. 49. and Articul super Chart. Cap. 11. So a barr fee is within the letter but not the intent of the Statute of 32. H. 6. cap. 10. because appointed to the Sheriffe in the beginning by the order and discretion of the Court for his labour and attendance when the Prisoners are brought to their delivery 21. H. 7.16 So Wreck if a Man Dog or Car escapes alive shall be kept that the party may have his goods if he claimes within the yeare by W. 1. cap. 4. is intended of such things which will endure so long and not perish in the meane time as are Lemans Oringes c. So a rent granted by tenant in tayle for a release of right in other Lands is good 44. E. 3.21 because for the benefit of the estate tayle And W. 2. De donis c. intends not to restraine that which amends the estate tayle So Parsonages and Vicarages are within the words but out of the sense and intent of 1. E. 6. cap. 14. which inlargeth the words of the Statute and maketh that Cases within the like mischeife shall be within the Purview by equity as by the Book of entrys fol. 406. a man shall recover double damages for costs sustained with force by equity of 4. H. 4. cap. 8. which gives this for disseisen of the Land So that Executor which cometh first by distresse shall answer by equity of 9. E. 3. cap. 5. which speaketh of Executors by equity of Gloucester the Lessor shall have wast against the Lessee for half a yeare or for twenty weeks which pleads yeares So 1. E. 6. cap. 12. which takes away Clergy for stealing Horses takes it away also for one Horse because included in the Plurall Number and therefore Plowden disallows 2. E. 6. cap. 33. which taketh away Clergy for the stealing of one Horse as a superfluous Statute and was made in vaine And so 1. E. 6 cannot of Law but morall vertue which reforme the Law and the other equity is Quasi equality because in the like reason in the like Law Sobye against Molins TIthes shall be payd for the Boughs of Hornebeame H. 17. El. in the Kings Bench. Attachment upon prohibition Hasell Sallows Maple and such Trees which are not fit for building and so of the Trees themselves although that the Trees and Boughs are above the age of one and twenty yeares for they are not great Trees which are exempted and priviledged of Tithes by the Statute of 45. E. 3. cap. 3. or rather by the Common Law in affirmance of which this Statute was made as appeareth 50. E. 3.10 But Tithes shall not be payd for Ashes Oaks and Elmes Beech and such like Trees which are fit for building and of the age of twenty yeares nor for the Branches of them which are of the age of twenty yeares Quere if the Branches are within such age as the Timber trees which use to be lopped and lopt if Tithe shal be payd for them and it seemeth Tithes shall be payd of them by the Book The use at this day is upon suggestion to have a prohibition that the party shall be bound by Obligation or Recognisans to the King to preferr a Bill of attachment against the party which sues in the spirituall Court if he requires it and upon it to declare and joine issue or demurr upon the right of Tithes and award consultation which Plowden held vicious First for that the Defendant is not Actor and therefore may not have consultation upon such proceedings Secondly For that the Judgement upon the Attachment ought to be to acquit or attaint the party of the Contempt and not proceed upon the right of Tithes Thirdly For that the Plaintiffe cometh into the Court voluntarily Scilicet by his Recognisans to exhibit his Attachment where he ought to be brought in voluntarily by Process Fourthly Because the suggestion of the Attachment is false Fifthly For that if the Plaintiffe will not proceed the Defendant hath no remedy but a Recognisance forfeited to the King But Plowden held it to be the best course after the prohibition that the Defendant sues out a Scire facias against the Plaintiffe Quare consultatio concedi non debeat And upon this the Plaintiffe may declare and the matter shall be tryed and the Defendant may have consultation and then he will be an Actor Sanders and Archers Case ARcher gave Poison to Sanders to Poison his Wife H. 18. El. the Report of the opinions of Dyer Cheife Justice and Barham Justices of Assises in Warw. and Sanders gives this to his Wife in a roasted Apple which did eate part of it and gave the residue to their daughter being an Infant and after the Wife recovers and the Infant dyes and it was adjudged Murder in Sanders for which he was hanged but not in Archer for he was acquit to be no accessary to this Murder First For that Sanders had an evill intent of Murder at the beginning of his Act to kill his Wife and therefore the consequent of his Act by which the Daughter dyes shall be adjudged according to the commencement So if a man shoots at one and kills another or lyeth in waite to kill one and kills another otherwise it is where he hath no ill intent of killing any as to lay poyson to kill Rats and one eates of it and dyeth Secondly The consent of Archer to kill the Woman may not bee conjectured further then he gave it