of Action he shall not have judgement a Count may be made good by barre and a barre by replication in matters of circumstance but not of substance See there seaven things observed by Cooke for the better direction of the President and Comminalty of the said Colledge hereafter The Case of the City of London 7. Jac. fol. 121. IT is a good custome within a Citty that a Forreinor within the said Citty shall not sell things by retaile and it is good also upon paine of 5. l. but it is not good by Charter therefore Citties which are incorporate within time of memory cannot have such priviledges without Parliament so of a custome that goods forreigne bought and forreigne sould shall be forfeited So one may prescribe to have a Bake-house in a Towne and that no other shall have one there and the Statutes which provide that every one may sell in retaile or in grosse extend onely to Merchands aliens and demisens who export and import things vendible Three inconveniences by confluence of people to London c. The Case of Thetford Schoole fol. 130. 8. Jac. LAnds of the yearely value of 35. l. in ao 9. El. was devised by the will of Thomas Fulmerston to certeine persons and their Heires for maintainance of a Preacher four dayes in the yeare of the Master and Usher of a free Grammar-Schoole and foure poore People Viz. Two men and two women and the Defendant delayed to accept a Release to defraud the Plaintiffe adjudged for the Plaintiffe 1. Although that two recoveries are without covin yet the composition so operates that nothing shall be accounted administred but onely so much as he hath paid by composition and the converting of any part to his owne use and the deferring to accept a Release is against the office of an Executor and shall not aide him 2. The barre is insufficient because he hath not shewed that the Court of C. had power to hold plea of debt 2. Because he hath not shewed that the Testator was bound in an Obligation and if it were onely upon contract the administrators were not chargable in Debt 3. Be the replication evill yet because the Barre is insufficient the Plaintiffe shall have judgement because he had not shewed any thing against himselfe but if it appeare by the replication that he had no cause of Action he shall be barred Mary Shipleys Case 8. Jac. fol. 134. AN action of Debt against an Executor of 200. l. the Defendant pleaded Plene administravit the Plaintiffe replies that the Executor had assets the Jury found assets to the value of 172. l. judgement was given to recover the whole Debt of 200. l. and damages and costs of the goods of the Testator S. c. Et si non then the damages of the proper goods of the Defendant Sir John Nedhams Case 8. Jacobi Communi Banco fol. 135. IN debt as administratrix upon administration committed by the Bishop of R. the Defendant pleads administration committed unto him by the Deane and Chapter of C. sede vacante because the Intestate had bona notabilia c. the Plaintiffe replyes that that administration was repealed adi for the Plaintiffe 1. Resol Because it is not shewed that the Intestate had bona notabilia c. it shall be intended that he had not and yet the administration is not voyde but voydable 2. Before the repeale of administration committed by the Metropolitan the inferior Ordinary may commit administration because this is by the repeale declared voyd ab initio and an administration is but an authority which may well commence in futuro 3. The committing of administration to the obligor hath not extinguished the bebt because it is in anothers right otherwise it is if the obligee himself make the Obligor his executor because this is his owne act De bonis defuncti trina dispositio 1. Necessitatis ut funeralia 2 Vtilitatis that every one shall be payd in due order 3. Voluntatis as Legacies Sir Francis Barringtons Case 8. Jacobi Communi Banco fol. 136. THe Lord R. granted wood within a Forrest in which the Plaintiffe had common which grant is confirmed by Statute the grantee cuts wood and inclose it the commoner shall loose his common for seven yeares 1. Resol The grantee had an inheritance to take in another soyle and the soyle is to the Lord R. 2. Although the grantee had not the inheritance yet the Statute extends to him and he may inclose for the Statute is or any other person to whom wood is sould 3. 22. E. 4. cap. 7. extends to wood which one had in severalty and not where another had common there for at the common Law one who had wood in a Forrest cannot incloser against a commoner but if it be his severall wood he might inclose parvo fossato c. for three yeares 4. The sayd Statute is as a conveyance betweene the King and his Subjects which taketh not away the right of third persons as the commoner here is 5. In the sayd Statute there is a clause that hee may inclose without suing to the King or other owner so that power is given against them and not against a commoner Beasts of Forrest are Hart Hinde Hare wilde Boare and Wolfe of chase Buck Doe Fox Martin and Roe 6. By the Statute of 35. H. 8. cap. 17. he is barred of his common which provideth that no Beasts shall be suffered to come there for seven yeares 7. The Statutes which concerne Forrests are generall because they concerne the King and the Court shall take notice of them Doctor Druries Case 8. Jacob. fol. 141. DOctor Drury recovers against B. who is outlawed and taken by Capias ut-legatum and escapeth the Utlary is reversed Doctor Drury sueth execution B. brings an Audita quaerela adjudged that it lyeth not It was resolved that if A. be in execution at the suit of B. upon an erroneous judgement and after escape and after the judgement is reversed by a Writ of error the action against the Sheriffe is extinct for hee may plead Nul tiel record But untill it be reversed it remaines in force be it never so erroneous and if the partie have judgement and execution upon the escape against the Sheriffe or Goaler and after the first judgement is reversed yet for as much as judgement upon this collaterall thing is executed it shall remaine in force notwithstanding the reversall of the first 7. H. 6. 4. Yet it seemeth to me he may have remedy by Audita quaerela for that the ground and cause of the collaterall action is disproved by the reversall of the first judgement a difference betweene meane acts compulsatory and voluntary and betweene a recovery by eigne title and reversall of a recovery Davenports Case 8. Jacobi fol 144. TEnant for yeares of an advowson granteth proximam advocationem donationem si eadem Ecclesia contingerit vacua fore durante termino c. And afterward surrenders his terme yet if
judgement and this error assigned for that R. the plaintiffe was an Infant and was admitted by his Gardian and no Record made of it as 't is used in Banco but onely recited in the Count J. R. per A. B. gardianum suum ad hoc per curiam specialiter admissum queritur Which was disallowed by all the Justices upon search and view of many presidents which make a Law in this Court yet some presidents were as in Banco Note Reader according to the opinion of Wray 't was resolved in Londons case that if a man takes a lease by Indenture of his own land this is an Estoppell but during the terme and then both parts of the Indenture belong to the lessor Wardens and Commonalty of Sadlers case 30. of the Queene fo 54. BY Mandamus 't was found before B. Mâ—yor of London Escheator of the City and thâ— inquisition was returned in Chancery that T. C. held of the King c. and dyed seised without heire the Wardens c. shewed their right that R. M. was seised in fee and devised to them in fee and that they were seised till by C. disseised and shew the custome of London that a Citizen and Freeman may devise in Mortmaine and averred that R. M. was c. Tempore mortis and upon this great question was whither a Monstrans de droit lyes or it ought to be by Petition See the Case at large for this Learning Bereblock and Redes Case was cited to be adjudg'd if A. be bound in a recognizance Statute c. and after a recovery in Debt is had against him and he dyes his Executors ought first to pay the Debt upon the Recovery though it be puny to the Statute c. for though both be Records yet the judgement in the Court upon judiciall and ordinary proceeding is more notorious and conspicuous and of more high and eminent degree then a Statute c. taken in private by the consent of Parties Forse and Hemblings Case 37. Eliz. in com Banc fo 60. ALice Allen seised of certaine Messuages in Fee maketh her will in Writing and thereby demiseth that if James Amynd doth survive her that then she doth demise and bequeatheth the same messuage to him and his Heires And afterwards the said Alice did Intermarry with the said James and during her coverture she said often the said James should never have the said Messuage by her said Will Alice dyed without issue and James survived and the Question was whither the Will was countermanded by the said Marriage or not and if not whither by the words of revocation after the Marriage was a Countermand and it was adjudged upon great deliberation that the taking of a Husband and the coverture at the time of her death was a countermand of the Will For the making of a Will is but an inception thereof and it doth not take any effect untill the death of the Devisor For Omne testamentum morte consummatum est voluntas est ambulatoria usque extremum vitae exitum And it should be against the nature of a Will to be so absolute that he that made the same being of sane memory may not countermand the same And therefore the taking of her Husband being her owne proper act doth amount to a countermand in Law Also 't was said that after Marriage all the will of the Wife in judgement of Law is subject to the will of her Husband and a Feme Covert hath no Will and therefore the Countermand after Marriage was of no force Quod fuit concessum per tot Cur. Harlakendens Case 31. El. In banco regis fo 62. THe Earle of Oxford leased to A. B. and C. except the Trees for 21. yeares C. assigned to D. the Earle sells the Trees to A. B. and D. they leased to E. and after sell the Trees the Vendee cuts them the Lessee brings Trespasse When a man maketh a Lease for life or yeares the Lessee hath but onely a speciall interest or property in the Trees being Timber as things annexed to the Land but if the Lessee or another severs them the property and interest of the Lessee is determined and the Lessor may take them as things which were parcell of his Inheritance It was also resolved that this clause without impeachment of wast doth not give to the Tenant for life any greater interest in the Trees then he had by the demise of the Land but onely that it will serve that he shall not be impeached in any action of Wast or to recover damages or the place wasted * This is adjudged otherwise by all the Judges of England in Lewes Bowles Case in the 11. Report It was also resolved that if an House fall by tempest or other act of God the Lessee for life or yeares hath a speciall interest to take Timber to reedifie the same if he will But if the Lessee suffer the House to fall or take it downe the Lessor may take his Timber as parcell of his Inheritance and the interest of the Lessee is determined and he may have wast and treble damages Resolved that the Lessee by the grant had an absolute property in the Trees so that by the Lease of the Land they did not passe and he hath not equall ownership in both and it should be a prejudice to him if they should be joyned to the Land for then he could not cut during the terme without wast and after he shall not have them and the Lessor shall not have them against his owne act And here A. B. and D. were Tenants in common of the Land and joyntenants of the Trees and so their interest of severall qualities and therefore cannot be a union betwixt them but upon a feoffement if the Feoffor accept the Trees they are in property divided though In facto they remaine annexed to the Land for it is not felony to cut them c. and if the Feoffor grants them to the Feoffee they are reunited in property as well as De facto and the Heire shall have them not the Executors for the feoffee hath an absolute ownership in both and it is more benefit to him that they are reunited It was resolved That if Tymber Trees be blowne downe with the winde the Lessor shall have them for they are parcell of his inheritance and not the Tenants for life or yeares but if they be Dotards without any Timber in them the Tenant shall have them It was adjudged that wast may be committed in glasse in the Windowes for it is parcell of the house and discends as parcell of the inheritance to the Heire and the Executors shall not have them although the Lessee put the glasse in the Windowes at his owne cost and if he take them away he shall be punished in wast And 42. Eliz. in com Banco It was resolved that Wainscote whither it be annexed to the house by the Lessor or the Lessee is parcell of the House and there
taile with crosse remainders to J. and K. M. discontinueth and dyeth without issue J. dyeth without issue K. dyeth and her issue brings a Formedon in the remainder and good although severall remainders for they depend upon one estate and commence by gift at one time In actions reall in which title is expressed a man shall not have one Writ for Lands to which he had severall Titles as in escheate cessavit Writ of Mesne c. but he may have a Writ of ward of Land onely although it be by severall Tenures nor one formedon upon two distinct gifts where the foundation is severall but he shall have it if there be one gift although it take effect at severall times because the foundation was joynt and single as upon a gift in taile to Brother and Sister who dye without issue or if the Brother dye without issue and the Sister dye having issue who dyes without issue he to whom the remainder limitted shall have one formedon although it vest at severall times so in an estate taile to Father and Sonne and so here In actions reall founded upon Torte a man shall have one Writ to recover Lands to which he had severall Titles as in an assize a Writ of entry c. but in a Writ of entry upon disseisin made to my Mother and her Sister Coperceners because there title is in the Writ it appeareth he ought to have severall actions but in personall actions one may comprehend severall torts and causes of actions as trespasse for trespasse made at severall dayes and places wast upon severall Leases and so of Debt Nota if a remainder be executed issue in remainder shall not have a formedon in remainder but in the discender and Count of an immediate gift but if there be a Lease for life to one the remainder in taile to A. the remainder in taile to B. A. dyes without issue if B. be chased to his formedon he shall not count of an immediate remainder but shall shew the first remainder to A. and that he is dead without issue 2. In formedon in the remainder or reverter omission of issue inheritable in the pedigree of the demandant abates the Writ but not upon the part of the perticular Tenant 3. The Demandant must make mention of the Sonne who survived the Father to which Son the Land discended but was not seised by force of the taile but he shall name him Sonne but not heire 4. The Demandant in a formedon in the Discender must make himselfe heire to him that was last seised and he to the Donee Note here because K. was never seised the Writ shall say Remanere not descendere and the Writ was Remansit jus because a discontinuance otherwise it should be Tenementa remanserunt Fraunces Case 7. Jac. fo 89. THe Plaintiffe pleads in barre of avowry that R. F. devised to I. his Sonne who leased to him the avowant replyeth that after the devise R. F. made a Feoffement to the use of the said I. upon condition that he shall suffer his Executors to take away his goods and the estate limitted to him was for sixty yeares if he should so long live with diverse remainders over and that after the death of F. I. hindered the Executors to carry away the goods whereupon T. in remainder entered and judgement given for the Plaintiffe 1. Resolv Although the condition be taken strictly the uses to I. onely and to his Heires are onely avoided by it 2. A disturbance by paroll is no Breach of the condition and because the avowant did not shew a speciall disturbance his replication was void 3. I. ought to have notice of the condition being a Stranger to it or otherwise he cannot breake it as a Copy-holder shall not forfeite for denyall of rent to him to whose use a Mannor is transferred before notice but he who bindes himselfe to doe any thing must take notice at his perill because he hath taken it upon him 4. Although that the Title which the Plaintiffe had made in barre to the avowry be destroyed yet he shall have judgement because his count is good and another Title that is to have the Land for sixty yeares by force of the uses declared upon the feoffement is given unto him by the Replication although that the title which he made for himselfe be destroyed yet the Court must adjudge upon all the record and judgement was entered for him accordingly Edward Foxes Case 7. Jacobi fo 93. A Revertioner upon a Lease for life the remainder for life in consideration of 50. l. demiseth granteth c. his reversion for 99. yeares rendering rent this is a bargaine and sale and there needs no attornement for the words of bargaine and sale are not necessary if there are words which tantamount as if at the common Law one had sould his Land an use had beene raised to the Vendee because their intent so appeared so here but if it appeare that their intent was to passe it at the common Law as if a Letter of Attorney be made to make livery the use had not risen and here appeareth their intent to passe it as a bargaine and sale because rent is reserved presently therefore it is reason that he shall have the rents of the particular Tenants presently which cannot be if it passe not by bargaine and sale and inrollment is not necessary because a tearme for yeares onely passeth in this case and â—o freehold See Sir Rowland Heywards Case 2. Report fo 35. Matthew Mannings Case 7. Jacobi fo 94. LEssee for yeares is bound in 200. Markes to W. C. and deviseth to his Wife for life and after her death to M. M and makes his Wife Executrix who agrees and dyeth intestate M. M. enters and takes administration of the goods not administred W. C. brings Debt against him Resolved that M. M. takes by Executory devise and not as a remainder and the estate limmitted to him in construction precedeth the limittation to the Wife as if he had devised that if the Wife die within the terme that then M. M. shall have the residue and also devised it to his Wife for life 2. This case is most strong because a Chattell which may vest and revest at pleasure of the Devisor without mischiefe to the Praecipe 2. A devise of the Terme and Occupation thereof all one Viz. So many yeares as the Feme shall live the remainder to M. M. 4. After the Executrix had agreed the first devisee cannot barre the Executory devise 5. A man may devise an estate which he cannot convey by act executed as to his Executors untill his Debts shall be paid the remainder over they have a Chattell determinable upon payment of the Debts which cannot be at the common Law If a Sheriffe sell a Terme upon a Fieri facias and judgement is reversed the sale shall stand otherwise none will buy any thing upon Execution and judgement was given for the Plaintiffe and affirmed in Error
in this Case the obligor by accord betweene the parties may give any Horse or other thing in satisfaction of the money in the defeasance for the Contract originally was for money But if a man by Contract or assumpsit without Deede be to deliver an Horse or to build an House or to doe any collaterall thing money may be paid by accord in satisfaction of such contract for as a contract in consideration may commence by word so by accord by words for any valuable consideration the same may be dissolved Agnes Gores Case 9. Jacobi fol 81. WHerein was resolved that if A. put poyson into a Pot to the intent to poyson B. and set the same in a place where he supposeth B. will come and drinke thereof and by accident one C. unto whom A. had no malice commeth and of his owne will taketh the Pot and drinketh thereof of which poyson he dyeth this is murther in A. for the Law coupleth the event with the intention and the end with the cause But if one prepare Rats-Bane to kill Rats or Mice and lay the same in certaine hidden places to this purpose and with no ill intent and another person finding the same doth eat thereof and dyeth this is no Fellony But when one prepareth poison with a Fellonious intent to kill any reasonable Creature whatsoever reasonable Creature is killed thereby he that had the fellonious intent shall be punished Resolved by all the Justices of England Coneys Case 9. Jacobi fol. 84. in banco THe Lord of a Mannor and Tenant within the age of 21. yeares by Fealty and rent the Lord infeoffeth a Stranger to which feoffement the Tenant attourneth Question whither the attournement of an Infant will binde him to the payment of the services or not and by Cooke Walmsley Warberton and Foster it shall binde for he is compellable in a Per quae servitia and shall not have his age but he may avoide any prejudice thereby at his full age and if a fine here had beene levyed he had beene compellable and the rather because it is but a bare assent Pinchons Case 9. Jacobi fol. 86. IT was adjudged that an Action of the Case will lye against Executors for a Debt due by the Testator upon a simple contract An Action upon assumpsit made by the Testator was maintainable against the Executors upon a contract for Corne. Norwood Reades Case plow com 181. Debts upon simple contracts ought to be paid before Legacies and reasonable part of the goods of the Wife or Infant which proveth that they still remaine the Spirituall Court doth give remedy for payment of Legacies and the reason of all this is for that the Testator in his life time upon his action of the case upon the assumpsit might not wage his Law as he might have done upon his action of debt for no action is maintainable against Executors where the Testator might have waged his Law in his life time If a Prisoner doe eate and drinke with his Goaler and dye the Goaler shall have an action of debt against his Executors for the meate and drinke of the Testator and the reason is for that in this case the Testator might not wage his Law as is adjudged 27. H. 6. fol. 46. in Thomas Bodulgates Case and the reason that no wager of Law in this Case is because that every Goaler ought to keep his Prisoner in salva arcta custodia and thereby the Goaler is in a manner compelled to finde Victualls for his prisoners and therefore the Prisoner may not wage his Law but if A. contract with B. for his commons for a moneth c. there in an action of debt brought against A. he may wage Law If a Victualer or common Innkeeper bring an action of debt for victualls delivered to his Guest the Guest may wage his Law for the Victualler or Host is not compellable to deliver Victualls untill he be paid for them in hand 10. H. 7 8. in Anno. 4. H. 6. R. G. brought an Action of Debt for 10. Markes against Thomas Timberhull and others Executors of William Webb and declared that the Testator had detein'd the Plaintiffe to be with him for a yeare in the Art of Limming of Books paying per annum 10. Markes And Martin did hold opinion that the Action was not maintainable against Executors and he tooke diversity between this Case of a Limmer and of a common Labourer for the Labourer may be compelled in spight of his head to serve and his wage is put in certeinty by the Statute and it is no reason the Servant should loose his wages by the death of their Master whom he was bound by the Law to serve but in case of a Limmer he is not bound by the Law to serve so when he makes a Covenant it is his owne Act and folly and not the Act of the Law for he might have taken a specialty and the opinion of Martin in this Case is good Law But the true reason of this diversity is because that in this Case of the common Labourer the Testator might not wage his Law as he might against the Lymmer and this appeareth in 11. H. 6. fol. 48. where the Gardian of Freres Minors in Coventry brought an Action of Debt against John Burton of Coventry Executor of John Goate and declared that the said John Goate retain'd at Coventry Frere John Bredon a Brother of the said House by License of the said Gardian to Sing for him Masses for one whole yeare and to say Saint Gregories Trentalls in the next yeare after and shewed in certainty upon what services Saint Gregories Trentall did consist taking for this xl s. per annum and within foure dayes John Goate dyed and the Defendant his Executor and the said John Burton granted to the said Frere to pay him the said Summe for doing the said services according to the Reteinor of the Testator which Divine services the Frere did performe according to the reteinor and all his wages were Arr. And in this Case the diversity was taken that a Labourer may have an Action of Debt against Executors without specialty because that he may be compelled to serve by the Statute and the Testator shall not wage his Law in this Case But the Priest or Frere is not bound to Sing Masses by the Law against his will And in every Case where the Testator might have waged his Law the Action is not maintainable against his Executors without specialty for Executors may not wage the Law upon the contract of another In 2. H. 4. fol. 16. Lawr. Saint Martin retained one for Tearme of his life in the time of peace and Warres for 100 s. per annum which service hee as his Servant did doe for two yeares for which he brought his Action of Debt against John Belton and others Executors of the said Lawr. And judgement was given against the Plaintiffe for the reason and upon the same diversity as is
House and Tenant at will of Land and Tenant by coppy of other Land within the Mannor of S. to Fermor leased all for life to I. S. and also seised of other Land there in Fee levyed a fine with Proclamations of all Messuages and Lands which comprehends all those leases and also his inheritance by covin to dissinherit his lessor and after the fine alwayes continues in possession and payes the severall rents to F. The lessee for life dyes the yeares expire S. claimes the inheritance Resolved that the Lord of the Mannor was not barred by the said fine 1. The makers of the Statute of 4. H. 7. never intended that a fine levyed by Tenant at will yeares or Coppy which pretend no Inheritance nor title to it but intend the disherison of the Lord c. should barre them of their inheritance and where the Statute sayth That Fines ought to be of greatest strength to avoyd strife and debate This Feoffement and fine by the Lessee shall be the cause of strife where none was before 2. The Statute doth not intend that those who of themselves without such fraud could not levy a fine to barre those which had the freehold and inheritance should be inabled to levy a fine by making of an estate to another by practise and fraud 3. If doubt be conceived upon an act of Parliament 't is to be construed by the reason of the common Law and that so abhorres fraud and covin that all acts as well judiciall as others and which of themselves are lawfull and just yet being mixt with fraud and deceit are tortious and illegall If a Woman intituled to have Dower which is favoured in Law by covin causes a stranger to disseise the terretenant to the intent to bring Dower against him and recovers accordingly 't is all voyd So if a Feme covert or Infant much favoured in Law of covin causes another to disseise the discontinuee and infeoffe them they are not remitted Sale in Market overt shall not binde if the Vendee had notice that the property was to another or if the Sale be by covin the Law hath ordained the common Bench as a Market overt for assurance of Land by fine for it sayth Finis finem litibus imponit yet covin shall avoyd them A Vacat was made in Banco of a recovery had by covin 33 34. of the Queene adjudged where Tenant for life levyed a fine with Proclamations and five yeares passed and he dyed that the Lessor shall have five yeares after his death for though the Statute saves the right which First shall grow and the right first accrued to the Lessor by the forfeiture yet because the Lessor by covin of the Lessee might be barred for he expected not to enter till after the death of the Lessee 't is no barre and namely when the Lessee hath Land of Inheritance in the same Towne as in this case so 't was agreed in the same case if the Feoffee of the Lessee for life hath Lands in the same Towne and levys a fine c. the Lessor shall have five yeares after the death of the Lessee for he knew not of what land the fine was levyed not being party to the Indenture or agreement c. So the Judges have construed the act against the Letter for Salvation of the Inheritance of him in reversion And 't was said if the Feoffee of a Lessee for yeares who made a feoffement by practise hath Land in the same Ville and levy a fine and the Lessee payes the rent to the Lessor it shall not binde and in the principall case the payment of the rent after the fine makes the fraud apparant for by this the Lessor was secure and not cause of any doubt of fraud But 't was resolved if the Bargainee or Feoffee of A. perceiving that C. hath right levies a fine or takes a fine of a Stranger to the intent to barre C. this fine levyed by consent shall binde for nothing was done in this that was not lawfull and the intent of the act was to avoyd strife So if A. pretending title disseise B. and to the intent to barre the disseissee levies a fine for the desseisor Venit tanquam in arena and 't is not possible but the disseisee had knowledge of it and if he doth not enter 't is his folly But in the case at barre every one will presume that the fine is levyed of his owne Land because that he might lawfully doe and though this conteines more acres then his owne Land this is usuall almost in all fines and the covin of the Lessee is the cause of non-claime of the Lessor and a man shall not take advantage of his owne covin and here the fraud is the more odious because of the great trust viz. Fealty To the objection that it should be mischievous to avoyd fines upon such nude averments 't was answered that it should be a greater mischiefe principally if fines levyed by such covin should binde And an averrment of fraud may be taken by the Statute of 27. of the Queene against a fine leavyed to secret uses by fraud for to deceive Purchasors So by the Statute of 13. of the Queene an averrment may be taken against a fine levyed upon an usurious contract Twynes Case 44. Eliz in Cam. Stel. fo 80. IN an Information per Cooke Atturney Generall against Twyne of Hampshire for contriving and publishing of a fraudulent Deed made of goods The case upon the Statute 13. Eliz. ca. 5. was thus Pierce was indebted unto Twyne in 400. l. and to one C. in 200. l. C. brought an action of Debt against Pierce and hanging the Writ Pierce being possessed of goods and Chattells to the value of 300. l. in secret made a deed of all his goods and Chattells to Twyne in satisfaction of his Debt yet Pierce continued in possession of the same some of them he sold and his Sheepe he marked with his owne marke after C. had judgement a Fier fac to the Sheriff by vertue thereof Bayliffs came to make execution of the goods and divers persons by the commandement of Twyne with force resisted them claiming them to be the goods of Twyne by vertue of the same deed and whether this deed was fraudulent or no was the Question and 't was resolved by Sir Thomas Egerton Keeper of the Great Seale of England and by the chiefe Justices Popham and Anderson and all the Court of Star-chamber that this deed was fraudulent and within the Statute of 13. El. And in this Case divers things were resolved First That this Deed had the markes of fraud it was generall and without exception of his apparell or any thing of necessitie for dolosus versatur in generalibus Secondly The Donor continueth in the possession Thirdly It was made in secret Et dona clandestina semper sunt suspiciosa Fourthly it was made hanging the Writ Fifthly there was trust betweene the parties for
limitation of any estate Resolved that when the Lord admits Cestuy que use for life the reversion is in him that surrendered not in the Lord for he is but an instrument Resolved that a man may surrender to the use of his Wife though that Cestuy que use is in by him that surrendered because the Husband did not doe this immediatly to the Wife but by a second meanes Viz. By surrender to the Lord and by admittance of the Lord. Resolved that when B. surrendered out of Court and before that 't was presented in Court he dyes yet after being presented according to the custome 't is good otherwise if it had not beene presented according to custome so if the Tenants in whose hands c. dyes yet if it be proved 't is good enough so Queintons Case before if Cestuy que use c. dyes before admittance his Heires shall be admitted Downe and Hopkins Case 36. of the Queene fo 29. REsolved that where the custome of a Mannor was to grant Coppies for one two or three lives that a grant to a Woman during her viduity is within the custome for 't is an estate for life but every grant for life is not Durante viduitate issue was whether the custome was that the Wife of a Copy-holder after the death of the Husband should have for life and 't was given in evidence that she should have during her viduity and adjudged that the evidence did not maintaine such custome for 't is a lesse estate then for life But in the principall Case 't is a greater estate which is warranted by the custome and therefore a lesse is within it according to Graveners Case before 'T was said that a Lord may retaine a Steward by word to hold Courts c. as a Bayliffe and this retainer shall serve till he be discharged Harris and Jayes Case 41. of the Queene fo 30. REsolved that a Lord may retaine one to be Steward of his Mannor and to hold Courts by word as in the Case before Resolved that where a Copy-hold escheates by attainder of felony of a Copy-holder of the Queene that the Steward may grant it over Ex officio without speciall warrant for the custome warrants the Steward to grant it and this shall binde the Queene and her Heires c. But yet his duty is before to informe the Lord Treasurer Chancellor or Barons of the Exchequer or any of them for his better direction Resolved that the Auditor or Receiver of the Queene hath no power to retaine a Steward to hold courts c. But it behooves that the Steward who makes such voluntary grants upon escheats or forfeitures to be good to have Letters Pattents of the Stewardship of the same Mannor And 't was said that 't was adjudged in the Lady Holcrofts Case that where one was retained generally by word to be Steward of a Mannor and to hold Courts that he may take surrenders of customary tenants out of Court Shaw and Thompsons Case 33. of the Queene fo 30. REsolved that a Woman shall not be indowed of Copy-hold without speciall custome and that when a Woman is to be indowed by custome she shall have all incidents to Dower and shall recover damages by the Statute of Merton because her Husband dyed seised and therefore the recovery of damage of 50. l. in the Court of the Mannor was allowed though this exceeded 40 s Resolved that no Action of Debt lyes for these damages at common Law for upon such judgement no error or false judgement lyes but the remedy is in the Court of the Mannor or Chancery Fenner Justice said That he had seene a Record 36. H. 8. where the Lord by Petition to him had for certaine errors in the proceeding reversed such a judgement and upon this the Defendant maintained an Audita quaerela to be restored to the damages recovered against him See 14. H. 4. cited before in Brownes Case And 7. E 4. 29. Hoe and Taylors Case 37. of the Queene fo 30. REsolved that Underwood growing upon parcell of the Mannor may by custome be granted by Copy of Court roll and 't is a thing of perpetuity to which a custome may extend for after every cutting the underwood growes Ex stipitibus So 't was resolved that Herbage or any profit of any parcell of the Mannor may by custome be granted by Copy and 't was said that a faire appendant to the Mannor of C. in S. is granted by Copy and this explaines the reason of the first pillar in Murrels Case Frenches Case 18. 19. of the Queene fo 31. REsolved if the Lord Lease for yeares life or make any other estate by deed or without deed of Copy-hold Land forfeited escheated c. to him that this Land can never be granted againe by Copy for the custome is destroyed for during these estates the Land was not demised nor demisable by Coppy So if the Lord make a feoffement and enter for condition broken but if the Lord keepe it in his hands a long time or leases it at will he his heires or assignes may regrant it So if the interruption be tortious as by disseisin and discent false verdict or erroneous judgement for Non valet impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur But if it be extended upon a Statute or recognizance acknowledged by the Lord or if the Wife of the Lord hath this Land assigned to her in Dower though these impediments are by act in Law yet for that the interruptions are lawfull the Land cannot be after granted by Copy If a Copy-holder accept a Lease for yeares of the Lord of his Copy-hold 't is destroyed for ever If a Copy-holder take a Lease for yeares of the Mannor his Copy-hold hath not continuance Hides Case adjudged 17. of the Queene But there 't was resolved that such Lessee might regrant the Copy to whom he would for the Land was alwayes demised or demisable If a Coppy-hold be surrendered to the Lessee his Executors or assignes may regrant it If a Copy-hold escheate to the Lord his alienee by fine feoffement c. may regrant it Foiston and Crachroodes Case 29. and 30 of the Queene fo 31. ADjudged that where a Copy-holder in pleading alledges Quod infra Man praed talis habetur nec non a toto tempore cujus c. habebatur consuetudo Viz. quod quilibet tenentes praedictorum tenement vocat C. have used to have common in such a place parcell of the Mannor and that he is a Copy-holder of the said Tenement that this custome as well for the matter as the forme was good for the Copy-holder cannot prescribe in his owne name for the exility and basenes of his estate and if he had claimed common in the soile of another he ought to prescribe in the name of the Lord Viz. That the Lord and all his ancestors and all those whose estate c. have
Parliament in the upper House that Leases made to the Queene by Colledges Deans and Chapters or any other having spirituall or Ecclesiasticall Livings against the provision of the Act 13. Eliz. ca ' 10. are restrained by the same Act as well as Leases made to common persons for they are disabled by Parliament to make estates the King being the head of the Common-wealth may not be an Instrument to defeate the provision of an Act of Parliament made Pro bono publico For though the Queene by the common Law had ability to take it yet insomuch the Parliament had dissabled them to make states estates made to the Queene against the Act are voyd Covenants c. Concerning Leases Assurances c. Spencers Case 25. Eliz. fo 16. Banco Regis A Lessee doth Covenant for himselfe his Executors and Administrators with the Lessor that he his Executors or Assignes shall build a Brick Wall upon parcell of the Land demised c. afterwards the Lessee assignes over his tearme to B. in this Case B. is not bound to build the Wall When the Covenant extends to a thing In esse parcell of the demise then the thing to be done by force of the Covenant is Quodammodo annexed and appurtenant to the thing demised and shall run with the Land and binde the Assignee although he be not bound by expresse Covenant But when the Covenant extends to a thing which had not essence at the time of the demise made that cannot be appurtenant or annexed to a thing which had not essence As if a Lessee Covenant to repaire the housses to him demised during the tearme this is parcel of the contract c. and shall bind the Assignee although he be not bound expresly by the Covenant But in this Case the Covenant concernes a thing which had not essence at the time of the demise but to be made after and therefore it shall binde the Covenantor his Executors and administrators and not the assignee for the Law will not annexe the Covenant to a thing which had not essence It was resolved in this Case if the Lessee had Covenanted for him and his assignes c. that in as much as it was to be builded upon the thing demised it should binde the assignee by expresse words Also if a warranty be to one his Heires and assignes by expresse words the assignee shall take benefite thereof and have a Warrantia cartae But although the Covenant be for him and his Assignes yet if the thing to be done be meerly collaterall to the Land demised and doe not concerne the same the Assignee shall not be charged as if the Lessee Covenant for him and his Assignes to build a house upon the Land of the Lessor which is not parcell of the demise or to pay any collaterall Summe of money to the Lessor or to a stranger this shall not binde the Assignee Also in a case of goods as Sheepe Chattell c. there is not any privity or reversion in the Assignee but meerely a thing in action in the personalty which cannot binde any but the Covenantor his Executors or administrators which doe represent him The same Law is if a man demise Lands for yeares with a stock of Cattle or Summe of money rendring rent and the Lessee Covenants for him his Executors Administrators and Assignes to deliver the Stock of Cattle or the Summe of money at the end of the Terme yet the Assignee shall not be charged with the Covenant This word Concessi or Demisi imports a Covenant and if an Assignee of a Lessee be evicted he may have a Writ of Covenant so shall Tenant by Statute or Elegit of a Terme or he to whom the Lease is sould by force of any Execution c. If a man grant to a Lessee for yeares that he shall have so many estovers as shall serve to repaire his House or that he shall burne within his House or such like during the Tearme that is appurtenant to the Land and shall run with the same as a thing appurtenant in whose hands soever the same commeth Assignee of an Assignee Executors of an Assignee ASSIGNES of Executors or Administrators of every Assignee may have Action of Covenant for all are comprised within this word Assignees for the same right that was in the Testator or intestate shall goe to the Executors or administrators It was resolved That the Act of 32. H. 8. c. 24. extendeth onely to Covenants which touch the thing demised and not to collaterall Covenants Slingsbyes Case 29. Eliz. fo 18. Vpon error in the Exchequer Chamber IF any party Covenantor in a Tripertite Indenture breake Covenant all the rest of the parties Covenantees are to maintaine the Action notwithstanding the words of the Covenant are Et ad cum quolibet eoâ—um But if a man demise to A black Acre to B. white acre to C. greene Acre and Covenant with them and every of them in this Case in respect of the severall interest by these words And every of them the Covenant is made severall but if the demise be made to them joyntly then these words in the Covenant And every of them are made voyd A man cannot binde himselfe to three and to every of them to make that joynt or severall at the Election of severall persons for one selfe same cause for the Court will be in doubt for which of them to give judgement It was resolved that an interest cannot be granted joyntly and severally as if a man grant Prox imam advocationem or make a Lease for Terme of yeares of Land to two joyntly and severally these words severally are voyd and they are joyntenants but a power and authority may be joyntly and severally as to make livery or to sell for they have no interest or Action but are as servants to others And judgement was reversed Rosewells Case 35. Eliz. fo 19. BArgainor of Land covenanteth to make to the Bargainee such assurance as his Councell shall advise the Bargainee himselfe cannot devise it although he be Learned in the Law for then it would be no good plea to say Quod consilium non dedit advisamentum Higginbottoms Case 35. Eliz. Banco regis fo 19. A Parson assumeth to I. S. to make him such an estate in a Rectory as the Counsell of the said I. S. shall devise the Counsell shall be given to I. S. and he shall notifie it to the Parson Stiles Case 38. Eliz. Banco regis fo 20. A Charter with the words Haec indentura without a manuall Act of indenting of the paper or parchment is not an Indenture Sir Anthony Maynes Case 38. Eliz. fo 20. Error in Banco regis SIr A. M. Leaseth to S. for twenty one yeares and bindeth himselfe to make a new Lease unto him upon surrender of the old and Leaseth to another for 80. yeares by fine Scott the first Lessee bringeth debt and had judgement If you be bound to enfeoffee one in the Mannor of D. before
part and Sir Gilb. Ger. and others on the same part for the advancement of the Heires Males of the said Earle the Earle did covenant c. to convey the said Mannor amongst others to the said Lord Burgleigh Sir Gilb. Gerrard and others or to any of them before the Feast of the Annunciation of our Lady next ensuing which Assurance should be to the use of the said Earle Edward and the Heires Males of his body and for want of such issue to the use of the Heires Males of Thomas Earle of Rutland with divers remainders over and in the same Indenture the said Earle Edward did Covenant c. to stand seised to the uses contained in the second Indenture No fine or other assurance was leavyed or made by the said Earle Edward before the end of Trinity Tearme Afterwards Viz. 17. Septemb. next following the said Earle Edward acknowledged a note of a fine of the said Mannor of Eikering onely to Sir Gilb. Gerrard and Thomas Ho and the Heires of Sir Gilb. And the 18. day of the said Moneth acknowledged another â—ote of a fine of the said Mannor of Eckering amongst many other Mannors mentioned in the later Indenture to the Lord Burghley Sir Gil. Gerrard and other parties to the later Indenture and both fines were entered in Octabis Mich. next after And it was proved by diverse testimonies that the said Earle Edward as well before the Indentures as after the fine leavyed said that the said Countesse should have the Mannor of Eckering And it was resolved by Popham chiefe Justice and all the Court. First although the Indenture being made for declaring of uses of a subsequent fine recovery or other conveyance to certaine persons and within a certaine time and to certaine uses yet they are but onely directory and doe not binde the estate or inerest of the Land yet if the fine recovery or other assurance be persued according to the Indenture there cannot be any averrment made against the Indentures taken in this Case that after the making of the Indentures and before the assurance by mutuall agreement of the parties was concluded and agreed that the assurance should be to other uses but if other agreement or limitation of uses be made by writing or by other matter of as high or higher nature then the later agreement should stand for every contract or agreement ought to be dissolved by matter of as high nature as the first was Nil tamconveniens est naturali aequitati quam unum quodq dissolui eo ligamine quo ligatum est Also it was very inconvenient that matters in writing should be controuled by averrment of parties to be proved by incertaine testimony of slippery memory and should be perillous to purchasors Farmers c. 2. It was resolved that if the forme of the Indentures be not pursued as for quantity of Land the time within which the fine should be leavyed c. Averrment without writing may be taken that the fine c was to other use then was contained in the Indenture by reason of a new agreement subsequent which in this case may be as well by word as writing 3. It was resolved that although the indentures be not pursued in circumstance of time quantity person c. yet if no other meanes new agreement be proved the fine c. in judgement of Law shall be to the use named in the Indenture The fines cannot be directed by both the Indentures although perhaps it was the meaning of the parties because the directions and declarations of the first Indenturs were controuled and frustrated by the said second Indentures Cases of Executors Russells Case 26. Eliz. fo 27. banco regis A Release by an Infant Executor under the Age of 21. yeares is no bar but upon payment or satisfaction to an Infant Executor he may acquite and discharge the Debt for so much as he receiveth All things that he doth according to the Office and duty of an Executor shall binde him an Executor may release before probate of Testament for although he may not have an Action yet the Interest of the Action is in Law in him at the time of the release Middletons Case 1. Ja. in com banco fo 28. IT was adjudged betweene Middleton and Rymot that an Executor before probate may release action although that before the probate he may not have action for the right of the Action is in him but if A. release and after take administration that shall not barr him for the right of the Action was not in him at the time of the release Two Executors prove the Testament the third refuseth yet he may release Littlet 117. if one be bound to pay a summe of money at a day to come a release of actions before the day is a Bar and yet before the day he could have no action Harrisons Case 40. Eliz. fo 28. com banco IT was adjudged that a judgement upon Debt due by obligation shall be paid before a Statute made for performance of Covenants which are things in contingency and in future or other Statutes or recognizances for Debt vide Sadlers Case in the Fourth Booke although the judgement be after the acknowledgment of the Statute Piggots Case 40. Eliz. com banco fo 29. ONe bringeth Debt as administrator Durante minore aetate of one whhom he averr'd to be within age and he doth not say that he was within the age of 17. yeares and the Plaintiffe was barred because at that age the Administration ceaseth Princes Case 41 42. Eliz. com banco fo 29. AN Infant is made Executor Administration durante minori etate may be committed to the Mother or other Friend of the Infant which shall cease and be voyd when the Infant is at the age of 17. yeares and this administrator may not sell any goods of the Decest unlesse it be for necessity of payment of Debts for he hath his Office of administrator Pro bono commodo Infantis and not for his prejudice also he cannot assent to pay legacies unlesse there be assents to pay Debts c. and if it be a Woman under the age of 17. yeares and take a Husband of full age the Administration ceaseth Where one hath goods solely in an inferior Dioces yet the Metropolitan of that Province pretending that he had Bona notabilia in diverse Diocesses committed the Administration c. this Administration is not voyd but voidable by sentence because the Metropolitan hath Jurisdiction in all places within his Province but if the ordinary of one Diocesse commit the administration of goods when the party hath Bona notabilia in diverse Diocesse this administration is meerly voyd as well for his goods within the Diocesse as without vide Vere Jeffrays Case 22. Eliz. in banck le roy there cited and so adjudged Caulters Cose fo 30. 40. 41. Eliz. banco regis AN Executor in his owne wrong ought not to retaine goods in his owne hands to satisfie
his warrant to bring the party before himselfe and it is good and sufficient in Law for it is most like that he hath the best knowledge of the matter and therefore most fit to doe Justice in that matter upon refusall to finde surety the Constable may commit him without a new warrant Gooches case 32. El. in banco le roy fol. 60. WRay chiefe Justice said that if A. make a fraudulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and continueth in possession and is reputed as owner B entereth in communication with A. for the purchase and by accident B. hath notice of this fraudulent conveyance Notwithstanding he concludes with A. and takes his assurance In this case B. shall avoide the said fraudulent conveyance by the said Act notwithstanding the notice for the Act by expresse words hath made the fraudulent conveyance voyde as to the purchasor And for as much as that is within the expresse provision of the Statute it ought to be taken and expounded in suppression of fraud Resolved that fraud may be given in Evidence because the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret in arbore cava opaca And according to this opinion it was resolved Per tot ' Cur ' in communi banco Pasche 3o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and after offred to sell the same to one Standen and before the assurance by Bullock Standen had notice thereof and notwithstanding proceeded and tooke the assurance from Bullock Standen avoyded the former assurance of fraud by the said act for the notice of the purchasor cannot make that good which an Act of Parliament hath made voyde as to him And it is true Quod non decipitur qui scit se decipi But in this case the purchasor is not deceived for the fraudulent conveyance whereof he had notice is made voyde as to him by the Statute and therefore he knew it could not hurt him Sparries case 33. Eliz. in Scaccar fol. 61. IN action of Trover and convertion the defendant pleads that there is another action depending in the Kings Bench for the same Trover and good for in actions which comprehend no certeinty as assize or trespas this is no plea before a Count because thereby it is made certeine and then it is a good plea and not before but in this action and debt and detinue it is a good plea at the first because they are certeine that an action is depending in an inferiour Court is no plea. Cases of By-Lawes Chamberlaine de Londons case 32. El. in Banco le roy fol. 66. THe Inhabitants of a village without any custome may make Ordinances or By-Lawes for reparation of the Church or of high-wayes or any such thing which is for the publicke weale generally and in this case the consent of the greater part shall binde all without any custome vide 44. E. 3.19 But if it be for their owne private profit for that Towne as for their well ordering of their common of pasture or such like then without custome they cannot make by-Lawes And if it be a custome yet the greater part shall not binde all if it be not warranted by the custome for as custome hath created them so they ought to be warranted by the custome 8. E. 2. tit ass As pontage murage Tolle and such like as appeareth in 13. H. 4.14 In which cases the summes for reparations of the Bridge walls c. ought to be so reasonable that the Subject may have more benefit thereby then charge Clerks case 38. Eliz in communi banco fol. 64. KIng Edward 6. did incorporate the Towne of St. Albones and granted them to make Lawes and Ordinances c. The Tearme was kept there and the Major c. by assent of the plaintiffe assessed every Inhabitant for the charges in erecting of the Courts there and if any did refuse to pay c. to be imprisoned c. the plaintiffe being Burges refused to pay c. and the Major justified c and it was adjudged no plea c. For this Ordinance is against Magna Charta ca. 29. Nullus liber homo imprisonetur which act hath been confirmed divers times viz. thirty times and the assent of the plaintiffe cannot alter the Law in this case But it was resolved that the Major c. might inflict reasonable penaltie but not imprisonment which penaltie ought to be Levied by Distresse for which offence an action of Debt lyeth and the plaintiffe in this case had judgement Jeffrays case Michaelis 31 32. en Bank le Roy. fol. 66. WIlliam Jeffray Gent. brought a prohibition against Abraham Kenshley and Thomas Forster Churchwardens of Haylesham in Com' Sussex for that they sued him in Court Christian before Doctor Drury for certaine money imposed upon him without his assent for repaire of the Church That the Church-wardens with the assent of the greatest part of the Parishioners juxta quantitatem qualitatem possessionum reddit ' infra dict' parochiam existent Determined and agreed to make a taxation for repaire of the said Church and that notice of such assembly was given in the Church at which day the Church-wardens and greater part of the Parish which were there assembled made a taxation viz. every occupier of Land for every acre 4. d. c. Geffray dwelt in another Parish and declared that the Parishioners of every Parish ought to repaire their Church and not the Church of another Parish Cooke of councell with the defendant demurred in Law and after many arguments a Writ of consultation was granted And it was resolved that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae Britton who writ in 5. E. 1. And in the Statute of Circumspecte agatis but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda It was also resolved that although Geffray did dwell in another Parish yet for that he had Lands in the said Parish in his proper possession he is in the Law Parochianus de Haylesham But it was resolved that where there was a Farmor of the same Lands the Lessor that receiveth the rent shall not be charged but the Inhabitant is the Parishioner and the receipte of the rent doth not make the Lessor a Parishioner Diverse of the civill Lawyers certified the Court that the Church Wardens and a greater part of the Parishioners upon a generall warning assembled may make a Taxation by their Law and the same shall not charge the Land but the Person in respect of the Land for equality and indifferency and this was the first leading case that was adjudg'd reported in Our Bookes touching these matters and many causes after were adjudged thus and now it is generally received for Law The Lord Cheneys Case 33. Eliz.
in the remainder enters J. S. takes the Corne he in remainder brings Trespas The right of the Corne is not in the plaintiffe or defendant but in the lessee for yeares of lessee for life but the lessee of the disseisor had right against the plaintiffe by reason of the possession and for that if he had pleaded that he had entred to take the Corne this had been good but because he pleaded Non culp the plaintiffe had judgement for the Entry and was barred for the residue Penrins case 38. Eliz. Banco Regis fol. 85. W. P. Brings a Quod ei deforceat in nature of a Writt of Right in Wales and after the mise joyned is nonsute Judgement finall is given he brings the like Writt and the first Judgement is pleaded in barre the demandant demurres and adjudged against him and he brings Error 1. Although by the Statute of 12. E. 1. Triall of right in Wales shall be by Common Jury yet Judgement finall shall be given 2. Erroneous Judgement finall in right shall binde untill it be reversed 3. Judgement finall shall not be given upon default of the Tenant in a Writt of right but a Petit Cape shall issue for peradventure he may save his default Cases of Executions Blumfeilds Case in banco le roy 39. Eliz. fo 86. TWo men were bound joyntly and severally in an Obligation the one was sued condemned and taken in Execution and after the other was sued condemned and taken in Execution and after the first escaped and the other brought an Audita quaerela and although the Plaintiffe might have his Action against the Sheriffe upon the escape yet untill he be satisfied indeed the other cannot have his Audita quaerela for if the Defendant be sued by one Writ or severall Proces although the entry be Quod unica fiat executio This is to be understood of one Execution with satisfaction for he may have three bodies in Execution In communi banco inter Lynacre Rodes Case Hill 33. Eliz. It was adjudged that notwithstanding the Conusor in a Statute Staple was taken and escaped yet his goods and Lands upon the same Statute may be extended for the Escape and the Action which the Plaintiffe might have against the Sheriffe is not a satisfaction of the Debt And if so the Conusor be taken and dye in Execution the Conusee shall have Execution of his goods and Lands And it was adjudged 24. Eliz. in t Joanes Williams that where two men were condemned in a Debt and the one taken and dyed in Execution yet the taking of the other was lawfull and then it was resolved Per. tot Cur. that if a Defendant dye in Execution yet the Plaintiffe may have a new Execution by Elegit or Fieri facias c. The Execution of the body is an Execution but not a satisfaction as appeareth in 4. H. 7. 8. and 33. H. 6. 47. in Hillaryes Case adjudged but a gage for the Debt for the words of the Writ are Capias I. S. Ita quod habeas corpus ejus coram Justic nostris c. ad satisfaciendum G. L. de debito damnis c. and so his body is taken to the intent he should satisfie and when the Defendant hath paid the money he shall be discharged out of Prison Garnons Case 40. Eliz. fo 88. LAyton recovered against Wallwyn in an Action of Debt and Outlawed the Defendant after judgement and sued a Cap. Vtlag and delivered the same to Garnon the Sheriffe who did take the Party and before the returne of the Writ the Defendant escaped and thus it was resolved that if one at the common Law have judgement in an Action of Debt and after judgement Outlaw the Defendant then the Plaintiffe is at the end of the Suite for any processe to be sued in his name Yet if the Defendant be taken by Vtlary at the Suite of the King no Laches being in the Plaintiffe in continuance of his Processe he shall be in Execution for the Plaintiffe if he will for reason requireth that if the King shall have benefite by the Suite of the party So the Plaintiffe shall have benefite by the Suite of the King if judgement in error be affirmed within the yeare a Capias or Fieri facias lyeth without any Scire facias although in another Court Frosts Case In communi banco 41. Eliz. fo 89. FRost recovered Debt and damages against B. who was Outlawed after judgement and a Cap. Vtlagatum delivered to the Sheriffe of London Laborne a Serjeant arrested the said B. in Fleete-streete Ad respondendum A. Laborne kept B. in his House and then Frost came to Laborne with the Sheriffes Warrant to Arrest B. upon the said Cap. Vtlagat the which to doe Laborne refused and afterwards the Sheriffe suffered the said B. to goe at large and upon this matter Frost brought his Action upon the case against the Sheriffe and supposed that the Sheriffe did arrest the said B. by vertue of the said Cap. Vtlagat and that he suffered him to goe at large and the Defendant pleaded Non permisit eum ire ad largum The Jury found all the said speciall matter and judgement was given for the Plaintiffe For first it was resolved That when a man is in custody of the Sheriffe by Processe of the Law and after another Writ is delivered unto him to apprehend the body of him who is in his custody immediately he is in his custody by force of the second writ by judgement of Law although he make no actuall arrest of him for to what purpose should he arrest the party that is already in his custody Et lex non precipit inutilia quia inutilis labor stultus the words of the writ are not onely Capias c. but also Salvo custodias c. Ita quod habeas corpus coram c. and so he ought safely to keepe him Vide 7. H. 4. 30. And the Defendant ought not to be discharged untill he had found surety to satisfie the Plaintiffe by 5. E. 3. cap. 12. Hoes Case 42. Eliz. fo 89. In the Exchequer EXecution of a writ of Execution as well at the Suite of a common person as at the Kings suite is good without returne of the writ for if a man be arrested upon a Cap. ad satisfaciendum the Execution is good although the Sheriffe doe not returne the writ and so in all writs of Execution where the Sheriffe doth onely execute the same as Cap ad satisfaciendum habere fac seisinam vel possessionem Fieri Facias Liberat. If the Execution be duely made it is good but if Cap. in Processe be not returned the Arrest is not lawfull for there the intent of the writ is to bring the party to answer the Plaintiffe and in case of an Elegit for there the extent is to be made by Inquest and not by the Sheriffe onely and the writ ought to be returned otherwise it is of none effect In this case
but a labour to the Obligor or a stranger there he had time during his Life Fitz-Williams Case 2. Jacobi banco regis fol. 32. BAron and Feme Tenants for life and to the heires of the body of the Baron the Baron sole is vouched in a common recovery the taile is barred Copledicks Case 3. Report 2. Resol If Tenant in taile suffer a recovery to his owne use the remainder to his wife with diverse remainders over with power of revocation and limittation of new uses by any such writing he revoketh all the remainders except that to his Wife and by the same deede limits new uses this is good for by any such writing shal be intended the same or any such and it may be by the same deede for first it takes effect as a revocation 2. By limittation of new uses and there are not more instances then one in it See there Leaper Wroths Case cited 30. El. to prove that powers whereby the interest of Strangers shall be changed shall be taken strictly as a power to make leases for twenty one yeares he cannot make a Lease for 21. yeares to commence in Futuro The Bishop of Bathes Case 3. Jacobi com banco fo 34. THe B. 18. H. 8. Leaseth to E. and R. for sixty yeares proviso if they dye within the terme that the B. and his Successors shall reenter E. dyes the B. dyes the Successor Leases to C. Cum post sive per mortem c. praedict R. acciderit vacare for sixty yeares with confirmation R. dyeth Resolv every Lease ought to have a certaine beginning and the continuance ought also to be certaine eyther by expresse number of yeares or by reference to an expresse certeinty or where a Lease may be reduced to a certeinty by matter Ex post facto Agreed the second Lease vests presently in poynt of interest to take effect in possession at the end of the first Terme if by none of the accidents the first Lease become voyd in the meane time and then the Lease shall commence at the first accident which doth happen and the Lessee hath no Election The Deane and Chapter of Worcesters Case 3. Jacobi fo 37. THe D. and Ch. seised of a Mannor in Fee in which were Copy-holds grantable for three lives for 8. s. 8. d payable quarterly and herriotable grant a copy-hold for the Life of three reserving the old rent halfe yearely this is not voyd by 13. Eliz. cap. 1. Resolved the grant of a copy-hold for the life of 3. is good for although there may be an occupancy yet it is not inconvenient for an occupant shall be punished in wast 2. Grant of a Copy-hold is a demise by the intent of the Statute for in Law it is a Lease at will 3. The omission of Herriot doth not make it voyd because the annuall rent is reserved 4. It is sufficient that the yearely rent be reserved twice in the yeare for the Statute saith yearly which maketh a difference betweene this Case and the Lord Mountjoyes Case in the fifth Report Bellamyes case 3. Jacobi com banco fol. 38. A Lease upon condition that the Lessee shall not alien without License Assignee of the Lessee pleads that the Assignement was with License and shewed not forth the Deede of License 1. Because he did not claime by it 2. Because the License was Ex provisione hominis and not Ex institutione legis 3. Because it was executed and good Henry Finches Case 3. Jacobi banco regis fol. 39. A Grant of a rent charge out of diverse Mannors c. in the Parishes of E. and W. Aut alibi dictis marerijs spectantur and out of Lands which is not parcell of any of the Mannors these are not charged with the distresse for Alibi doth not charge more Land then is parcell of those Mannors but all parcells of the said Mannors out of the said Parishes Sir Anthony Mildmayes Case 3. Jacob. banco regis fol. 40. 1. REsolved a perpetuity is against the rules and pollicy of the common Law 2. It is impossible that an estate tayle shall cease before that Tenant in taile dyes without issue and an estate cannot be made to continue as to one and determine as to another except by Statute 3. A gift in taile upon condition that he shall not suffer a common recovery is voyd because he had power by the Law 4. It is a voyd saying that his estate shall cease if he goe about c. for Non officit conatus nisi sequatur effectus Also many ambiguities will arise thereupon because the Law doth not define it and it is so uncertaine that is not traversable Blakes Case 3. Jacobi com banco fo 43. AN accord with satisfaction is a good barre in a Writ of Covenant because the duty accrueth not meerly by the deede but by a torte subsequent together with the deed and it is a good barre in an attaint because this is not founded upon the record onely but upon the false Oath also In all cases where an arbitrament is a good Plea an accord with satisfaction is also and so generally in all Actions where damages onely are to be recovered Higgins Case 3. Jacob. com banco fo 44. IF a man have judgement upon an Obligation so long as this judgement is in force he may not have a new action upon the same Obligation For Interest reipublicae ut sit finis litium infinitum in jure reprobatur A Statute Staple is but an Obligation recorded and one Obligation cannot drowne another although they be both for one Debt and the Obligee may choose upon whither he will bring his Action 11. H. 4. and 2. Jac. Sir William Cornewalles Case and Branthwaytes Case and in every judgement the Defendant is amerced and so he shall be amerced in Infinitum Dowdales Case 3. Jac. com banco fol. 46. IN Debt against an Executor the Defendant pleads fully administred the Plaintiffe saith that he hath assets at E. the Jury found assets in Ireland 1. Resol when the place is materiall the poynt in issue cannot be found in another place 2. Where the place is named but for conformity assets may be found in another County 3. In a generall issue the Jury shall finde all materiall locall things in another County 4. The Jury by a meane shall trie locall things in another County as a release in a forreigne County the Jurors shall assesse damages for the profits of the Land in the other County Multa conceduntur per obliquum quae non c. but in case of felony the Tryall shall be where the offence was done 5. The finding of assets is the substance and that it is in Ireland is surplusage A thing done beyond the Sea shall be tryed here if the foundation of the Action be here Boswells Case 3. Jac. banco regis fol. 48. IN a Quare impedit judgement was given to remove the incumbent of the Queene not party to the Writ who was presented
none will buy their Wardships 5. After Tender and refusall if the heire be made Knight and marry he shall not forfeite the double value because he is out of Ward but immediatly the Lord shall have a Writte de valore maritagij This was the last Case that Sir John Popham chiefe Justice of England c. ever Argued Sir George Cursons case 7. Jac. Cur. Wardor fol. 75. SIr W. L. seised of a reversion expectant upon taile made to his sonne of land in Capite Covenants to stand seised to the use of his neece the sonne dyeth the King shall not have primier seisin 1. Resol It was Collusion apparent within the Statute of Marlebr cap. 6. to infeoffe the heire apparent and if he infeoffe others upon Collusion averrable but no averrement shall be where the remainder or reversion is left in a stranger or upon a Devise 2. Or otherwise to dispose in the Statute of 32. H. 8. have relation to wills onely for before the Statute every man might dispose of his lands by act executed 3. The Clause in the said Statute which saveth primier seisin to the King hath relation onely to acts executed for the King shall have without that primier seisin of the third part not devised but without that he shall not have it of any part conveyed by act executed 4. If the grandfather convey land to the sonne living the father this is out of the Statute otherwise if the father be dead and so a gift to a Collaterall Kinsman who is not heire apparent is out of the Statute for none will by intendment disinherit his heire to defeate the King of the Wardship or primer seisin and so is the experience of the Court of Wards Bullens case 5. Jacobi Com. Banco fol. 77. THe Lord may have a certeine summe pro certo letae for it shall be intended it was granted at the first by purchase of the Leete for the ease of the Tenants and in consideration of the Lords claiming of it at his owne costs every Eyre The issue was if the plaintiffe was a chiefe pledge and by speciall verdict he was found a Resiant and certified by the chiefe pledges to be a chiefe pledge and was amerced for his default It seemeth he was not Sed materia praedicta consopita fuit in arbitrio See 30. E. 3.23 of franke pledges Lord Abergavenies case Com. Banco fol. 78. A Judgement in an action of Debt is had against a joyntenant for life who afterwards releaseth to his companion all the right c. yet that moytie is liable to the Judgement and so it is of a rent charge during the life of the Releasor Sir Edward Phyttons case Com. Banco fol. 79. EXecutors may take benefit of the Kings generall pardon by which is enacted that all Subjects of the King their heires Successors Executors and Administrators shall be acquitted and discharged of all offences contempts c. and that shall be expounded most beneficially for the Subject And further doth give and grant all goods Chattells Debts c. forfeited And prohibiteth any Clerke to make out any Writte c. Provided that every Clerke may make forth cap. ut at the suite of the plaintiffe against persons outlawed to the intent to compell them to answer and that the partie shall sue forth a scir fac before the pardon in that behalfe shall be allowed which is as much to say having regard onely to the plaintiffe But in regard of the King it is an absolute pardon and grant of his goods and he is a person inabled against the King but not against the partie plaintiffe And every person by himselfe or his Atturney may plead this act for discharge Executors shall have restitution upon the Statute 21. H. 8. Also Administrators shall have a Writt of error upon the Statute 27. El as was adjudged in the Lord Mordants case 36. El. And yet these Statutes speake onely of the partie and not of the Executors or Administrators because no Writt can be against Executors they may plead it without Processe The End of the Sixth Booke THE SEAVENTH BOOK Postnati Calvins case 6. Jacobi Banco Regis fol. 1. R C. By his gardian bringeth an assize the defendants say the plaintiffe ought not to be answered Quia est alienigena natus 5o. Novembris Anno Domini Regis Angliae c. tertio apud E. infra regnum Scotiae ac infra ligeanciam Domini Regis Regni sui S. ac extra ligeanciam Regni sui Angl. c. the plaintiffe demurreth The Case was Adjourned into the Exchequer Chamber and was argued by two Justices every day and by the Chancellour and resolved by the Chancellour and all the Justices except Walmesley and Foster that the plaintiffe ought to be answered For these six demonstrative Conclusions drawne from the Law of Nature the Law of the Land Reasons of State and Authorities of Records and Booke Cases 1 Every one that is an Alien by birth may be or might have been an Enemy by accident but C. could never be an Enemy by any accident whatsoever ergo no Alien by birth 2. Whosoever are borne under one naturall ligeance due by the Law 〈◊〉 nature to one Soveraigne are naturall borne Subjects But C. was borne under one c. ergo a naturall borne Subject 3. Whosoever is borne within the Kings protection is no Alien But C. was borne under c ergo he is no Alien 4. Every stranger borne must at his birth be either amicus or inimicus but C. at his birth could neither be amicus nor inimicus because he was subditus ergo no stranger borne 5. Whatsoever is due by the Law of man may be altered but naturall legeance of the Subject to the Soveraigne cannot be altered ergo not due by mans Law Lastly whosoever at his birth cannot be an alien to the King of E. cannot be an alien to any of his Subjects of E. but C. at his birth could be no alien to the King of E. Ergo he cannot be an alien to any of the Subjects of E. the Maior and Minor both be Propositiones perspicuè verae and although Alienigena dicitur ab aliena gente yet that is all one as Alienae ligeantiae and arguments drawne from Etymologie are feeble for Saepenemero ubi proprietas verborum attenditur sensus veritatis amittitur yet when they agree with Law Judges may use them for Ornament and dâ—verse inconveniences would follow if the Plea against the Plaintiffe should be allowed For first it maketh legeance locall wereupon should follow first that legeance which is universall should be confined within locall limits 2. That the Subject should not be bound to serve the King in Peace or in Warre out of those bounds 3. It should illegitimate many which were borne in Gascayne Guyan Normandy c. and diverse others of his Majesties Dominions whilst the same were in actuall obedience And lastly this strange and new devised Plea inclineth too much to
if it appeare to the Court that an action is not maintainable without the doing of it there the doing of it must be averred as if an Abbot sole grants an annuity to J. S. Pro Consilio c. in action brought against the successor he must averre that he had given Counsell c. to the use of the House otherwise if against the grantor Englefields case 34. Eliz. in Scaccario fol. 11. SIr F. E. covenanted to stand seised to the use of himselfe for life the remainder to his Nephew Proviso that it shall be voyde upon tender of a Ring by him after he was attainted of Treason and all his inheritances forfeited by Statute the Queene leaseth to the defendant for forty yeares by Statute it was inacted that every one who had a patent of land of a person attainted shall exhibit it into the Exchequer within two yeares to be Inrolled one authorized by Letters patents in the name of the Queene tenders the Ring in the life of Sir Fr. the Queene bringeth Intrusion 1. Resol When the Q. tenant pur auter vie leaseth for yeares this is good without recitall of her estate for it is lesse then her estate as if she grant Totum statum suum for there is no torte and she is not deceived 2. That this condition is given to the Q. but object 1. That it was inseparable from Sir Fr. for his intent was the substance of it and his intent cannot be transferred over 2. Naturall affection is made the Judge whether the Nephew deserve that the use shall be revoked and in so much that naturall affection cannot be transferred no more can this condition which was created by naturall affection and naturall affection determineth the estate 3. Although the benefit of this collaterall condition be given to the Q. the performance is not As to the first and second It was answered that the condition is onely the substance and all the residue is but a flourish and that is not an inseparable condition for any one may tender a Ring as well as he As to the third The performance is given to the Q. as incident to the Condition 4. It was objected that the estate of Sir Fr. was not subject to the condition because he was not possessed by limitation of use and by 27. H. 8. but he was seised of his auncient inheritance ergo the lease shall not be avoyded in the life of Sir Fr. It was answered that Sir Fr. was seised by limitation of use and that the lease shall be avoyded 5. It was objected that the Q. having made this lease being seised pur auter vie by her owne act she shall not defeate it after It was answered that the Q. shall avoyde it for her grant shall not inure to two intents 1. to make the lease c. 2. to suspend the condition and when the Q had two rights she shall not loose both without speciall words 6. It was objected that this tender ought to be found by office because matter in paijs and if it be false the party hath no remedy because the certificat is not traversable It was answered that Certificats which informe the Q. of her title are traversable but Certificats which are in nature of Trialls are not also by the Tender the uses are determined and by the attainder and the act of 33. H. 8. the land is vested in the Q. 7. It was objected that the conveyance was voyd because it was not inrolled within two yeares as the Statute requires and so Sir Fr. was seised in fee and the lease unavoydable It was answered that it was tendred in the Exchequer to be inrolled within two yeares which is all the Statute requireth the forfeiture was established by a speciall act 35. Eliz. The Case of Swannes 34. Eliz. fol. 15. A Game of Swannes in a common River are seised into the Queenes hands upon office found I. Y. pleads that Abbas c. gavisi fuerunt totoproficuo omnium cignorum in aestuaria praedict indificantium and makes her selfe title to them prayeth an ouster Le manie All White Swannes in a common River who have gained their naturall liberty may be seised for the King because they are Volatilia regalia but a Subject may have them in his owne River and if they escape into a common River he may take them againe upon fresh persuite Cignets shall be divided betweene the owners of the Swannes equally but upon the Thames the owner of the Land shall have the third by the custome whosoever hath a Swan-marke must have it by grant of the King or prescription and he may grant it over and he ought to have freehold of five Marks per annum by the Statute of 22. E. 4. c. 6. A man may prescribe to have Wyld Swannes but not as here but that the Abbot c. have used to take of them to their owne use and therefore adjudged against I. Y. A Swanne may be an estray and so cannot any other fowle Sir Thomas Cecils Case 40. Eliz. in Scaccario fol. 18. SIr T. C. entered into an obligation to the Queene to performe Covenants and shewed in the Exchequer-Chamber matter of equity to discharge him of the said Debt according to the Statute of 33. H. 8. c. 39. 1. Resol that Branch of the Statute which giveth liberty to the Subject to plead matter in equity in barre of Debt due unto the King extendeth to Debts due at the common Law as well as by this Statute because this Statute gives more speedy remedy for them and so within the purview thereof and so the other proviso of equall charging of Lands Subject to Deb. t s of the King is generall 2. The Court of Exchequer-Chamber in this case may decree upon English bill although that Processe be in the Exchequer at the common Law because to that purpose they are as one Court 3. An obligation to performe Covenants after Breach of them is within the Statute The Lord Andersons Case 41. Eliz. in Scaccar fo 21. TEnant in taile is bound by recognizance to I. S. who is attainted Tenant in taile dyes his issue aliens Bona fide the King shall not extend these Lands by the Statute 33. H. 8. c. 39. 1. Before that Statuâ—e the King could not extend Lands in the hands of the issue in taile for the Debt of his auncestor because he was bound by W. 2. De Donis 2. By that Statute Lands are extendable in the hands of the issue in taile for Debt due to the King by judgement recognizance obligation or other specialty and other cases are out of the Statute 3. The Alienee Bona fide is not within the Statute because favoured as a purchasor and he is a stranger to the Debt and comes in upon good consideration and benefit is given against the issue in taile which was not before 4. Debts due to a Subject and forfeited to the King are not within the Statute for they are not due originally
from an auncestor a Subject but not where it discends from an auncestor who was King except in speciall cases 3. The issues of the King at the time of the levying of the fine are subjects therefore within the Statute and it seemd to them that there ought to be Letters Patents to give power to the Conisee to enter into the Land Nevills Case 2. Jacobi fo 33. THe dignity of an Earle intailed is forfeitable for treason 1. Resolved this is within the Statute of W. 2. De donis and experience is to give dignities in taile with remainders over also this was an office anciently and offices may be intailed 2. A dignity may be forfeited at the common Law by a condition in Law for the Office of Earle was Ad consulendum Regem tempore pacis defendendum Regem tempore belli therefore he forfeits it when he takes Councell and Armes against him 3. If it were not forfeited by the common Law yet it is by 26. H. 8. cap. 13. by this word Hereditament and the words use or possession which are added are to shew that every Hereditament shall be forfeited at the common Law Donee in taile had Potestatem alienandi post prolem suscitatam but if hee reteine the Land himselfe he hath no absolute fee for none shall inherit but the heire Per formam doni so it is now in case of annuity and other things out of the Statute Penall Statutes 2. Ja. fo 36. WHen a Statute is made by Parliament the King cannot give the penalty benefit or dispensation of the same to any Subject but the King may make a Non obstante to dispense with any perticular person that he shall not incurre the penalty of a Stature and the King after a forfeiture or penalty of a Statute by judgement and recovery may grant the same to any of his Subjects by way of reward and all the Judges of England subscribed to this the 8. Day of November 1604. Lillingstons Case 5. Jacobi fo 38. TEnant in fee grants a rent charge proviso that the person of the grantor shall not be charged the grantee acknowledgeth a recognizance according to 23. H. 8. and after releaseth to the grantor the conisee sueth an extent and brings debt against the grantor Terretenant 1. Resolved the rent is extendable for notwithstanding the release it is In esse as to the Conisee and cannot be discharged by the act of the Conisor also the extent relateth to the judgement at which time it was extendable See the Lord Aburgavenies Case in the sixth Report 2. Debt lyeth not so long as the extent indureth for so long the rent hath continuance although that by the release the freehold be determined if a rent charge be granted for life with proviso as above-said if the rent be determined debt lyeth against the grantor because he had no other remedy Bedels Case 5. Jacobi fo 40. R. B. Covenants in consideration of paternall love c. to stand seised to the use of himselfe for life the remainder to his Wife for life the remainder over 1. Resolv although the consideration in the deed runneth not to the Wife yet another consideration may be averred which stands with the Deed. The limittation of an use to the Wife importeth a consideration in it selfe so if it be to any of his blood but if he Covenant in consideration of a 100. l. to stand seised to the use of his Sonne nothing passeth untill inrollment Quia expressum facit cessare tacitum Beresfords Case 5. Jacobi fo 41. AN use is limitted to A B. and of the heires Males of the said A. lawfully begotten this is fee taile notwithstanding the words of the Body be wanting and that lawfully begotten are implied for no heire shall inherit who is not lawfully begotten Resolved that to create an inheritance the word Heires is necessary but the words De corpore are not necessary to make an estate taile if there be words which Tantamount and here the sence according to the intent of the Donor is of or by the said A. lawfully begotten A gift to a man haeredibus de se exeuntibus or Haeredibus suis de prima uxore sua are estates taile Kenns Case 4. Jacobi fo 42. C. K. had issue by E. S. M. K. and they are divorced and the Marriage sentenced void C. K. marrieth F. they have issue E. K. C. dyeth E. K. is found by office to be Heire M. and W. her Baron preferre a bill in the Court of wards to traverse the Office to which the Committees of the wardship answer one of the Committees dyeth M. and W. sue a Bill of Reviver and M. having issue E. dyeth E. her issue and R. her Baron bring a new Bill of Reviver 1. Resolved so long as the sentence stands in force the issue of the first feme is a Bastard because the spirituall Judge hath jurisdiction thereof and our Law giveth faith unto it Sentence of divorse may be repealed after the death of the parties but no divorse can be after their dearh for that will Bastardise the issue and the Court of the King hath triall of it originally not being hindered by any Sentence 2. The Plaintiffe shall not have a traverse without an office found for her for the King being sure of wardship shall not be ousted by one before that he be sure to have benefit by him and 2. E. 6. cap 8. doth not extend to give a traverse without office but if by two offices two are found Heires whereof one is within age by that Statute the other may traverse immediatly 3. A bill of reviver upon a bill of reviver shall not be suffered for the infinitnesse no more then a Writ by Journeys accompts By all the last bill was absurd which prayeth that the first bill be revived because M. was dead but it ought to be that her Heire may traverse The End of the Seaventh Booke THE EIGHTH BOOK The Princes Case 3. Jacobi in Chancery fo 1. THE Queene 37. Eliz. grants three Mannors parcell of the Duchee of C. to H. L. and G. M. the King at the supplication of the Prince brings a Scire facias against the said H. L. and S.H. to make Livery to the Prince by force of the Statute of 11. E. 3. H. L. pleads Null tielum recorde S. H. pleads the Patents with a Non obstante 32. H. 8. whereby these Mannors were made parcell of c. and the Act of Confirmation 43. Eliz. As to the plea of H. L. the Atturney sheweth an Inspeximus and demurreth upon the plea of the other two who joyne and as Amici curiae repeate part of the Statute of 1. H. 7. touching the Duchie H. L. demurreth 1. Resolv the Charter of creation of the Prince Duke of C. 11. E. 3. is an Act of Parliament for such a limittation to the first-begotten Son is void without Statute for if Grandfather King the Father Duke and Sonne be if
make a Lease for yeares and after enter into the Land and make wast and the Lessor recover in an Action of wast against the Lessee for life he shall avoid the Lease for yeares made before the wast committed But if a Lessee for life make a Lease for yeares and after enter and make a feoffement in fee the Lessor shall not avoid the Lease for yeares and so if a Tenant make a Lease for yeares and after is attainted of felony or dyeth without heire the Lord by escheate shall not avoide the tearme But because the feoffement in the case at barre was executed by Letter of Attourney it was resolved to be void and the Land escheated to the Queene Jehu Webbes Case 6. Jacobi com banco fo 45. THe King grants the office of the Kings Tennis plaies at W. to one who being disseised brings an assize The Patent shall have a reasonable construction not onely when the King himselfe playes but when any of his Houshould As if a Commission be made to take Singing-Boys in a Cathedrall-Church for the Kings Chappell those that Sing there for their pleasure cannot be taken but such as get their living by it There were but two manner of assizes at the common Law assizes De libero tenemento and De communia pasturae but for no other common but for this onely there is a Writ in the Register But the Statute of W. 2. c. 25. giveth it De proficuo in certo loco capiendo in lieu of a Quod permittat and although that there offices amongst other things are named yet an assize lay of an office at the common Law and although that no Tenant for life may have a Quod permittat yet an assize did lye for him but that is to be understood of an office of profit for it lyeth not of an office of charge Originall Writs made by Statute cannot be altered without Statute In an assize of a new office it ought to be shewed what profit belongs to it but not for an ancient office because that is sufficiently knowne Syms Case 6. Jacobi fo 51. TEnant in taile levyeth a fine with warranty and dyeth the warranty discends upon the issue of him in the remainder inheritable to the taile and another the issue in taile brings a formedon and is barred for all for the warranty is intire and barreth every one upon whom it discends of all his right as if one seised of three acres maketh a feoffement of one with warranty and dyes having issue two Daughters who make partition the Mother purchaseth the part of one brings dower against the feoffee who Vouches the Daughters shee shall recover all the other acre of the other Daughter if Tenant by the curtesie make a feoffement with warranty and dyes and his Sonne heire of the Feme recovers and assets discends after the feoffee shall have a Scire facias to have the Land first recovered by the Statute of Glouc. c. 3. but if assets descend to the Heire in taile bound with a lyneall warranty after recovery in formedon the Feoffee shall have a Scire facias to have the assets for otherwise if the recoverer alien the assets the issue of him will recover the Land in taile againe but in these cases the discontinuee ought to confesse the title of the Demandant and pray that if assets descend after they may discend unto him for if he plead a warranty and assets this is peremptory unto him if it be found that assets did not discend for the Statute is that a Scire facias shall issue out of the rolls of the Justices and in this case there is no ground for the Scire facias in the Record but in this case if the issue in taile pleads no assets and assets are found but not to the value the tenant shall have a Scire facias to recover the assets discended after for that false plea of the Vouchee Warranty and estoppell discend upon the heire generall and warranty barreth although that he upon whom it discends claimeth not by him that made it but so doth not an estoppell but estoppells with recompence binde the right of one who claimeth not by him that made it Roger Earle of Rutlands Case 6. Jacobi fo 55. THe King grants the pannage and herbage of a Park to M. for life and reciting this grants it to the Earle of Rutland for his life 1. Resolved the King hath three manner of inheritances 1. Some which he cannot excercise himselfe and cannot grant them in reversion or remainder as Corodies and Churches of which he is Patron 2. Others which he cannot excercise himselfe but may grant them in reversion or remainder as offices 3. Others which he may excercise himselfe and may grant as Lands Houses c. 2. The King here is not deceived for when he reciteth here that M. had for life and grants for life this inureth as by Law it may that is as a grant in reversion 3. In this case the grant to the Earle shall commence after the determination of the estate of M. and if the King grants Land to one and his Heires Habendum to him and his Assignes it is good and the Habendum shall be rejected for the honour of the King See the Lord Chandos case in the sixth Booke and when a Charter of the King may be taken to two intents good in many cases it shall be taken to such intent as is most beneficiall for the King but if it may be taken to one intent good and to another void then for the honour of the King and benefit of the Subject then it shall be taken so that it may take effect Beechers Case 6. Jacobi fo 58. B. Plaintiffe in Debt Se retraxit by attourney and by the judgement is not amerced he brings eror 1. Resolved a Retraxit ought to be in proper person for at the common Law every one who appeared ought to come in proper person and make his attorney after by license of the Court but if it be without writ he cannot without a writ of Attornato faciendo In cases where one may make an attourney but for contempt is bound to appeare in person if he appeare by attourney this is not error because the court may dispens with the contempt otherwise where he cannot appeare by Law by attorney as here for if he appeare by attourny this is error 2. B. ought to be amerced if upon a Nonsuite a Fortiori upon a Retraxit and although it is for his advantage yet he may assigne it for error because the judgement is not perfect and because it is for the advantage of the King and it shall not be amended because the act of the Court. 3. Where one disclaimes he shall not have a Writ of error because he hath confessed that he had no right otherwise it is upon a Retraxit for this is but a barre of the action à fortiori here where it wat void done by an attourney
shall abate against all but if it be for matter in fact onely as for misnaming one Defendant it shall abate onely against him omission or addition which doth not alter the forme is amendable as if Dei gratia be omitted Voluntary or negligent keeping of Records by the Clerke is amendable by other parts of the Record or by exemplification Count or plea in barr c. which wanteth substance shall not be amended in another Terme but default in the colour because this is the default of the Clerke shall be a Record shall be amended in another Terme by the paper Booke and a thing apparent to be the fault of the Clerke shall be amended in another Terme as rien luydoit de hoc c. predictus defend pro quaerent Nisi prius shall be amended by this Statute if power be given to the Justices to proceed otherwise not as if issue joyned in the Record be mistaken in the Nisi prius it shall not be amended but misprision of dammages shall be because this is not materiall to the issue and it is the default of the Clerke Warrant of attorney and returnes are amendable by this Statute but if there be none at all it is out of the Statute and because this Statute leaveth many cases without remedy the Statutes of 32. H. 8. cap. 30. and 18. Eliz. cap. 14. were made Ten misprisions as yet not remedied 1. Variance materiall betweene the originall and the Count. 2. Want of substance in the originall or Count. 3. Insufficient tryalls 4. If a Coroner returnes the Jury where the Sheriffe ought 5. Lack of name of the Sheriffe to the returne 6. Where no returne is indorced upon the Venire facias 7. When one who is not returned giveth a Verdict 8. Pleas of the Crowne 9. If it appeare to the Court that he who hath a Verdict had no cause of action 10. Errour in Law Cases in the Court of Wardes Myghts Case 7. Jacobi fol. 163. 1. REsolved if J. M. purchase Lands to him and an Infant in fee it cannot be averred that this was to take away the wardship because he never was sole Tenant to the King 2. No feoffement that I. M. can make of his moity can be aver'd to be by collusion c. because without feoffement no wardship shall be and also the Statute speakes of sole seisin 3. A feoffement to the wife or younger Child cannot be averred to be by covin c. upon construction of the Statute of 32. 34. H. 8. where collusion cannot be averred by the Statute of Marlebridge it cannot be now to seize all the Land but it may be for the third part which belongs to the King If a third part be left to the King no averrement of covin may be for the other two parts the Father makes a feoffement to diverse uses the remainder to his second Sonne and dyeth his Eldest Sonne dyes the second Sonne shall not be in ward by averment of covin Digbies Case 7. Jacobi fo 165. TEnant of the King conveys his Lands to the use of himselfe for life the remainder to his Sonne and Heire in taile and after is attainted of Treason the King shall have no wardship of any part of the Land by 32. 34. H. 8. because there is no Heire and livery must be sued in the name of the Heire but the King shall have wardship in such a case before 26. H. 8. because there was an Heire The Earle of Cumberlands Case 7. Jacobi fol. 166. E. 2. granted the Castle and Mannor of S. in taile to R. C. H. 6. granted the reversion to T. C. if the taile be good if not he grants it in possession this is good one way or other and so are many Patents from time to time Paris Stoughters Case 7. Jacobi fol. 168. BY Mandamus it was found that P. S. dyed seised 40. El. and held of the Queen in common socage 7. Jacobi a Melius inquirendum was awarded whither he held of the King by common socage or in chivalry and it is found that he held of the Queene by chivalry This Writ of Melius c. is repugnant and giveth no authority to find this office because a Tenure cannot be of the King in the time of Queene Elizabeth and therefore a new Writ shall be awarded but if the first Melius be good no other shall issue 1. For avoiding Infinitnesse 2. A Diem clausit c. shall not issue upon a Diem c. Nor Mandamus upon a Mandamus so a Melius c. shall not issue upon a Melius 3. If an Office be found against a Subject he shall have a traverse and if upon that it be found against him he hath no remedie So the King shall have but one office and a Melius and no more although that a Tenure be found of two Subjects or one hath an Ouster le maine the King shall not reseise without a Scire facias Toursons Case 8. Jacobi fol. 170. IF Tenant of the King commit Fellony Ao 1. Jaco and after is attainted Ao 3. for the same and after in Ao 4. all is found by office Now this office shall have relation to the time of the Fellony to avoid all meane alienations and incumbrencies but for the meane profits it shall have relation to the time of the Attendor for their the Kings Title appeared of Record and the like Law is of an Ideot But in case of a ward within age the King shall have the meane profits from the death of the Auncestor because he hath it by reason of his Seigniory and he looseth the rent and services in the meane time the difference is when the King seiseth jure protectionis regae or Nomine destrictionis and when Ratione Prioris recti seu tituli Sir Gerrard Fleetewoods Case 8. Jacobi fol. 171. SIr William Fleetewood receiver of the Revennues of the Court of Wards in Anno. 35. Eliz. was possessed of a Messuage and certaine Lands in Harrow in Com Mid for a tearme of yeares in Anno. 36. Eliz. he became Receiver generall and was bound in 20. Obligations of 200. l. a peece to make true account c. And after upon severall accounts he became indebted in great Summes of money to the Queene and being so indebted in consideration of 1100. l. did bargaine and sell the said Lease to James Pemberton which by meane conveyance came to Sir Gertard Fleetwood Question Whither this Lease c. was extendable and lyable to the Kings Debt c. and it was resolved that the said sale of the tearme was good against the King because the tearme was but a Chattell and the sale of Chattells after judgement Bona fide is good but not after Execution awarded And Cooke Chiefe Justice said that a Receiver or other accomptant which is indebted shall not be in worse case then a Fellon or a Traytor that may after Fellony or Treason and before conviction sell Bona fide for his
aforesaid an Assumpsit without specialty is no more personall then a Covenant by specialty and therefore dyeth not with the person William Banes Case in banco regis 9. Jacobi fol. 93. UPon an Action of Assumpsit against Executors the Plaintiffe needeth not to averr that the Executors have assets in their hands of the goods of the Testator to the value of the said Debt for it shall be intended Prima facie that they have Assets for the Law doth presume that the Testator will not leave a greater charge upon his Executors then he will leave benefit to discharge If a Stranger doe say unto a man to whom a Debt is owing I pray â—ou forbeare your Debt and doe not sue the Partie untill Michaelmas c. and then I will pay you the Debt This is a good consideration although it be no benefit to him that made the promise for it It is a damage to the Creditor to forbeare his Suite or debt hee may have his Action of assumpsit against such a Stran-ger after the day Sir George Reynells Case 9. Jacobi fol. 95. In Chancery IT was found by Office by Commission under the great Seale That the Marshall of the Kings Bench had committed diverse Forfeitures of his Office by suffering voluntary escapes of Prisoners That Office and such like may not be granted for yeares because it is an Office of trust and personall and he must continually attend and be Sworne in Court Two matters of record amount to an Office as in the Case of Sir John Savage who was Sheriffe of the County of Worcester for life by Letters Patents under the Great Seale and was Indicted of two voluntary escapes of Fellons and the King may seize his Office into his owne hands without suing forth any Scire facias 5. Mar. Dyer The Abbot of Saint Albones had a Gaole and detained Prisoners therein and because he would not be at charges to sue forth a Commission for the Gaole delivery the King caused his Franchise and Liberty thereof to be seised into his owne hands The Abbey of Crowland had a Gaole and Prisoners and for that hee once deteined men that were quit of Fellony the King reseised the Gaole for ever If a man grant an Office to another for life or for yeares and he will not doe his Office or otherwise misuse his Office the Grantor may reseize the said Office 39. H. 6. fo 34. If a Gaoler commit voluntary escapes or permit them this is a forfeiture of his Office Cooke Lib. 9. in the Countee of Salops Case The King may grant the custody of the Gaole to one in fee and also to the Sheriffe of a County to one and his Heires which estate in fee simple includes all other estates and it is true that these grants may be made by Law for in these Cases there is not any intermission for presently after the death of the Ancestor the Office discends to the Heire 2. This Office cannot be forfeited by Outlary as if it were granted for yeares it might grants of these Offices in fee or for life have beene allowed and approved but such grants for yeares were never allowed or approved Et periculosum existimo quod bonorum virorum non comprobatur exemplo He that hath the custody of the Gaole whither by right or wrong shall be charged with escapes of Prisoners untill he be actually removed Margaret Podgers Case 10. Jacobi fol. 104. I. P. Copy-holder for life the remainder for life the Lord bargained and sould and levyed a fine to I. P. this discended to M. P. who levyed a fine five yeares passe without claime of them in remainder adjudged no barre 1. Resolved that Copy-hold estates are within 4. H. 7. by the word Interest but if the Fine be by covin this barreth not the issue if Lessee for yeares or Copy-holder be ousted the Lord shall not have five yeares after a fine levyed by the disseissor after their estate determined because he may presently have an assize otherwise where Lessor for life is ousted A meer Stranger cannot enter to avoyd a fine without Commandement or assent of the party who hath right but a Gardian in socage or Lessor for life or Lord of a Copyholder may for the privity betweene them and the Infant or Lessees 2. A Fine barreth not any by Non-claime who is not put to a right therefore here they in remainder are not barred because the bargaine and sale and Fine to the Tenant in possession putteth them not to a right 1. Because it is a lawfull act 2. Tenant in possession devesteth not the remainder by acceptance as if Lessee for life accept a fine Corne ceo although it be a forfeiture 3. Because he is in by 27. H. 8. of uses which doth no wrong 3. After the bargaine and sale he in the next remainder shall not enter for by the custome his estate was to commence after the death of the Tenant in possession so if Tenant in possession forfeite the Lord and not he in remainder shall enter but thereby without a speciall custome the remainder is not destroyed If a Copy-holder in fee surrenders to the use of one for life no more passeth then serveth the estate limitted and he shall pay no fine for admittance after the death of Tenant for life It seemed to the Chiefe Justice that if the Lord here had charged the Land I. P. shall not hold it charged for the estates in remainder preserve him from incumbrances of the Lord. Meriel Treshams Case 10. Jacobi Communi Banco fol. 108. AN Administratrix Defendant in Debt pleads that the Testator and his Sonne acknowledged a recognizance to the King of a hundred pound and another of 800. l. to B. and another of a 1000. l. to M. and diverse others over and about which she had not assets and after said she had not sufficient assets the Plaintiffe replieth that the recognizance to B. was for payment of 400. l. which is paid and the other to M. is to performe Covenants whereof none is broken and the recognizance remaineth in force by Covin of the Defendant 1. Resolved that the barre is insufficient for shee first confesseth that shee had sufficient assets to pay the said recognizances and after denyeth it 2. She saith she had assets but not sufficient this is too generall but shee must confesse how much she had because she had knowledge thereof 3. The pleading by the Plaintiffe that the Obligation was made to performe Covenants is good without more certainty because he is a Stranger 4. The generall allegation of Covin is good without shewing of refusall to release c. and fraud may be in one onely also the barre is insufficient because the intestate was bound in the recognizances with another and the Defendant had not averred that the other had not satisfied them Robert Marys Case 10. Jacobi fol. 111. A Commoner being Copy-holder brings an Action of the Case for putting Beasts into the Common whereby
devise is good for two parts for the reasons reported in Loveyes Case 5. Although the consideration of advancing his Wife and their issues extends not to the Brothers yet the use is well raised to them because the Law implyeth a consideration and it is not to the purpose that they are found Brothers because it appeareth in the Deed. 6. For the Mannor of G. the estate tayle vanisheth by the death of Sir H. without issue male and therefore that estate is no cause to restraine the devise for any part but the reversion in fee is for a third part So resolved that the Plaintiffe shall have judgement for two parts Exceptions to the count and Visne 1. The Ejectione firmae is of Tithes without shewing the kinds of them Ergo not good for a certaine judgement and execution cannot be made 2. It may be it is in a modus decimandi for which an Ejectione firmae lyeth not 2. Capella is demanded which ought to be demanded by the name of a house 3. The Venire facias is not well awarded for it appeares that there are two B. one a Ville the other a Parish and W. a Ville in the Parish of B. and the Tithes are alleadged to be in W. in parochia de B. so the Visne must be out of B. and W. because there is the most certainty so that by reason of these exceptions no Judgement was entred but it was sayd that the Court of Wards where a Bill depends for this matter will take order for the possession accordingly Henry Pigots Case 12. Jacobi fol. 26. B. W. brings debt upon Obligation made to him when he was Sheriffe omitting the name of his Office but it was after interlined by a stranger the Defendant pleads Non est factum without Oyer of the Deed and judgement was given for the Plaintiffe 1. When a Deed is rased the Obligor may plead Non est factum 2. If a Deed be rased by the Obligee himselfe in a place not materiall it is voyd but not if done by a stranger except in a place materiall and here it was in a place not materiall because it appeareth not to the Court that he was Sheriffe If a Deed consist of diverse parts whereof one doth not depend upon the other and some of them are against Law the Deed is good in part but if any of them be rased it is voyd in all so if the Seale of one be debrused all is voyd See Matthewsons Case in the fifth Booke Alexander Powlters Case 12. Jacobi fol. 29. Indictment A. P. felleo animo burned a House in New-market whereby the greatest part of that Towne was burned Resol He shall not have his Clergy for this was felony by the Common Law and so haynous that he was not replevishable no more then for Treason as appeares by Westminst 1 cap. 15. but he shall have his Clergy at the Common Law for impediments to have Clergy were first disability to be a member of holy Church as a blind man or woman 2. Heresie 3. Infidelity as a Saracen or Jew but a man excommunicated or outlawed shall have it 5. Confession before the Statute of Articuli Cleri cap. 15. because he cannot make his purgation 6. High Treason or petty Treason before 25. E. 3. cap. 4. So of Sacriledge and of insidiatores viarum depopulatores agrorum See the Statute of 4. H. 4. cap. 2. but the Statute of 23. H. 8. cap. 1. taketh away Clergy where one is found guilty of burning of Houses but that is to be intended by verdict or confession for if hee stand mute or challenge more then he ought or be outlawed these are out of the Statute or if he commit Burglary and not Robbery he shall have his Clergy by 25. H. 8. cap. 3. hee who is found guilty of any of the sayd offences shall loose his Clergy and if he stand mute or challenge above his number but that extends to the principall onely in case of indictment and not to the accessory before the fact nor to appeales or approvements nor to outlary but these two Statutes were taken away by 1. E. 6. cap. 12. but 25. H. 8. was revived by 5. 6. E. 6. cap. 10. Obj. That the sayd Statute was not revived in all but as to stealing of Goods in one County and flying into another for so is the stile of the Act. 2. If it be revived this takes not away Clergy where one is found guilty by Verdict but the Statute of 23. H. 8. which is not revived But it was Reâ—olved that the intire Act is revived 1. Although the Statute of 5. E. 6. reciteth these offences solely and reviveth the Act as to Clergy touching such offences that shall be intended such in mischeife so Westminster 2. cap. 5. is expounded touching Infants having advowsons whether they be in ward or not and the stile is not to the purpose for many Statutes are of greater extent then the stile as 27. H. 8. of uses concerning Joyntures yet the preamble is of transferring uses into possession also otherwise these words and every clause c. shall be surplusage if it extend not to all the Act for there is but one clause in it which concerneth the offences in 5. 6. E. 6. also it is that every Article concerning Clergy as to such offences shall be revived and there is but one which concernes these offences and many times penall Statutes are taken by Equity as 8. H. 6. cap. 12. ordaineth that the imbezelling or withdrawing a Record whereby a Judgement may be reversed shall be Felony and by Equity making of a badd Judgement good is Felony so 25. E. 3. for killing of a Master extends to the Mistris 2. 25. H. 8. takes away Clergy where one is found guiltie by Verdict because it takes away if he stand mute or challenge c. in like manner as if he were guilty after the Lawes of the Land which are affirmative words And 4. 5. Phil. Mary cap. 4. takes away Clergy from the accessory before which they would not have done if they had not thought that it was taken away from the principall by the other Act. By 18. Eliz. cap. 7. Clergy is taken away in case of Burglary where hee is found guilty by Verdict confession or Outlary but if he be indicted at the Common Law and stand mute or challenge over c. he shall have it and not if hee be indicted by 23. H. 8. or 5. E. 6. of Burglary and put them who were in the House in feare with Robbery or upon 1. E. 6. without Robbery 4. 5. Phil. Mary takes away Clergy where one is accessory before to a Robbery in a dwelling House Ergo before that such an accessory shall have it Breaking of a House in the night without Robbery is no Burglarie and if he doth robb he shall have his Clergy if none were put in feare or that any of the Family and not
arrerages Page 79 A rent must be paid without an acquittance but not an annuity ib. The Heire is infeoffed by collusion within age the Lord accepteth services he looseth the wardship ib. The Law adjudgeth an escape although the party be in prison Page 80 Vntill the prisoners be delivered to the Sheriffe they are in the custody of the old but if the old dye the new must take notice Page 81 If a prisoner breake Gaole in such Case before the new be made this is no escape for they are in custody of Law ib. A Translation by the K. of a priory into a Deane and Chapter is good by 25. H. 8. Page 82 Notwithstanding a surrender of their Church the Corporation remaineth ib. The Deane and Chapter are to assist the Bishop in two things ib. The Bishop is Patron of all Prebends of common right ib. Originally all Bishopricks were donative by the King ib. If by their surrender to the King the Corporation should be dissolved three inconveniences would follow Page 83 A fine levyed by covin by a Copy-holder barreth not the Lord Page 84 All acts mixt with fraud are tortious and illegall ib. The Judges have construed the Act against the Letter for Salvation of the inheritance of the reversioner Page 85 An averrment of fraud may be taken by 27. Eliz. and so upon 13. Eliz. an averrement may be against a fine upon an usurious contract Page 86 Six Markes of fraud within 13. Eliz. c. 5. Page 87 The Deed must be upon good consideration and Bona fide ib. Directions to make a Deed by one that is indebted unto others Page 87 88 A consideration of nature is not good within this Statute Page 88 Statutes against fraud shall be liberally expounded to suppresse it ib. None but a purchasor for money without fraud shall avoid a faudulent Deed Page 89 The issue in taile is barred after Proclamations made although he claime Page 90 Quod partes finis nihil habuerunt where it is a good plea Page 92 To what purposes the proclamations serve Page 93 Though the issue be beyond the Seas yet he is bound because privy c. ib. THE FOURTH BOOKE VVHere a right to a freehold cannot be barred by acceptance of a collaterall satisfaction Page 95 Wherefore those Branches touching jointures in 27. H. 8. were made Page 96 No estate a good jointure except it take effect presently after his death ib. An estate for life upon condition is a good jointure ib. Where a jointure may be waived ib. Where a dâ—vise to the Wife for life or in taile c. is a good jointure Page 97 Seisin of fealty is a seisin of all other services Page 98 No distresse excessive for homage fealty escuage c. ib. Seisin of a superior service is seisin of all inferior services incident ib. Doing of homage is a seisin of all services inferior and superior ib. Seisin of one annuall service is not seisin of another Page 98 99 Seisin in Law sufficient to make avowry within 32. H. 8. Page 99 To what services that act doth not extend ib. Writs of Escheate Cessavit and rescons are not within that act Page 100 If a distresse be and nothing arreare the tenant may rescue but he shall not have Trespasse Vi armis against the Lord ib. See the Booke at large where an incroachment is avoidable ib. If a man hath beene out of possession sixty yeares if his entry be not taken away he may enter and bring any possessory Action ib. Actions of Slaunder The Judges must take notice of all statutes which touch the King Page 101 Articles of the good behaviour exhibited against I. S. are no cause for him to bring an Action upon the Case Page 102 A Bill in the Starre-Chamber for Causes examinable there no cause of action otherwise if not examinable there Page 103 No action lyeth upon an appeale of Murder returnable in the Common Bench Page 103 To say to one that he is perjured an Action will lye Page 104 Sermo relatus ad personam intelligi debet de conditione personae Page 105 Two things requisite to have an Action for Slaunder Page 107 Where an Action will lye for Slaundering a mans Title Page 108 109 Verba accipienda sunt in mitiori sensu Page 110 Three things incidents to a Defamation in the Ecclesiasticall Court Page 111 Copy-hold Cases When custome hath created such inheritances their discent shall be according to the rules of Law but not to have collaterall qualities Page 112 The heire before admittance may take the profits and surrender ib. Admittance of a Copy-holder for life inureth to him in remainder but not to prejudice the Lord of his fine Page 114 The heire before admittance may have Trespas ib. One who hath no title maketh voluntary grants they bind not but otherwise it is of admittances upon surrenders or discents Page 116 Quid operatur by severance of the inheritance of the Copy-hold from the Mannor Page 116 117 A release to a disseisor of Copy-hold where it is good Page 118 A Copy-hold is within 32. H. 8. of maintainance and Champerty ib. Copy-holder for a yeare may maintaine an Ejectione firmae ib. Every Mannor comprehends in effect two severall Courts Page 119 The Lord may admit out of the Mannor but not the Steward ib. The Lord cannot exact unreasonable fines Page 121 If the Tenant deny to pay his fine it is a forfeiture Page 122 Sentence against the Wife shall bind the Husband De facto Page 123 A man may surrender to the use of his Wife Page 124 The Lord may retaine a Steward by Parol Page 125 What things are grantable by Copy Page 126 What acts are destructions of Copyholds Page 127 How a custome ought by a Copy-hold to be alleadged Page 128 What things are incident to the Office of Sheriffe Page 129 130 Touching Exposition of the Q grant and where a Non obstante aideth Page 131 What things may he appendant to others Page 132 The Originanall of Common appendant by the Common Law Page 133 That it is apportionable Page 134 See many excellent Cases of Appeales and Indictments and much good matter thereupon from Folio 135. to 143. Touching arrerages of rents and the remedy given for them by 32. H. 8. c. 37. Page 144 The Roll amended according to the speciall verdict Page 146 VVhere a condition or rent shall be suspended ib. The Jury must find matters of estoppell Page 147 An infant admitted by Gardian and no record made of it yet good Page 148 Debt upon a puisne judgement must be paid before Statutes c. ib. Marriage is a countermand of a VVill Page 149 Touching a Lease for life or yeares of Land whereon Trees are growing and what property the Lessee hath in them and of Timber Trees blowne downe with the wind and wast committed in VVindowes VVainscot c. Page 150 151 Touching a recognizance acknowledged before the Chamberlaine of London and of
in any Court of Record it shall be intended of the foure Courts of Westminst propter excellentiam Page 249 Of what actions the Marshalsea holdeth plea ib. A Parson must be resident and what is a good excuse of it Page 250 Where the Father shall have the wardship of his daughter ib. If the daughter be marryed infra annos nubibiles and the Baron dye yet she may be in warde to the Queen ib. By the law the Testator must have a disposing memory Page 251 Where the lease and not the seisin must be traversed ib. He who claimeth by the first assignment shall not traverse the second Page 252 Where the Release of one Plaintiffe barreth the rest ib. VVhat act shall amount to a livery of seisin ib. The word King includeth all his Successors Page 253 Where the King shall have a fine for alienation ib Where Lapse shall not incur without notice Page 254 If the Q. present Ratione lapsus where she is Patron it is void ib. Acts transitory and locall must be done in convenient time Page 255 Where they must be hastened by request ib. What is a good revocation of uses Page 256 Every Lease must have a certaine beginning and continuance ib. Grant of a Copy-hold for three lives by Deane and Chapter good by 13. Eliz. Page 257 Where an Assignee may plead a Deed of License without shewing ib. The Construction of Alibi in a grant of rent charge Page 258 A condition of an intaile not to suffer a recovery is void ib. Where an accord with satisfaction is a good plea ib. So long as judgement in Debt is in force no new action lyeth Page 259 When the place is materiall the issue cannot be found elsewhere ib. Where a thing done beyond the Sea is triable here Page 259 260 Where the Vsurpor gaineth the inheritance against an Infant Page 260 Where collation putteth a man out of possession ib. An Incumbent shall not be moved if not named in the VVrit ib. A Peere cannot be Arrested for Debt Page 261 A difference betweene nobility by discent and by Marriage ib. The duty of the Officer upon an arrest ib. The K. grant good if he be not deceived Page 262 Payment of rent by a Termor giveth no seisin to have an Assize ib. In the Kings Case generall alleadging of seisin is good Page 263 To claime common Ratione commorantiae is not good ib. Tenant for life or yeares must prescribe in his name who hath fee ib. A custome for every inhabitant to have a way is good ib. The difference betweene a prescription and a custome Page 264 Six Moneths given to present according to the Kalender ib. By grant and render of the Demesnes the Mannor is destroyed Page 265 But otherwise it is if by act in Law as upon partition ib. Who may surrender and where it is requisit Page 266 The heire Female shall not forfeite the donable value ib. Where the purchasor shall avoid a Lease by fraud Page 267 If the Heire be Knighted in the life of his Auncestor no wardship Page 268 Where the Heire shall forfeite the double value ib. VVhat shall be collusion within Marlebridge c. 6. ib. Excellent Resolutions upon 32. H. 8. of VVills ib. The Lord may have a certeine summe Pro certo letae Page 269 Judgement in Debt against a jointenant who releaseth to his Companion that Moity is liable to the Judgement ib. Executors though not named are within diverse Statutes Page 270 THE SEAVENTH BOOKE SIx demonstrative conclusions resolved why Calvin the Postnatus ought to be answered Page 271 VVhere the Plaintiffe may choose in what County to bring his Action Page 273 The Common in Norfolke called Shack is good Page 274 Cases upon the Statute of 13. E. 1. of VVinchister for Hue and Cry and what alteration is made therein by 27. Eliz. c. 13. Page 275 VVhat acts a Gardian shall avoid but not the Lord by escheate Page 276 If one be to have a thing in consideration of an act to be done by him he must shew the performance of it Page 277 The Q Tenant Pur auter vie leaseth for yeares good without recitall Page 278 VVhat conditions are given to the Q ib. VVhat kind of Certificats are traversable Page 279 All wild Swannes in a Common River may be seised for the K. ib. A Swan-marke must be by grant of the K. or prescription ib. And he must have five Marks per annum by 22. E. 4. c. 6. ib. To what Debts the Statute of 33. H. 8. c. 39. extendeth Page 280 Processe in one Court and decree in another Bond for Covenants is within it ib. In what Cases Lands are extendable by the K. within 33. H. 8. Page 281 VVhat debts are not within that Statute ib. A rent issueth out of one acre and the other liable to the distresse ib. A rent may be seck and charge at severall times Page 282 Cases of Quare impedit VVhere a Quare impedit may be without naming the Patron Page 282 283 If the Plaintiffe in a Q. I. after appearance be Non-suite where it is peremptory and where not Page 283 VVhen the King hath a transitory title onely it may be lost ib. VVhere a demand of rent must be made precisely on the day Page 284 Discontinuance of Proces and what is revived by generall resummons and what by speciall ib. VVhat fine levyed by the King barreth the taile Page 285 VVhat Statutes bind the King ib. A dignity may be intailed and forfeited Page 286 The King cannot grant the penalty of a Statute to a Subject ib. A rent extinct shall be in esse to some purposes Page 287 A consideration may be averred which stands with the Deed ib. VVhere an estate taile may be with the words Of the body of Page 288 The sentence of Divorce being in force the issue before is a Bastard Page 288 Such sentence may be repealed after death of the parties ib. One Bill of reviver upon another not sufferable Page 289 THE EIGHTH BOOKE THe Charter of Creation of the Prince Duke of C. 11 E. 3. is an act of Parliament Page 291 The grant to the Patentees is not aided by the Statute of Confirmations Page 292 Five things requisit to maintaine an Action against an Inkeeper for Goods lost Page 293 VVhere the Husband shall be Tenant by the courtesie ib. VVho shall be said a common Barretor Page 294 VVho may assesse a fine for a contempt and what remedy for it Page 294 295 VVho shall avoid a feoffement by an Infant Page 295 Three manner of Privities ib. Lessor for life shall avoid a Lease for yeares made by Tenant for life ib. There were but two manner of Assizes at the Common Law Page 296 In an assize of a new Office the profit thereof must be shewed Page 296 297 A warranty is intire and barreth all upon whom it discends Page 297 Good matter upon the Statute of Glouc. c. 3. ib. The King hath three