he lost his Common the Jury found that the Defendant did not put in the Beasts but they of themselves depastured there 1. The Jury have found the substance of the issue for the Plaintiffe the depasturing there and it is not materiall if he put them not there 2. This Action lyeth for the Commoner for he may distreine damage feasant and it may be that with strong hand he is hindered to distreine and so if he shall not have this Action he is remedilesse 2. A Commoner who had freehold in the common shall have an Assize Ergo a Copy-holder shall have this Action 3. The wrong ought to be so great that the Commoner loose his Common as a Master shall not have an Action for beating his Servant without losse of his Service and it appeareth not to the Court that there are more Commoners then he and if there be yet an Action lyeth because each had private damage and it is not like to a common Nusans which shall be punished onely in a Leete if there be not speciall damage but be the Trespasse never so little the Lord may have an Action of Trespasse The Lord Sanchars Case 10. Jacobi fol. 117. For procuring the Murther of John Turnor Mr. of Defence 1. REsolv That a Baron of Scotland shall be tried by Commons of England 2. The Indictment of the accessory in one County to a Fellony in another County by the Statute of 2. E. 6. c. 24. shall recite that the fellony was done in the other County for an Indictment is no direct affirmation of the fact 3. The Justices of the Kings Bench are within these words of the Statute Justices of Gaole-delivery or Oyer and Terminer for they are the supreame Judges of Gaole-delivery 4. The Lord Sanchar cannot be in the Terme-time Arraigned in Midd. before Justices of Oyer and Terminer because Justices of Oyer and Terminer shall not sit in the same County where the Kings Bench is but the principalls were Arraigned in L. in the Terme-time because this is another County 5. There needs not be 15. dayes for the returne of the Venire facias upon an Indictment in the same County where the Kings Bench is otherwise in another County 6. Because there is no direct proofe that the Lord S. commanded one of the principalls but that he associated himselfe to one who was commanded the best way is to arraigne him as accessory to him whom he commanded but if he be Indicted as accessory to two and found accessory to one of them this is good The word Appeale in the Statute of W. 1. c. 14. is to be intended generally Viz. By Indictment by Writ or Bill c. and attainders is to be intended upon any such accusation Ergo if upon any such accusation the principall be attainted erroneously the accessory may be arraigned because the attainder is good untill it be reversed but if the Accessory be Hanged and after the Attainder against the principall is reversed the Heire of the Accessory shall be restored to all which his Father lost either by entry or Action By 5. H. 4. cap. 10. none shall be imprisoned by Justices of Peace but in the Common Gaole whereby it appeares that Justices of Peace offend who commit Fellons to the Counters in L. and other Prisons which are not Common Gaoles Cases in the Court of Wards Anthony Lowes Case 7. Jacobi fol. 122. A. L. Tenant of 59. Acres parcell of the Mannor of A. by chivalry and Suite of Court to B. whereof A. was parcell and both A. and B. were parcell of the Duchie of L. out of the County Palatine holden formerly of the King in Chivalry in Capite and of another House there holden of A. by fealty and rent H. 8. grants the rent by release to him and confirmeth his estate in the said Lands by fealty onely and grants to him the Mannor of A. Tenendum by fealty and rent It was Objected that when the King grants the Seigniory to his Tenant the ancient Seigniory is extinct and a new one that is best for the King created Viz. Chivalry 2. When he extinguisheth services parcell of the Mannor of A. this shall be holden as the Mannor of A. is that is by Chivalry But resolved that the 59. acres and house shall be holden by fealty onely and as to the said Objection the release of the King doth not extinguish service which is inseparable to a Tenure that is fealty but all others are gone and true it is when the K. grants and expresseth no tenure it shall be by Chivalry but when the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be as Feoffee of Tenant in Frankalmoigne shall hold by fealty onely and here although they grant the services yet he limits the grantee to doe fealty A Knights fee is not to be taken according to the quantity but the value of the Land as 20. l. per annum and a Hide of Land is as much as a Plough can Plough in a yeare Reliefe is the fourth part of the annuall value that is of a Knight five pound of a Baron a 100. Markes of an Earle 100. l. of a Marques 200. Markes of a Duke 200. l. The Eldest Sonne of E. 3. called the black Prince was the first Duke in England and Robert Earle of Oxford in the Raigne of R. 2. was the first Marques and the Lord Beaumont was the first Viscount created by K. H. 6. Floyers Case 8. Jacobi fol. 125. BAron and Feme seized of Lands holden in Chivalry in right of the Feme in Fee levy a Fine to one who grants and renders to them and the heires of the Baron and levy another Fine to their use for life the remainder to their three Sons in taile one after another the remainder in fee to the heires of the Baron the K. shall have neither wardship of body nor Land 1. Resol That is out of the Statute of 32. H. 8. cap. 2. if he who had the fee dye c. in respect the estate by the first Fine did not continue and this although both the Conveyances are voluntary 2. The King shall not have wardship of the third part because it is not for advancement of the Wife for in the first Fine the Land moved from her and shee had no more by the second Fine then by the first 3. In regard the particuler estate is out of the Statute no wardship accrueth to the King by advancement of him in the remainder but if a revertioner upon an estate for life convey it to the use of his Wife this will give wardship of the body of the heire for he in revertion is tenant if a Lease for life be the remainder to two and to the heires of one he who hath the fee dyeth his heire shall not be in ward if the heire of one joyntenant who had the fee dye of full age living the tenant for
Lands to the use of himselfe and of the heires males of his body And for default thereof to the use of the Queene her heires and successors After the Tenant in tayle in possession suffereth a common recoverie with voucher And whether it was a barre to the issue in tayle was the question And it was adjudged that the issue in tayle was barred for good considerations are too general to raise any use without speciall averment that valuable or other good consideration was given Resolved that the Land should continue in his name and bloud is not a consideration to raise a use to the Queene though the limitation to her were for the preservation of the tayle against discontinuances and barres for there wants quid pro quo Resolved if he had said in consideration that the Queene is the head of the weale publique and hath the care and charge as well to preserve peace as for to repell hostility yet 't is no good consideration for Kings ex officio ought to governe their Subjects in tranquillity which is implyed in the word King And admit the consideration had been sufficient to raise a use to the Queene yet that would not preserve the estate tayle by force of the Act 34. H. 8. for no estate tayle is preserved by the said Act except the same estate tayle be of the creation or provision of the King and not where the estate tayle is given or created of a common person without provision of the King as may appeare by the preamble of the Act. Resolved that before the Statute of 34. H. 8. a common recovery barred a tayle created by the King Lanes Case 29. Eliz. fo 16. THe Queene seised of a Mannor in right of her Crowne by her Steward granted coppie-hold Lands parcell thereof to one by coppie according to the custome in Fee And after the Queene under the Exchequer Seale made a Lease of the same Lands to another for 21. yeares who granted the same Tearme to the coppie-holder and after the Queene reciting the Lease for yeares granted the reversion thereof in Fee the Tearme of 21. yeares expired The Patentee of the reversion entreth upon the coppie-holder and the entrie was adjudged good Resolved that the Lease under the Exchequer Seale was good by the usage there for the course of every Court is as a law of which the common law takes notice without alledging of it in pleading and every Court at Westminster is bound to take notice of the Customes of other Courts otherwise of Courts in the Countrey and the order of Exchequer is to make Leases by Committimus such land Resolved that the estate of the Coppie-holder was determined by the acceptance of the Lease for yeares And so it was adjudged against the Coppie-holder for notwithstanding that the Coppie-holders estate is taken to be but an estate at will yet the custome hath so established the estate of the Coppieholder that he is not removeable at the will of the Lord so long as he performes his customes and services and by the same reason the Lord cannot determine his interest by any act that he can doe And so it hath been adjudged many times And the aceptance of this Lease was the proper act of the Coppie-holder Resolved that by the severance of the free-hold from the Mannor the Coppiehold estate is not extinguished Baldwyns Case 31. Eliz. fo 23. THings which lye in grant and take their essence and effect by delivery of a Deed without other ceremony as rent or common out of Lands c. by the premisses of the Deed to one and his heires habendum to the grantee for yeares or life this habendum is repugnant to the premisses for the Fee passeth by the premises by the delivery of the Deed and therefore the habendum is voyd And when a man giveth Lands by Deed in Fee by the premisses habendum to the Lessee for life there the habendum is voyd and when livery is made the effect of the Deed shall be taken the most strongly against the Feoffor and the best for the Feoffee When a ceremony is requisite to the perfection of an estate in the premisses limitted and to the estate limitted in the habendum no ceremony is requisite but onely the delivery of the Deed although the habendum be of meaner estate then the premisses the habendum shall stand good and qualifie the generalitie of the premisses as a Fee granted in the premisses habendum for yeares it is for yeares and no inheritance Note There is a diversity betwixt the estate implied in the premisses and expressed as if A. grant a rent to B. this is an estate for life but if the habendum be for yeares this is good and qualifies the implication of the premisses Case of Bankrupts 31. Eliz fo 25. REsolved that a grant or assignement of goods by a Bankrupt after the Commission awarded which is matter of Record of which every one ought to take notice and though to a Creditor in satisfaction of his debt is voyd and that a sale of such goods by the Commissioners is good Which sale by the Statute of 13. of the Queene ought to be equall to every one rate and rate like according to the quantity c. And the Court resolved that the proviso in the said Statute concerning gifts bona fide doth not make any gift good but excludes them out of the penalty c. Commissioners may sell by Deed without Inrollment and though they have not seene the goods agreed that the distribution ought to be severall not joynt for the one debt may be greater then the other and in this case the Jury found that the Commissioners sold the goods to three Creditors joyntly but further that the Bankrupt was indebted to them in 273. pounds which shall be intended a joynt debt and so good Resolved that the act giveth benefit to such as will come and not to them that refuse vigilantibus non dormientibus jura subveniunt and every Creditor may take notice of the Commission being matter of Record Bettisworths Case 33. Eliz. in communi Banco fo 31. A Lease for yeares was made of one Messuage one Close called Raynolds and of divers other Lands in Dale and afterwards the Lessee being in the house the Lessor entred into the same Close and maketh a Feoffment of the Messuage and of the Lands therewith demised and maketh livery in the same Close and afterwards the Lessee reentreth into the said Close And if this was a good Feoffment and livery of seison of the said Close the Lessee nor any for him being in the said Close was the question And it was adjudged that the livery and seison was voyd as well for the Close as for the Messuage and the other Land therewith demised For the Possession of the Messuage which is his Castle is a good possession of the Lands therewith demised and it matters not whether livery be made on the Land within view of the
The question was whether they have an estate for life or an inheritance in taile And it was resolved that if they had children at the time of the Demise made then they had but an estate for life But if they had no children then they had an estate of inheritance in taile Sir Edward Cleeres case 42. Eliz. fol. 17. A Man is seized of three acres of Land houlden in Capite and maketh a Feoffment in Fee of two of them to the use of his wife for her life and after maketh a feoffment by Deed of the third acre to the use of such persons and of such estate and estates as he should limitt and appoint by his last Will in writing And afterwards by his last Will in writing hee Devised the said third acre to one in fee and if this Devise was good for all the third acre or not or for two parts thereof or voyd for all was the question And it was adjudged that the Devise was good For the Feoffor by his last Will limitted the estates according to his power reserved to him upon the Feoffment the estates should take effect by force of the Feoffment and the use is directed by the Will So as in this case the Will is onely directory But if he declared his Will by writing without any reference to his authoritie or power as owner of the Land and to limitt no use according to his power In this case the Land being houlden in capite the Devise is good for two parts and voyd for the third part If a man make a Feoffment in Fee of Lands in capite to the use of his last Will although he Devise the Land with reference to the Feoffment yet the Will is voyd for a third part for a Feoffment to the use of his last Will and to the use of him and his heires is all one In this case when the partie had conveyed two parts to the use of his wife by his act executed hee cannot as owner of the Land Devise any part of the residue by his Will and therefore because he hath not an election as in the case put before whether to limit according to his power or Devise the same as owner of the Land for in the case at Barre as owner of the Land having conveyed two parts to the use of his wife he cannot make any Devise The Devise of necessitie must inure to a limitation of the use otherwise the Devise should be altogether voyd Packmans case 37. Eliz. Banco Regis fol. 18. WIlson brought an action upon the case upon a trover against Packman The case was thus A man dyed intestate and the Ordinary committed the administration to a stranger and after the next of kindred of the Decedent sued out a Citatiō in the Court Christian to have it repealed and pendente lite the administrator to defeate the plaintiffe selleth the goods of the decedent to the defendant and after the Letters of administration were revoked by sentence and the first sentence anulled and made voyd and the administration granted to the plaintiffe And it was resolved that the action did not lie and in this case the diversitie was houlden betweene a suite by Citation for to countermand or revoke the former administration and an appeale which is alwayes a reversing of a former sentence for an appeale doth suspend the former sentence otherwise of a Citation And in this case because the first administrator had the absolute propertie of the goods in him without question he may sell them to whom he will and although the administration be revoked afterwards yet that cannot defeat the Sale But if the sale or gift be by covine it is voyd against Creditors by the Statute of 13. El. but it is good against a second administrator And if an administrator wast the goods and afterwards the administration is granted to another yet every debtor shall charge him in debt An administration may be granted upon condition and whatsoever the administrator doth before the condition broken is good Gregories case 38. El. Banco Regis fol. 20. VErba aequivoca in dubio posita intelliguntur in digniori potentiori sensu secundum excellentiam as if the speech be or writing of J. S. generally it shall be intended of the father where the father and sonne are both of a name and if it be of two Brothers both of a name it shall be intended of the eldest for these are more worthy so where the Statute of 4. 5. Phil. Ma. speaketh in any Court of Record it shall be intended of the foure Courts at Westminster because the Kings Attorney is attendant there Michelbornes case 38. Eliz. Banco Regis fol. 21. THe Court of Marshalsea doth onely hould plea of actions of trespasse within the verge if the one of the parties be of the Kings houshold and in contracts and Covenants where both parties are of the Kings houshold and of none other actions nor persons by the Act of Articuli super Chartas 28. E. 1. Butler Goodalls case 40. El. Banco Regis fol. 21 IT was resolved upon the Statute of 21. H. 8. that a Parson of a Church ought to stay and be Commorant upon his Rectorie viz. upon the Parsonage-house and not in any other house although it be within the Parish but lawfull imprisonment without covine is a good excuse of non-residence also if there be no Parsonage-house for impotentia excusat Legem also sicknesse without fraud if the patient remove by advice of his Councell in Physicke bona fide for better aire and recovery of his health Ambrosia Gorges case 40. El. fol. 22. in Cur. Wardorum IT was resolved that the Father shall have the Wardship of his Daughter and heire apparent so long as shee continueth his heire apparent But when the Father hath issue a sonne then shee shall be in ward to the Queene for then he is heire apparant and not the Daughter Ambrosia was daughter of Sir Arthur Gorge by Douglas Daughter and heire of Vicount Bindon and was married to Francis Gorge which Francis dyed when Ambrosia was of ten yeares of age It was resolved also that the Queene notwithstanding the said marriage should have the Wardship of the said Ambrosia for it was not a compleat marriage because to every marriage there ought to be a consent For consensus non concubitus facis matrimonium consentire non possunt ante annos nubiles And upon conference had with the Civilians it was agreed after such a marriage if the husband and the wife marry again it shall not be counted Bigamie And 30. E. 1. tit Gard. 156. if the ancestor marry his heire infra annos nubiles and dye the Lord shall recover the body of the Infant because the heire may disagree It was agreed that the grandfather shall not have the wardship of the sonne within age the father being dead in his life time Marquesse of Winchester his case 41. Eliz. fol. 23.
in Banco Regis BY the Law it is not sufficient that the testator be of memory when he makes his Will to answer to ordinary and usuall questions but he ought to have a disposing memory so as he is able to make disposition of his Lands with understanding and reason And this is such a memory which is called safe and perfect memory otherwise a Prohibition lyeth at the common Law generally to stay all the proceedings in the spirituall Court as the probate of the Will c. untill this Suggestion be tryed at the common Law Reades Case 42. Eliz. banco regis fo 24. IN trespasse the Defendant makes Title for that A. W. was seised in fee and leased to him the Plaintiffe maketh title by discent and traverseth the Lease and good for it may be true that A. W. was seised and yet that a discent was cast to the Plaintiffe therefore the Lease is most materiall to be traversed Helyars Case 41. Eliz. banco regis fo 24. IN a Replevin the Defendant avoweth by grant of a terme by I. A. to S. from whom he claimeth the Plaintiffe pleads in barre that I. A. married T. who by a former deed granted the terme to the plaintiffe and traverseth the grant made to S. and vitious for he who claimeth by the first assignement shall not traverse the second but he who claimes by the second shall traverse the first But the first Feoffee shall traverse the last feoffment and the last feoffee shall not traverse the first feoffement because fee may be gained by disseisin after the first feoffement but a Lease for yeares caanot Ruddocks case 41. Eliz. banco regis fo 25. IN replevyn against six the Plaintiffe recovers the Defendants bring error the Plaintiffe pleads the release of one of them not good Where diverse are to recover a personall thing the release or default of one barres all but not where they are to discharge themselves of a personalty if they are compelled to joyne as in error and attaint otherwise in Outlary because not compellable to joyne for where they are to discharge themselves they have no joynt interest and although they shall have their damages againe it shall be intended that they paid them of their severall goods otherwise it may be doubted if Execution had beene made of goods which they have joyntly Sharps case 42. Eliz. fo 26. com banco IF a man make a feoffement in Fee or a Lease for life and say to the Feoffee being eyther on the Lands of within the view Enter into this Land and enjoy the same according to this deed c. this is a good livery but the delivery of the deede upon the Lands without any further ceremony or saying doth not amount to a livery Throughgoods Case 9. Jacob in the nineth Booke The actuall delivery of a Writing sealed to the party without any words is a good livery but not a livery of seisin although the Party be upon the ground If I deliver a deede unto the feoffee or Lessee of the Messuage mentioned in the deede in the name of seisin of the said Messuage and of all the Lands tenements c. in the same contained or other such like words without any ceremony or act done this is a good seisin The Case of Souldiers 43. Eliz. fo 27. THe Statutes of 7. H. 7. cap. 1. and 3. H. 8. cap. 5. against Souldiers who run away are acts perpetuall for the word King includeth all his succession and a gift to the King inureth to his Successors Vicount Mountagues Case 43. Eliz. in Scaccar fol. 27. VIcount M. with License of the K. suffers a recovery to B. and D. to uses with power of revocation and limitting of new and revokes and limits new uses the King shall have no fine for alienation 1. Resolved if the King doth license to alien to one and alienation is made to the use of another the King shall not have a fine for although that the King was not informed of his Tenant yet the use is executed by the Statute of 27. H. 8. which can doe no wrong and the proviso in the Statute that a fine shall be paid for executing of uses is to be intended of uses raised by Covenant or declared upon a Fine Feoffement c. when no License of alienation is obtained 2. Although that by revocation and new limittation of uses the tenant of the King be altered yet no fine is due because all ariseth out of the estate of B. and D. which was made with License Greenes Case 44. Eliz. banco regis fol. 29. TEnant for life of a Mannor to which an advowson is appendant the remainder in Fee to I. S. presenteth one who at the suite of the Tenant for life is deprived for not reading the Articles but no notice is given to the Patron the Queene by lapse presents the Defendant Tenant for life and his incumbent die he in the remainder presents the Plaintiffe Greene who recovereth 1. Resolv Although the Patron were party to the Suite and so had notice yet lapse shall not incurre without notice given by the ordinary as the Statute speakes and the notice ought to be speciall that he did not reade the Articles and therefore was deprived and generall notice is not sufficient 2. The Church is voyd Ipso facto by the Statute of 13. Eliz. without deprivation 3. If the Queene present Ratione Lapsus where shee is Patron this is voyd A fortiori when shee had no title at all 4. The Patron is not put to a Quare impedit by presenting him who read not the Articles nor by Collation but by Collation of him who had right to Collate the Patron is put out of possession 5. The Queene may be put out of possession of an advowson because it is transitory but shee cannot be put to a Writ of right of advowson for none can gaine the Inheritance from her by wrong Boothies Case 3. Jacobi com banco fol. 30. THe condition of an Obligation is to deliver an Obligation to the Obligee and to acknowledge satisfaction it must be done in convenient time for acts transitory to be done to the Obligee although a place be appointed shall be done in convenient time and acts of their nature locall ought to be performed in convenient time if concurrence of the Obligor and Obligee be not requisite Also here the delivery of the bond being transitory and the acknowleding satisfaction such an act as may be performed in the absence of the Obligee they ought to be done in convenient time without request but if the Act be locall and their concurrence necessary the Obligor had time during his Life if not hastened by request If the concurrence of the Obligor and a stranger be necessary it ought to be done in convenient time if concurrence of the Obligee and a stranger it ought to be hastened by request And alwaies if the Act to be done is not for the benefit of the Obligee
defeasible Title the other shall distraine for the moity of the Seigniory and the Act of the Coparcener shall not prejudice her There are foure manner of Avowries 1. Upon his very Tenant 2. Upon his very Tenant by the manner where the Tenant had but a particular estate 3. Upon his Tenant by the manner when the Lord had but a particular estate 4 Upon the matter in the Land as within his fee but the Lord hath liberty to Avow according to the Common Law Thoroughgoods Case 9. Jacobi fol. 136. TEnant in fee infeoffeth one by Deed indented and delivereth it upon the Land in the name of seisin this is good and hath a double operation at one instant Viz. to deliver the Writing as a Deed and to deliver seisin of the Land according to the Deede 1. Resolved this is his Deed although he doth not say so but delivers it in the name of seisin for delivery is good without any words if one deliver a Deed to one as an escrow to be his Deed upon performance of conditions this is his Deed presently otherwise if he deliver it to a stranger so words are good without actuall delivery as if he saith take it like to a livery within view If the Obligee deliver the Obligation to the Obligor to redeliver the Obligor may retaine it for the words to redeliver are void 2. Delivery of the deede upon the Land amounteth not to livery and seisin but it doth if delivered in the name of seisin so of any other thing or if he saith I deliver you seisin without delivering any thing this is good also Beaumonts Case 10. Jacobi fol. 138. I. B. and E. his Wife Tenants in speciall Taile the remainder to the Heires of the Baron I. B. levies a Fine to K. E. 6. who grants to the Earle of H. in fee I. B. dyeth E. enters the Earle of H. confirmes her estate to have to her and the Heires of the body of I. B. E. dyeth seised having issue F. B. who accepts a fine Sur conusans de droit tantum with Proclamations and dyes having issue Sir H. and I. Sir H. in Ward to the K. after full age and before livery Covenanteth to stand seised to the use of himselfe and his heires Males of his body and dyes having issue onely a Daughter in Ward whether shee or I. B. shall have the Land c. 1. Resolved that E. had an estate taile and the Statute of 4. H. 7. c. 24. which inableth the Baron to barre the issue saveth the right of the Feme if shee enter or c. and one may have an estate taile which cannot discend as if the Sonne in the life of the Father levyeth a fine the Father remaineth Tenant in taile still although it cannot discend and E. here hath an estate taile so long as shee liveth or the Heires in taile remaine 2. The Confirmation is void for he who did confirme had but a possibility which passeth not by the confirmation and if he had a reversion in fee yet it should be void 1. Because the taile which the Feme had was confirmed which cannot descend 2. The confirmation doth not add a descendible quallity where he who should have it is disabled to receive by discent 3. This would in effect repeale 4. H. 7. 32. H. 8. two of the principall Pillars of the Law 4. 5. If Tenant in Dower grants her estate there is a discendible quality in the Heire to bring wast against Tenant in Dower and although the Heire confirme her estate for life and after shee assigneth it to I. S. who committeth wast yet the action of wast is maintainable against her Pari ratione in the Case at Barre in regard the confirmation doth not inlarge the estate of E. it cannot add unto it a discendible quallity 6. There are but three manner of Confirmations Viz. Perficiens Crescens aut diminuens and the Confirmation in this Case is none of them and if E. had no power to levy a fine or suffer recovery the reason is because she cannot barre that which was barred before by her Husband but this point was not now in Question The End of the Ninth Booke THE TENTH BOOK The Case of Suttons Hospitall Baxter Plaintiffe Sutton and Law Defendants in Trespasse in the Kings Bench and adjourned into the Exchequer Chamber and judgemet given against the Plaintiffe 1. Obj. BY the Parliament 7. Jacobi the Hospitall was Founded at H. in Essex Ergo the incorporation made after by the Kings Letters Patents is void and the Charterhouse is not given by the said Statute because S. purchased it after 2. Sutton who had License to Found an Hospitall before the Foundation dyed 3. The K. cannot name the House and Lands of S. to be an Hospitall because in Alieno solo 4. Every Corporation ought to have a place certaine but here the License is to found an Hospitall at or in the Charterhouse Ergo before that S. had made it certaine there was no incorporation also the place of Corporation ought to be certaine by Meates and Bounds and a place knowne will not serve 5. The King intended to make an incorporation presently which cannot be before that S. name a Master 6. Governors cannot be untill there be poore in the Hospitall Ergo S. calleth it in his Will his intended Hospitall 7. The Foundation cannot be without the words Fundo erigo c. and before such Foundation a Stranger cannot give Lands unto it 8. The Master was named at will where he ought to be for life and have freehold in the Lands also the Hospitall must be Founded before a Master be named 9. The bargaine and sale made by S. is void 1. Because the Money paid by the Governours in their private capacity shall not inure to them in their politick capacity 2. The Habendum is to them upon trust which cannot be in a Corporation 3. Because as before no Hospitall was Founded 10. The King cannot make Governours of a thing not in Esse To the first it was answered that the Letters Patents recite the preamble of the Act whereby and in many parts of the Act it appeareth that the incorporation was to be In futuro when it shall be erected and the Statute doth not give any Lands unto it but power to give without License of alienation and mortmaine and it appeareth by the Letters Patents that the erection precedes the License 2. The License is to him his Heires Executors c. at any time hereafter and the words of incorporation are in the present and so the incorporation precedeth the execution of this License 3. Although the King gave the name yet S. devised it and assented to it and the K. did it at his Suite 4. The K. makes an Hospitall of all the premises so that it is certaine and as to that which was said that a place uncertaine cannot be an Hospitall It was answered that a Mannor may be which is
the husband had and to the remainder A. tenant in taile the remainder to B. the remainder to C. the remainder to D. A. makes a Feoffement the feoffee suffers a recovery B. is vouched and he vouches the common vouchee A. is not bound but B. and all the remainders are for though the remainders are discontinued and cannot be remitted till the taile be recontinued yet in a common recovery which is the common assurance he which comes in as vouchee shall be in judgement of Law in privity of the estate which he ever had though the precedent estate upon which the estate of the vouchee depends be discontinued so here the husband shall be said in of the taile and 't is the stronger because the estate of the wife was put to a right so that the husband came in as sole tenant in taile and not joyntly with his wife because she is not vouchee and he cannot be in of another estate because once he had a taile but had they had a joynt estate to them and the heires of their two bodies he being onely vouched it might be doubted whether the taile should be barred because the wife had a joynt inheritance with him 8. of the Queene Dyer Knivetons case A Praecipe is brought against tenant for life and the remainder in taile they vouch over it shall not binde the taile for the remainder is not tenant to the Praecipe and the land is recovered against the tenant for life onely and recompence shall not goe to the remainder and the remainder was never seised by force of the taile and so 't was adjudged in Leach and Coles case 41. of the Queene Heydons case 26. of the Queene fo 7. THe Gardians and Cannons Regular of the late Colledge of O. seised of the Mannor of O. granted a Coppihold to Father and Sonne for their lives c. and after they leased it to H. for fourescore yeares rendring the ancient Rent and after surrendred their Colledge Resolved that the lease to H. was voyd the Coppi-hold for life continuing by the Statute of 31. H. 8. For Coppihold is an estate for life and the Statute saith of which any estate or interest for life c. at the making of such grant had continuance reade the Booke at large where you have admirable rules for true interpretation of all Statutes Resolved when a Parliament alters the service tenure interest of the land c. in prejudice of the Lord custome or tenant the generall words shall not extend to Coppi-holds as the Statute of W. 2. de donis conditionalibus doth not extend to them for if the Statute should alter the estate this should also alter the tenure for the donee ought to hold of the donor and to doe such services without speciall reservation as his donor did to the Lord and the intent of the act was not to extend to such base estates which were taken then but tenants at will and the Statute saith Voluntas donatoris observetur in carta c. So that which shall be intailed ought to be such an hereditament which may be given by Charter and great part of the land within the Realme being granted by Coppy it would be inconvenient that Coppi-holds should be intailed yet neither Fine nor Recovery should barre them so that the owner cannot without making a forfeiture by assent of the Lord and a new grant dispose of it for payment of debts advancement of his wife or younger issues wherefore the Statute doth not extend to them by Manwood Ch' Baron which the Court agreed But 't was objected that the Custome and the Statute cooperating might make a taile as if by a custome a remainder had been limitted over and injoyed and plaints in nature of a Formedon in discender brought and the land recovered by it so neither the custome without the Statute nor the Statute without the custome can make a taile And Littleton saith that if a custome hath been that lands c. have been granted c. or in taile c. paulo post that a Formedon in discender lyes of all tenements which Writ was not at common law Manwood answered if the Statute doth not extend to them without question the custome cannot for before the Statute all estates of inheritance were fee simple and no custome can commence after the Statute for this being made 13. E. 1. is made within time of memory and Littleton is to be intended of a fee simple conditionall for he knew well that no custome could commence after the Statute of W. 2. as appeares in his booke 2. ca. 10. and 34. H. 6. and a Formedon in discender in speciall cases lay at the common Law And by the Court another Act made at the same time which gives an Elegit extends not to Coppiholds for the reason aforesaid but other Statutes made at the same time extend to them as ca ' 3. which gives a Cui in vita receite and ca ' 4. which gives to the particular tenant a Quod ei deforceat Resolved that though 't was not found that the said rents were the usuall rents accustomed to be reserved within 20. yeares before yet because 't was found that the accustomed rent was reserved and a custome goes to all times before it shall be so intended without shewing the contrary and judgement was enterd for the Queene The common Law is founded upon the perfection of reason and not according to any private and sudden conceite or opinion Borastons Case 29. of the Queene fo 19. B. Devised land for eight yeares and after to his executors to performe his will till H. his youngest Sonne come to the age of 21. yeares and when H. comes to 21. yeares then that he shall have to him and his heires H. dyed at the age of 9. yeares Objected that till H. attaines to 21. yeares the land descends to the heire and for that he never attained to 21. yeares this remaines in the heire and the intent appeares by the words that he should not have till he come to 21. yeares and this ought to precede the commencement of the remainder and if land were leased till H. comes to 21. yeares H. then being of 9. yeares 't is no absolute lease for 12. yeares for if H dye before 21. the lease shall be determined which the Court agreed 'T was also said that when the particular estate which should support the remainder may determine before the remainder can commence there the remainder doth not vest presently but depends in contingency If one make a Lease to A. for life and after the death of B. the remainder to another in Fee this remainder depends upon contingency for if A. dye before B. the remainder is voyd A Lease is made to A. for life the remainder to B. for life and if B. dye before A. the remainder to C. for life this is a good remainder upon contingency If A. survive B. which case is all one with
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
his warrant to bring the party before himselfe and it is good and sufficient in Law for it is most like that he hath the best knowledge of the matter and therefore most fit to doe Justice in that matter upon refusall to finde surety the Constable may commit him without a new warrant Gooches case 32. El. in banco le roy fol. 60. WRay chiefe Justice said that if A. make a fraudulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and continueth in possession and is reputed as owner B entereth in communication with A. for the purchase and by accident B. hath notice of this fraudulent conveyance Notwithstanding he concludes with A. and takes his assurance In this case B. shall avoide the said fraudulent conveyance by the said Act notwithstanding the notice for the Act by expresse words hath made the fraudulent conveyance voyde as to the purchasor And for as much as that is within the expresse provision of the Statute it ought to be taken and expounded in suppression of fraud Resolved that fraud may be given in Evidence because the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret in arbore cava opaca And according to this opinion it was resolved Per tot ' Cur ' in communi banco Pasche 3o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and after offred to sell the same to one Standen and before the assurance by Bullock Standen had notice thereof and notwithstanding proceeded and tooke the assurance from Bullock Standen avoyded the former assurance of fraud by the said act for the notice of the purchasor cannot make that good which an Act of Parliament hath made voyde as to him And it is true Quod non decipitur qui scit se decipi But in this case the purchasor is not deceived for the fraudulent conveyance whereof he had notice is made voyde as to him by the Statute and therefore he knew it could not hurt him Sparries case 33. Eliz. in Scaccar fol. 61. IN action of Trover and convertion the defendant pleads that there is another action depending in the Kings Bench for the same Trover and good for in actions which comprehend no certeinty as assize or trespas this is no plea before a Count because thereby it is made certeine and then it is a good plea and not before but in this action and debt and detinue it is a good plea at the first because they are certeine that an action is depending in an inferiour Court is no plea. Cases of By-Lawes Chamberlaine de Londons case 32. El. in Banco le roy fol. 66. THe Inhabitants of a village without any custome may make Ordinances or By-Lawes for reparation of the Church or of high-wayes or any such thing which is for the publicke weale generally and in this case the consent of the greater part shall binde all without any custome vide 44. E. 3.19 But if it be for their owne private profit for that Towne as for their well ordering of their common of pasture or such like then without custome they cannot make by-Lawes And if it be a custome yet the greater part shall not binde all if it be not warranted by the custome for as custome hath created them so they ought to be warranted by the custome 8. E. 2. tit ass As pontage murage Tolle and such like as appeareth in 13. H. 4.14 In which cases the summes for reparations of the Bridge walls c. ought to be so reasonable that the Subject may have more benefit thereby then charge Clerks case 38. Eliz in communi banco fol. 64. KIng Edward 6. did incorporate the Towne of St. Albones and granted them to make Lawes and Ordinances c. The Tearme was kept there and the Major c. by assent of the plaintiffe assessed every Inhabitant for the charges in erecting of the Courts there and if any did refuse to pay c. to be imprisoned c. the plaintiffe being Burges refused to pay c. and the Major justified c and it was adjudged no plea c. For this Ordinance is against Magna Charta ca. 29. Nullus liber homo imprisonetur which act hath been confirmed divers times viz. thirty times and the assent of the plaintiffe cannot alter the Law in this case But it was resolved that the Major c. might inflict reasonable penaltie but not imprisonment which penaltie ought to be Levied by Distresse for which offence an action of Debt lyeth and the plaintiffe in this case had judgement Jeffrays case Michaelis 31 32. en Bank le Roy. fol. 66. WIlliam Jeffray Gent. brought a prohibition against Abraham Kenshley and Thomas Forster Churchwardens of Haylesham in Com' Sussex for that they sued him in Court Christian before Doctor Drury for certaine money imposed upon him without his assent for repaire of the Church That the Church-wardens with the assent of the greatest part of the Parishioners juxta quantitatem qualitatem possessionum reddit ' infra dict' parochiam existent Determined and agreed to make a taxation for repaire of the said Church and that notice of such assembly was given in the Church at which day the Church-wardens and greater part of the Parish which were there assembled made a taxation viz. every occupier of Land for every acre 4. d. c. Geffray dwelt in another Parish and declared that the Parishioners of every Parish ought to repaire their Church and not the Church of another Parish Cooke of councell with the defendant demurred in Law and after many arguments a Writ of consultation was granted And it was resolved that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae Britton who writ in 5. E. 1. And in the Statute of Circumspecte agatis but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda It was also resolved that although Geffray did dwell in another Parish yet for that he had Lands in the said Parish in his proper possession he is in the Law Parochianus de Haylesham But it was resolved that where there was a Farmor of the same Lands the Lessor that receiveth the rent shall not be charged but the Inhabitant is the Parishioner and the receipte of the rent doth not make the Lessor a Parishioner Diverse of the civill Lawyers certified the Court that the Church Wardens and a greater part of the Parishioners upon a generall warning assembled may make a Taxation by their Law and the same shall not charge the Land but the Person in respect of the Land for equality and indifferency and this was the first leading case that was adjudg'd reported in Our Bookes touching these matters and many causes after were adjudged thus and now it is generally received for Law The Lord Cheneys Case 33. Eliz.
but if the Coparcener had issue then it shall abate If one of the Plaintiffs after summons and severance marryeth this shall not abate the Writ In personall and mixt actions although an intire Chattell be demanded the death of one after summons and severance doth not abate the Writ as in a Writ of ward of the body In a Quare impedit without severance c. If one dye the Writ shall not abate because thereby the other should be dis-inherited as upon plenarty and sixe moneths passed but without question if one of the Plaintiffes in a Quare impedit be severed and dye the Writ shall not abate where the Plaintiffes are onely to discharge themselves the Writ shall not abate by the death of one of the Plaintiffs or Defendants and therefore there the Non-suite of one is not the Non-suite of the other but otherwise it is in a Writ of Error Note summons and severance is before apparance and Non-suite after apparance where the severance is without Proces Richard Smiths Case 10. Jacobi fol. 135. R. S. brings a Quare impedit praesentare ad medietatem Ecclesiae and adjudged the Writ was good 1. None shall have such a Quare impedit but when there are two severall Patrons And 2. Incumbents of the Church therefore if two present by turne the Quare impedit must be praesentare ad Ecclesiam when the Register giveth a Writ for the whole this is a good warrant to bring it of any part if the case will warrant it but it seemed to the Chiefe Justice that in the Case at Barr the Writ might have been â—ood Praesentare ad Ecclesiam for as to him it is one Church Cases upon the Commissions of Sewers 7. Jacobi The Case of Chester Mill upon the River of Dee fol. 137. ADjudged that the Statute of Magna Charta omnes Kidelli deponantur extends only to open Weares for taking of Fish and that Commissioners of Sewers cannot subvert a Causey c. erected before the time of E. 1. but by the Sâ—atutes of 25. E 3. cap. 4. and 1. H. 4. cap. 12. if they be inhaunced they ought to be amended by abatement of the inhauncement and the Causey in question was erected before the time of E. 1. and never since inhaunced and therefore out of all the sayd Statutes Keighleys Case 7. Jacobi Communi Banco fol. 139. IT was Resolved that if one be bound by prescription to keep a Wall contra fluxum maris and the wall is subverted by a suddaine inundation of waters salt or sweet by the Statute of 23. H. 8. cap. 5. the Commissioners have power to taxe all equally who have damage by such surrounding for no default was in the party so if the wall be in inevitable danger but if it be through his neglect each one may have his action upon the Case against him and if the danger be not inevitable hee onely shall be charged 2. Resol By the sayd Statute the Commissioners are not bound to observe the customes of Romney Marsh but where such customes are in any places within their Commission 3. According to your wisedomes and discretions in the sayd Act are to be interpreted according to law and Justice for every Judge or Commissioner ought to have duos sales salem sapientiae ne sit insipidus salem conscientiae ne sit diabolus and discretion is scire per legem quid sit justum and every of their Ordinances ought to consist upon foure causes 1. The materiall cause and that is the substance 2. The formall cause and that is the manner 3. The efficient cause that is their authority 4. The finall cause and that is for the publique good The Case of the Isle of Elie 7. Jacobi fol. 141. THe Commissioners of Sewers decreed that a new River shall be cut out of Owse seven miles within the maine soyle of the Isle and for the doing thereof and for the effecting thereof taxed diverse Townes in the County of C. out of the Isle generally that is so much upon every Towne 2. questions 1. If the Commissioners have power to make such a new River 2. If such a generall taxe be lawfull By the Common Law the King ought to defend the Realme as well against the Sea as Enemies and to provide that the Subjects may have safe passage over Bridges and high wayes and therefore if the Walls of the Sea or Gutters be not scoured he ought to award a Commission to inquire of such defaults as by the Register amongst the Commissions of Oyer and Terminer See there a president 44. E. 3. for reparation of ancient Sewers c. or making them new but the Statute of 6. H. 6. cap. 5. and divers others for making new Walls c. were onely temporary and that power is omitted in the Act of 23. H. 8. c. 5. which is made perpetuall by 3. E. 6. cap. 8. and so the Commission in this point insueth the Commission which was at the Common Law Therefore it was resolved that the Commissioners in this Case could not make the sayd new River because their Commission extends onely to the reparation and new making of ancient Walls Gutters c. And it would be hard to give power to Commissioners to try new inventions to charge the Countrey which may never take effect And it appeareth by the Register 252. that a new River ought not to be made and the old stopped without an Ad quod damnum and the Kings license yet when a new Sewer is to be made any small alteration for the publique good of such a place may be made so of an ancient Wall against the rage of the water in case of inevitable necessity but if by timely reparation that perill may be avoided no other ought to be made Si assuetis mederi possis nova non sunt tentanda but if new inventions appeare profitable contribution must be voluntary and not by compulsion and in 3. Jacobi Popham Ch. Justice preferred a Bill in Parliament to make a new River in that Isle but it was rejected 2. Resolved None ought to be taxed but he who may have damage by the default or profit by the reformation also the assessement must be according to the quantity of their Lands and number of Acres and according to the rate of every mans profit and portion and the taxation in generall was not warranted but it ought to have been in particular upon every owner or possessor observing the sayd qualities Some Statutes of Sewers are in defendendo reparando Wallias c. Some in destruendo amovendo nocumenta and some touching both In the Court of Wards Scroops Case 10. Jacobi fol. 143. N. S. made a Feoffment to diverse uses with power of revocation by Indenture and after by another Indenture observing all incident circumstances prescribed the Feoffor covenanteth to stand seized to severall other uses 1. Resol This inureth to a revocation 2. To raise new uses And so it was resolved