his owne just Debt for every Creditor by such meanes when the goods be not sufficient would strive to make himselfe Executor De son tort to satisfie himselfe and barr others c. And it is not reasonable that one should take advantage of his owne wrong Non facies malum ut inde fiat bonum melius est omnia mala pati quod malo consentire It is also cleere that all lawfull acts that such an Executor doth or disseisor or an abator c. are good Hargraves Case 41. and 42. Eliz. banco regis fo 31. LEssor bringeth Debt against the Administrator of the Lessee for yeares for rent due after the Administration committed in the Debet and so it ought to be because he himselfe tooke the profits and nothing is assets in his hands but the profits besides the rent but in all Actions brought by Executors as Executors the Writ shall be alwaies in the Detinet tantum although the duty accrew in their owne time Pettifers Case 45. Eliz. banco regis fo 32. UPon a fieri facias de bonis testatoris the Sheriffe returneth Nulla bona a Writ issueth to the Sheriffe to inquire by inquest if the Executors have wasted and how much who returneth that they have and judgement given against them De bonis proprijs they bring error in redditione Executionis and the Execution was reversed for the course is upon Nulla bona to have a speciall Fieri Facias to make Execution De bonis proprijs if they have wasted and if the Sheriffe so doth where they have not wasted they have remedy against him but if he taketh an inquest and returneth it although it be false there is no remedy against the Sheriffe or any other Robinsons Case 1. Jac com banco fo 32. EXecutor brings Debt as Administrator and is barred by Plea that he is Executor he may bring Debt as Executor for he was barred as to the Action of the Writ to have Debt as Administrator but not to the Action Reades Case fo 33. 2. Jac. com banco WHen a man dyeth intestate and a strange person taketh the goods of the intestate and useth them or sells them this maketh him an Executor of his owne wrong for when none assumeth to be Executor nor takes Letters of administration there the using of the goods is sufficient to charge one as Executor De son torte for those to whom the Deceast was indebted unto have not any other in this case against whom they may bring their actions for recovery of their Debts When an Executor is made and he proveth the Testament or assumeth upon him the charge and doth administer in this case if a stranger take any of the goods and claime them for his owne this doth not make him an Executor of his owne wrong because there is another lawfull Executor A lawfull Executor shall not be charged but with the goods that come to his hands after that he assumes upon him the charge of the Will c. but if another man first take the goods c. before the lawfull Executor hath assumed the Execution or proved the Testament in this case he may be charged as an Executor of his owne wrong Constructeon of the Statutes of Jeofails c. Amendment of Records Fines Recoveries c. Playters Case 25. 26. Eliz. Banco regis fo 34. THe Defendant was found guilty in trespasse Quare clausum fregit pisces suos cepit and damages assessed intirely it was moved in arrest of judgement because in the Count neither the nature nor the number of Fishes was shewed It was answered by the Plaintiffe That the Defendant is found guilty to damages and so Non refert of what nature or number they are 2. That the Fishes themselves are not to be recovered but damages for them therefore no need to shew the certainty 3. All the damages shall be intended to be given for the close broken which is laid in the Declaration 4. It is matter of forme ayded by the Statute of 18. Eliz cap. 14. But judgement was stayd for the Office of the Declaration is to reduce the Writ to certainty for otherwise upon such a generall Issue if the Jury give a false Verdict they cannot be attainted and damages shall be intended to be given for all because they are intire but if they had beene severed the Plaintiffe shall recover for so much as is well pleaded and this is matter of substance and not of forme because it is no default of the Clerke but of the Plaintiffe and therefore not aided by the Statute Walcots Case 30. Eliz. banco regis fo 36. DEbt was brought against Baron and Feme in the Detinet tantum upon an Obligation by the Feme before Marriage it ought to be in the Debet and Detinet because the Baron had the goods of the wife in his owne right and for that reason debt is brought against the Heire in the Debet and this is matter of substance and point of the Action not remedied by the Statute of 18. Eliz. c. 14. Baynehams Case 30. Eliz. in Scaccar fo 36. AN Ejectione firmae of Lands in A. B. and C. tryed for the Plaintiffe by a Visne out of A. onely this is insufficient and not remedied by any Statute Gardiners Case 21. Eliz. Banco regis fo 37. 23. Jurors are returned 12. appeare and finde for the Plaintiffe this is remedied by 18. Elizabeth cap. 14. Bishops Case 34. Eliz. banco regis fo 37. VAriance is betweene the Writ and count in name the Plaintiffe recovers the Defendant bringeth Error the Writ was remov'd into the Kings Bench and the judgement was reversed because the Statute remedieth where there is no Originall but not where the Originall is vitious and although it were removed after pleading c. yet because the fault appeared to the Court the judgement was reversed Teys Case 34. Eliz. Banco regis fo 38. BAron and Feme levy a fine to one who grants and renders to them two and to the Heires of the Baron and after renders part to the Feme in taile the remainder over the Heire of the Husband brings a Writ of Error and assignes for error the said Variance 1. Resolved that there needeth not a precise forme in render upon a fine but it shall be in this case construed as a grant by Charter for it is but a grant of record 2. There are five parts of a fine 1. The Originall 2. The License to accord for which the Kings Silver is due and ought to be entered upon the Writ of Covenant and the summe and he who payeth it that is he in whom the fee reposeth the Plea and betwixt whom c. and the Land ought to be mentioned 3. The concord which is the substance of the fine for if upon that the Kings silver be paid although the party dye the fine is good 4. The Note which is many times taken for the Concord And lastly the Foote of the
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
fine after delivery of the Indentures of the fine the fine is said to be ingrossed 3. The Conusor shall not assigne error in the render because it is to his advantage and none shall assigne Error except it be to his disadvantage Dormers Case 35. Eliz. Banco regis fo 40. A Common recovery is had in a Writ of Entry in the Post de uno annuali redditu sive pensione quatuor marcarum and of an advowson whereupon a Writ of Error is brought 1. Because every Praecipe ought to be certaine but here it is in the Disjunctive 2. A Writ of entry in the Post lyeth not of an advowson But judgement was affirmed and thereby 't was resolved 1. That a common recovery is not like to other recoveries for it may be averred to an use 2. It is by mutuall consent consensus tollit errorem 3. A Writ of entry in the Post lyeth of an advowson common c. to suffer a common recovery and not otherwise for no other assurance can be had to barre the remainders 2. The demand of the rent is good for one of two things is not demanded but one thing by two names for rent and pension are Synonima and the rather here because it is said to issue out of Land which a Pension properly cannot 3. Common recoveries are so usuall that the Court shall take notice that they are common recoveries Rowlands Case 35. Eliz. Banco regis fo 41. A Pannell of a Jury is annexed to the Venire facias without returne this is vicious and not remedied by 18. Eliz. cap. 14. for that remedieth insufficient returnes but not where no returne The Countesse of Rutlands Case 36. Eliz. fo 42. RObert Moore is returned upon the Venire facias but in the panell before the Justices of Nisi prius and in the Postea he was named Robert Mawre if it appeare that Moore is his right name and that it is he who was sworne it is good for by the common Law this was a discontinuance against all the Jurors and discontinuances are ayded by the Statute otherwise if he were misnamed in the Venire facias and had his right name in the Panell and Postea Codwells Case 36. Eliz. Banco regis fo 42. A Juror who gave verdict was misnam'd in the Venire facias and had his right name in the Distringas and Postea and for that the judgement was arrested Nicholls Case 38. Eliz. Banco regis fo 43. C. Brings Debt upon a single Bill against N. who pleaded Payment without Acquittance which was found for the Plaintiffe although issue was joyned upon a point not materiall yet after Verdict this is aided by 32. H. 8. and 18. Eliz. Bohuns Case 39. Eliz. fo 43. A Fine was levyed of a Mannor and other Lands to the value of twenty Marks per annum so that the Kings silver is 40 s which was paid but in entering of it upon the Writ of Covenant the Mannor was omitted and thereupon error was brought but after that the transcript of the fine was remov'd into the Kings Bench the Judges of the common place amended the Record because it appeares to them that the Kings silver was payd for the Mannor and where the Writ of Covenant was Dede meipso for Teste meipso they amended that also and certified it into the Kings Bench upon dimunution and allowed Freemans Case fo 45. 41. Eliz. Banco regis IN an original Writ c. Quod nullus faciat vastum venditionem et destrictionem where it should be destructionem the fault was onely in one Letter the Court resolved upon good Consideration that it was matter of substance for Destrictio is a Latine word and altereth the sence of the Statute and matter of Substance in an Originall Writ is not remedied but matter of forme onely Vide Statute 32. H. 8. ca. 30. 18. Eliz. ca. 14. If an Originall at this day want forme or containe false Latine or vary from the Register in matter of forme after Verdict no judgement shall be stayed or reversed But if it want substance although it be the misprision of the Clerke this is not remedied by any Statute Gages Case 41. Eliz. Banco regis fo 45. A Writ of Covenant to levy a fine boare Date after the returne this is amendable because a common assurance but in other actions no amendment c. Cookes Case 41. Eliz. com banco fo 46. A Common recovery of the Mannor of Isfeild by the name of Iffeld is amendable because it appeared to the Court by collaterall things shewed unto them that Isfield was intended to passe Cases of Pardons Francklyns Case 36. Eliz. fo 46. In the Starr-Chamber A Bill was exhibited for a Ryot in the Starre-Chamber five yeares before the generall Pardon 35. Eliz. and it was resolved that the Kings fine was excepted but not the corporall Punishment but if it were exhibited within foure yeares all shall be accepted In this Case the Kings attourney may proceede for the fine Guilbert Littletons Case 39. Eliz. fo 47. Starre-Chamber A Bill exhibited in the Starre-Chamber before the Parliament 35. Eliz. and returned after this is excepted out of the generall pardon for it was depending before the returne but if an Originall Writ issueth out of the Chancery returnable in the common place this is not depending before the returne because out of another Court but after the returne it shall be said depending by relation from the day of the Teste and if the Tenant alien before the returne and after the Teste this shall be said an alienation pending the Writ Drywoods Case 42. Eliz. Starre Chamber fo 48. A Bill in the Starre-Chamber more then foure yeares and within 8. yeares before the Parliament in 39. Eliz. the Plaintiffe dyeth before the generall pardon this is pardoned for this doth not depend now and the words remaining to be prosecuted shall be intended for the party and not for the Kings Atturney Vaughans Case 40. Eliz. Banco regis fo 49. A Writ of entry in the Quibus depends in Wales before the generall Pardon and after the Demandant had judgement but the Tenant was not amerced 1. Resolved the Amercement is pardoned because the Torte was pardoned which together with the delay was the ground thereof 2. The Statutes of Jeofailes extend to Wales because it is made parcell of England by the Act of 27. H. 8. Wyrrells Case 41. Eliz. In the Exchequer fo 49. THe Queene brings debt upon an Obligation made by the Defendant to one who was Outlawed the Defendant pleads the generall Pardon and although that Debts due to the Queene are excepted yet Debts Originally due to the Subject and after came to the Queene are not excepted also the genetall pardon is to be taken beneficially for the subject and most strong against the King Biggens case 41. Eliz. Banco regis fo 50. THe King may pardon burning in the hand where the Defendant is found guilty of Man-slaughter and hath his
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
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
the Lord Dyer made a Quaere of that if one of the Jurors die before Verdict be given a Tales shall be granted he who is meerly a Defendant cannot pray a Tales untill default be made by the Plaintiffe the number ought to be under the number in the principall pannell except in an appeale because there the Defendant may challenge peremptorily the number shall be diminished in every new Tales and they ought to be of the same quality with the former as if the principall pannell were Per medietatem linguae so shall the Tales be Justices of Assize shall not award a Tales de circumstantibus in an Assize for the Statute of 35. H. 8. c. 6. speaketh where the Triall is Habeas corpora distringas or Nisi prius for an Assize cannot be taken by Nisi prius but must be taken in the proper County and after by advice of all the Justices of the common place and Barons of the Exchequer the judgement was affirmed Humphrey Lofields Case 10. Jacobi fol. 106. In debt upon Bond. D. Leased for a yeare to H. L. and if the parties shall please to renue the terme at the end of that yeare that he shall have for three yeares rendring 40 l. per annum H. L. bindeth himselfe to performe Covenants and faileth of payment of 20 l. at Christmas Quarter D. bringeth debt It was resolved for the Plaintiffe It was objected against the action 1. That the reservation was upon a contingency if the terme shall revive 2. Because the reservation is durante termino praedicto Viz. the last terme 3. The reservation shall be taken strictly because the words of the Lessor But it was resolved that the reservation extendeth to the first yeare for the proper place of a reservation is after the limitation of the estate as if a Lease be made with diverse remainders over reserving Rent this goeth to all and although the second terme be in contingency yet the first is certaine and Termino praedicto signifieth both the termes for it is Nomen collectivum and the reservation shall be taken reasonably according to the intent of the parties Tenant in taile of an Acre in borough English and of another by the Common Law by an Oxe dyeth having issue two Sons the service shall not be increased And Increase is onely betweene very Lord and very Tenant for there may be an increaser but not where there is a reservation or if the Seigniory be by Deed and services are reserved within time of memory for he shall have no more then he himselfe reserved In the Case at Barre in respect the obligation was forfeited the Court moved the Plaintiffe to take his arrerages costs and damages with which he was contented and so no judgement was given Arthur Legats Case in subversion of pestilent Patents of theevish Concealors 10. Jacobi fol. 109. in Communi Banco THe King ex certa scientia c. grants fifteene Acres as concealed which were parcell of a Mannor of the profits whereof the King was answered Nothing passeth 1. Resol If the King were answered of the old Rent of the Mannor and the Fermors c. suffer one to intrude in part this is not concealed 2. The grant is voyd for quae quidem c. is the suggestion of the party 2. This is a clause of restraint and nothing passeth which is not concealed 3. The King did not intend to diminish his Revenue which will be if the grant be good 4. The clause quae quidem hath a double conjunctive concelata detenta and Land cannot be detained from the King 3. Ex mero motu c. aydeth it not 4. If the Officers of the King may by matter of Record have notice of putting the Land in charge in Court of Record and doe it not yet this is not concealed and if the clause quae quidem be added for more certainty the grant shall not be vicious by it if it be false as if a Mannor be granted quod quidem was in the tenure of I. S. where it was not this is good If one substract or take the Kings Rents this is not concealed for the King may charge him as Baily and the Law will make a privity See the Statute of 4. H. 4 cap. 4. called in the Rolle Brangwyn in English White Crow And it was sayd that Perpetuities Monopolies and Patents of concealement were borne under one unfortunate constellation for as soone as they came in question judgement was ever given against them and none ever for them and they have all two inseperable qualities Viz. to be troublesome and fruitlesse Robert Pilfolds Case 10. Jacobi fol. 115. THe Plaintiffe in trespasse counts to damages of 40 l. and at the Nisi prius the Jury assessed for damages 49 l. and 20 s. costs at the day in banke hee released 9 l. parcell of the damages and had judgement of 40 l. and 10 l. for costs de incremento the defendant brings error because the damages and costs surmount the summ in the Count but judgement was affirmed for in reall actions before the Statute of Glocester 6. E. 1. cap. 1. no damages were recoverable but in personall actions and mixt they were and by that Statute a man shall have costs in all cases where he recovers damages Viz. before or by the same Statute therefore if after this damages are given where they were not at the Common Law costs shall not be recovered as in a Quare impedit but if a Statute after this give double or treble damages where damages and costs were by the common Law there the Plaintiffe shall recover the damages increased and costs also but in waste against tenant for life costs shall not be recovered for although that this Statute was at the same Parliament yet it was an act of Creation and therefore no costs And true it is that damages include costs in a generall sense but in the count it is taken for damages before the action brought in a relative signification therefore expensae litis may be added to it although he count not of them as a man shall doe in reall actions without counting of them because he shall recover them pending the Writ In entrie sur disseisin the Plaintiffe shall recover damages from the disseisin to the Writ of Inquiry c. and if the issue be tryable by verdict c. to the verdict but in a Praecipe of Rent of his owne possession hee shall recover all arreares to the judgement Judgement affirmed by all Cheyneyes Case 10. Jacobi fol. 118. IN a Valore maritagij issue is joyned upon the tenure and found for the Plaintiffe but the Jury did not inquire of the value Adjudged the verdict is insufficient and shall not be supplyed by a Writ of Inquiry 1. In this Writ three things are to be recovered the value damages and costs and although the issue be joyned upon the tenure yet as a consequent upon the issue and their charge they ought to
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
lyeth against Executors for the Testators Debt Page 352 VVhere a man may wage his Law Page 353 VVhat words shall be adjudged a good consideration Page 354 VVhat Offices grantable for yeares and by what Acts Offices may be forfeited and where the King may seise without Scire facias Page 355 356 Copy-hold estates are within 4. H. 7. of fines Page 356 Disseissor of Copy-hold levyes a fine what time the Lord hath ib. VVho may enter without command to avoid a fine Page 356 357 A plea by an administratrix of fully administred must be certeine Page 358 VVhere an Allegation generally of Covin is good ib. A commoner Copy-holder may have an Action of the Case for the losse of his Common so he may distreine damage feasant ib. A Baron of Scotland shall be tried by Commons of England Page 359 See the diverse Resolutions of difficulties arising upon the Indictment of the Lord Sanchar and others Page 359 360 Cases in the Court of Wards The Kings release doth not extinguish a service inseparable Page 361 VVhen the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be ib. VVhere the particular estate is out of 32. H. 8. no wardship accrueth to the King by advancement of him in remainder otherwise of a reversion for he is Tenant Page 362 VVhat words are sufficient to create an estate taile Page 363 The Kings possibility shall not devest a VVardship vested Page 364 The reviving of an ancient Tenure preferred before the reservation of a new ib. By death of the father before livery sued after tender The King looseth primer seisin but no meane rates Page 365 Of a fruitlesse reversion a wardship but not primer seisin ib. Where the saving in 32. H. 8. giveth ward and primer seisin Page 366 A Mensnalty cannot be suspended in part and in esse for part by the act of the party but it may by Act of Law or a third person ib. There are foure manner of Avowries Page 367 What Act is a good delivery of a Deed or of seisin of Land ib. One may have an estate taile which cannot discend Page 368 Three manner of Confirmations Page 369 THE TENTH BOOKE WHat things requisite to the Founding of an Hospitall see at large Page 371 An estate taile barred by recovery in value without recompence Page 374 A Feme Covert shall not loose her Land by any conclusion without examination upon a Writ in Court ib. Tenant for life suffers a recovery and he in remainder in taile is vouched the reversion in fee is barred Page 375 The devise of a terme to one for life the remainder to another for life is good as an Executory devise Page 376 The first Devisee cannot barre him who hath the Executory devise ib. Assent to the first devise is an assent for all ib. Such an executory devise not grantable over ib. but it may be extinguished by release to the first Devisee ib. Qui destruit medium destruit finem Page 377 If a Recusant grant the next avoidance before conviction it is void by 3. Jacobi for he is disabled from the beginning of the Session c. Page 378 Covin shall not be presumed if it be not averred ib. A private Act shall be taken as it is Pleaded ib. What grants of Offices by a Bishop are void by 1. Eliz. except for twenty one yeares or three lives and what Circumstances requisite Page 380 Praerogativa Regis c. 15. excepts Knights fees and advowsons and indowments all other appendants now passe by grants and so doe they in Case of Restitution Page 381 A Corporation aggregate may make a surrender in Law not in Deed Page 382 The Jurisdiction of the Marshalsea and the reasons thereof Page 382 383 About 4. E. 3. the Court of Kings Bench became resident Page 383 A good diversity where the Court hath Jurisdiction but proceed In verso ordine and where they have not Jurisdiction there all they doe is Coram non judice and void Page 383 384 Diverse abstruse points resolved some at the common Law and severall upon the Statutes of 32. 34 H. 8. of wills Page 385 386 VVhat Colour is and where it must be given Page 388 VVhere a privy interest although he claime but part must shew the first Deed except he claim meerly by Law Page 388 389 VVhere a man may have a freehold discendible Page 390 A warranty barres no estate which is not displaced at the time of c. ib. A warranty cannot inlarge an estate where it may be given in evidence Page 391 VVhat Obligations made to Sheriffes are within the Statute of 23. H. 6. Page 391 Forma verbalis Forma legalis or Essentialis Page 392 393 The time of granting a Tales and when it is well granted Page 396 397 The proper place of a reservation is after limitation of the estate Page 397 Increase of services is betweene very Lord and very Tenant Page 398 VVhen Lands shall be said to be concealed from the K. 398 399 A man shall have costs in all cases where hee recover dammages Page 400 Where a man shall recover damages and costs also ib. Where to the writ of Inquiry and to the verdict and judgement ib. Where insufficient verdict may be supplyed by a writ of Inquiry and where it cannot a good difference Page 401 A difference between auncient Corporations and new in matter of Misnosmer Apices Juris non sunt Jura Page 401 402 Which is the legall time of payment of Rent Page 402 If payment be in the morning and the lessor dye at noone this is satisfactory against the heire but not against the King ib. Where the lessee shall hold rent free for a quarter Page 402 Where Damages may be assessed intirely and where not Page 403 404 What words passe under the name of Latine Page 404 Where by death of one of the Plaintiffes after summons and severance the writ abateth divers good diversities Page 404 405 A Qu. impedit praesentare ad medietatem Ecclesiae where good ib. Cases upon the Commissions of Sewers Where the Commissioners may subvert a Cawsey and where not Page 406 If a wall be subverted by a sodaine inundation the Commissioners may taxe all equally who have damage thereby ib. Otherwise if it come by neglect of him who ought to doe it ib. If the Commissioners have power to make a new River and a generall taxe so much upon every Towne for doing thereof Page 407 What is a good revocation of old uses and limitation of new Page 409 THE ELEVENTH BOOK A Difference between a disability absolute and temporary or personall Page 411 The grant of the office of Auditor to two is good Page 412 What offices grantable in reversion ib. Where the Jurors may assesse damages severally Page 413 Where one shall have an attaint that is a stranger to the issue ib. Where a writ of Enquiry shall issue Page 414 The plaintiffe shall have judgement de melioribus damnis ib. The conclusion of a plea is not traversable Page 415 In every issue there must be an affirmative and a negative ib. The Impropriation sufficient in the life of the Incumbent ib. VVhere the witnesses are not punishable for perjury Page 416 Perpetuall unity a discharge and what requisite thereunto ib. VVhat prescription for tithes of houses is good ib. A customary Mannor may be holden of another Mannor Page 417 VVhat variance in the name of a Corporation doth vitiate Page 418 VVhat devise of socage by tenant is Capite is good Page 419 An Ejectione firmae of tithes without shewing their kinds not good ib. If a deed be rased the obligor may plead Non est factum Page 420 A diversity where it is rased by the obligee himselfe and where by another ib. VVhere Clergy allowable at the Common law and where at this day copious and excellent matter Page 421 VVhere an Errour lyeth not before the finall Judgement Page 423 A fine by the Stewart of a Mannor where it is well assessed Page 425 VVhere the Lord may destreine for it without prescription ib. VVhere an action shall abate in part and where for the whole Page 426 Notwithstanding the exception trees remaine parcell of the Inheritance ib. A thing in possession cannot be parcell of a reversion upon an estate for life Page 427 None may be prohibited by the common law to use any trade Page 428 An ordinance by a Corporation against law is void ib. How an Ejectione firmae must be brought Page 429 Although the dammages are not well assessed yet the Plaintiffe may have judgement ib. Much variety of Learning touching Recusancy and upon the severall Statutes concerning them Page 429 430 Master and Fellowes of a Colledge restrained to grant by 13. Eliz. what statutes doe binde the King Page 432 Some grants to the King void and some voidable Page 433 VVhere acceptance of Rent doth barre and where not Page 434 Tenant in taile after possibility of c. hath a greater estate in quality then tenant for life not in quantity Page 434 435 VVhat priviledges belong to his estate Page 435 A lease without impeachment of wast what passeth thereby ib. A monopoly is against law and hath three incidents against the weale publique Page 436 What fees belong to the office of Master of the Ordnance Page 427 In the Kings Case the law maketh a privity to be accomptable ib. For what causes a Citizen may be disfranchised Page 438 The 3. Book fol. 9. Dowties Case A Difference where the first certainty is false in a grant and where the first is true and the second false Page 439 Where lands are in the Q. by 33. H. 8. c. 20. without seisure ib. Fol. 11. Sir William Harberts Case What remedy for debts at the common law and when the body and lands became liable thereunto Page 440 44â— In all actions vi et armis the body was subject unto Imprisonment and so for debt at the Kings suite Page 441 The heirs of the conâ—isâ—ser shall not have contribution against a purchasor ib. Changes reall doe not survive but personall doe Page 442 Three Errours there moved but not resolved ib. FINIS
the Mannor ex speciali gratia c. and all her right estate title claime c. Resolved that the Record was well removed by the Writt of Error which was for to remove the recovery of the Mannor of M. in M. cum pertinentiis and the Recovery was of the Mannor of M. cum pertinentiis Resolved that this Writt of Error was not given to the King by any of the words of the Statute of 28. H. 8. because the terrtenant is in by title and the entry of the person attainted taken away and such a right for which the party hath no remedy but by action is a thing consists in privity which cannot Escheate nor be forfeited by the common law and this word right in the Act shall be satisfied with a right of entry and 't was observed by the Court that by no Act of attainder a right of action was ever given Note a diversitie betwixt inheritances and chattells for Obligations Statutes Recognisances c. are forfeited by attainder or Outlawry By the Court if L. had made a Feoffement without warranty this had been a discontinuance of the moity for the joynture was severed Resolved that H. N. had no right to a moity of the Mannor for though the recovery were erronious for 't was agreed 't was not void yet the recovery being in force the remainder hath no right for the intended recompence if tenant in taile suffers an erronious recovery and disseise the recoveror and dye his issue shall not be remitted for the taile is barred as long as the recovery stands in force and the Court agreed that neither an action without a right with a discent shall make a Remitter as in the principall case nor a right without an action for a man shall never be remitted but when an action lyes if the right and possession were in severall persons Resolved for the one moity the Recovery shall be a barre to the taile and remainder for though that as well L. as the vouchee might have abated the Writt because Anne was joyntly seised not named yet when the vouchee without demanding any Line enters generally into warranty and admits the Writt good and L. recovers in value which shall inure according to his estate with the remainder over 't is barred for by the recovery against L. the joynture was severed but for the other moity the recovery was not a barre to the taile or remainder because for that L. was not tenant to the Praecipe but the recovery is by Estoppell onely Agreed that H. N. at the time of the attainder was not intitled to have error yet 't was agreed that the remainder upon a taile shall have error upon a judgement given against tenant in taile for when W. 2. inables the donor for to limit a remainder over upon the taile all actions which the common Law gave to privies in estate are by the same Act as incident given also as a reversion or a remainder shall have Error upon a judgement given against tenant for life though not privie by aide voucher or receiver But agreed that by the common Law Error doth not lye by c during the life of tenant for life except he were privy to the first Record by aide voucher or receiver for remedy whereof 9. R. 2. ca ' 3. was made which gives an attaint or error during life upon which Statute the Court resolved 1. that though the Statute speakes onely of reversions yet remainders are within the purview 2. That a reversion expectant upon a taile is out for the Statute enumerates these foure estates Life Dowor Courtesie and Tenant in taile after possibility which declares their intentions to exclude reversions upon tailes and this upon great reason for the taile by possibility may continue for ever and here L. survived H. N. and so his possibility of error destroyed and no word of the Act extends to give a possibility Resolved admitting the Writ of Error had been given to the Queene that by this generall grant of the Queene it did not passe for a common person cannot grant it and therefore it ought to passe by Prerogative and ought to have precise words adjudged in Cromers case 8. of the Queene the Queene having a right of a disseisee attainted grants de speciali gratia c. all lands c. The right doth not passe without speciall recitall and words Owen and Morgans case Trin. 27. of the Queene Baron and Feme are seised and to the heires of the body of the husband a recovery is had against the Baron sole without naming of the wife and after the wife dyed Resolved that though the wife were not party to the Writ nor the Conisance for the estate of the husband and wife was by render upon a Fine levied by the husband and though it does appeare within the same Record that she was a stranger yet the render to her is voidable onely Resolved that this recovery against the husband onely shall not binde the remainder for betwixt husband and wife there are no moities and the husband hath no power to sever the joynture or dispose any part and he during the life of the wife is not seised by force of the taile and he can by no Act execute any part so the Praecipe being brought against him onely the recompence cannot enure to the taile or remainder for to all it cannot for the wife hath a joynt estate in possession and for a moity it cannot for there are no moities and the remainder depends upon the entire estate and recompence recovered by the husband onely cannot inure to him who hath a remainder depending upon the undevided estate of the husband and wife and the joyn-tenancy cannot be severed by the judgement against the husband onely and though the husband hath all the inheritance yet because by no possibility it can be executed 't is all one as if the husband had a remainder depending upon an estate for life and then a common recovery shall not binde because not tenant to the Praecipe nor seised by force of the taile but tooke effect by Estoppell onely The issue may say his auncestor was not tenant tempore brevis and though here the husband survived the wife this is not materiall for the Law adjudges as 't was then Copledikes Case 44. of the Queene fo 5. C. And his wife were seised and to the heires males of the body of the husband the husband levies a Fine to A. B. recovers in a Writ of entry against A. who vouches the husband onely the wife living who vouches the common vouchee Resolved that this recovery shall binde the remainder for here was a lawfull tenant to the Praecipe and though the husband were onely vouched and not his wife who had a joynt estate with him yet the husband coming in as vouchee he came in in privity of the estate taile and not of another estate and the recovery in value gives recompence to the taile which
is insufficient for 't is incertaine whether it be in the necke arme or belly and Indictments ought to be certaine and shew in what part the wound is and the profundity and latitude that it may appeare to the Court to be mortall and one of the wounds incertainly alledged makes the whole Indictment insufficient 'T was said that the indictment ought to have been that if the party had 〈◊〉 dyed of the first stroke that he dyed of the other and this is the common course Upon a suddaine affray if the Constable or any of his assistants in suppressing it be killed 't is murder in Law though the murderer knew not the party killed for the Law adjudges it murder and that he had malice prepense for that he opposed him against justice So in case of a Sheriffe or any of his Bayliffs or Officers in execution of processe so of a Watchman Walkers case 41. of the Queene fo 41. REsolved that an indictment of murder upon which the party was outlawed that he stroke the dead in sinistra parte ventris circa umbelicum was good for sinistra parte was sufficient and the other superfluous but in Youngs before there was no certainty before the circiter Heydens case 28. of the Queene fo 41. EXceptions to the indictment 1. Because 't was taken before B. Coronatore in Com' praed ' and doth not say de com' praed Resolved it shall be so taken by reasonable intendment and the Writ de coronatore eligendo is quia A. B. nuper unus Coronator ' in Com' tuo diem clausit c. and so 't is taken in Willoughbyes case in Plodon 2 because he doth not say that E. S. dead fuit in pace Dei dominae reginae Resolved that they are only words of forme to amplifie the hainousnesse of the offence not of substance and perchance he was not in peace 3. Because he doth not say felonicè nor ex malitia sua praecogita dedit c. Resolved that the word et couples the sentences together so that these words felonicè ex malitia c. and tunc ibidem makes it cleare 4. The profundity of the wound is not shewne Resolved it cannot be here for all the panne of the knee was cut off 5. 'T is said tempore feloniae praed ' murdredi where it should be murdri Resolved the first words were sufficient and then murdredum being a word insensible is superfluous and shall not hurt 6. The wound was the fourth of August the death the nineteenth of December and the indictment is that T M c. tempore feloniae murdredi praed ' viz. 4. Augusti felonicè fuer ' praesentes c. auxiliantes c. 'T was objected that the death hath relation to the stroke Resolved that indictments have been often adjudged insufficient when the stroke is one day the death another and the Jury conclude the death to be done the first day But here it ought to have been that they were praesentes auxiliantes c. ad feloniam murd ' praed ' and relation which is a fiction shall make no man a felon And Wray said that without question the yeare of bringing the appeale shall be accounted from the death not from the stroke Hume against Ogle 32. 33. of the Queene fo 42. ADjudged that the count that the defendant gave the stroke the 27. of September at D. in the County of N. and that her husband of the same stroke at D. c. dyed and so the said defendant murdered him at D. aforesaid 't was repugnant and insufficient for as it cannot be said that he murdered him the first day as Heydons case is before so neither at the place where the stroke was but where he dyed Hudson and Lees case 31. of the Queene fo 43. IN an appeale H. counted that the defendant c. felonicè maimed him in his left hand the defendant pleaded that before c the plaintiffe recovered in Trespas for the same battery and wounding 200. l. and satisfaction acknowledged Resolved 〈◊〉 the barre is good for where the plaintiffe is to recover damage onely as in this case of the appeale 〈◊〉 shall not be twice satisfied for the same thing nem◠debet bis puniri pro uno delicto And here the wounding in the first action includes the mayhem more and the defendant hath averred that the wounding in the first action and the mayhem here is one Syers case 32. of the Queene fo 43. REsolved if the principall be pardoned or hath his Clergy the accessory cannot be arraigned for 't is a Maxime Vbi factum nullum ibi fortia nulla ubi non est principalis non potest esse accessorius and none can be principall before it be so adjudged by Law viz. by judgement upon verdict or confession or by Outlawry and it suffises not that in truth he be principall and the acceptance of pardon or prayer of Clergy is an argument but no judgement in Law that he is guilty But if the principall after attainder be pardoned or hath his Clergy the accessory shall be arraigned for it appeares judicially that there was a principall Bibithes case 39. of the Queene fo 43. REsolved that where the principall was found guilty of man-slaughter and not guilty of murder and had his Clergy the accessory shall be discharged for till judgement it doth not appeare judicially that there was a principall So if the principall upon his arraignment confesses the felony before judgement obteines pardon or hath Clergy Resolved that there cannot be an accessory before the fact in man-slaughter for 't is upon a suddaine affray and if premeditated 't is murder Vauxes case 33. of the Queene fo 44. REsolved that where a man was indicted for poysoning another perswading him that the potion mixt with Cantharides would cause him to have issue by his wife the indictment nesciens praed ' potum cum veneno fore mixtum sed fidem adhibens praed ' persuasioni dict' W. V. recepit bibit was insufficient for 't is not expressed that he received the poyson for venenum praed ' wants and the words after immediatè post receptionem veneni praed ' are not sufficient to maintaine an indictment which ought to be certaine and not by implication Resolved that Vaux who perswaded was a principall murderer though he was not present at the receit of the poyson and here he cannot be accessory for there is no principall and if any one had procured V. to doe it he had been accessory before which note a speciall case where principall and accessory both are absent at the time of the felony Resolved that auter foits acquite here is no plea for he was discharged upon an arraignement upon this insufficient indictment and the former acquittall or conviction ought to be lawfull and the Maxime is That the life of a man shall not be twice in jeopardy for one
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
Banco fol. 7. IF one be barred by plea to the Writte hee may have the same Writte againe if by plea to the action of the Writte he may have his right action If the plea be to the action and he be barred by Judgement upon demurrer confession or verdict in personall actions it is a barre for ever and in reall actions he is put to a Writte of higher nature as barre in assize barreth one in Entry in nature of an assize but he may have an assize of Mortdaumester c. But barre is not perpetuall if those who are barred have not the meere right therefore the heire in taile who is barred shall have the same action so of the successor of a Parson if he doth not pray in ayde of the Patron and Ordinary He who lost by default before the Statute of Westminster 2. cap. 4. was put to a Writte of right and if he could not have this Writte he was without remedy In case where a Writte of Entry in the post lyeth now no remedy was before the Statute of Marlebridge cap. 29. but a Writte of right See there divers inconveniences which insue upon the breach or alteration of the auncient and fundamentall rules of the Common Law Interest Reipublicae ut sit finis litium Where a Writte shall be brought by Journeys accounts Spencers case 45. Eliz. Com. Banco fol. 9. IF a formedon abate for undue summons the demandant may have another by Journeys accompts 1. Resol If a Writte abate by default of the demandant himselfe he shall not have another Writte by Journeys accompts otherwise it is if by default of the Clerke or Sheriffe as in this case If a Writte abate for nontenure of all he shall not have c. but if a Praecipe abate for non-tenure of parcell he shall have another so if it abate for joyntenancy of part of the demandant he shall not have a new Writte because he had notice otherwise it is of the part of the tenant And this Writte shall be alwayes betwixt the parties to the first Writte and of the same quantity of acres A Judiciall Writte shall never be sued by Journeys accompts because it shall never abate for forme 2. The second Writte is quasi a continuance of the first Writte therefore all pleas which relate to the purchase of the Writte shall be pleaded from the purchase of the first Writte and costs of the first Writte shall be recovered 32. E. 3. Journeys accompts 16. 15. dayes were allowed Jentlemans case 25. Eliz. concerning Judges of Courts fol. 11 IN the Hundred Courts the Sutors are Judges in the Court of Pypowders the Steward is Judge In a Leet the Steward is Judge In a Court Baron the Sutors which are by the common Law are Judges Rex sectatoribus Curiae c. Vobis mandamus c. ad judicium reddendum c. procedatis but in Redisseisin the Sheriffe is Judge by the Statute of Merton cap. 3. and in the Tourne Morrices case 27. Eliz. Com. Banco fol. 12. IT was adjudged that after the act of 28. H. 8. ca. 1. although joyntenants be compellable to make partition by Writte as well as Copartners yet they may not make partition by words as Copartners may doe by the common Law If two joyntenants make partition by Writte the warranty remaineth otherwise it is if it be by deed by Consent Cases of pardon 29. Eliz. fol. 13. BVrton Parson of Isbock in Leic was deprived Anno 12. El. for committing Adulterie and after by the generall pardon 2. Apr. 13. El. the offence of adulterie in t alia was pardoned before the 14. of February then last past And it was said that before the pardon that crimen adulterij praed transivit in rem judicatam and therefore the sentence should remaine in force And therefore untill the sentence were reversed the deprivation was in force But it was resolved that Burton by vertue of the said pardon is become Parson againe without any sentence declaring the said deprivation to be voyde For by the pardon the adultery which was the cause of the sentence is discharged and by consequence all that which did stand or depend upon the same foundation is also discharged vide 20. El. Dier A. was bound in a Statute of 20. li. to B. B. sued Execution and the Lands of A. were delivered in Execution and after B. maketh Defeasance to A. by Indenture that if A. doe pay to B. 8. li. at a certaine day that then the Statute to be voyde And it was adjudged that although the Statute was executed yet the Defeasance of the Statute was sufficient in Law to defeate as well the Statute as the Execution thereof For the Statute is the foundation of all and if that be defeated all that is builded on the same shall be defeated also 20. ass pla 7. Burglary was excepted out of the generall pardon of 28. Eliz. by that the attainder of burglary is excepted for the offence remaines after judgement and is the foundation of it Arundells case 36. Eliz. Banco Regis fol. 14. AN Inditement of murther in King-streete in W. and the visne from W. and it was vitious for it ought to be from the most certaine place that is the Parish for W. being a Citie it shall be intended that it is greater then the Parish and therefore a new Venire facias was awarded Treports case 36. El. Banco Regis fol. 14. A. Tenant for life remainder in fee to B. both by Deed indented joyne in a Lease to Treport the question was whether the same shall be adjudged in Law the Lease of both of them or not And it was resolved that it was the Lease of A. during his life and the confirmation of B. And after the death of A. it was the Lease of B. and the confirmation of A. and because the plaintiffe had declared of a joynt demise of A. and B. it was adjudged against the plaintiffe in an Ejectione firmae If tenant for life and he in remainder joyne in a Lease rendring rent tenant for life shall have the rent during his life Edens case 37. Eliz. Banco Regis fol. 15. RIens passa by Letters patents shall be tryed where the Land is not where the patent beares date for the Patent is not traversed but the effect of the issue is whether the Queene had the said Land to grant or not Colyers case 37. Eliz. Com. Banco fol. 16. ONe demiseth to his daughter for life and after to his brother paying 20. s. to J. S. the brother had fee for the summe to be paid by him for otherwise he may pay the 20. s. and die without satisfaction but if the payment be to be made out of the profits of the Land he shall have but for life for there he can be at no prejudice Wyldes case 41. Eliz. Banco Regis fol. 16. A Man deviseth Lands to the husband and the wife and to the children of their bodies
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
truth but J.H. a Commissioner for the Plaintiffe held him strictly to the Interr so as the truth could not appeare and this was holden by the Lord Chancellour and the two Chiefe Justices the Chiefe Baron and all the Court of Starre-Chamber a great Misdemeanour c. as the Statute of Exceter saith Per quod institia veritas suffocantur and Commissioners to examine ought to be indifferent and by all meanes to express the Truth And they are not bound strictly to the Letter of the Interr but to every thing also that ariseth necessarily for manifestation of the truth Also the said J. H. when he was in Examination of Peacock went forth of the place to the Plaintiffe being in another Roome and had secret conference with him And it was holden by all the Court that a Commissioner before publication of the depositions ought not to discover to any of the parties the matter thereof nor after that he beginneth to examine Interr to conferre with the parties to take new instructions to examine further then he knew before and if he did they were great misdemeanours and punishable by Fine and Imprisonment for if such things should be suffered perjury would abound I. H. was put forth of the Commission of the Peace and the Attourney generall was required to prefer an Information against him for the said misdemeanours Doctor Husseys Case 9. Jacobi fol. 71. IN Ravishment of Ward against a Feme Covert and others they were found guilty and the Baron Non culp and the Age of the Infant above sixteene and Married Foster and Warberton a Feme Covert is within the Statute because the Action lay at the common Law and the Statute gives but greater punishment and so shee is within the Statute of Merton cap. 6. De Malefactoribus in parcis of forcible entry and redesseissin Cooke and Walmsley to the contrary the Statute of Westm 2. c. 35. hath made these alterations this extends to Heires Females which the Statute of Merton did not 2. It extends to Heires Ravished after yeares of consent so doth not the Statute of Merton 3. It extends to the Clergy the Statute of M. doth not 4. M. giveth a light of Ward this giveth ravishment of Ward 5. This giveth more speedy processe and the death of the Plaintiffe or Defendant abateth not the Writ 6. It giveth greater punishment 2. A Feme Covert is not within this Statute for it is Si haeredem maritaverit satisfacere non potuerit abjuret regnum or be perpetually imprisoned and because the Law disableth the Feme to satisfy shee shall not therefore be exiled nor perpetually imprisoned and the Baron being innocent shall not be punished for the punishment is personall and he shall not have judgement at the Common Law the Action being brought upon the Statute nor judgement upon the Statute where the Action is brought at the Common Law 3. The Verdict is insufficient because no Case is within the Statute except the Ravishor marry the Infant so that if the Infant Marry himselfe or be Married by another it is out of the Statute and the Verdict found that he was Married and did not say by whom 4. Damages shall be recovered upon this Statute and where the Statute saith that he shall be banished or perpetually imprisoned the Election is in the Court Combes Case 9. Jacobi fol. 75. Vpon a speciall Verdict A Copy-holder in fee where there is no custome to that purpose maketh two his Attorneys to surrender to the use of I. N. in fee they in Court shew the Letter of Attorney and by the said Letter of Attorney surrender 1. Resolved surrender by Letter of Attorney is good for a surrender may be by the common Law without custome and may be by Attorney as incident to it If one have a bare authority coupled with a confidence he cannot doe it by Attorney as Executors cannot sell by Attorney but if he had authority to dispose as owner of the Land he may as Cestuy que use by the Statute of 1. R. 3. but if one had particular personall power to dispose as owner of the Land he cannot doe it by Attorney as if Lessee for life had power to make Leases for 21. yeares There are personall things which cannot be done by Attorney as homage Fealty beating his Villeine admittance of him to whose use the surrender is made may be by Attorney if the Lord will and yet he may upon the admittance compell the Tenant to doe fealty A fortiori here and otherwise it would be a mischiefe for it may be he is beyond the Sea or sick and cannot be present to surrender for payment of his debts or preferment of his Children but if a custome be that an Infant may make a feoffement at 15. yeares he cannot doe it by attorney 2. The Attorneys have pursued their authority although they have not done it in the name of the Authorizor for they did shew the Letter of Attorney and surrendered by authority thereof which is all one but if it be to make a Lease by Indenture this shall be in the name of him who gave the authority but Executors must sell Land in their owne name for necessity and yet the Vendee is in by the Devisor Henry Peytoes Case 9. Jacobi Com. banco IT was resolved Per tot curiam that accord in all Actions wherein is supposed the Tort to be made Vi armis where cap. and the exigent lyeth at the Common Law is a good plea as in Trespasse and Ejectione firmae detinue of Charters house or other goods for where the certainty is to be recovered an Action is a good plea when the condition in a Deede by the Originall contracts of the parties is to pay money yet by accord and agreement betweene the parties any other thing may be given in satisfaction of the money Res per pecuniam estimatur non pecuniae per rem And in this sense the saying is true Quod pecuniae obediunt omnia Every Accord ought to be plaine perfect and compleat for if diverse things are to be observed and performed by the accord the performance of part is not sufficient 17. E. 4. 2. 6. H. 7. 10. Pl. com 5. If a man be bound in an Obligation in one hundred Quarters of Wheate upon condition to pay 58. Quarters he cannot give money or other thing in satisfaction thereof because the contract Originally was not for money but for a collaterall thing Also if the things to be performed be at a day to come tender and refusall is not sufficient without actuall satisfaction and acceptance If a man be bound in a Statute Recognizance or Obligation and after a defeasance is made to pay a lesse Summe now this Summe in the defeasance is collaterall and therefore if the Obligor render the same at the day and it be refused the Obligee shall loose the same for ever as is holden in 33. H. 6. fol. 2. and yet
them and after Judgement was given for the Plaintiffs Whistlers Case 10. Jacobi fol. 62. Vpon a speciall Verdict BEfore the Statute of Praerogativa Regis cap. 15. by the grant of the King of a Mannor all appendants without naming them passe and the Statute excepteth Knights Fees Advowsons and Indowments but all other appendants now passe without naming them and so doe Advowsons passe in case of restitution for the Statute speaketh of Grants and in Grants also without expresse mention by the words Adeo plené integré c. See other good matter there touching this Subject The Church Wardens Case of Saint Saviours in Southwark fol. 66. QUeene Elizabeth leased the rectory to the Church-Wardens of St S. for 21. yeares and after leased to them for 50. yeares in consideration of the payment of 20. l. and surrender of the Letters Patents by the Church-Wardens Modo habentes ad presens possidentes and the speciall Verdict found that they paid the 20. l. and that they delivered the Charter in Court to be cancell'd and that they paid the Fees but that no Vacat was made yet the grant is good for it appeares that the intent was not to make a surrender in deed because he saith Modo possidentes but a surrender in Law by acceptance of the second Letters Patents and although a Corporation cannot make a surrender in deed yet they may make a surrender in Law 2. Although an actuall surrender is requisit they have done all which belongs to them by delivery of the Chartar and payment of the fees and the Cancelling belongs to the Court. 3. Although it was recited that 20. l. was paid yet it needs not to be found for it is but in the personalty and is affirmed by the King to be paid and is also executed See Barwicks Case 5. Report 93. The Case of the Marshalsea 10. Jacobi fol. 68. In false Imprisonment AN Action upon the Case upon an assumpsit is brought in the Marshalsea whereas no party was of the Kings House the Plaintiffe recovered the Defendants arrested the Plaintiffe by a precept in the nature of a Capias ad satisfaciendum and he brings false Imprisonment and judgement given against the Defendants 1. Resolved the Steward and Marshall at the Common Law hath two Authorities One generall as Vicegerents of the Chiefe Justice in his absence within the Verge Another as Judges of the Marshalsea This last was limitted to Debt and Covenant where both are of the House and to trespasse Vi armis where one is but not if it concerne Land and because they have the generall authority at will and the other for life they draw many cases to the Marshalsea which ought to be in other Courts Their Jurisdiction by Fleta Lib. 2. cap. 2. Infra metas hospitij continentes 12. Leucas in circuitu And the Statute of 13. R. 2. c. 3. limits the 12. miles to be accounted about the Kings Tonnell 2. The reasons wherefore this speciall authority was given them were 1. Because the Suite there is by Bill by reason of their Priviledge which cannot be elsewhere 2. In respect of the necessity of attendance of the Kings Servants 3. If Strangers shall be suffered to sue there one Carman would sue another Carman there In aula Regis which were undecent but the generall authority vanished by the Act of 28. E. 1. c. 5. which Ordained that the Chancellour and Justices of the King should follow him therefore in Praesentia Majoris cessat c. and about 4. E. 3. the Court of K. Bench became Resident 3. The Statute of Articuli super Chartas is as much as an explanation of the great Charter and the Charter of the Forrest and not introductory of a new Law and the third Chapter of that act explaines the Jurisdiction of the Marshalsea as before and if he hold plea otherwise a prohibition lyeth and the party shall have an Action upon the Case as a consequent upon the Statute 4. That part of the Statute which giveth them Jurisdiction in trespasse shall be intended trespasse Vi armis 5. This action lyeth against the Defendants because the Court had not Jurisdiction and so have not done it by command of the Judge otherwise if the Court had Jurisdiction but proceedeth Inverso ordine or erroneously as if a Capias be awarded against an Earle c. one who is Indicted before Justices of the Peace cannot approve 1. Because he cannot assigne a Coroner 2. Because it is out of their Commission if a Court Leete be holden at another day then it ought to be the proceeding is Coram non judice otherwise it is of a Court Baron 6. R. 2. Action upon the Statute Plac. ultimo in the point that judgement in the Marshalsea when none of the parties is of the K. house may be avoided by plea without any Writ of Error which proveth that it is void Leonard Loveis Case 11. Jacobi fol. 78. In ejectione firmae for 8. acres c. L. L. seised of diverse Mannors in socage and in chivalry In Capite maketh a feoffement to diverse uses in an Indenture precedent whereby he limits to himselfe for life without impeachment of wast and to the use of his Lessees and devisees the remainder to his second Sonne in taile c. the reversion to himselfe with power of revocation after he purchaseth 8. acres in socage and revoketh as to certaine Mannors holden in socage and deviseth them and the 8. acres to his Eldest Sonne and the heires Males of his body for 500. yeares provided that if he alien otherwise then for yeares determinable upon the deaths of three persons or lesse number rendring the old rent or die without issue Male then to his second Sonne in taile with proviso to make Leases according to 32. H. 8. onely L.L. dyeth the Eldest Sonne enters into the 8. acres and dyeth leaving one Daughter who Marrieth R.D. who enters into the 8. acres c. second Sonne dyeth having L. L. who enters upon R. D. and leaseth to the Plaintiffe who enters upon whom the Defendant enters and ejecteth c. and if the entry of L L. the Lessor was congeable or not was the Question and it was adjudged that his entry was not lawfull and judgement was given against the Plaintiffe in this Case diverse points resolved some at the common Law and some upon 32 and 34. H. 8. of Wills 1. Resolv if a man seised of three acres of equall value one holden in Capite and giveth that and one of the other to his younger Sonne in taile he cannot devise any part of the third Acre because he had executed his power and if he purchase other Land in socage he can devise but two parts of that by reason of his reversion in Capite expectant upon the estate taile Object that the K. was once satisfied of the wardship by the Statute in respect of the Acre holden and the reversion thereupon shall not hinder the
devise of Land purchased after 2. The statute doth not regard this seck reversion but inheritances of annuall value Resp To the first that this reversion shall hinder the devise by the words of the Statute for he had a reversion of Lands holden but although the Statute saith that he may alien two parts by act executed or will if he alien to one of the three uses by act executed he may devise the reversion for the Statute is to be intended of an intire Alienation and where the Statute saith in reversion or remainder it is to be intended that the devisor be seised of such a remainder which drawes wardship To the second it was answered that things which of their nature are seck are out of the Statute but not things which of their nature are of annuall value but are not of value in respect of some Lease or gift Absque abliquo inde reddendo and therefore seck reversions are devisable by the said Statutes but if they be not yet they shall hinder the devises of other Lands To make one able to devise by those Statutes the time of Having Holding and disposing must concurre and therefore if a grant to the second Sonne here had beene in fee although with power of revocation the devise had been good because he had no Lands In Capite at the time of the devise if the Father conveyeth his Land to the use of his younger Sonne the eldest being within age after the death of his Father he shall be in ward although nothing discend A true Child and not in reputation is within the Statute and if the Sonne purchase Land Bona fide of his Father this is out of the Statute because it is not for his advancement If Tenant in socage devise and after purchase Land in Chivalry the devise is void for a third part but if Tenant in Chivalry and socage devise all and after aliens the Land holden this is good To make division that the King shall have a third part holden the Lands shall be taken according to their value at the time of the death of the Devisor The time of provision that a third part must discend needs not concurre with the time of alienation but it is sufficient that he had it at the time of his death The estate to any of the three purposes ought to continue to the time of death and the Tenure must till after death to make it within the Statute and the estate also of Lands holden ought to continue after death therefore if Tenant in taile in Capite devise socage Land and dye without issue this is good so privity must continue after death therefore if he who made the conveyance be attainted this is out of the Statute The uses to the second Sonne are in contingency and not executed by 27. H. 8. by the power to make Leases and devise reserved to the feoffor and therefore the fee is in the feoffor in the meane time so that having disposed of it and being seised of it he cannot devise the Land purchased after It was Objected that the Statute saith lawfully executed in his life but here no use was to be executed in the second Sonne untill after his death It was Answered that after his death the uses were derived out of the feoffement and so are as it were executed in his life It was holden by the Chiefe Justice that the remainder to the second Sonne is contingent in regard no alienation is found to be made by the Eldest and if there had been then it would be repugnant that after alienation the Land should remaine to the second Sonne and so Quacunq via data the remainder as this Case is cannot vest in him but this point was not resolved by the Court. 2. The revocation is good although the Indenture precedeth the feoffement and that the uses are in contingency and that the revocation is but in part and the Chiefe Justice held that the Eldest Sonne had but a terme determinable and the second an estate taile But in this the Kings Bench and Common pleas differ in Opinion and that if Lands be devised to one and the Heires of his body for 500. yeares the Executors shall have it and not the Heire and the devisee may alien it for it cannot be intailed and so in Peacocks Case 28. Eliz. Banco Regis was it resolved Doctor Leyfields Case 8. Jacobi fol. 88. in Trespasse IN Trespasse for Corne taken at O. C. the Defendant pleads that Q. Eliz. granted the Rectory of O. C. to C. P. without shewing the Letters Patents who demised to G. P. for 8. yeares if the said C. P. so long live and that he as servant of G. P. tooke the Corne and avers the life of C. the Plaintiffe demurreth because the plea amounteth to the generall issue and it was adjudged in the K. Bench that the barre was insufficient because the Defendant shewed not the Letters Patents and Error was brought in the Exchequer-Chamber because the plea amounts to the generall issue because the Defendant gave no colour wherein judgement ought not to be given against the Defendant but onely to answer over 2. Because he is not bound to shew the Letters Patents It was answered that colour shall not be given for colour shall not be given where the plea goeth to the barre of the right for it would be in vaine to give colour of right and to barre him if he had right as if a collaterall warranty fine Statute be pleaded or if he claimes by a waife otherwise where he pleads a discent for this doth not barre the right but the possession he who claimes by sale in a Market overt shall not give colour if he pleads generally but if he pleads that I. S. was possessed as of his owne goods and sold them in a Market overt or waived them there he shall give colour because he confesseth no interest in the Plaintiffe 2. If the Defendant claimes by the Plaintiffe he shall not give colour 3. If the plea be to the Writ or action of the Writ no colour shall be given 4. Colour shall not be given in case of Tithes for to whomsoever the Lands belong the Tithes belong to the Parson 1. Colour ought to be a doubt to the Laygents 2. It must have continuance 3. It must be such a colour that if it be effectuall will maintaine the Action 4. It ought to be given by the first conveyance 2. Resolved Lessee for yeares of Lessee for life of the K. must shew the Letters Patents for he who is privy in estate or interest or who justifieth in right of a Party or privy although he claime but part must shew the first deed and the reason that deeds are shewed to the Court is that the Judges and Jury that which respectively to them belongs shall judge of the sufficiency thereof therefore a deed shall not be suffered to be given in evidence by Witnesses or Copy except it be burned
or some such inconvenience but a Copy of a record is good evidence if a release be made to Tenant for life this inureth to the reversioner yet he cannot pleade it without shewing a Fortiori here because the Lessee may contract with the Lessor to suffer him to have the deed to shew but Strangers who claime not the thing granted nor interest out of it need not to shew the deed otherwise if he claimes the thing granted or interest out of it Ergo the second grantee of a rent charge must shew the first grant but he who claimes as Gardian or meerly by the Law without privity or power of providing the deed need not to shew it But Tenant by the courtesie must shew it because the deed was in his power living the Wife otherwise of Tenant by Statute c. 3. The not shewing of the deed is matter of substance therefore judgement shall be given against the Plaintiffe in the Writ of Error although it was not shewed as Cause of Demurrer And judgement was affirmed Nota when a plea amounts to a generall issue if the Plaintiffe demurre specially upon 27. Eliz. and the Defendant joyne judgement shall be given for the Plaintiffe Edward Seymors Case 10. Jacobi fol. 95. THe Lord Cheyny Tenant in taile the remainder in taile to I. C. the reversion to the Lord C. bargaines and sells and levyes a fine to the bargainee with warranty to him and his Heires the bargainee nfeoffeth the Lord S. who infeoffeth E. S. I. C. dyes having issue T. the Lord C. dyeth without issue Edward Lord S. leaseth to the Plaintiffe the Defendant by the command of T. ejected him and judgement was given for the Defendant and affirmed in Error 1. Resolved the bargainee had an estate discendible during the life of the bargainor whereof his Wife shall have Dower and also the reversion in fee expectant upon the remainder in taile 2. The fine after bargaine and sale is not discontinuance of the remainder for this operates upon the estate passed by bargaine and sale and corroborateth that and maketh it determinable onely upon the death of the bargainor without issue otherwise if the fine had preceded the bargaine and sale 3. It was Objected that the feoffement of the bargainee displaceth the remainder so that the warranty which discends upon him barreth him But resolv that the warranty doth not bind him 1. Because it was annexed to an estate determinable by the death of Tenant in taile without issue and to the reversion in fee granted by bargaine and sale and fine and not to the remainder in taile and the Conisee by his owne Act cannot make it to extend any further therefore the estate taile being determined the warranty ceaseth 2. A warranty barreth not an estate which is not displaced at the time of the warranty annexed as if the Father maketh a feoffement of Land out of which his Sonne hath a rent with warranty this binds not the Sonne as to the rent 3. The feoffement was lawfull because he had fee therefore he cannot make discontinuance 4. A warranty cannot enlarge an estate the remainder in taile to I. C. was not discontinued for the feoffor was not then seised by force of the taile 5. A collaterall warranty may be given in evidence if it be not pleaded for although it giveth not a right yet it barreth anothers right and the rather in an Ejectione firmae and other personall actions because in them it cannot be pleaded by way of barre Note there are some Titles to which a warranty extendeth not as in case of Mortgage Mortmaine consent to a Ravishor for in these cases no Action lyeth in which Voucher or Rebutter can be neither shall a discent take away an entry Bewfages Case 10 Jacobi Common Pleas. fol. 99. THe Sheriffe upon a Fieri facias executed did take an Obligation of the Defendant to pay the money in Court at the returne of the Writ and this was adjudged good notwithstanding the Statute of 23. H. 6. Before this Statute the Sheriffe could not let any person to baile which was taken Ad respondend as may appeare Fitz. Na. br 25. a b. and in 34. Eliz. in Debt by Dawson Sheriffe of B. against Burnam upon an Obligation the Defendant pleaded the Statute 23. H. 6. and shewed that one K. recovered Debt and damages against him and pursued one Writ of Fieri facias against him directed to the Sheriffe of B. and that he made the Obligation to the Plaintiffe for the Execution and that the Obligation was void by the Statute whereupon the Plaintiffe demurred and it was resolved First that the Obligation was not within the Statute because that the Statute extended onely to such Obligations which any who is in their ward did make unto him Secondly that the same Obligation was not void at the Common Law whereupon the Plaintiffe had judgment and another judgement 28 El. Inter Burwey Kett upon an Obligation taken by the Sheriffe Pro solutione pecuniae debitae dominae reginae upon extent out of the Exchequer Now it is said in the later clause of the Act that if any of the Sheriffs or other Officers or Ministers aforesaid take any Obligation in other forme by colour of their Offices that it should be void c. There are two manner of formes Viz. Forma verbalis forma legalis for Verbalis stands upon the Letters and Sillables of the Act Forma legalis is Forma essentialis and stands upon the substance of the thing to be done and upon the sence of the Statute Quia notitia ramorum hujus Statuti non in sermonum folijs sed in rationis radice posita est and according to this distinction this Branch of this Statute is to be expounded and therefore in 37. H. 6. 1. If the Sheriffe take a single Obligation of one in his ward that was bailable this was void for this Obligation wants essentiall forme prescribed by the Statute for the condition prescribes the fault which is part of the substance And there Moyle said that if the Sheriffe let one to Baile or Mainprise that is excepted in the Statute and not mainpernable and take a simple Obligation that the same is void Quod alij Justiciarij concesserunt for by the exception it appeareth that it was not the intention of the Statute that such should be let to Baile and therefore the Obligation is taken in another sence then the Statute intends And it seemeth to me that as well in the same Case of 37. H. 6. as in the principall Case of Dive and Manningham plow 67. the Obligation which hath the condition to save the Sheriffe harmelesse when the Sheriffe against the Law letteth one to Baile who is not Baileable is against the Law and void by the Common Law And with this accordeth William Wishams Case 15. Eliz. Dyer 324. in 7. E. 4. One was in custody of the Sheriffe by force of a Capias upon an
Indictment of the Trespasse and the party maketh the Obligation to another by the direction of the Sheriffe upon this condition as the Statute prescribes for the suerty of the Sheriffe c. and there it is holden that the Obligation is void because the Statute prescribes that the Obligation shall be made to the Sheriffe and that is part of the essentiall forme and so if the Sheriffe add to the condition that he shall be kept harmelesse against the King and the Plaintiffe c. this is void so if a Gaoler or a Sheriffe take an Obligation of the person with condition to be true Prisoner or to pay for his meat and drinke So if the Sheriffe add any other thing to the matter prescribed by the Statute as to pay such a Sum of money for a Horse c. This condition maketh all the Obligation void for it is taken in another forme touching the substance of the matter then is prescribed by the Statute but in Pasche 27. Eliz. in the Kings Bench in an Action of Debt brought by Sir William Drury late Sheriffe of Suffolke upon an Obligation of 20. l. against A. B. it appeared that the Defendant was solely bound in the same and with condition that one Moore who the Sheriffe had arrested upon a Latitat should appeare in person at the day contained in the Writ the Defendant pleaded the Statute 23. H. 6. and that the obligation was made in other forme then is mentioned in the Statute whereupon the Plaintiffe demurred in Law and it was Objected that there were 3. variances from the Statute Viz. one in the Obligation and two in the condition First in the Obligation for that there was but one surety and the Statute prescribes reasonable surety of sufficient persons in the Plurall number having sufficient within the said County c. in which case there ought to be two Sureties at the least and the Plurall number cannot be satisfied with the Singular number and so contrary to the words of the Statute And so was the Opinion of Mountegue Chiefe Justice of the common Place in the Case of Dive and Manningham Also in the condition that the Prisoner should appeare in person where the words of the Statute are that he should appeare generally without these words in person 2. That he should appeare at the day c. Ad respondendum where these words Ad respondendum are more then the Statute prescribes and therefore the Obligation is void c. but it was resolved by Sir Christopher Wray Sir Thomas Gaudy and all the Court that the Obligation was not void by the said Act. For to the first The words reasonable surety of sufficient persons are added for the surety of the Sheriffe and therefore if he will but take one surety be it at his perill for he shall be amerced if the Defendants appeare not and therefore the Statute doth not make void the Obligation in this Case for the same Branch that requires the forme requires also that the Obligation shall be made to the Sheriffe himselfe by the name of his Office and that the Prisoners should appeare in which clause no mention is made of the sureties so as the intent of the Act was that in so much as it was at the perill of the Sheriffe to leave to his discretion to take one or more for his indemnity and although the sureties have not sufficient within the same County as the Statute mentioneth yet the Obligation is good For these words of the Act as to this point are more for councell or direction of the Sheriffe then for precept or constraint to him and that for the safety of the Sheriffe for if the Defendant cannot find two sufficient persons having sufficient within the same County the Sheriffe is not bound to let him to Baile and this resolution agreeth with the ancient rule Quilibet potest reminutiare juri per se introducto And as concerning the second Additions to the condition of the said Obligation more then is in the Statute It was resolved that true it is there is a Verball difference of the forme prescribed by the Statute but not in the substance and effect for he that is so letten to Baile ought to appeare in person for so much is implyed in the words of the Act shall appeare and by the common Law every Tenant or Defendant ought to appeare in propper person and with this accordeth Fitz. Na. br 25. and he that ought to appeare ought to appeare Ad respondend parum differunt quae re concordant est ipsorum legistlatorum tanquam viva vox rebus non verbis legem imponere vide Dier 21. Eliz. 364. where the condition was in the conjunctive appeare and answer and yet the obligation good 27. Eliz. in Darby Hethcot if a Gaoler or Sheriffe for ease or inlargement of any Prisoner take promise to save him harmelesse that although the Statute speaketh onely of Obligations with condition yet it is an equall mischiefe And Wray Chiefe Justice said that the Statute should serve for small or nothing if the premises should not be taken to be within the Statute and the latter clause is generall Viz. If the Sheriffe take any Obligation in the other forme that it shall be void and within the equity of these words any Obligation an assumpsit is comprehended for the ancient Verses are Verba ligant homines taurorum cornua bones Cornu bos capitur voce ligatur homo Quando verba Statuti sunt specialia ratio autem generalis generaliter Statutum est intelligendum It was said that the Assumpsit did not bind the Prisoner at the common Law because the consideration was against the Law vide Dyer 19. Eliz. Oneleys Case Alfridus Denbawds Case 10. Jacobi fol. 102. In Error ONe Jury onely appeared at the Assizes to try an Issue in Trespasse a Tales de circumstantibus is awarded at the Prayer of the Plaintiffe the title of which was Nomina decem Talium and verdict and judgement was given against the Defendant who brings Error It was Objected 1. That the judgement was erroneous for the Title being Nomina 10. Talium the Sheriffe cannot returne 11. 2. Because the Statute speaketh with those persons that were before impannelled which cannot be satisfied where one onely appeareth as the Statute of Westm 2. c. 11. is not satisfied with one Auditor so of the Statute of Merton c 3. of Redisseisin It was resolved that the Tales was well awarded for the Statute shall be taken beneficially in favour of speedy Trialls and the title is the misprision of the Shetiffe which shall be amended The time of granting the Tales is when so many of the Jurors make default that the inquest cannot be taken if two of the principall pannell appeare and at the Prayer of the Plaintffe 12. de Circumstant are returned and then the two principalls are withdrawne now the triall shall be all by the 12. de circumstant but
inqure of the value if they finde for the Plaintiffe as in an Assize if issue be joyned upon a release and found for the Plaintiffe yet the recognitors must inquire of the seisin and disseisin and this defect shall not be supplyed with a Writ of inquiry because then the Defendant would be prevented of his Writ of attaint But if the Court ought to inquire of things whereof no attaint lyeth this being but of Office it may be supplyed by a Writ of inquiry as the foure points in a Quare impedit Viz. De plenitudine ex cujus praesentatione si tempus semestre transierit and the value of the Church per annum and in the case at Barr by the rule of the Court a new Venire facias was awarded The Case of the Maior and Burgesses of Lynn Regis touching misnaming of Corporations 11. Jacobi fol. 122. Communi Banco H. 8. in the 29. yeare of his Reigne did incorporate that Towne by the name of Majoris Burgensium burgi domini Regis de Lynn Regis and one made an Obligation to them by the name of Maior and Burgesses of Lynn Regis omitting these words Burgi Regis this is good because it is the same name in substance and doth not vary in materiall words and though it be not Idem nomen sillabis yet it is Re sensu for Burgesses that implyes it is a Burrough for Burroughs and Burgesses are conjugata and by Lynn Regis it appeares that it is Burgus suus i. Regis a fortiori because there is no other Corporation of the same name Apices juris non sunt jura there may be a difference betweene ancient Corporations and new for ancient Corporations may by usage have severall names and the Maior and Burgesses notwithstanding Non est factum pleaded had judgment to recover William Cluns Case 11. Jacobi fol. 127. Banco Regis A Lease for yeares if the Lessor should so long live rendring Rent at the foure Feasts or within thirteen weeks after after one of the Feasts the Lessor dyeth and before the thirteene weekes be past the Executor brings debt against the Lessee and the Defendant demurreth upon the Count and it was adjudged a good demurrer and that the action did not lye 1. Because the disjun ive is added for the benefit of the Lessee and the first day was but for voluntary payment but the legall time of payment was the end of the thirteene weeks before which when the Lessor dyeth the Lessee is discharged by act of God for that Quarter if Lessee before the day pay the Rent this is voluntary and not satisfactory but it is good to give seisin if payment be in the morning and the Lessor dyeth at noon this is voluntary and satisfactory against the heire but not against the King Payment the last instant of the day is satisfactory and after the day it is coercive and satisfactory 2. When the first day is past it is as if the Rent had been onely reserved the second day for the election is good 3. The rent is to he payd out of the profits of the Land Ergo in regard of time it shall not be apportioned and if the Lessor dye betwixt the first day and the last day his heire and not the Executor shall have the rent because it was not then due if a man lease for yeares rendring Rent at M. or within a moneth after with a condition of re-entry and the Lessee tenders it at the last instant of M. the Lessor shall not re-enter upon demand the last day of the moneth because the Lessee had liberty to pay it then and the difference was taken betwixt the sayd disjunctive Reservation and when the reservation is at a certaine Feast and a condition is added that if it be arrere by the space of a moneth after the Feast that then the Lessor c. there the Lessee for salvation of his Lease cannot tender it at the last instant of the Feast because he had no such liberty as in the other Case A Lease for yeares rendring Rent at M. or within twelve dayes after upon condition to re-enter if it be arreare by the space of twelve dayes after any of the sayd Feasts or dayes the Lessee shall have twenty foure dayes in safegard of his Lease after the Feast of M. and in the Case at Barr judgement given Quod quaerens nil capiat per billam James Osbornes Case 11. Jacobi fol. 130. Banco Regis IN an action upon the Case for that the Plaintiffe had bought of the Defendant diverse goods which he refused to deliver whereof one was unum fulchrum lecti Anglice a Feild Bedstead with a Testerne and Curtaines of Saye the Plaintiffe recovers and damages assessed intirely where none ought to be given for the Testerne c. for Fulchrum signifieth a Bedstead onely upon errour brought therefore judgement was affirmed for one thing onely is here put in issue for the other things are not alleadged Positive sed expositive and are nugation but when two things are put in issue or Obliqué inquired of by the Jury there it is not good and it shall not be intended that damages were given for that onely for which the action was brought but in an action upon the Case for words spoken at one time whereof some are actionable and some not there damages may be assessed intirely and shall be intended to be given for the words actionable onely 1. Because the Plaintiffe must declare as the words were 2. Because the words not actionable aggravate the damages otherwise if spoken at severall times but here damages shall be intended to be for that which is actionable onely and the rest as if never alleadged and in Writs or Pleas English words are not admitted by 36. E. 3. cap. 15. except they be parcell of a name as Jo. in the Hall 2. words which passe under the name of Latine are 1. Good Grammaticall Latine 2. Words significant in Law and not in Grammar 3. Incongruous Latine which doth not vitiate a Plea or Grant nor judiciall Writ 4. Words insensible having no countenance of Latine and are rejected but fained words as Velnetum Stapedia c. are good Read and Redmans Case 10. Jacobi fol. 134. THe Defendant in debt brought by two Executors pleads the death of him who was summoned and severed Resolved The Writ shall not abate if two purchase an originall reall action and one dyeth pending the Writ this shall abate in all as in case of joyntenants or parceners where one dyeth having issue or no issue because that shee may have a Writ for the whole and shall not recover a moity and one shall not recover upon a false reall Writ or unapt for his Case in respect hee may have an apt Writ although it happen after by act of God but if two purchase a judicial Writ and one is summoned and severed and dyes without issue the Writ shal not abate the same law where jointenants
a Stranger be not in another part of the House but this was before 39. Eliz. cap. 15. whereby clergy is taken away without putting any feare if he rob any man of above the value of five shillings Accessory before in robbing a House in the day is ousted of Clergy by 4. 5. Phiâ— Mary Accessory in robbing a Booth in the night or day or out House upon 39. Eliz. shall have his Clergy Nota Although a Statute takes away Clergy from the principall yet the accessory before or after shall have it and where by statute for any offence a man is ousted of his Clergy the indictment must containe the offence with the circumstances in the Statute Dyer 99. and 183. And A. P. was ordered to be hanged in Chaines c. Metcalfs Case 12. Jacobi fol. 38. In Accompt IUdgement is given against M. Quod computet ideo in misericordia quia prius non computavit and before finall Judgement Error is brought 1. Resol It lyeth not 1. Because the Writ of Error saith Si juditium inde redditum sit which shall be intended of the principall Judgement as the Feast of St. M. shall be intended the principall Feast and the Feme shall be received upon default of her Baron after judgement of admeasurement before the principall judgement 2. It shall be intended an intire judgement therfore in an action against two if one plead to the issue and the other confesseth and judgement given against him he shall not have error before the Plea determined against the other for otherwise there would be a failer of right for the Kings Bench cannot proceed upon the Record nor the Common place because it is removed 3. The first judgement is not ad grave damnum for by that he looseth nothing but judgement of the arrearages and damages is the end of the originall 4. This is not properly a Judgement but an Award of the Court as ouster of ayde in partitione facienda an awarde quod partitio fiat c. which are but interlocutory and not definitive 5. They have day by the Roll untill the last judgment but if a Felon dye after the exigent awarded and before attainder a Writ of Error lyeth for necessity for otherwise his goods are forfeited by awarding of the exigent without remedy if diverse are sued by severall Praecipes and Judgement given against one he shall have error before judgement given against the other and if error be in the originall the tenor onely shall be certified for otherwise the Court cannot proceede against the others 2. It was Resolved That the Record is not removed because untill finall Judgement be given the Chiefe Justice of the Common place hath no authority to send it and they may proceed notwithstanding the Roll be marked Mittitur Richard Godfreys Case 12. Jacobi fol. 42. TWelve chiefe pledges according to the custome of the Mannor to present at the Leet that every one of themselves ought to pay for themselves 10 s. pro certo letae the Stewart imposeth a Fine of 6 l. upon them the Lord distreineth for the Fine and certainty of Leet one of the pledges brings Replevin and judgement was given for the Plaintiffe 1. Resol The Fine is not well assessed for it ought to be severall and not joynt as it is because the offence is severall and although that the offence be joynt yet the Fine shall be severall as in disseisin and trespasse But for the incertainty of the persons and infinitenesse of the number many may be fined together as a Towne for the escape of a Felon and the reasonablenesse and excessivenesse of the Fine shall be determined by the Judges Excessus in re qualibet jure reprobatur communi as excessive distresse excessive ayde and excessive amerciament are against the Common Law 2. If the Fine be imposed erroneously it may be avoyded by Plea for he had no other remedy 3. The Lord cannot distraine pro certo Letae without prescription because it is against common right but he may for a Fine or amercement but for an amercement in a Court Baron the Lord must prescribe a Fine because it is assessed by the Court needs not to be affered but an amercement must be affered by the Countrey 4 Admitting that he may distraine pro certo Letae he shall have a returne although hee had not cause to distraine for the Fine for where one brings an Action for two things and it will not lie for one of them it shall abate onely for that if he cannot have a better action for it but if he may it shall abate for the whole as in a Formedon of Land and of an advowson the Writ shall stand for the Land so if a man avow for diverse Rents arreare and it appeareth that parcell is not yet due yet the avowry is good for the residue but if a man bring a Writ of Entry in nature of an Assize of two Acres where it appeareth that for one Acre he ought to have a Writ of Entry in the per there all shall abate for this extends not to the action but to the Writ onely Richard Lifords Case 12. Jacobi fol 46. IN trespasse the Defendant pleads that J. L. was seized in fee and demised to T. S. and M. P. excepting Trees above twenty one yeares growth if not decayed for their lives and covenanted to stand seized de tenementis predictis cum pertinentijs superius dimissis to the use of R. L. in taile c. and the Defendant as Servant to the sayd R. L. entered and sold Trees and Judgement was given against the Plaintiffe 1. Resol That the Trees notwithstanding the exception remaine parcell of the inheritance and are not Chattels but shall descend to the Heire for the Law doth not favour severance of the Trees from the Land therefore if one bargaine and sell Land upon which there are Trees they shall not passe without inrolement 2. If there had not been such an exception the generall interest of them is in the Lessor and the Lessee had but a particular interest in them and the Lessor may sell them without license of the Lessee to take effect after the Lease determined and tithes shall not be payd for them because they are parcell of the inheritance 2. By the exception of them the soile is not excepted but onely so much as sustaineth the Tree and if he by licence of the lessee root them up the lessee shall have the soile but by exception of Wood the Land it selfe is excepted if an Acre or an advowson be severed from the Mannor by exception upon a Lease for life it shall not be parcell of the Mannor againe otherwise of trees for they were not severed in facto because they grow out of the Land 3. A thing in possession cannot be parcell of a reversion upon an estate for life but Trees which grow out of the Land and Fish or Deer in the Land may and shall passe with it
rent for though it be parcell of the grange and A. and F. have the reversion of the terme and so it may be said in their tenure yet for that A. then had not H. in his occupation 't is not charged Resolved that the lessee at will is chargeable by 32. H. 8. ca ' 37. for where things are due in right and become remedilesse by the act of God the Parliament which gives remedy for this shall be favourably construed and extend to advance the remedy proportionably to the defect of the Law according to the mind of the makers and therefore the Feoffee of the Feoffee in infinitum shall be charged for otherwise the Statute shall be in vaine c. Resolved if the grantee in fee or for life of a rent service or charge after 't is arreare grants over the tenant attournes the grantor dyes his Executors are not within the Statute for by the grant the arrerages are lost and were not due to the testator tempore mortis as the Statute speakes and after the grant the testator could not distraine for the arrerages and the act gives remedy onely where the arrerages are due and become remedilesse by the act of God Sharpe and Pooles case 17. of the Queene a rent was granted to a woman for life 't is arreare she takes husband 't is arreare the wife dyes the husband brings debt against the heire being terrtenant for all arrerages Resolved that for the arrerages before the marriage he had no remedy at common Law but for the other he had debt Objected that the husband shall not have the arrerages due before by this Statute 1. Because at common Law the Executors of the wife may have an action for them and the Statute gives remedy when Executors cannot have an action and doth not intend to toll the remedy from the common Law 2. The branch says due in the wives life so the arrerages ought to incurre when she is his wife Resolved to the contrary for the Statute says due and unpaid in the wives life and the common Law gives remedy for the arrerages of an estate for life incurred in the life of the wife and therefore the Statute did not intend to extend to these arrerages but to the arrerages due before for Verba accipienda sunt cum effectu Resolved that a Feme covert cannot make an Executor without assent of her husband and the administration of her goods of right belong to the husband And the Statute in naming the woman wife intends noely to describe and designe the condition of the womaln not to imply that the arrerages ought to incurre during coverture Rawlins case 29. 30. of the Queene fo 52. A. Possessed of a house for thirty yeares except a Stable of which B. was possessed for two yeares granted all his interest to C and demised the Stable to B. for sixe yeares by Indenture after the end of the two yeares C. redemises all to A. for twenty one yeares rendring twenty pounds per annum and to pay a Fine of twenty five pounds upon condition for to reenter for non payment of the rent or Fine before the day of payment A. redemises the Stable to C. for ten yeares the rent was behinde the Fine was not paid C. enters not into the Stable nor B. attournes Resolved that where the verdict was entered three termes past and in the Roll the demise to B. for six yeares was not enterd to be by Indenture that the Roll shall be mended because the note of the speciall verdict which the Jury exhibited to the Court remaining with the Secondary purports that the Jury found the demise prout by which it doth appeare to the Court that the demise was shewne in evidence and reference made by the note to it and so 't was in Gomersalls case Resolved though the condition is of two parts in the dis-junctive for non-payment of rent or of the summe in grosse yet if A. had redemised any part of the house to C. and C. enters by which the rent is suspended that all the condition as well for the collaterall summe as for the rent is also suspended because the condition is intire and cannot be divided by the act of the parties Resolved that if A. had redemised any part to C. though C. never enters the rent is suspended and though a stranger occupy it Resolved that the lease by A. to B. for six yeares though he had nothing at the time was good by conclusion by the Indenture and when C. redemised all to A. then was the interest bound with this conclusion then when A. redemises to C. the Stable C. is also concluded for all parties and privies in estate or interest are bound by the Estoppell then the case is no other but that A. demises for six yeares the Stable to B and after demises to C. for twenty yeares which is a good Lease in reversion for fourteene yeares this is no suspension of the rent or condition for 't is no grant of the reversion but a future interest in reversion no terme but an interest of a terme as the pleading is and notwithstanding such grant the reversion is in the grantor without atturnement and he shall have the rent upon the first lease but if there be an atturnement the reversion passes and suspension will follow And therefore 't was agreed if a man leases for twenty one yeares rendring rent and a reentry the lessee leases to the lessor for six yeares to commence two yeares after the rent is arreare and by this he shall defeate the future interest vested in him Resolved that this Estoppell being found by verdict the Court ought to judge upon all the speciall matter according to Law and because they are sworne ad veritatem dicendam they did well to finde the truth of the case and leave it to the Court by Wray chiefe Justice in Pledalls case the Jury was attainted for not finding such a lease by conclusion intending 〈◊〉 they being sworne ad veritatem dicend ' 〈◊〉 not bound to finde it for the Court held that the interest of the land as to parties and privies was bound and no conclusion shall be by such Indenture after the terme ended by Wray Resolved if lessee for twenty yeares leases for two yeares rendring rent and grants all his terme and interest if the lessee attournes the reversion passes and if no attournement be yet the interest in reversion passes for the grant of a man shall not be adjudged voyd if to any intent it may take effect Resolved if lessee for twenty yeares of a house leases part for two yeares and after leases to another all for ten yeares rendring rent so that it inures as a Lease in reversion for part that the rent shall issue out of all and of the interest of the terme though it be not any estate that may be surrendred and though it be conjoyned with land in possession Error was brought upon this
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