by the whole Court held to be a condition but Judgment was given for the Plaintiff for doublenesse in the plea. BRown versus Dunri Hill 15. Iac. rotulo 1819. The Defendant made cognizance c. as Bailiff M. Walker Widow Administrator c. R. W. for one rent charge of 6 l. granted by one Warner to the said R. and M. his wife for life of the VVife And the said R. by the said writing granted c. That if it should happen the said yearly Rent to be behind and not paid in part or in all by the space of ten dayes next after any Feast c. being lawfully demanded that then c. the said Warner c. ten shillings nomine paene for every default and that then it should be lawfull to the said W. and M. and their Assigns to enter into the premises and distrain as well for the rent as for the nomine paene and shews that the rent was behind in the life of the Husband and that he dyed intestate and that administration was committed to the woman and made cognisance for the rent due at such a Feast in the life of the Husband and being then behind and the issue was that the Grantor was not seised and after a tryall diverse exceptions were taken one was for that a demand was not alledged another was that the cognisance was made as Bailifle to the Administrator when as the woman by the survivorship should have the rent Another was that it is not alledged that the rent was behind by ten dayes next after the Feast and the exceptions upon debate at diverse dayes were over-ruled First the demand is not necessary for the Distress is a sufficient demand as it was adjudged in Iaces case The second was because the cognisance as Administrator are void idle and superfluous and for the ten dayes it was good because that predicto tempore quo c. It was behind and adjudged by the whole Court for the Advowant SLoper versus Alen Trin. 15. Jac. rotulo 3002. Replevin upon the taking of 40. Sheep the issue was that the Sheep were not levant and couchant and found by a speciall verdit that twenty Sheep were levant and couchant and that twenty Sheep were not levant and couchant and it was held upon the reading of the Record that the Plaintiff should have his Judgment BVrton versus Cony Hill 16. Iac. rotulo 2044. The Defendant avows for a rent charge granted to him for life by his Father issuing out of all his Lands in such a Town to have and to hold to levy and yearly to take the said annuity or annuall rent of c. during the naturall life of the said P. at two Feasts in the year to wit c. by equall portions the first payment to be made at the first and next Feast of the said Feasts which should next happen after the term of 8. years ended and determined specified and declared in the said will And if it should happen c. And averres in the avowry that there is not any term of years specified and declared in the said Testament before recited And note that in the premises of the Deed it is recited thus in fulfilling the Will or Testament of me the said T. bearing date such a date I have given c. And the Court held that the grant was present if no term was contained in the will and Judgment was given for the Advowant But after Judgment was entred upon Record an exception was taken because it was not averred that the Grantor was dead and it was allowed for a good exception but it came to late judgment being entred HEyden versus Godsulm Judgment for the Defendant who avowed for rent reserved upon a Lease for years and it was moved that the Plaintiff who brought the writ of Errour upon that Judgment ought to find bayle upon the writ of Errour by the Statute of 3. Iacobi and it was held by the greater number of the Judges that the Plaintiffe should not find bayle for Replevins are not within the Statute TVrny versus Darnes Trin. 17. Iac. rotulo 2887. Demurrer in a replevin upon a traverse of Lands when as the parties have not agreed of the quantity of Land The Avowry was that C. was seised of one Messuage two Barns one Mill c. and 100. acres of Land with the appurtenances in W. and held them of c. by fealty rent c. and suit of Court c. And the Plaintiff prayed in aide and he joyned and alledges that he was seised of 70. acres of Land with the appurtenances in his demesne as of Fee and held them of G. by fealty and rent c. and suit of Court and traverses that he held the Tenements of the said G. as if his Mannor of W. in manner and form as c. and a speciall demurrer and one cause was because he denies not the seisin of the said services but only denies and traverses the tenure and therefore they pretended that the plea contained double matter and was a negative pregnant and secondly whether the Seisin or Tenure be traversable and the Plea was held good by Hubberd and Warburton RIchards versus Young Trin. 16 Jacobi rotulo 104. vel 1700. A Replevin brought for taking of Cattel at Aller in a certain place called Land Mead the Defendant avows as Bailiff of Sir John Davies the Kings Serjeant containing four Acres for damage fesant the Plaintiff pleads in Barr that Henry Tearl of Hunt was seised of the Mannor of Aller whereof one Messuage c. was parcell and customary Land and devisable by Copy of Court Roll and that within the said Mannor there was a Custome that every customary Tenant of the said Messuage hath been used to have Common of Pasture in the said place called Land Mead rhe Issue was without that that within the said Mannour with the appurtenances whereof c. is and time out of mind was a custome that every customary Tenant of the laid Messuage c. had Common of pasture in manner and form c. and Serjeant Harris moved in Arrest of Judgment that there was no custome alledged because it did not appear in the pleading that the place where the taking was supposed to be was within the said Mannor and no custome of the Mannor could extend forth of the Mannor but he ought to prescribe in the Mannor and note he ought to have pleaded that the place in which c. was parcell of the Mannor and then the Plea had been good In a Replevin upon an Avowry for Rent the Plaintiff for part pleadeth payment for the other part an Accord the one Issue is found for the Paintiff and the other for the Defendant the Plaintiff shallrecover his costs and damages and the Defend shall have Judgement of Return habend and no costs and damages I think otherwise it is if the Avowries be severall then on both
to have distrayned the Cattell of the Lord damage fesant and observe his BRaxall versus Thorold Trin. 8. Jac. In Replevin for the taking of 4 Oxen at Coringham in the County of Lincoln in a place called Dowgate leys Sept. 6. Jac. The Defendant says the place contained four acres in Coringham magna which was his Free-hold and justifies the taking damage fesant The Plaintiff in his bar to the Avowry that the place where c. lies in a place called Harrerart quarter parcell of a great Common Field called E. in Coringham aforesaid and that the Plaintiff the said time and long before was seized of one Messuage and of 14. acres of Land Medow and Pasture with the appurtenances to the said Messuage belonging and that the Plaintiff and all they whose estate the Plaintiff had in the Tenements ought to have common and so prescribed to have common for him his Farmers Tenants c. for all comunable cattell levant couchant upon the Tenements c. And upon issue taken upon the Common it was found for the Plaintif and alledged in arrest of Judgment that it did not appear by the Barre to the Avowry in what place the Messuage and Land to which the Common did appertain did lie to wit whether it did lie in Coringham or in any other place or County and thisof necessity ought to have been shewed in certain because the tenure ought to be both of the place where the House and Land did lye and of the place where the Land did lye in which the Common was claimed and therefore of necessity ought to have been shewed incertain and shall not of necessity be intended to be in Coringham where the Common is For a Common may be appendant or appurtenant to Land in another County And the trvall shall be of both Counties and Judgement was arrested by the whole Court TRuelock versus Riggsby Mich. 8. Jacobi In Replevin for the taking of six Kine in a place called Brisley hill in Radley in the County of Berks the Defendant as Bailiff of one Read makes Conisance that the place where c. contains fifty acres and is parcell of the Mannor of Barton whereof the place where c. is parcell and showes that E. 6. was seised of the Mannor of Barton whereof the place where is parcell and granted it by Letters Patents to R. Leigh and divers other Lands by the name of the Coxleyes c. and amongst other particulars in the Patent the King granted Brisley hill in Barton and deduces the Free-hold of the Mannor of which the place In which c. is parcell to Read and he as Bailiff to him took the Kine damage Fesant the Plaintiff replies and shows that one Hide was seised of a Messuage and divers Acres of Land in Radley and that he and those whose estate he hath for himself his Farmers and Tenants used to have Common in the said place called Brisley hill in Radley when the said Feild called Brisley hill in Radley was fresh and not sowed all that yeare with their Cattell Levant and Couchant and when the Field was sowne with Corne and when the Corne was carried away untill it was referred and so justifie the putting in of six Kine using his Common because the Feild was not sown with Corne at the time to which the Defendant pleads and saies that part of the Feild called Brisley Hill in the Avowry named was at that time sown with Corn c. and the Plaintiff demurres and adjudged for the Plaintiff for two reasons The first was because the Defendant in his Avowry referres the taking of the Cattell to another place then that set forth in the Avowry which is not in question and in which the Plaintiff claims no Common for the Plaintiff may claim Common in Brisley hill in Radley and the place named in the Defendants Avowry to which he referres his Plea is Brisley hill in Barton for Brisley hill in Radley is not named in the Avowry by any speciall name but onely by implication by this name the place in which c. and for that reason the rejoinder doth not answer the matter in the replication The second cause was because the Plaintiff claims Common when Brisley hill in Radley was unsown with Corn and the Defendant to that although his Plea should referre to the same Brisley yet hath he given no full answer for he saith that parcell of the said Feild was sowed with Corn and the Court held that sowing of parcell of the Feild shall not hinder the Plaintif from using his Common in the residue for that may be done by covin to deceive the Plaintiff of his Common for the Plaintif claiming his Common when the Field that is the whole Feild is sown shall be barred of his common by sowing of parcell of it notwithstanding that parcell be sowed the Plaintif shall have his common by the opinion of the whole court GOdfrey versus Bullein Mich. 8 Jacobi Bullein brought a Reple vin against Godfrey for the taking of six Beasts in such a place in Bale in the County of Norfolk the Defendant as Bailif of R. Godfrey makes conisance because before the time and at the time in which c. the said R. Geffrey was seised of a Court Leet in Baile of all the inhabitants and râ—â—dent within the Precinct of the Mannor of Baile to be holden within the Precinct of the Mannor as appertaining to his Mannor and shews how that he had used to have a Fine of ten shillings called a Leet Fine of all the cheif pledges of his Leet and if they failed to pay the Steward had used to amerce them that made default in payment shewed how that at a Court holden within the Mannor such a day it was presented that the Plaintif in the Replevin being an inhabitant in B. and resident within the Precinct of the Mannor made default in payment of the said Fine of ten shillings being then one of the cheif pledges of the Court by reason whereof he was amerced at five pounds which being not paid the Defendant took the Beasts and the Issue was whether Bullein at that court was a chief Pledge or no and the Venire to try his Issue was onely of the Mannor and found for the Plaintif and damages and costs to thirty pounds given against Geffrey upon which he brought a Writ of Error in the late Kings Bench and adjudged Error and the Judgement reversed for the Venire facias should have been both of Bail which was the Village as of the Mannor for although the Court be held within the Mannor yet the Leet it self is within the village of Baile and the Plaintiff was an inhabitant and resident within the village which village is within the Precinct of the Mannor and though Fleming cheif Justice held that nothing was in question but whether the Plaintiff was cheif pledge at the Court held within the Mannor or no and so nothing within the
Plaintiff SMith versus Bolles Sheriff of London Pasc 9. Jac. rotulo 1353. In case for that the name of the Sheriffs were omitted on the venire fac And for that cause one Judgement given for the said Smith was reversed by Writ of Error And for that Misprision Smith brought such Action of the Case HArris versus Adams If thou hadst had thy Right thou hadst been hanged for breaking of Paches House the words not actionable Thou art a Thief thou hast stollen the Town-beam meaning the Town of Wickham Serjeant Hutton of opinion the Action would lie STephens Attourney versus Battyn for words Thou hast cozened M. Windsor of his Fee and I will sue thee for it in the Star-chamber for that thou didst not come for Windsor Judgement for the Plaintiff Trin. 11. Jac. BRadley versus Jones Trin. 11. Jac. rotulo 3390. The Plaintiff brings his Action upon the Case for unjust vexation The Defendant had exhibited Articles against the Plaintiff to have the good Behaviour against him and took his Oath before Doctor Cary one of the Masters of the Chancery and afterwards the Defendant ceased prosecution there and obtained from the Kings Bench a Supplicavit to have the good Behaviour there And the Court was of opinon that the Action would lie because he prosecuted in the Kings Bench and not in the Chancery But the Court said that if he had prosecuted in the Chancery though the Articles had been scandalous yet no Action would have lyen for a man shall not be punished for mistaking the Law for he may be misadvised by his Counsel BRooks versus Clerk Pasch 11. Jac. rotulo 307. Action brought for these words His Son Brooks hath deceived me in a Reckoning for Wares And his Debt-book which he keepeth for Sale of Wares in his Shop is a false Debt-book and I will make him ashamed of his Calling Hubbart and Nichols against the Plaintiff and Warburton for the Plaintiff Pasch 11. Jac. rotulo 2147. Action of the Case brought for a Nusance for building the Defendants House so near the Plaintiffs that a great part of it superpends And the Plaintiff in the conveying his Title shews a Lease for years made to him if the Lessor should so long live and doth not aver the Life of the Lessor but saith that by vertue of the Demise the Plaintiff hath been and then was thereof possessed and adjudged sufficient MOrton versus Leedell Hill 10. Jac. rotulo 1783. Action of the Case for these words He meaning the Plaintiff is a lying dissembling Fellow and a mainsworn and forsworn Fellow And Judgement for the Plaintiff after divers motions THomas Attourney versus Axworth Pasch 11. Eliz. rotulo 352. Action of the Case for these words This is John Thomas his writing and he hath forged this Warrant meaning a Warrant made by Buller Sheriff of that County upon a Capias prosecuted out of the Court of Common Pleas by M. H. against the Defendant and directed to the Sheriff ROw versus Alport Mich. 11. Jac. rotulo 1527. Action upon the Case brought for suing in the Admiral Court for a thing done upon the Land and not upon the high Sea BRay versus Ham Trin. 13. Jac. rotulo 1994. Action of the Case for these words Thou art a cozening Knave and thou hast cozened me in selling false Measure in my Barley and the Countrey is bound to curse thee for selling with false Measure and I will prove it and thou hast changed my Barley which I bought of thee And the Plaintiff sets forth in his Declaration that he was Bayliff to W. C. and H. C. of certain Lands in P. for three years and during the said time had the care and selling of divers Corn and Grain growing upon the same Land and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement that the Action would not lie but the Court were of a contrary opinion and Judgement was given for the Plaintiff BRown versus Hook Pasch 13. Jac. rotulo 234. Action of the Case for these words Brown is a good Attourney but that he will play on both sides And it was moved in Arrest of Judgement that those words would not bear an Action but the Court held they were actionable but did not give Judgement because the Plaintiff did not shew in his Declaration that the words were spoken of himself STober versus Green Mich. 11. Jac. rotulo 1â—91 Action of the Case for these words Thou didst keep and sell by false Weights and in 24. s. bestowing thy Weights were false two Ounces and thy Man will be a Witness against thee and I will prove it The Defendant pleaded that the Plaintiff occupied one Shop and kept unlawfull Weights and by such Weights sold by reason whereof he said these words Videlicet Thou didst keep and sell by unlawfull Weights and in 24. s. bestowing thy Weights were false an Ounce and three quarters and thy Man c. And traversed the words in the Declaration and it was adjudged a naughty Traverse for that the words in the Bar and justified by the Defendant are actionable AGar versus Lisle Mich. 11. Jac. rot 318. Action of Trover brought in York-shire the Defendant justifies for Toll at Darnton in Durham and traverse c. The Court doubts of his Traverse being onely for the County of York whereas it ought to be any where else generally And Hobart said the Bar was nought because in the justification no conversion was sufficiently alleadged And note that if a man doth a thing which is allowable by the Law as to distrain Cattle and impound them that is no conversion but if he work them it is a conversion AVstin versus Austin Trin. 10. Jac. rotulo 3558. In Troyer the Defendant pleads that before the time that the Plaintiff supposes the Goods to come to the Defendants hands one S. A. was possessed of the Goods and amongst other Goods sold them to the Defendant but kept them in his own hands and afterwards sold them to the Plaintiff by reason whereof the Plaintiff was possessed and afterwards looses them and they came to the Defendants hands who converts them as it was lawfull for him to do The Plaintiff demurs and it was held a naughty Bar for it amounts to a Non cul And Cook doubted whether the Court should compell the Defendant to plead Non cul or award a Writ of Injury And a Writ of Inquire was awarded ALlyns versus Sparkes al. Trin. 8. Jac. rotulo 1606 Action of the Case brought for stopping up the Plaintiffs way and the Plaintiff declares that one H. B. was seised of the Mannour of M. of which two Acres were customary Land and that the Lord of the Mannour had for himself and his customary Tenants for the said two Acres a certain high-way in by and thorow c. And that the Lord of the Mannour granted the said two
Venire facias and upon the Habeas Corpus onely twenty and three were returned and the Jury did not appear full and a Tales was awarded and tried for the Plaintiffe and good because the Venire Facias was returned full PIgott versus Pigott Mich 20 Jacobi In Replevin Avowry that Ellen Enderby was seised in Fee of three Acres in Dale and took to Husband S. Pigott and had Issue Tho Ellen dyed and the husband was in by the Curtesie the Husband and Tho the Heir granted a Rent of 10. 〈◊〉 issuing out of the three Acres to the Avowant and avows for so much behind the Plaintiffe in barrsayes that before Ellen had any estate one Fisher was seised in Fee and gave it to John E. in tayl Jo had issue Ellen who after the death of her Father entred and was seised in tayl and took a Husband as is before declared And had Issue Tho and that Tho. Tenant by the Curtesie living grants the Rent as above without this that Ellen was seised in Fee of three Acres and issue was joyned thereupon and found for the Avowant And in arrest of Judgment it was objected that in effect there was no issue joyned For the traverse of the sesin of Ellen E. was idle for no title of the Rent is derived from her but they ought to have traversed the seisin of Thomas the grantor and then the Issue had been of such a nature that it had made an end of the matter in question which was not in this case no more then if the Tenant in Formulen should plead not guilty but the Court held that though an apter issue might have been taken and that the traverse is not good yet it was helped by the statute of Jeofailes For the estate of Ellen H. was in a sort by circumstance materiall For if she were seised in tayl and that estate tayl discended to Thomas the grantor then by his death the Rent is determined after the Fee discended to Tho from Ellen there the estate was of that nature that he might grant a sufficient rent charge And although it might well be presumed that Thomas after the Fee discended to him from Ellen had altred such estate tayl yet by Popham the Courts shal not now intend that because the parties doubted nothing but whether Ellen was seised in Fee or not when he dyed And that doubt is resolved by the Verdict as if a Defendant should plead a Dâ—ed of J. S to A. and B. and that it dyed and B. survived and infeoffed the Defendant if the Plaintiffe should say that J. S. did not infeoffe A. and that they should be at issue upon that and should be found against him although this be no apt issue yet it is helped by the statute because the parties doubted of nothing but of the manner of the feoffment of J. S. whether it was made to A or not and of the same opinion was Fennor Yelverton and Williams but not Gandy CRate versus Moore Mich. 3. Jacobi In Replevin of Cattell taken in D. the Defendant avowes as Bayliffe of H. Finch And the case was thus the Lady Finch Mother of H. Finch granted a Rent charge to H. issuing out of her Mannor of N. and out of all her Lands in D. E. and is in the County of Kent belonging or appeartaining to the said Mannor And the Plaintiffe to barr the Defendant pleads an abatement in H. Finch into the Lands in D. And upon the Defendant demurrs for the Lands in D. were not belonging or appertaining to the Mannor of N. and adjudged for the Defendant For no Land can be charged by that grant if it be not belonging to the Mannor And that for two Reasons the first is because by the word aut alibi it appears that it is all but one sentence and the Aut conjoynes the words proceeding to wit all the Lands in D. S. and to put in the County of Kent in these words following to wit alibi in the said County to the said Mannor appertaining and the sentence is not perfect untill you come to the last words to the said Mannor appertaining for if the Rent be issuing out of the Land in D. c. which is not appertaining to the Mannor then the sentence must be perfect and these words County of Kent and these aut alibi must begin a new sentence which was never seen that they should make the beginning of a sentence And therefore this case is not like the case between Bacon and Baker second of King James in the prohibition where Queen Eliz. grants all her â—ith Hay c. within the liberty and precincts of St. Edmonds Bury belonging and appertaining to the said Monastery and which were lately collected by the Almoner of the said Monastery for there the latter sentence is perfect and compleat And these words in the County of Suffolke and the nec non that ensues are a new sentence And therefore the last clause And which by the Almoner c. goe only to the Tiths following the nec non and not to the Tiths contained in the first clause but it had been otherwise if the nec non had been unacum as in truth the patent was but it was mispleaded for then the unacum would have reinjoyned all and made it but one sentence The second reason was in respect of the nature of the thing granted which was but a rent And therefore if rent be granted out of a Mannor to be perceived and taken out of one acre this shall be good and nothing shall be charged but that one acre only 17. Ass but otherwise it is of Land for a Feofment of a Mannor To have c. one acre it is a void habend For here it appears that the intent of the Lady Finch was only to charge the Mannor and such Land only which were appertaining to the Mannor But Popham held the contrary for he conceived that D. S. and W. in the County of Kent were particularly named and bounded in by the name of the place and County and therefore they should be charged although they were not appertaining to the Mannor As if a man grants all his Lands in D. R. and V. in the County of M. and in Darn in the same County which he hath by discent it should only extend to Darn but denyed by the Court but he was strongly of that opinion And he held that by the first of the charge out of the Mannor all the Lands parcell or appertaining to the Mannor are charged and therefore the subsequent words if they should be limited as is above-said would be idle and frivolous And Yelverton said that the words before belonging or appertaining shall be taken to extend to the Land occupied in the Mannor although it is not parcell of it and Fenwood and Willams granted and Judgment was given that the Defendant should have a return habend TOtt versus Ingram Trin. 4. Jac. In a replevin brought by T. against I.
of the King for the Plaintiff and day given for the argument of that till the next tearm Hillary 8. Jacobi 1610. in the Common Bench. Tresham against Lambe LEwes Tresham was Plaintiff in waste against John Lambe the Plaintiff supposed the Defendant had made waste in sowing and plowing ancient meadow the which he had let to the Defendant for years in Rushton in the county of Northampton and sowed it with Woade and prayed Estrepement upon the Statute of Glocester chapter 13. And upon examination it appears that the Lands let was pasture and Meadow the Pasture was Ridge and furrow but had been mowed and used for meadow for diverse years and that the Defendant plowed and sowed that with Woade but this which had been ancient meadow he used that as Meadow and did not convert that to Arable Land but the Judges would not grant any Estrepement to the Pasture for that it was Ridge and furrow and it was no ancient meadow although that had been mowed time out of minde c. But to the ancient Meadow they granted a writ of Esterpement but Foster seemed to be of another opinion for that that it was to sow Woade for that that it is against common Right and the fume and smell of that is offensive and infectious but if it had been to sow Corne he agreed as above and for the executing the Writ of Estrepement they all agreed that the Sheriff ought to take if need be the power of the County against those which made the waste hanging the Action and may commit them if they will not obey him for the words of the Statute are that you shall cause to keep which shall be intended in safety But if Lessee for years trench or draine that is no Wast as it was now of late times adjudged where if the Lessee takes any of the reasonable Bootes that the Law allowes that it shall be no Waste nor Estrepement shall be granted see Fitzherberts Natura Brevium 59. m. If a man devise Land to his Executors for years this is assetts but if he devise that his Executors shall sell his Lands or devise his Lands to his Executors to be sold this shall be no assets untill the Lands are sold and the money for which the land shall be sold shall be assetts A Record of Nisi prius in an Action of Debt upon an obligation with condition to pay such a sum of Money at such a Feast next after the date of the obligation and the day of the date of the obligation was omitted in the Record of the Nisi prius so that it doth not appear which shall be the next Feast at which the mony ought to be paid after the date and by all the Justices that was no perfect Issue and for that the Justices of Nisi prius have no power to proceed upon it and for that it shall not be amended otherwise if it had been a good Issue though that another thing had been mistaken see Dyer 9. Eliz. 260. 24. And see before the same Tearm here The King pardoned a man attaint for giving a false verdict yet he shall not be at another time impannelled upon any Jury for though that the punishment were pardoned yet the Guilt remaines Hillary 8. Jacobi 1610. In the Common Bench. James versus Reade THE case was the King was seised of a Mannor where there were diverse Copy-holders for life and was also seised of eight Acres of Land in another Mannor in which the Copy-holders have used time out of minde c. To have common and after the King grants the Mannor to one and the eight Acres to another and a Copy-holder puts in his beasts into the eight Acres of Land and in trespasse brought against him by the Patentee of the eight Acres he prescribes that the Lord of a Mannor and all those whose estate he hath in the Mannor have used time out of minde c. For themselves and their Copy-holders to have Common in the said eight Acres of Land and further pleaded that he was Copy-holder for his life by grant after the said unity of possession in the King and so demanded judgment if action against which the said unity of possession was pleaded upon which the Defendant demurrs and all the Justices seemed that though that prescription was pleaded that the common was extinct but it seems also to them that by speciall pleading he might have beene helped and save his common for this was common Appendant see 4. Coke Tirringhams Case 37. 6. Hillary 8. Jacobi 1610. In the Common Bench. Cartwright against Gilbert IN Debt upon an obligation with condition to be and perform an Arbitrement to be made the Arbitrators award that the Defendant should make Submission and should acknowledge himself sorry for all transgressions and words at or before the next Court to be held in the Mannor of P. And for the not performance of that Award the Plaintiff brought this Suit and the Defendant in Barr of this pleads that at the said next Court he went to the Court to make his submission and to acknowledge himself greived according to the Award and was there ready to have performed it but further he saith that the Plaintiff was not there to accept it upon which the Plaintiff demurred and it seemes to Coke and Foster that the Defendant hath done as much as was to be done of his part and for that that the Plaintiff was not there ready to accept the Defendant was discharged for this submission is personall and to the intent to make them freinds and for that both the parties ought to be present But Walmesley and Warburton seemed that it might have been very well made in the absence of the Plaintiff as well as a man may submit himself to an Arbitrement of a man which is absent for this is only to be made to the intent to shew himself sorrowfull for the Trespasses and words which he hath made and spoken and it was not argued but adjourned till the next tearme and the Justices moved the parties to make an end of that for that it was a trifling Suit Hillary 8. Jacobi 1610 In the Common Bench. Sir Edward Ashfeild SIR Edward Ashfeild was bound in an obligation by the name of Sir Edmund and subscribed that with the name of Edward and in Debt brought upon that he pleads it is not his Deed and it seemes to all the Justices that he might well plead that for it appears to them that he is not named Edmund and the originall against him was Command Edward otherwise Edmund and this was not good for a man cannot have two Christian names and if judgment were given against him by the name of Edmund and the Sheriff arrest him by Capias that false imprisonment lies against him But if he have a name given to him when he was christened and another when he was confirmed he shall be called and known by the name given unto him at the time
But in this case before Attornement the Grantee hath nothing and after Attornement the particuler Estate being granted it shall be drownd in the reversion Harris Serjeant the words of the devise are that his Feoffees and all other Persons which after his Death shall be seised shall be seised to the same uses before declared and of one Acre he hath not any Feoffees for of that the Feoffment was voyd and yet it was agreed that the devise was good as Lyngies Case was in 35. H. 8 cited by Anderson in Welden and Elkintons Case Commentaries 523 b. And he argued that though that when a conveyance may enure in severall courses yet it cannot enure for part in one course and part in another course and for that this devise enures as a devise of Land for one Acre and declaration of the use of the Feoffment foâ—…her Acre for it is agreed in Sir Rowland Haywards Case 2. 〈…〉 a. 6. Coke 18. a. Sir Edward Cleeres Case and also in this 〈◊〉 the devisor hath made expresse declaration that the Land shall passe by the Feoffment and that the Will shall be but a declaration of the use of the Feoffment and for that nothing shall passe by the devise with which the Justices seemed to accord and cited a case to be adjudged in the Kings Bench 40. Eliz. where the Father gives and grants Lands to his Son his heires with warranty and makes a Letter of Attorney within the deed to make Livery and adjudged that that shall not enure as a Covenant to raise a use for that that it appeares by the Letter of Attorney that his intent was that that should enure as a Feoffment and not as any other manner of conveyance see 14 Eliz. Dyer 311. 83. Master Cromwells Case and so it was adjudged accordingly Hillary 8. Jacobi 1610. in the Common Bench Gargrave against Gargrave Katherine Gargrave was Plaintiff in a Replevin against Sir Richard Gargrave Knight and the case was this The Father of Sir Richard Gargrave was seised of divers Tenements called Lyngell Hall in Lyngell Hall and of a Moore called Kingstey Moore in another Town and the Tenants of the said Father of Sir Richard have used to have Common in the said Moore and the said Father so being of that seised demised the said Tenements to the said Katherine Gargrave for her Joynture by these words by the name of Hingell Hall and certaine Land Meadow and Pasture in certainty and with all â—ands Tenements and Hereditaments to that belonging or with that occupied and enjoyed now or late in the Tenure of one Nevill and Nevill was Tenant of the said premises and had Common in Kingsley Moore upon which the question was if the said Katherine by this demise shal have Common in the said Moore or not And Hutton Serjeant argued that the said Katherine shall have Common in the said Moore for he said that the said demise shall be expounded according to the intent of the partie 〈◊〉 as it is agreed in Hill and Granges Case Commentaries 270. b. Where a man makes a Lease for yeares of a house and all the Lands to that belonging and though it is there agreed that Land cannot be appurtenant to a house yet this word appurtenant shall be taken in the effect and sense of usually occupied with the Messuage or lying to the house by which it appeares that the words are transferred from the proper signification to another to satisfie the intent of the parties for it is the office of the Judges to take and expound the words which the common People use to expresse their intent according to their intent and for that shall be taken not according to the very definition insomuch that it doth not stand with the matter but in such manner as the party used them And for that this grant shall amount to a new grant of Common in the said Moor for as it seems common or feeding for Cattell may be granted and passe by the name of Tenements Hereditaments or at least shall be included and comprised within the words Tenements and Hereditaments and so shall be construed as a thing occupied and injoyed with the said Messuages see Hen. Finches Case 39. Coke And it was an expresse endorsment upon the demise that the said Katherine should not have Common in the said Moore but it was agreed by all that this was vaine and idle and nothing worth but he urged that this shall have a favorable construction for that it was for Joynture which shall have as favorable construction as Dower And so he prayed Judgement for the Plaintiff and of the other part Nicholls Serjeant argued that this shall not amount to a new grant for he said that they are not apt words to receive such construction for he said that this is no Tenement or Hereditament no Common but only a Feeding for the Cattell of the Lessee in the wast of the Lessor see 20. Edw. 2. Fitzherbert admeasurement and it cannot passe as a thing used with the said house for that was not in Esse at the time of the grant and there is not any apt word to make a new grant â—nd he cited 〈◊〉 Iudgement in Action of wast between Arden and Darcy where Ardon was seised of the Mannor of Curball and also of Parkhall and makes a conveyance of the Mannor of Curball to divers uses and at this time parcell of the Mannor of Curball was occupied with Parkhall as parcell of that and after made another conveyance of all his Lands in England except the Mannor of Curball And adjudged that the Parke which is used with Parkhall shall not be within the exception Coke saith that it was only feeding and not Hereditament for the Inheritance of both was in the Lessor but if it be granted of feeding it shall be intended the same like feeding that the Tenant hath as if the King grant such Liberties as the City of London hath and that shall be good and so it was adjourned Hillary 8. Jacobi 1610. In the Common Bench. Cannige against Doctor Newman IN an Information upon the Statute of 21 H. 8. chapter 13. Of non-residency it was found by speciall Verdict that Doctor Newman was Incumbent invested in the Rectory of Staplehurst in the County of Kent and that hee was also seised of a house in Staplehurst aforesaid scituate within twenty yards of the said Rectory and that the mansion house of the said Rectory was in good repaire and that Doctor Newman held that in his hands and occupation with his one proper goods and did not let it to any other and that he inhabited in the said Messuage and not in the Parsonage the Statute of 21 H. 8 chapter 13. Provides that every Parson promoted to any Parsonage shall be personally resident and abiding in at and upon his said Benefice and in case any such spirituall Parson keep not residence at his Benefice as aforesaid but absent himself willfully by the space
Mannor held in cheife and of other Mannors and Lands held of a Common person in socage and had Issue foure Sonns Thomas William Humphrey Richard And by his Deed 12 Eliz. covenants to convey these Mannors and Lands to the use of himself for his life without impeachment of wast and after his desease to the use of such Farmors and Tenants and for such Estates as shall be contained in such Grants as he shall make them and after that to the use of his last will and after that to the use of VVilliam his second sonn in tayle the Remainder to Humphrey his third Son in tayle the Remainder to Richard the fourth Sonn in tayle the Remainder to his own right Heires with power of Revocation and after makes a Feoflment according to the covenant and after that purchases eight other acres held of another common person in socage and after makes revocation of the said Estates of some of the Mannors and Lands which were not held by Knights service and after that makes his Will and devises the Land that he had purchased as before and all the other Land whereof he had made the Revocation to Thomas his eldest son the Heirs Males of his body for 500. years provided that if he alien and dye without Issue that then it shall remaine to William his second sonne in tayle with the like proviso as before and after dyed and the Jury found that the Lands whereof no revocation is made exceeds two parts of all his Lands Thomas the eldest sonne enters the 8. Acres purchased as before and dyes without Issue male having Issue a Daughter of whom this Defendant claimes these eight Acres and the Plaintiff claims them by William the second Son And Dodridge the Kings Serjeant argued for the Plaintiff intending that the sole question is for the 8. acres purchased and if the devise of that be good or not by the Statute of 34. H. 8. And to that the point is only a man which hath Lands held in cheife by Knights service and other Lands held of a common person in Socage conveys by act executed in his life time more then two parts and after purchases other Lands and devises those if the devise be good or not And it seems to him that the devise is good and he saith that it hath been adjudged in the selfe same case and between the same parties And this Judgment hath been affirmed by writ of Error and the devise to Thomas and the Heirs males of his body for 500. years was a good estate tayle and for that he would not dispute it against these two Judgments But to the other question hee intended that the devise was good and that the Devisor was not well able to doe it by the Statute of 34. H. 8. And hee intended that the statute authoriseth two things 1. To execute estates in the life time of the party for advancement of his Wife or Children or payment of his debts and for that see 14. Eliz. Dyer and that may be done also by the common Law before the making of this statute But this statute restrains to two parts and for the third part makes the Conveyance voyd as touching the Lord But the statute enables to dispose by Will a parts where he cannot dispose any part by the Common Law if it be not by special Custome but the use only was deviseable by the common Law this was altered into possession by the statute of 27 H. 8. and then cometh the statute of 32. and 34. H. 8. and enables to devise the Land which he had at the time of the devise or which he purchased afterwards for a third part of this Land should remain which hee had at the time of the devise made and if a third part of the Land did not remain at the time of the devise made sufficient should be taken out of that but if the Devisor purchase other Lands after hee may those wholly dispose And for that it was adjudged Trin. 26. Eliz. between Ive and Stacye That a man cannot convey two parts of his Lands by act executed in his life time and devise the third part or any part so held by Knights service and also he relyed upon the words of the statute that is having Lands held by Knights service that this shall be intended at the time of the devise as it was resolved in Butler Bakers Case That is that the statute implies two things that is property and time of property which ought to be at the time of the devise But here at the time of the devise the Devisor was not having of Lands held by Knights service for of those he was only Tenant for life and the having intended by the statute ought to be reall enjoying and perfect having by taking and not by retaining though that in Carrs Case cited in Butler and Bakers Case rent extinct be sufficient to make Wardship yet this is no sufficient having to make a devise void for any part Also if the Statute extend to all Lands to be after purchased the party shall never be in quiet and for that the Statute doth not intend Lands which shall be purchased afterwards for the Statute is having which is in the Present tence and not which he shall have which is in the Future tence and 4. and 5 P. and M. 158. Dyer 35. A man seised of Socage Lands assures that to his Wife in joynture and 8. years after purchases Lands held in cheife by Knights service and devises two parts of that and agreed that the Queen shall not have any part of the land conveyed for Joynture for this was conveyed before the purchase of the other which agrees with the principall case and though to the Question what had the Devisor It was having of Lands held in Capite insomuch that he had Fee-simple expectant upon all the estates tayl he intended that this is no having within the Statute but that the Statute intend such having of which profit ariseth and out of which the K. or other Lord may be answered by the receipt of the profits which cannot be by him which hath fee-simple expectant upon an estate tayle of which no Rent is reserved and also the estate tayle by intendment shall have continuance till the end of the world and 40. Edw 3. 37. b. in rationabili parte bonorum it was pleaded that the Plaintiff had reversion discended from his Father and so hath received advancement And it seems that was no plea in so much that the reversion depends upon an estate tayle and upon which no Rent was reserved and so no advancement So of a conveyance within this Statute ought such advancement to the youngest sonne which continues as it is agreed in Binghams Case 2 Coke that if a man convey lands to his youngest sonne and he convey that over to a stranger in the life time of his father for good consideration and after the Father dies this
is now out of the Statute for the advancement ought to be continuing until the death of the Father And so he saith also it was adjudged in Butler and Bakers Case that if a man devise Socage Lands and after sell to a stranger for good consideration his Lands held by Knights service this devise is now good for all for hee hath not any Land held by Knights service at the time of his death and so he concluded that the devise was good and prayed Judgement for the Plaintiff Houghton Serjeant for the Defendant he thought the contrary and hee argued that before the statutes of 32. and 34. of H. 8. men were disabled to devise any Land and for that they cannot provide for their Wives Children or for payment of their Debts and for remedy to that Feoffments to uses were invented and then to dispose the use by their Wills and then experience finds that to be inconvenient and then the statute of 27. H. 8. transfers the use into possession and then neither use nor land was deviseable without speciall Custome and then this was found to be mischeivous after five years experience and then was the statute of 32. H. 8. made and where by the statute of Marlebridg of those which did enfeoff their begotten sons a Feoffment by the Father to his son and Heir was void for all Now by this statute this is good for 2. parts and void only for the 3d part that for the good of the Lord but as to the party that is good for all as it is agreed in Mightes case 8 Coke Then to consider in the case here if all things concur that the statute requires and to that here is a person which was actually seised of Land held by Knights service in 12. Eliz. So that it is a person which then was having within the statute 2. If here be such conveyance for advancement of his children as is intended within the statute and to that he seemed that so notwithstanding that it may be objected that here is no execution to the youngest children insomuch that it is first limited to such Farmers and Tenants c. But he intended that this is no impediment Secondly also there is a limitation to the use of his last Will. Thirdly also there is a limitation to the use of such persons to whom he devises any estate by his Will But these are no impediments for the last is no other but a devise to himselfe and his heirs and there is not any other person knowne but meerely contingent and it is not like to a remainder limited to the right heirs of I. S. for there the remainder is in Abeiance but here it is only in contingency and nothing executed in Interest till the contingency happen and the not having of a son at the time shall not make difference as in 38. Edw. 3. 26. in formedon in Remainder where the gift was in one for life the remainder to another in tayle remainder in fee to another stranger and he in remainder in tayle dyes without Issue in the life time of the Tenant for life he in remainder in fee may have formedon in remainder without mentioning the remainder in tayle But here he intends that the devise shall be void in respect of the Lands first conveyed which were held in cheife by Knight service for the words of the statute are by act executed either by devise or by any of them and they are conjoyned and it is not of necessity that the time of the Conveyance shall be respected but the time of the value And notwithstanding that the Testator doth not mention any time But in so much as the provision of the statute is to save primor seisin and livery to the King as if the man had 20 l. by year in Socage and one acre in cheife and makes a conveyance of all that it shall be void first to the livery and priâ—or seisin to the third part So if he make conveyance of the 20 l. by yeare and leave the said acre held in cheife to discend and after that purchase other Lands to the value of the third part of all the conveyance of the 20 l. land notwithstanding which for the advancement of his Wife Children or payment of his Debts for he had a full third part at the time of his death which discended And he supposed that the having of a dry reversion depending upon the estate tall is sufficient having within the words and letter of the Statute and yet he agreed the ease put in Butler and Bakers case that if a man devise his Socage Lands and after alien his Lands held in cheife by Knight service to a stranger bonafide this is good So if he had made a reservation of his Lands held in chiefe to himselfe for his life in so much that his estate in that ended with his life and hee remembred the case cyted in Bret and case Comment That if a man devise a Mannor in which he hath nothing and after hee purchaseth it and dyes the devise is good if it be by expresse name But when a man hath disposed of two parts of his Land the Statute doth not inable him to devise the Residue but he hath done all and executed all the authority which the Statute hath given to him But he agreed also that the reversion is not such a thing of value which might make the third part discend to the Heir but it is uncertaine as a hundred and the other things of uncertain value contained in Butler and Bakers Case And also he intended that the remainder could not take effect insomuch that the condition is precedent and it is not found that the eldest Sonne hath aliened and then dead without Heir male and so he concluded and prayed Judgment for the Defendant In Replevin the Defendant avows for 9 s. Rent the Plaintiff pleads a Deed of feoffment of the same Land made before the Statute of quia emptores terrarum by which 6 s. 8 d. is only reserved and demands Judgment if he shall be received to demand more then is reserved by the Deed See 4 Ed. 2. Avowry 202. 10. H. 7. 20. Ed. 4. 7. Edw. 4. Lung 5 Ed. 4. 22 H. 6. 50. This Deed was without date and it was averred that it was made before the Statute of quia emptores terrarum which was made in the 18. of Edw. 1. And also it ought to be averred to be made after the beginning of the Reign of Richard 1. For a writing after the beginning of his Reign checks prescription But if a man hath a thing by grant before that he may claim by prescription for hee cannot plead the grant insomuch it is before time of memory and a Jury cannot take notice of that and for that the pleading before with the said averments was good If debt be due by Obligation and another debt be due by the same Debtor to the same Debtee of
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill
part this shall not extend to other persons Commoners and it is like to the case in 9 Eliz. Dyer 257. 13. A man makes a Lease for years and covenants that the Lessee shal injoy the Tearm without eviction of the Lessor or any claiming under him if he be evicted by a stranger this shal be no breaking of the Covenant for a stranger is no party to the Deed nor claims under the Lessor and for this his Entry shal not give Action to the Lessee and so is the Case in 21 H. 7. between the Prior of Castleton and the Dean of Saint Stephens which was adjudged the 18 of H. 7. Pasch Rot. 416. Though that no Judgment be reported where it appears that the King Ed. 3. seised al the Lands of Priors aliens in time of War for that that they carried the Treasure of the King out of the Realme to the Kings Enemies and so it was made by H. 4. also during the time of his Reign and then in the second year of the Reign of King H. 5. by a statute made between the King and the sayd Priors aliens al the Possessions of the sayd Priors were resumed into the hands of the sayd King and adjudged in 21. H. 7. 1. before that this shal not extend to the Prior of Castleton which had Annuities issuing out of the Possessions of the sayd Priors for the said Prior of Castleton was not party to the sayd act of Parliament and for that he shal not be prejudiced by that and so it was adjudged 25. and 26. Eliz. In the Court of VVards in the case of one Boswell where the King made a Lease for years which was voydable and after by another Patent granted the Inheritance and then came the statute of 18. Eliz. to confirm al Patents made by the sayd Queen within her time and adjudged that the sayd Act shal not make the sayd patent voyd to the Patentee which is a stranger to the act of the Parliament but only against the Queen her Heirs and successors for by the statute it is made only against one person only and shal not be good against another though there be no saving of such person in the sayd Act. And also he conceived that the statute of 22 Ed. 4. Doth not extend to any woods in forrest in which another hath Common for it doth not extend only to such woods which a common person hath in the Kings forrest or common person and that it may be inclosed for the space of three years after the cutting of the wood in this before the making of the sayd statute and this was no wood in which an Estranger had Common as it appears by the Preamble of the sayd statute and then after in the sayd statute it is sayd such woods may be inclosed And also he conceived where the statute sayth that they may inclose the same Grounds with such sufficient hedges able to keep out all manner of Beasts and Cattell out of the same Grounds but this refers to the quality of the hedge for before it ought to be a small Ditch and by this statute it ought to be with such hedg which shall be able c. And it shall not be referred to the manner of the Cattell But for the difference between Beasts of Forrest Beasts of Chase and Beasts of Warrain see the Register fol. 96. 43 Ed. 3. 13. 12. H. 8. 12. b. Hollinsheads Cronicle fol. 20. b. 32. And he conceived that Sir Francis Barrington is such a Vendee of Wood that is within the statute though that he be Vendee of Inheritance and hath a greater Estate then Vnica vice but for that that he conceived that it was not within the statute for other reasons before cyted he would not dispute it But he conceived if this had been the question of the Case that this was within the statute and also he conceived that this was a generall statute of which the Judges shall take notice without pleading of this And this reason was for that that the King was party to it and this which concernes the King being the head concernes all the Body and Common Wealth and so it was adjudged in the Chancery in the case of Serjeant Heale that the statute by which the Prince is created Prince of VVales was a general statute and for that see the Lord Barkleyes case in the Commentaries Also he conceived that the said statute of 22 of Ed. 4. was repealed by 35. H. 8. for this was in the Negative that none shal cut any wood but only in such manner as is prescribed by the said statute and for that shal be a repeale of the first and that by the first Branch of the sayd statute it appeares that if such giving of Wood in his own Soyl within any forrest he cut to his own use he cannot inclose and by that Branch Commoner is not excluded but by the second Branch it is provided that he may inclose the fourth part of his Wood and cut that in such manner as is appointed by the said statute and then he shal loose his own Common in the three other parts and so he concluded that Judgment ought to be given for the Plaintiff which is the Commoner and Judgment was entred accordingly Pasch 1610. 8. Jacobi in the Common Bench. Cesar against Bull. THomas Cesar Plaintiff in Assise against Emanuel Bull for the Office of Clock-Keeper to the Prince this he claims by grant of the King during his own Life with the fee of two shillings a day for the exercising of it and three pound yearly for Livery and the patent purports only the Grant of the Office and not words of creation of the Office as Constituimus officium c. And the Plaintiff could prove that it was an ancient Office and for that was non-suited in the Assise though that the Tenant had made default before Pasch 1610. 8. Jacobi In the Common Bench. Heyden against Smith and others THE Plaintiff counts in Trespasse against these Defendants and these Defendants justifie as Servants to Sir John Leventhorp who was seised of a free-hold of Land in which the Tree for which the action was brought was cut and so demands Judgment if action the Plaintiff replyes that the place where c. was parcel of a house and twenty Acres of Land which time out of mind c. have been demised and demisable by Copy of Court Roll which was parcel of the Mannor of A. of which the sayd Sir John Leventhorp was seised in his Demesne as of see and by Copy at a Court held such a day and year granted the said Messuage and twenty acres of Land whereof c. To the Plaintiff and his Heirs according to the custome of the said Mannor and prescribes that within the sayd mannor was a Custome that every Copy-holder may cut the boughs of all the Pollingers and Husbands growing upon his Copy-hold for fire to be burnt upon his
he be Lord or Free-holder The best badge of truth is the usage of taking the profit of the Trees 11 H. 4. rot 80. Where the Court ex officio should inquire and that omitted the Court may supply it but where an Attaint lyeth that is not to be supplied as in a Valore Maritagii the value is the point of the Writ and if that be omitted by the Jury never to be supplied by Writ Cheyneys case Valore Maritagii and intrusion were at the Common Law before the Statute and the Statute doth but inlarge the Common Law for by the Statute the Judgement is otherwise then at the Common Law It is vain to plead the Execution of a Writ of Seisin upon a Recovery but to plead that he did enter MIch 10. Jac. If I purchase Land by a name and alleadge it to be in a wrong Parish or Shire it is good notwithstanding the mistake by the Court. A stranger shall be bound by a Law made for the publique good but he must come within the place where it was made The King cannot grant precedency in publique things as to go by Water or by passage on the Land as by Coach if a Bond bear Date Super altum mare then it must-be sued onely in the Admiral Court otherwise it cannot be sued there Every Bishop hath his Cathedral and Councel and the Councel and Bishop there decide matters of Controversie the Prebends have their names from their affording of help to the Bishop and in time of the vacancy of the Bishop the Arch-bishop is Guardian of the Spiritualties and not the Dean and Chapter TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall The Action was laid in Westmerland and the Jurata written at the end of the Record was Ebor. ss ura Inter c. and recites the Day of Triall in the County of York and the place where the Triall was at York and prayed that it might be amended and it was granted to be amended by the whole Court INt. Bullen Jarvis The Venire facias was made in this Form Videlicet Liberos legales homines de B. and it should have been De vicineto de B. and it was notwithstanding held good and amendable by the Roll for it shall be intended that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places and none of them be named of B. and the Venire facias was returned by A. B. Ar. without naming him Vic. and it was amended by the Court. GRiffin versus Palmer Trin. 15. Jac. rotulo 924. Issue taken whether the Lands contained in the Fine were ancient Demesne or not pretending they were parcell of the Mannour of Bowden in the County of Northampton which was pretended to be ancient Demesne and the Doomesday Book was brought into the Court and by that Book it appeared that the Mannour of Bowden was in the County of Leicester and not in the County of Northampton but the Councel affirmed that the Mannour was both in the County of Leicester and Northampton but it valued not for the Doomsday Book was against the Plaintiff The Court was moved to amend a Venire facias which was Album Breve but the Court would not grant it although the Sheriffs name was put to the Pannell but if the Sheriff upon the Venire facias had returned that the Execution of that Writ did appear in a certain Pannell annexed to that Writ and had not put his name to the Writ of Venire facias but to the Pannell in such case the Court would have amended the Venire facias Lessee at will cannot grant one his Estate if one occupy with Tenant at will this is no Disseisin to the Lessor If a Tenant for seven years suffer Trees to grow above the age of 21. years they are Timber and it is waste to cut them Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent If a man holdeth over his terme and pay his old Rent he shall be accounted Tenant at will If one being sick giveth Notes to make his Will and after by infirmity of sickness he becometh so weak that his memory faileth him and these Notes are made into a Will this is a good Will otherwise it is if he become lunatique after the Notes given MIch 15. Jacobi One Warter was committed to the Fleet by the Lord Treasurer of England and the Prisoner was brought to the Common Pleas by Habeas Corpus which was returned and no cause of the Commitment expressed and for that cause the Prisoner was set at liberty and bailed TRinity Terme 15. Jacobi Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk of the names of divers Jurors that were to be returned and of divers others that were not to be returned in a case concerning one Butler and for this Offence he was put out of the Roll of Attorneys In Spilmans case if I have Estovers in Land and cut down Estovers and a stranger taketh away the Estovers I shall have an Action against him that taketh them away although he have there Common of Estovers also If the Husband sow the Ground and die the Executors and not the Heir shall have the Corn but if the Father sow the Land and dieth or the Heir sow the Land and the Wife recover Seisin in Dower she shall have the Corn. The setting open a Shop on the Sabbath day is punishable by Statute Law and so is a House of Bawdry and not to be dealt with by the high Commissioners So long as the Land is occupied by him that hath the Fee-simple which did formerly belong to the Order of the Cistercians it shall pay no Tithes but if he let it for years or life the Tenant shall pay Tithes HIll 11. Jac. rotulo 90. A Recovery was had upon a Writ of Entry in le post for a common Recovery between Hartley and Towers in the County of Bucks the Attorney who prosecuted the Recovery by negligence did not file the Writ of Entry which was prosecuted orderly and all Fees paid when the Recovery was passed And in Easter Terme 14. Jac. it was moved that the Writ of Entry might be filed and it was granted although the Tenant was dead the Writ of Entry was returnable Octabis Purificationis MIch 14. Jacobi My Lord Hubbard Justice Warburton and Winch held that when there were but three Judges of the Common-Pleas they might argue Demurrs and if two of them were of one minde and one of the other the Judgement should be given according to their opinions My Lord Cook said that for the Body of the Church the Ordinary is to place and displace in the Chancell the Freehold is in the Parson and it is parcell of his Gleab Tpespass will
that he had Assets at the Day of the Writ purchased and it had been found for the Plaintiff now the Plea is made good If an Action of Debt be brought against two Executors and one of them onely appear and confess the Action the Judgement shall be against both of them of the Goods of the Testators in the hands of all the Executors and the Damages of him that appeared onely TRin. 16. Jac. rotulo 988. Houldsworth versus Barker An Action of Debt brought upon a Bill the Defendant pleads the Bill was delivered to the Plaintiff upon a Condition not performed and it was held a naughty Plea by the whole Court HIll 13. Jacobi rotulo 842. Harrison al. at the Suit of Fleet. An Action of Debt brought for 32. l. and the Plaintiff counts upon an Emisset Harrison pleads that he and the other do not detain from the Plaintiff the said 32. l. nor any Penny thereof and the other pleads to Issue and a special Entry made that the Issue should remain untill the said Harrison had perfected his Law or made Default and he at the Day did wage his Law and Judgement was that the Plaintiff should take nothing by his Writ PAsch 16. Jac. rotulo 1200. Rayson versus Winder An Action of Debt brought upon an Obligation with a Condition to perform an Award which was good in part and void in part and the Breach assigned upon the good part and the Award was to pay Money but no time of Payment afterwards it was demanded the Award is good GAsington versus Burcher Knight Turner Jones and Bowden for 1800. l. Burcher was outlawed Turner and Jones appeared by Supersedeas and Bawden appeared by another Attorney and the Plaintiff declared against them three that appeared upon an Account Turner offered to wage his Law and the others plead Nil debent per patriam and the Court was moved pretending that Turner shal not be admitted to wage his Law because the Defendants should not sever in Plea but the Court upon sight of divers Presidents were of another opinion although it was urged that Turner Jones joyned in a Supersedeas and therefore pretend that Turner should not sever in Plea from Jones that pleaded Nil debet per patriam but that Exception was disallowed for although two appear by Supersedeas yet they may vary in Plea MIch 16. Jac. rotulo 581. and the Imparlance entred 16. Jac. rotulo 1727. An Action of Debt brought by Lee versus Arrowsmith upon an Emisset for divers Parcels and upon an Account and the Parcels and Account amounted to the summ of 300. l. but in the Imparlance Roll the Parcels and summ accounted for did not amount to 300. l. by 6. l. And this variance was moved in Arrest of Judgement after a Verdict but the Court were of opinion that it was amendable because Ball the Attorney made Oath that he commanded his Clerk to summ the Account for 6. l. to maintain his Writ and therefore the Roll was amended HIll 36. Eliz. rotulo 1908. Action of Debt brought by Gage versus Gilbert upon an Obligation for 500. l. bearing Date first of February Anno 25. Eliz. The Defendant pleads a general Release made to him by the Plaintiff bearing Date after the making of the Bond of all Dues and Demands whatsoever except an Award made between the Plaintiff and one G. W. why R. R. then dead and one Obligation of 500. l. for performance of the said Award bearing Date 29. April 25. Eliz. and whether these words bearing Date 29. April shall have reference to the Arbitrement or Bond was the Question upon a Demurrer upon the Replication in which the Plaintiff shewed the special matter that the Award was made the 29. April and that the Bond was made the said first of February and it was adjudged that these words bearing Date should have reference to the Award and not to the Bond. And if the Heir pleads Ciens per discent besides one Acre if the Plaintiff please he may have Execution of that Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land onely and not of his person as it is where the Heir pleads that he hath nothing by Discent generally and it is found against him that Land and all other his Land which he hath and his Body are liable to the Judgement by a Capias ad satisfaciend Fieri facias or Elegit If a man be retained in London to serve beyond Sea he may have his Action for his Wages in England in any County And the like of an Obligation bearing Date at Roan in France it may be sued in England alleadging the place to be in such a County where he brings his Action And note that Debt may be brought in the Common Pleas without Original against any Officer or Minister of the said Court by Bill exhibited to the Court but no Process of Outlary lies upon that and the Judgement upon that is that the Plaintiff shall recover his Debt and Costs and shall have an Attachment ad satisfaciendum but no Exigont for because it is not by Original and all the Process by Bill shall be returnable at a Day certain but no Bill lies against a Serjeant at Law And note that the Judges Serjeants and Officers Clerks Attorneys and Ministers of the Court may have an Attachment of Priviledge out of the said Court without an Original to arrest any to them indebted or for any personal cause to proceed upon it as if it were by Original but no Process of Outlary lies thereupon and such Process of Attachment shall be returnable at a Day certain and not at the common Return and they may be returned from Day to Day If a man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Money he may have his Action of Debt for the Money and declare upon the Award and afterward may have another Action upon the Obligation for not performing the Award by the opinion of the whole Court Mich. 5. Caroli An Action of Debt brought by an Executor the Defendant pleads an Outlary in the person of the Executor and demands Judgement if he ought to answer his Writ the Plaintiff demurrs in Law to that Plea and Judgement was given that the Defendant should answer over WOlly versus B. and his Wife Trin. 37. Eliz. rotulo 1306. An Action of Debt brought by Husband and Wife as Executrix the Defendant pleads in Barr an Outlary in the Testator by an Estranger which is in its force and upon a Demurr and solemn Debate adjudged a naughty Barr. Trin. 40. Eliz. rotulo 507. The like Plea pleaded to an Executor that brought an Action of Debt and adjudged no Plea And Dixon Administrator of Collins exhibited a Bill against
by Obligation and that he retained the Money in his hands to satisfie the Debt The Plaintiff replies that the Money was not due and payable to him at the time of the Intestates Death and that he took Administration after the Day of Payment and if the Administrator had pleased he might have took Administration before the Day of Payment and the Court held the Defendants Plea good but he shall not have the Forfeiture CArrell versus Paske Trin. 13. Jac. rotulo 1018. Debt brought upon an Obligation made at C. in the County of Surry The Defendant pleads the Priviledge of Cambridge granted to them by the Queen Eliz. for Scholars Bachelours Masters and their Servants upon Contract made within the University and shews the Bond was made in Cambridge and that he was a Servant of the Scholars to wit Bailiff of Kings Colledge in that University and inhabiting within the Town of Cambridge and Precincts of that University and therefore a priviledged Person of the same and upon reading the Record it seemed that the Defendant being a Bailiff of the Colledge is not capable of the said Priviledge PReist versus Cee Trin. 12. Jacobi rotulo 2197. An Action of Debt brought upon a Bill bearing Date 17 Novomber 1604. by which Bill the Defendant did acknowledge himself to owe the Plaintiff 10. l. to be paid to the Plaintiff at two Payments to wit 5. l. to be paid upon the 19. of November then next following and other 5. l. to be paid upon the 10. Day of December then next following The Defendant pleads it was not his Deed. The Jury finde it specially that the Defendant the 17. of November 1604. sealed and delivered to the Plaintiff one Bill obligatory shewed to the Jury bearing Date the Day and Year above and finde the Bill in haec verba Be it known c. to be paid at two Payments that is to say 5. l. to be paid the 19. of November which is the present of this Moneth and the other 5. l. on the 10. of December The Question was whether the Bill maintain the Count for the first Payment and adjudged it did RAwdon versus Turton Trin. 13. Jac. 1011. An Action of Debt brought upon a Bond for Payment of Money such a Day The Defendant pleads that he the same Day made an Obligation for the Payment of the said Money another Day which the Plaintiff accepted for the Money and Issue taken thereupon and tried for the Defendant and after the Verdict the Plaintiff moved the Court to have Judgement though the Verdict passed against him because the Plea was insufficient and that he confessed the Debt but the Court would not grant it The like Mich. 6. Jac. rotulo 1061. And the like Hill 12. Jac. CArter versus Freeman Mich. 13. Jac. An Action of Debt brought upon a Bond with a Condition that the Defendant should appear before the King at a certain Day Videlicet Die Jovis post Octobras Martini and upon a Nul tiel Record pleaded the Defendant brought his Record of Appearance Lunae post xvam Martini and this was held by the whole Court an Appearance at the Day in the Condition by the whole Court GRubham versus Thornborough Hill 12. Jac. rotulo 1773. An Action of Debt brought for Rent and for a Nomine penae the Rent due 14 November Anno 9. and no name alleadged for the Nomine penae therefore the Action would not lie for the Nomine penae but it would for Rent PAsch 44. Eliz. Elliot versus Golding An Action of Debt brought and Judgement given for the Plaintiff and a space was left in the Roll for the Costs of the Judgement and after the Year and a Day a Scire facias was brought to revive the Judgement and in the Scire facias the Costs are put in and so Judgement by Default and afterwards a Writ of Error brought and the Error was assigned because there were no Costs put into the principal Roll and afterwards the Record was removed the Count was moved that Costs might be put into the Roll but it was denied upon the first motion and afterwards Pasch 13. Jac. it was denied by the whole Court BOnd versus Green Administrator An Action of Debt brought against him as Administrator he pleads divers Judgements amounting to 670. l. and the Assignement of 100. l. Debt to the King by Deed inrolled and he pleaded that he retained his Debt in his hands and he might have given this in Evidence or pleaded it at the Liberty of the Defendant COoper versus Bacon Action of Debt brought upon the Statute of E. 6. for Tithes and the Plaintiff declares that one was seised of the Rectory of Elveley alias Kirkley in Kingston upon Hull in his Demesne as of Fee and being so seised such a Day and such a Day at Elveley alias Kirkley did demise to the Plaintiff the said Rectory with the Appurtenances to have and to hold c. for years and that by vertue thereof he hath been and is thereof possessed and that the Defendant such a Day and before and alwayes afterwards hitherto had held and occupied 30. Acres of Land in Swandland in Kingston in a place called T. and that the Tithes did belong to him The Defendant pleads Nil debet per patriam and after a Verdict it was alleadged in Arrest of Judgement that the Issue was mis-tried because the Venire facias was of Elveley alias Kirkley and it should have been of Swandland where the Tithes grew CHapman versus Pescod Trin. 11. Jac. rotulo 2106. An Action of Debt brought upon an Obligation with a Condition to give and grant to him his Heirs and Assignes The Defendant pleads that he hath been ready to give and grant and adjudged naught for he must plead that he did it otherwise it had been if the words had been as Councel should devise MAncester versus Draper Hill 10. Jac. rotulo 2613. An Action of Debt brought upon a Bond with a Condition to pay Money if C. R. shall be then living and shall before the same 20. Day of O. by due form and course in Law perfect levy and knowledge a Fine and a Recovery before his Majesties Justices of his Highness Court of Common Pleas of and in certain Houses and Tenements with the Appurtenances which the said Draper lately had and purchased of the said C. R. the Defendant pleads that C. R. was living and did not levy c. and a Demurrer and the Question was whether Draper or Ro. should levy the Fine and held that Draper should levy the Fine BAker versus Pain Hill 10. Jac. rotulo 3139. An Action of Debt brought upon a Bond to pay Rent and perform all the Covenants Grants Payments and Conditions contained in a pair of Indentures and the Defendant pleads the Indenture and performance thereof The Plaintiff assignes the Breach that the Defendant had not paid the Money The
of Clanrickard with whom Yelverton was of Councel it was resolved that if the Issue be upon the custome of Tithing and that it be found against the Defendant he shall pay the value expressed by the Plaintiff in his Declaration for because by the collateral matter pleaded in Barr the Declaration is in whole confessed SMith versus Smith Trin. 6 Jacobi one Bisse made K. his Wife and John his Sonne being one year old Executors and K. solely proved the Will and afterwards married the Plaintiff and they two brought an Action of Debt as Executors against the Defendant and the Defendant pleads in abatement of the Bill that John was made Executor with K. and is yet in life and not named the Plaintiffes reply that John was but of the age of one year and that K. proved the Will and had Administration committed to her during the minority and that John is and was at the time of the Writ purchased within the age of seventeen years and upon that Yelverton demurred and adjudged for the Defendant that the Bill should abate for both of them in truth were Executors and ought to be named in the Action and although by the Administration granted during the minority K. had the full power yet the Infant ought to be named he being Executor GOmersall versus Ask Trin. 6. Iacobi The Defendant brought an Action of Debt against the Defendant as Administrator of her Husband upon two former Judgements given in two Actions of Debt against the intestate and shews the recoveries the Defendant pleads that the intestate entred into a recognisance 35 El. in Chancery to Sir Henry Bechel and shows that after the Judgements had by the Plaintiff Sir H. obtained a Judgement against the intestate upon the Recognisance and that she hath not assets to satisfie the Plaintiff of the intestates Goods beyond Goods that are chargeable and liable to the Judgement upon the Recognisance to which Plea the Plaintiff demurres and by Fennor and Williams justifies the Plea in Barr was good for although the Plaintiffes Judgements mentioned in his Actions are before Sir H. Judgement yet because the Plaintiff by his Action doth not demand Execution of the Judgements but onely his Debt recovered for this Action brought it as an originall and in the same Court as if he did demand the Debt upon the first Obligation and therefore because the Plaintiff had not sued out a Scire facias to execute the first Judgements but had prosecuted a new originall the Plea is good and allowable as it had been upon the said Obligation but Yeluerton and Fleming were of a contrary opinion for the Plea had not been good against the intestate himself and the Executor or Administrator represents his person and therefore the Plea is not good but onely in excuse of a Devastavit and they were of opinion that the Action brought by the Plaintiff was in nature of a Scire facias for he demanded the Debt in another course then it was at first for that Debt which was but matter of escript is now become by the Judgement to be Debt upon Record and of so high a nature that the Judgement being in Force he can never have an Action upon the Obligation which is adjuged in Higgins Case Co. 6 Rep. but Cook doubted and the Plaintiff dying the Court did not resolve APleton versus Baily Mich. 6. Jacobi Apleton as Executor of Apleton brought an Action of Debt against Baily for the Arrerages of diverse Rents as well Copy-hold Rents as Free-hold Rents pertaining to a Mannor whereof the Testator was seised and thereof died seised and the Rents were not paid to him in his life time by reason whereof they belonged to the Plaintiff as Executor And the Defendant though he was requested had not paid against the form of the Statute of the 32 H. 8. And the Court that the Action did not ly for the Arrerages of Copy-hold Land for the Statute of the 32 H. 8. doth not extend to them but only to Rents out of Free Land Secondly It lies not for the Rent of free Land because the Plaintiff hath not shewed in his Declaration that the Defendant had attorned to the Testator in his life And although in pleading it is good to alledge a Feoffment of a Mannor without pleading any Livery or of any Attornment of Tenements but when the Rent of any Free-hold Land comes in Debate it behoves both the Owner of the Mannor and and his Executor that demands it to convey the privity between the Tenant and the Lord which ought to be by attornment for Rents and Services rest not without Attornment which mark PEirson versus Ponuteis Mich. 6. Jacobi The Plaintiff as Executor of Peirson brought an Action of Debt against Jo. Ponuties of London Merchant that he should render to him three and thirty pounds twelve shillings in that the Defendant 5. Oct. 1598. at London c. By his Bill obligatory hath acknowledged himself to owe to the Testator 1518. Florens Polish which then amounted to thirty three pounds twelve shillings to be paid to the Testator Ad solucionem festi purificat c. Called Candlemas day next insuing and to that payment had obliged himself by the same Bill And the Plaintiff avers that Predicti soluciones dicti festi purificat c. Next after the making the Bill were according to the use of Merchants the twentieth of February 1598. Yet the Defendant had not paid the 1518. Florence Polish or the thirty three pounds twelve s. to the Testator nor to the Plaintiff The Defendant pleads Non est factum and found against him and moved in arrest of Judgment that the Declaration was not good because first the payment of Candlemas is not known in our Law but that was not allowed for that which is unknown in ordinary intendment is made manifest and helped by the Averment in the declaration because that payment among Merchants is known to be upon the twentieth of February and the Judges ought to take notice of those things that are used amongst Merchants for the maintenance of traffick and the rather because the Defendant doth not deny it but pleads non factum by which he confesses the Declaration to be true in that averment Secondly it was objected that as the Case is the use of Merchants is not materiall because the Testator by any thing that appears was not a Merchant but it was not allowed because the defendant that bound himself to pay was a Merchant and the Testator ought to take the Bill as the defendant would make it and he chose to make the payment according to the use of Merchants and not according to the Ordinary intercourse between party and party which mark this by the whole Court TAlbot versus Godbold Mich. 6. Jac. Godbold 28 Eliz. sealed a Bill to the Plaintiff made in this manner memorandum that I have received of Edw. Talbot who was the Plaintiffes Testator to the
to the breach if it had been assigned yet the Court ought to be satisfied that the Plaintiffe had good cause of Action to recover otherwise they should not give Judgement and although a Verdict is given for the Plaintiff yet this imperfection in the Replication is matter of substance and is not helped by the Statute by the opinion of the whole Court except Justice Williams BArwick versus Foster Mich. 7 Jacobi Action of Debt brought for Rent the cause was thus the Plaintiff leased certain Lands to the Defendant at Mich. 1 Jacobi for five years yielding and paying Rent at our Lady Day and Mich. yearly or within ten dayes after and for rent behind at the last Mich. the Plaintiff declares as for Rent due at the Feast of Saint Michael and prima facie it seemed to the whole Court but Crook that the Action would not ly but that the Rent for the last quarter was gone for it was not due at Michaelmas as the Plaintiff had declared for his own shewing it is payable and reserved at Michaelmas or within ten dayes after although the Lessee might pay it at Michaelmas Day yet it is not any Debt which lies in demand by any Action untill the ten dayes be passed and the reservation being the Lessors Act it shall be taken most strongly against himself and although the end of the Term is at Michaelmas before the ten dayes untill which time the Rent is not due and because at that time the Term is ended the Lessor shall loose his Rent as if a Lessor die before Michaelmas Day the Executor shall not have the Rent but the Heir by discent as incident to the Reversion and if the Lessee should pay the Rent to the Lessor at Michaelmas day and the Lessor should dye before the tenth Day his Heir being a Ward to the King the King shall have it again for of Right it ought not to be paid untill the tenth day according to the 44 E. 3. but this Case being moved again in Hillary Term Fleming Fennor and Yelverton changed their opinion and held that the Lessor should have the Rent for it was reserved yearly and the ten dayes shall be expounded to give liberty to the Lessee within the Term for his ease to protract the payment but because the ten dayes after the last Michaelmas are out of the Term rather then the Lessor shall loose his Rent yearly the Law rejects the last ten dayes MOlineux versus Molineux Hill 7 Jacobi An Action of Debt brought against Mo. upon an Obligation as Heir to his father the Defendant pleads that he hath nothing by discent but twenty Acres in D. in such a County the Plaintiff replies that the Defendant had more Land by discent in S. to wit so many Acres and upon this they are at Issue and found for the Defendant that he had nothing by discent in S. by reason of which the Plaintiff could recover and had his Judgement to have Execution of the twenty Acres in D. upon which Judgement in the Common Pleas the Defendant brought his Writ of Error and assigned for Error a discontinuance in the Record of the Plea from Easter Term to Michaelmas Term after and whether this were helped by the Statute of 18 Eliz. because it was after a Verdict was the question and adjudged to be out of the Statute and that it was Error for the Judgement was not grounded upon the Verdict but onely upon the confession of the Defendant of Assetts and the Verdict was nothing to the purpose but to make the Defendants confession more strong and therefore the Statute of the 18 of Eliz. is to be intended when the triall by Verdict is the means and cause of the Judgement which mark and therefore the Judgement was reversed the Law seems to be the same if the Plainiiff brings an Action of Debt for forty pounds and declares for twenty pounds upon a Bill and twenty pounds upon a non tenet and the Defendant confesses the Action as to the money borrowed and they are at issue as to the money demanded by the Bill which Passes also for the Plaintif by reason wherof he hath Judgement to recover the forty pounds demanded and the Damages assessed by the Jurors and Costs intire in which Case if there be a discontinuance upon the Roll it seems that all shall be reversed notwithstanding the verdict for the verdict is not the onely cause of the Judgement but the Confession also and the Costs assessed intirely for both but yet inquire of this It was adjudged by the whole Court that in those Cases where an Executor is Plaintiff touching things concerning the Testament and is non-suited or the verdict passes against him that he shall not pay Costs upon the new Statute of 4 Jac. for the Statute ought to have a reasonable intendment and it cannot be presumed to be any fault in the Executor who complains because he cannot have perfect notice of what his Testator did and so it was resolved also by all the Judges of the Common Pleas. GOodier versus Jounce Trin. 8 Jacobi Jounce recovered in the common Pleas a hundred and thirty pounds against Goodier in Crastino Animar 6 Jacobi and the eight and twentieth of November the same Term being the last Day of the Term the Plaintiff proved an Elegit against Goodier to the Sheriffs of London where the Action was laid and to the County Palatine of Lancaster returnable Crastino Purificationis after which was granted by the Court and by the Elegit to the County Palatine it appeared that it was grounded upon a Testat returned by the Sheriffs of London that Goodier had nothing in London where in truth they never made such a Return and upon that Elegit by a Jury impannelled before the Sheriff of Lancaster a Lease of Tithes was extended for fifty nine years then to come at the value of a hundred pounds which the Sheriff delivered to J. the Plaintiff as a Chattell of Goodiers for a hundred pounds and returned it and that Goodier had no more Goods c. and thereupon Goodier brought a Writ of Error in the upper Bench and assigned for Error that no Return was made by the Shetiffs of London nor filed in the common Pleas as was supposed in the Elegit and it was adjudged Error for although the Plaintiff might have an Elegit as he desired in the common Pleas immediately both into London and Lancashire but seeing he waived the benefit thereof and grounded his Execution upon a Testatum which was false it was Error in the Execution for as it appears 18 H. 6. 27. and 2 H. 6. 9. that a Testatum is grounded upon a former Return filed that the party had nothing in the County where the Action was brought and because it appeared upon Record that the prayer of the Elegits was made the eight and twentieth of November the last day of the Term and by the Testatum it is supposed
for the intent of a Will must be certain and agreeable to Law and there must not an intent out of the words of the will be sought out and the whole Court held that the Plaintiff was barred YOung versus Radford Pasch 10 Jacobi Rotulo 1515. Action upon an Ejectment brought and the Jury found a speciall Verdict and the Case was that Elizabeth Rudford was possessed of a house full thirty years and she took a Husband the Husband and Wife morgage the Term the Wife dies and the Husband redeems the Land and marries another wife and then dies and makes his Wife Executrix and she maries the Lessor The Defendant takes Administration of the Goods of the first Woman and it was held void and Judgement for the Plaintiff PEttison versus Reel Pasch 12 Jacobi Rotulo 2350. An ejectment brought and Triall and Verdict for the Plaintiff and exception taken in arrest of Judgement to the Venire Facias because this word Juratum was omitted for the Writ was posuerunt se in illam and omitted the word Juratum and this was amended by the Court. When a Title is to be tryed upon an Ejectment and a Lease to be executed by Letter of Attorney the course is this that the Lessor do seal the Lease onely and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land and upon an Ejectruent brought of Lands in two villages of a house and forty Acres of Land in A. and B. and a speciall Entry in the Land adjoyning to the house to wit the putting in of a Horse which was drove out of the Land by the Defendant and this was adjudged a good Entry for the Land in both the Villages by the opinion of the whole Court ARden versus Mich. 12 Jacobi The Plaintiff delivers that whereas such a day and year at Curdworth in the said County did demise to the Plaintiff two Acres of Land with the Appurtenances in the Parish of C. and the Venire facias was of the Parish of C. and after a verdict exception was taken because it was not of Curdworth but it was adjudged good by the Court and to prove the Lease made Lanheston an Attorney swear that the Lessor sealed the Lease and subscribed it but did not deliver it and by word gave authority to one W. to enter into the Land and to deliver the Lease upon the Land to the Plaintiff as his Deed and by that authority he entred and delivered the Lease as his Deed to the Plaintiff and it was adjudged good MArsh versus Sparry Hill 14 Jacobi Rotulo 1859. An Ejectment brought ex dimissione G. W. and the Originall was made ex divisione and after a Triall Serjeant Hitchaw moved the Court that the Originall might be amended and make ex dimissione and the Court granted it and the Cursitor was ordered to amend it and also in the end of the Originall it was written Barnabiam and it should have been Barnabas and that also was ordered to be amended by the Court. CRadock versus Jones Trin. 14 Jacobi Rotulo 2284. An Ejectment brought upon a Demise made by Cotton Knight the Defendant pleads not guilty and a Challenge to the Sheriff and prayes a Venire facias to the Coroners because the Sheriff is cozen to the Plaintiff and shews how and because the Defendant did not deny it a Venire facias was awarded to the Coroners and after a verdict it was alledged in arrest of Judgement because it was not a principall Challenge and a Venire facias de novo awarded to the Sheriff PArkin versus Parkin 13 Hill Jacobi Rotulo 979. And Ejectment brought and verdict and after a Triall Exception taken to pleading of a Deed inrolled the Action was brought in the County of York and pleaded thus ut infra sex menses tunc proximos sequent coram milite uno Justic c. in West-Riding Com. Eborum ad pacem c. conservand Assign W. C. Clerico pacis ibidem debito modo de Recor. irrotulat and Exception was because the inrollment was not made according to the Form of the Statute because it did not appear that the Justice before whom the Deed was inrolled was a Justice of the Peace of the County of York but of the West-Riding and it was not alledged that the Land did ly in the West-Riding and note that the Defendants Plea in Barr was insufficient because the Defendant did not confesse nor avoid the Count and the Plaintif by his Replication doth not shew any Title to the Land because it did not passe by the inrollment and so he hath lost his Suit and although the Barr be insufficient yet notwitstanding the Plaintif shall not recover GReenely versus Passy Hill 5 Iacobi Rotulo 808. An Ejectment brought the Defendant pleads not guilty and the Jury found it Specially that one Woodhouse was seised of Land in Fee and did infeof the Husband and Wife to have and to hold to the said Husband and Wife and the Heirs of their bodies between them to be begotten by vertue of which Feofment the Husband and Wife were seised of the whole Land in Fee Tail to wit c. the Husband infeofs the youngest Sonne of the land in Fee and afterwards the Husband dies and the woman survives and afterwards she dies before any Entry by her made into the Land and further find the lessor to be the eldest son of their bodies and that the younger Son infeoffed the Defendant and afterwards the eldest Sonne entred into the Land and made the lease in the Declaration and whether the Entry of the eldest Son was lawfull or no was the question upon the Statute of 32 H. 8. that Fines or Feoffements made by the Husband c. during coverture be or make any discontinuance c. or be hurtfull to the said wife or her Heirs and Sir Edward Cook held that the Heir is not barred of his Entry by the Statute PAcy versus Knollis Trin. 6. Iacobi Rotulo 291. An Ejectment brought the Defendant pleaded not guilty and the Jury found it Specially and the question is upon the words of the Will to wit And I give to Katharine my Wife all the Profits of my Houses and Lands lying and being in the Parish of Billing and L. at a certain street there called Broke-street and the Jury found that there was not any Village or Hamlet in the said County called Billing and that the Land supposed to be devised lieth in Byrling-street no mans verbal Averment shall be taken or admitted to be contrary to the Will which is expresly set out in the Will If I have two Thomas to my Sonnes and I give it to Thomas it shall be intended my youngest Son because my eldest Son should have it by Discent the Will was held by all the Court to be good HEllam versus Ley Trin. 7. Jacobi rotulo 2718.
A special Verdict in an Ejectione firme the Question was upon the words of the Will which were that her Husband had given all to her and nothing from her and whether these words imply a consent and so an Agreement to the Devise of the Husband or no. And Foster Warburton and Walmsley that it was an Assent but Sir Edward Cook was of a contrary opinion and note she was made sole Executrix and she proved the Will and Justice Foster held it to be an Assent in Law The property of Goods cannot be in obayance they must be in the Executor Administrator or Ordinary and Warburton held that the words made an Assent and said that when the Bond is delivered to one to the use of another untill he dis-assent it is his Deed but when he dis-assenteth then it is not his Deed Ab initio if a Lease be given by Will to divers and made one of them his Executor in this Case the Executor must make his special Claime else he must have it as Executor and Sir Edward Cook held that the general Entry and proof of the Will is no Assent she must first have it as an Executor before she can have it as a Legatee a Legacy is waiveable but if the Law work it in me whether I will or no then I cannot waive it and therefore he held she should enter specially ROlles versus Mason Hill 6. Jacobi rotulo 2613. An Ejectment brought and the Question grew upon two Customes one was that the Copy-holder for Life may name to the Lord of the Mannour who should be his Successor in the Copy-hold and the other that the Copy-holder for Life may cut down all the Trees of wrong upon the customary Land and the third Question was whether the second Lessee of the Mannour may take advantage of the pretended Forfeiture for cutting down the Trees by the Law a Copy-holder shall have house-boot free-boot and hedge-boot and common of Turbary to burn in his house but he cannot sell them A Copy-holder by Custome may name his Successor and if the Lord refuse to admit him the Homage may set a reasonable Fine and so he shall be admitted The Lessee of the Mannour may take advantage of the Forfeiture but in this Case it is no Forfeiture and the Copy-holder may cut downe Trees for he hath a greater Estate then a sole Tenant for Life because he shall name his Successor APrescription goeth to one man and a Custome to many and Judgement for the Defendant MAson versus Strecher alios Pasch 7. Jacobi rotulo 606. An Ejectment brought for the Mannour of P. it was held by the Court that the consent of a Servant in the absence of him who is possessed of the Terme shall not out his Master of the Possession because the Servant hath no interest in the Land CRamporne versus Freshwater Pach 8 Jacobi rotulo 2742. An action of Debt brought upon an Ejectment the Plaintiff was non-suit upon his own Evidence because he declared upon a Devise made for three years and it was confessed by the Plaintiff that the Lands were Copy-hold Land and that the Plaintiff had not license to demise them for three years neither could he prove that by any custome he could demise them for three years without a license and so the Lessor was taken for a Disseisor by the opinion of the Court. CAffe versus Randall Trin. 9. Jac. rotulo 3299. An Ejectment brought against Randall and his Wife the Ejectment made by the Wife and not guilty pleaded and tried and it was moved in Arrest of Judgment because the Issue was pleaded in this manner Et dicunt quod ipsi in nullo sunt culpabiles c. And the Ejectment was made by the woman alone and ought to have been that she was not guilty and upon examination of the Plea Rol and Record of Nisi prius it appeared to the Court that the Plea Roll was right but the Record of Nisi prius mistaken but Serjeant Barker said that at the time when the Record of Nisi prius was tried the Plea roll agreed with the Record and was afterwards amended and Waller the prothonotary confessed that he amended the plea rol as upon his private examination of the roll but without notice that there was a Record sent down to try that Issue and therefore the Court ordered that the Record of Nisi prius should be amended according to the Plea roll which was done accordingly PAts versus Chitty Trin. 9. Iac. rotulo 2151. vel 2151. An Action of ejectment brought the Defendant pleads a concord with satisfaction in Bar the Plaintiff demurs and it was held by Winch and Foster a good Plea because the Action is not only in the realty for he recovers damages and possession which are meer Chattells Secondly Because the Defendant pleads the satisfaction as in discharge of that Action and all others and ten shillings for rests Warburton of the same opinion and he vouched the like case satisfaction is good Plea in a Quare impedit wherein a man recovers the presentation And Cook said that in all Actions wherein money or Damages are recoverable as well wherein the Defendant might wage his Law as wherein he might not it is a good Plea Pasc 3. Jacobi rotulo 1033. Eden and Blake but in matters where one Free-hold or Inheritance is recoverable concord is no Barr and in dower recompence in other Lands or Rent is no Barr. But by petition in Chancery but Rent Issuing out of the same Land demanded is a good Barr and in all Actions Quare vi armis wherein process of Outlary lies by the common Law concord or an Award is a good Barr 38 H. 6. title Barr satisfaction in trespass by an Estranger is a good Barr although it be without notice of the trespassor by the opinion of the whole Court CRaddock versus Iones Trin. Iacobi rotulo 2284. An Ejectment brought and declares upon a Lease made by W. Cotton Knight the Defendant pleads not guilty and makes a challenge and praies a venire facias to the Coroners because the Sheriff is Cozen to the Lessors Wife which is not a principle challenge but by favour and after a Triall and Verdict it was amended in arrest of the Judgment because it was mistried and Barker vouched a case in the Exchequer Chamber in 43 El. upon a Writ of Error between Higgins and Spicer upon a Venire facias awarded in the like manner and it was adjudged to be mistryed and it was then agreed that misconveyance of process is where one Writ is awarded in place of another to an Officer which of right ought to execute that process and he returns it this is helped after a Verdict by the Statute But if a writ be awarded to an Officer who ought not to execute that process and he returns it this is a mistriall and not helped by the Statute and Warburton said that Dyer
31 H. 8. of Monasteries which gives the Houses dissolved to the King but in the same degree and qualitie as the Abbot had them And the Abbot was charged with the power given by himself and so was the King Which mark VVAnto versus Willingsby Pasch 5. Jacobi The Bishop of Exceter in the time of H. 8. by his Deed gives Land c. to Nicho Turner and by Bill his Cousin in consideration of service done by Turner and for other considerations him moving to them and the Heirs of their bodies and dyes They have Issue Jo. and William N. T. dies and Sybill marries Clap. and they alien the Land to Iohn in Fee Sybill and Iohn leavie a Fine to Walther in Fee of the Land And afterwards Sybill infeoffes William her younger Son who infeoffes Willinghby Io enters and leaseth to Walther and Willingby for the tryall of his title seals a Lease to ward who declares of so many Acres in Sutton Cofeild And the Jury upon a not guilty pleaded foundby the Verdict that the Bishop gave the Tenements aforesaid by his Deed the tenor of which Deed follows c. And by the Deed it appeared that the Lands did lye in Little Sutton within the Lordship of Sutton Cofeild And notwithstanding the Plaintiffe shall recover For first it was held not to be any Joynture within the Statute of 11 H. 7. for it is not any such gift as is intended by the Statute for the Bishop was not any Ancestor of the Husband and the Husband took nothing by that but it was a voluntary recompence given by the Bishop in reward of the service passed And the Statute intended a valuable confideration And also the Bishop might well intend it for the Advancement of the woman who appeared to be Cozen to the Bishop And Tanfeild held if the woman were a Doneâ— within the Statute of 11 H. 7 she could be but for a moyetie for the gift was before the marriage and then they took by moyeties And the Baron dying first the woman came not to any part by the husband but by the course of Law as survivour But quaere of this conceit for the other Judges did not allow it And secondly they held that the Fine of Io. the elder Son of Sybill levied to Walther destroyed the entry of Io. and of Walther For although in truth the Fine passed nothing but by conclusion yet Io. the Son and Walther his Conusee shall be estopped to claim any thing by way of forfeiture against that Fine on the womans part then any title accruing after the Fine For they shall not have any new right but Io the Son upon whom the Land was intayled is barred by the Fine Thirdly although upon view of the Deed made by the Bishop the Land which by the Declaration is layed to be in Sutton Cofeild by the Deed appears to be in Little Sutton yet this is helped by the Verdict by which it is found expresly that the Bishop gave the Lands within written and therefore being so precisely found the Deed is not materiall Which mark KNap versus Peir Iewelch Pasc 5. Jacobi An Ejectment brought for Lands in Wiccombe which were the Deans and Chapters of Chichester And in this case it was agreed by the whole Court that if it be a Corporation by prescription it is sufficient to name them by that name they are called And the Court held that if a man demands Rent upon the Land to avoid a Lease upon a condition the Demand ought to be made in the most open place upon the Land The Dean and Chapter of Chichester made a Lease to one Raunce the Lessee of the Defendant of Lands in Wiccombe rendring Rent payable at the Cathedrall Church of Chichester upon such a condition it was agreed by the whole Court that the Demand ought to be made in the Cathedrall Church of Chichester although it was of the Land Leased And the Demand ought to be made at the setting of the Sun the last instant of that day and when he made his Demand he ought to stand still and not walk up and down for the Law did not allow of walking Demands As Pipham said and he ought to make a formall demand And because those whom the Dean and Chapter did send to make the demand of Rent said bear witnesse we are come hither to demand and receive such Rent it was held by the Court that such a demand was not good And they held the demand ought to be made at that part of the Church where the greatest and most common going in is And in this case it was said by Popham that if a man make a Lease to one for yeers to commence at a day to come and then he lease to another for yeers rendring Rent upon a condition to commence presently And he enter And the first Lease commence and he enter the Rent and Condition reserved upon the second Lease is suspended A man leases for years rendring Rent after he leaseth to another to commence at a day to come and the first Lessee attorns the second shall not have the Rent reserved upon the first Lease by Popham but he doubted of it And Popham and Tanfeild held none contradicting that the Letter of Attorney made by the Dean and Chapter to demand their Rent was not good because the Letter of Attorney was to make a general demand on any part of the Land which the Dean and Chapter had leased And that ought to have been speciall onely for that Land And secondly it was to demand Rent of any person to whom they had made a Lease And the Letter of Attorney ought to be particular and not generall of any person TOmpson versus Collier Mich. 5. Jacobi The Plaintiffe declares upon a Lease of Ejectment made by Robinson and Stone of one Messuage and fourty Acres of Land in the Parish of Stone in the Countie of Stafford The Defendant imparled tryall another Terme and then pleads that within the Parish of Stone there were three Villages A. B. and C. And because the Plaintiffe hath not shewed in which of the Villages the Land he demanded Judgement of the Bill c. And the Plaintiffe demurred upon this Plea And adjudged for the Plaintiffe For first after an Imparlance the Defendant cannot plead in abatement of the Bill for he hath admitted of it to be good by his entring into defence and by his Imparlance And secondly the matter of his Plea is not good because the Defendant hath not shewed in which of the Villages the House and fourty Acres of Land did lye And that he ought to have done For where a man pleads in abatement he alwayes ought to give to the Plaintiffe a letter writ with mark And the whole Court held that this Plea was not in barr but that he should answer over And Williams Justice took this difference that when a man demurrs upon a Plea in abatement And when he
goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
matter of form For if the Jury finde a prior grant of the Queen to the Plaintiffs Lessor although it be at another Court it is sufficient and so by consequence the day is not materiall in substance which mark But Williams Justice and the rest held the traverse to be naught for by that the Jury should be bound to finde the Copy such a day by such a Steward which ought not to be and that it was matter of substance not helped by the Statute of 18 Eliz. DArby versus Bois Hill 5. Jacobi An Ejectment brought for an House in London and upon not guilty pleaded The Jury found a speciall Verdict And the case was Tenant in tail of divers Messuages in London 7 January 44 Eliz bargains and sels the said Houses to J. S. and delivers the Deed from off the Land the 8. of January the same yeer Indentures of Covenants were made to the intent to have a perfect recovery suffered of those houses and the ninth of January after a Writ of right is sued in London for those Messuages returnable at a day to come And the tenth of January the same yeer the Tenant in tail makes livery and seisin to J. S. of one of those Houses in the name of all And the other Messuages were in Lease for yeers and the Lessees did not atturn And the question was if the Messuages passed by the bargain and sale or by the livery And it was adjudged that they passed by the bargain and sale And Yelverton took a difference between severall Conveyances both of them Executory and where one of them is executed presently as in Sir Rowland Heywoods Case where divers Lands were given granted leased bargained and sold to divers for yeers the Lessees were at election whether they would take by the bargain and sale upon the Statute of 27 H 8. or by the demise at the Common Law But otherwise it is if one be executed at first for then the other comes too late as it is in this Case for by the very delivery of the bargains and sale the Land by the custome of London passes without inrollment for London is excepted and this custome was found by the Verdict And therefore it being executed and the Conveyance being made perfect by the delivery of the Deed without any other circumstances the livery of sesin comes too late for it is made to him that had the Inheritance of the Messuage at that time And the possession executed hinders the possession executory for if a bargain and sale be made of Land and before inrollment the bargain takes a deed of the said Land this hinders the inrollment because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the Court. And another reason was given because it appeared that the intent of the parties was to have the Land passe by the bargain and sale because it was to make a perfect Tenant to the Precipe as appears by the subsequent acts as the Indentures Covenant and the bringing the Writ of Right c. All which will be made frustrate if the livery of seisin shall be effectuall and when an Act is indifferent it shall be taken most neer to the parties intents that may be if a man hath a Mannor to which an advowson is appendant and makes a Deed of the Mannor with the appurtenances And delivers the Deed but doth not make livery of seisin yet now although the Deed in it self was sufficient to passe the Advowson yet because the party did not intend to passe it in Posse but as appurtenant if the Mannor will not passe no more shall the Advowson passe alone as it was agreed 14 Eliz in Andrews Case Which mark And the whole Court gave Judgment accordingly that the Defendant who claimed under the bargain sale should enjoy the Land CHalloner versus Thomas Mich. 6. Jacobi A Writ of Error was brought upon a Judgement given in Ejectment in the Courâ— of Carmarthen and Yelverton assigned the Error because the Ejectment was brought de aquae cursu called Lothar in L. and declares upon a Lease made by D. de quidam rivulo aquae cursu And by the opinion of the whole Court the Judgement was reversed for rivulut seâ— aque cursus lye not in demand nor doth a precipe lye of it nor can livery and seisin be made of it for it cannot be given in possession but as it appears by 12 H. 7. 4. the Action ought to be of so many Acres of Land covered with water but an Ejectment will well lye by if a stang for a precipe lies of them and a woman shall be indowed of the third part of them as it is 11. E. 3. But if the Land under the water or River do not pertain to the Plaintiffe but the River onely then upon a disturbance his remedy is onely by Action upon the Case upon any diversion of it and not otherwise Which observe VVIlson versus Woddell Mich. 6. Jacobi The Grand-father of the Plaintiffe in an Ejectment being a Copy holder in fee made a surrender thereof to L Woddell in fee who surrendred it to the use of Margery I. for life who is admitted c. But L Woddell himself never was admitted The Grandfather and Father dye the Son who is Plaintiffe was admitted and enters upon the Land Margery being then in possession and the Defendant then living with her as a servant in those Tenements and this was the speciall verdict And Judgment was given for the Plaintiffe And the Court was of an opinion that the Defendant was found to be a sufficient Trespassor and Ejector though he be but a Servant to the pretended owner of the Land because the Verdict found that the Defendant did there dwell with Margery And in such case he had the true title and had made his entry might well bring his Action against Master or Servant at his election And perhaps the Master might withdraw himself that he could not be arrested And secondly it was adjudged that the surrender of J. S. of a Copy-hold is not of any effect untill J. S. be admitted Tenant And if I. S. before admittance surrender to a stranger who is admitted that that admittance is nothing worth to the estranger For J. S. had nothing himself and so he would passe nothing and the Admittance of his grantee shall not by implication be taken to be the admittance of himself for the admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by him and it was held that the right and possession remained still in him that made the surrender and that is descended to his Heir who was the Plaintiffe And they took a difference between an Heir to whom the Copy descended for he may surrender before admittance and it shall be good because he is by course of the Law foe the custome that makes him Heir
to the estate casts the possession of his Ancestors upon him but a stranger to whom a Copy hold is surrendred hath nothing before admittance because he is a purchasor And a Copy made to him upon which he is admitted is his Evidence by the custome and before that he is not a customary Tenant and so he could not transfer any thing to another and adjudged so according to 24 Eliz Alderman Dixies Case BEdell versus Lull Pasch 7. Jacobi The Plaintiffe declares in Ejectment upon a Lease made by Eliz James of certain Lands The Defendant pleads that before Eliz had any thing one Martin James was seised in fee of it and had issue Henry James and dyed seised by reason whereof it discended to H. J. as Son and Heir and that Eliz entred and was seised by abatement and made the Lease to the Plaintiffe and that afterwards the Defendant as servant to H James and by his command c. The Plaintiffe by way of replication confesses the seisen of M. James And that he being so seised by his last Will in writing devised the said Land to Eliz in fee and afterwards dyed seised by reason whereof she entred by force of the devise and made the Lease to the Plaintiffe and traverse without that Eliz was seised by abatement in manner and form c. And the Defendant demurrs upon this replication and shewed for cause that the traverse was not good and adjudged for the Defendant for the Plaintiffe by his replication need not both confesse avoid and traverse the abatement too for the Plaintiffe made a title to his Lease by the Will of his Ancestor and that proved that he entred legally and not by abatement as the Defendant had supposed And then to take a traverse over makes the replication vitious For a traverse shall not be taken but where the thing traversed is issuable And here the devise is onely the title issuable And it was also held that the traverse was not good as to the manner of it for he should not have traversed without that that he was seised by abatement but it ought to have been without that that he did abate and also if the Plaintiffe had minded to have fully answered the Defendant he ought to have took his traverse in the very same words the Defendant had pleaded it against him to wit without that that he did enter and was seised by abatement which observe The Case concerned Sir H. James to whom the Defendant was Tenant SAunders versus Cottington Mich. 7. Jac. An Ejectment brought of two Houses but the Bill was onely for one and it was filed And the Defendant by his paper book pleaded to both Messuages And the Roll in Court and the Record of Nisi prius were two Houses And there was a verdict for the Plaintiffe and Judgement entred accordingly And a Writ of Error was brought by the Defendant and before the Record was removed the Plaintiffe moved the Court that the Bill upon the file might be amended and made two Messuages And because the Defendant had pleaded to Messuages in his Answer in paper and that the Roll and Record were according it was resolved by the whole Court that the Bill upon the File should be amended and made two Messuages for that Bill which made mention onely of one House could not be the ground of all the proceedings afterwards but it was as if no Bill had been filed and therefore it should be supplied and so had been severall times before the Record was renewed Which observe THe Plaintiffe declared in Ejectment upon a Lease of an House 10 Acres of Land 20 Acres of Meadow 20 Acres of Pasture by the name of one Messuage and ten Acres of Meadow be it more or lesse and upon not guilty pleaded the Plaintiffe had a Verdict but moved in Arrest of Judgement and Judgement was stayed For by the Plaintiffs own shewing in his Declaration he could not have Execution of the number of Acres found by the Verdict for in the Lease there is but ten Acres demised And these words more or lesse could not in judgment of Law be extended to thirty or fourty Acres for it is impossible by common intendment and the rather because the Land demanded by the Declaration is of another nature then that which is mentioned in the per nomen c. For that is only of Meadow and the Declaration is of arrable and Pasture MOore versus Hawkins Mich. 8. Jacobi In Ejectment after issue Joyned upon a not guilty pleaded the cause came to be tried before Brook and Yelverton Judges of Assize in the County of Oxford the Plaintiffe had declared of divers Messuages and divers Acres of Land lying in three Villages in the said County And at the tryall before the Jury was sworn Walter the Defendants Counsell put in a Plea that after the last continuance to wit such a day in Trinity Terme before the day of Assize to wit the 20. of July the Assizes being held at Oxford the 21 of July the Plaintiffe had entred into such a Close by name containing eight Acres parcell of the premises specified in the Declaration c. and this Plea was received by the Judges of Assize And afterward in Mich. Terme Yelverton and Walter being of Counsell with the Defendant desired that they might amend their Plea to wit to put in the very Village where the Land did lye into which the entry of the Plaintiffe was because it was but matter of form and not of substance and they were of opinion that the tryall of that new lssue ought to be of all the three Villages named in the Declaration And Yelverton Justice having asked the opinions of all the Judges in Serjeants Inne Fleetstreet related their opinions in the Court the Record of Nisi prius was returned into the Exchequer to wit that it was in the discretion of the Justices of Assize to accept such a Plea as is before and that it might be well allowed as the 10 H. 7. is and it shall stay the Verdict But otherwise it is of a protection for although they allow a protection yet the Judges may take the Verdict de bene esse yet he said that in the 7. E 3. in a Precipe quod reddat a Release was pleaded at the tryal and the Jury found the Verdict but that was the indiscretion of the Judges to allow it when it should not have been allowed And all the said Judges held as he related that the Plaintiffe could not have a replication to that Plea at the tryall for the Justices have no power either to accept a Replication upon that Plea or to try it but onely to return it as parcell of the Record of Nisi prius And they held also that the Plea being put in the Countrey could not be amended in adding the Town in certain in which the Close did lye for it was matter of substance And that the Court of
Exchequer where the Record was would not award the Venire Facias of all the three Villages named in the Record if it did not appear judicially to them that the Close did extend in all the Villages and it doth not appear for parcell if the premises doth not necessarily extend to all the Villages but may well be and so presumed in one Village onely and therefore it is matter of substance And the Judges had not power after their Commission determined to amend the Plea DAvis versus Pardy Mich. 8. Jacobi The Plaintiffe declared of a Lease made by one Cristmas the sixth of May Anno 7. of one Messuage c. In D. by reason whereof the Plaintiffe entered and was possessed untill the Defendant afterwards to wit 18. of the same month Anno sexto supradicto did eject him And not guilty being pleaded a verdict was found against the Plaintiffe And Yelverton moved in Arrest of Judgement to save Costs that the Declaration was insufficient For that Action was grounded upon two things first upon the Lease secondly upon the Ejectment and both those ought to concur one after the other And in this case the Ejectment is supposed to be one year before the Lease made for the Lease is made Anno 7. and the Ejectment supposed to be done Anno 7. 6. And therefore the Declaration naught And Yelverton vouched the case between Powre and Hawkins Anno septimo Termino Pasch Where the Plaintiffe declared upon the Lease of Edw. Ewer 27. April Anno sexto and laid the Ejectment to be 26. April Anno 6. And the Court held then that the Declaration was naught yet in the case in question the Declaration was adjudged good And the word sexto to be void for the day of the Ejectment being the 18. of the same month of May it cannot be intended but to be the same year in which the Lease is supposed to be made by the opinion of the whole Court AYlet versus Chippin Mich. 8. Jacobi The Plaintiffe declares upon a Lease made by John Aylet for one year of certain Land in C. in the County of E. by vertue whereof he entred and was possessed untill the Defendant did eject him The Defendant pleads that the Copihold Land is parcell of the Mannor of D. c. of which one Jo Aylet the Lessors Father was seised in Fee according to the Custome and that he made a surrendor thereof to the use of his Will and by his will devised the Land in question to John the lessor and H. Aylet his sons and to their Heirs Males of their Bodies and willed that they should not enter untill their severall ages of 21 years And further willed that W. B. and H. B. his Executors should have the Lands to perform his Will untill his said Sons Jo and H. came to their severall Ages of one and twenty years c. To which Plea the Plaintiffe replies and confesses the Will but shews further how that such a day and year before the Lease Jo his Lessor attained to his full Age of one and twenty years and entred and made a Lease thereof to him c. To which Plea the Defendant demurred and adjudged for the Plaintiffe For although the Estate to Jo and H. precede in words and the devise to the Executors insues in construction yet the estate to Io Executors precedes in possession And is as if he should have demised the Land untill his Sons Io and H. should attain to their severall Ages of one and twenty years And afterwards to them and their Heirs Males c. to be enjoyed in possession at ther severall Ages so that the Executors have onely a limited estate determinable in time when either Son severally should attain to his full age for his part For so it appears the Devisors intent was that either Son might enter when he attained to the age of one and twenty years And although it was objected by Justice Williams that the two Brothers are joyntenants by the Will and if one should enter when he comes to his full Age the other Brother being under age that would destroy the intent of the devise for then they should not take joyntly but the Court as to that said that the entry of him that attained to his full age doth not destroy the juncture but that they are joyntenants notwithstanding For that entry in the intent of the Devisor was only as to thâ— taking of the the profits and the possession and not as to the estate in joyntenancy and this is proved by 30 H. 6. Devise 12. where a devise was to foure in Fee and that one of them should have all during his life and this was adjudged good and it was as to the taking of the profits onely which observe by the whole Court but Williams RIce versus Haruiston Pasch 10. Jacobi The Plaintiffe declares of a Lease made by Jo. Bull c. The Defendant pleads that the Land is Copihold Land parcel of the Mannor of c. Whereof the King was seised and is seised and that the King by his Steward such a day granted the Land in question to him in Fee to hold at will according to the custome of the Mannor by vertue whereof he was admitted and entred and was seised untill the lessor entred upon him and outed him and made a Lease to the Plaintiffe and then he entred and did eject him c. The Plaintiffe replies that long before the King had any thing in the Mannor Queen Eliz. was thereof seised in Fee in right of her Crown and before the Ejectment supposed by the Defendant by her Steward at such a Court did grant the Land in question by Copy to him in Fee to hold at Will according to the custome of the Mannor who was admitted and entred and further shewed the descent of the Mannor to the King and how the Lesser entred and made a Lease to the Plaintiffe who entred and was thereof possessed untill the Defendant did eject him Upon which Plea the Defendant did demurr because he supposed that the Plaintiffe ought to traverse the grant alledged by the copy of the Defendant in his Barr. But the Court held the replication good for the Plaintiffe had confessed and avoided the Defendant by a former Copy granted by Queen Eliz under whom the King that now is claimed and so the Plaintiffe need not traverse the grant to the Defendant but such a traverse would make the Plea vitious for which see Hilliais Case 6. Rep. And 14 H. 8. Dotknis Case 2 E. 6. Dyer And Brooks title confesse and avoid for as no man can have a Lease for years without assignment no more can a man have a Copy without grant made in Court Which observe SHecomb versus Hawkins Pasc 10 Jacobi The case was in an especial verdict in Ejectment that one Mrs. Luttrel Tenant in fee of the Mannor of L. leavied a Fine to the use of her self for life and after death to
the use of her eldest Son in tayl c. With power to her self at any time to make Leases for one and twenty years and before the Lease in being expired she made another Lease to B. for one and twenty years to commence after the determination of the first Lease And as to the third part of the Land she made a Lease of that for one and twenty years after the death of one Carn who in truth never had any estate in the Land and afterwards she dyes the first Lease expires And I the Son enters and makes a Lease to the Plaintiffe And the Defendant claims under B. the Lessee And adjudged for the Plaintiffe for by such a power she could not make a Lease to comence at a day to come but it ought to be a Lease in possession and not in interest to comence in future nor in reversion after another estate ended but the Law will judge upon the generall power to make Leases without saying such ought to be Leases in Possession for if upon such power she might make Lease upon Lease she might by infinite Leases detain those in Reversion or Remainder out of the Possession for ever which is against the intent of the parties and against reason and adjudged accordingly Trin. 30 Eliz. Earle of Sussex case 6 Rep. 33. And Justice VVilliams said that when he was a Serjeant it was so adjudged in the Common Pleas in the Earle of Essex Case and Judgement by the the whole Court BRasier versus Beal Trin. 10 Jacobi Upon an especial Verdict in Ejectment the Case was that a Copy-holder in Fee of the Mannour of B. in the County of Oxford by license of the Lord lease the Land in question for sixty years to M. if he should live so long rendring Rent with a Condition of re-entry the Copy holder surrenders to the Lessor of the Plaintiff in Fee who demands the Rent upon the Land which being not paid he entred and made a Lease to the Plaintif without any Argument the Court seemed to be of opinion that the Entry of the Lessor was not congeable for Copy-hold land is not within the Statute of 32 H. 8. of Conditions nor the Lessor such an Assignee that the Statute intends for at the Common Law a Copy-holders Estate is but an Estate at will custome hath onely fixed his Estate to continue which Custome goes not to such collateral things as Entries upon Condition for such an Assignee of a Copy-holder being onely in by Custome is not privy to the Lease made by the first Copy-holder nor onely by him but may plead his Estate immediately under the Lord by the opinion of the whole Court ODingsall versus Jackson Mich. 10. Jac. In Ejectment the Declaration was that the Defendants intraverunt and that he did eject expulse and amove in the singular number and after a Verdict for the Plaintiff upon Not guilty pleaded the Defendant shewed this matter to the Court in Arrest of Judgement for the Declaration is incertain in that point because it cannot be known which of the Defendants did eject the Plaintiff for by his own shewing it appears that the Ejectment was but against one and upon that Declaration the Jury could not finde all the Defendants guilty for by the Plaintiffs supposal one onely did eject him but the Court gave Judgement for the Plaintiff that the Declaration should be amended in that point for it was but the Clerks fault and so it was and upon an Evidence in an Ejectment by the Lessees of Cresset and Smith Yelverton said that if a man comes into a Copy-hold tertiously and is admitted by the Lord and afterwards he makes a Lease for three Lives which is a Forfeiture of his Estate yet if he that hath the pure Right to the Copy-hold release to the wrong-doer that it is good for untill the Lord enter he is Tenant in fait and if the rever as Copy-holder 4 Rep. 15. But Walter seemed of another opinion and therefore quaere what benefit he shall have by the Release In an Ejectment the Plaintiff declared of an Ejectment of decem acris pisar and upon the general Issue it was found for the Plaintiff and it was moved in Arrest of Judgement because the Plaintiff had declared de decem acris pisar which is not good for Pease are not known by the Acre and therefore he should have declared de decem acris tene pisis seminaris as if a man will demand Land covered with water he must say decem acras terrae aqua co opertas but the whole Court held it good for in a common acceptance ten Acres of Pease or ten Acres sowed with Pease is all one and so is the opinion of Catesby 11 E. 4. 1. And the man the Secondary said that so it had been adjudged in the Exchequer Chamber upon a Writ of Error MEerton versus Orib Trin. 11. Jacobi Orib brought an Ejectment against Meerton in the Common Pleas 6 Jacobi of a Cole-mine in Durham in the County Palatine there the Defendant pleaded not guilty and it was found for the Plaintiff before the Justices Itinerantes there upon which Judgement the Defendant brought a Writ of Error and assigned for Errour that the Plaintif appeared by an Attourney whereas it ought to have been by Guardian being under age And upon an Issue that he was of full age was tryed at Durham and found that he was within age but the Plaintif had license to discontinue his Writ of Errour and brought a new Writ of Errour Quod coram nobis residat And declared that M. was inhabiting at Westminster in the County of Middlesex and being within age appeared by an Attorney the Defendant in the Writ of Errour confessed that he was inhabiting at Westminster but that he was at full age at the time And upon the tryall in Middlesex it was found that M. was under age And it was alleadged in Arrest of Judgement and it depended a long time that it was a mistryall and the doubt and question was onely whether the tryall at Westminster in this Case was good And Davenport and Yelverton were of opinion that it was not good for the Errour assigned was done at Durham and because they there have the best notice of it it ought to have been there tryed As if Errour be in a Record it shall be tryed where the Record is 19 H. 6. 79. Secondly This is a reall Action in which the Land shall be recovered and therefore though the Issue be upon a collaterall matter yet it shall be tryed where the Land lyes because it concernes the realty but if it had concerned the person onely it had been otherwise and this difference is taken by Montham 19 H. 6. 10. And therefore if a Feoffment be made upon payment c. If upon an Assise brought the Defendant plead payment in another place yet it shall be tryed where the Land lyes And so likewise if the Issue should be which
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
were his Masters and part his own proper Goods and found guilty as to his own Goods and a special Verdict as to the Goods of his Master and Judgement for the Plaintiff COnstable versus Inhabitant in dimid Hundred de VValsham in Comitat. Essex Trin. 15. Jacobi rotulo 2244. The Action wabrought for a Robbery the Defendant is found guilty and it was alleadged in Arrest of Judgement that the Action would not lie because it was not brought against the whole Hundred and it was answered on the Plaintiffs behalf that the half Hundred is a Hundred by it self and the Court held the Writ should have been brought against them in this manner Inhabitantes in Hundredo de W. called the half Hundred of Waltham but the Writ was held good for the Writis so shall be intended to be brought against the men inhabiting in the half hundred of W. Judgement for the Plaintif in a special verdict the Jury found that the robbery was done upon the Sunday and it was held in the Kings Bench that the Hundred was liable NOrris versus Inhabitantes in Hundredo de G. Hill 14. Jacobi rotulo 431. And the Plaintiff declares upon a Robbery done the ninth day of October An. 13 Jacobi And the Originall bears Teste the ninth of October 14 Jacobi and after a Verdict Serjeant Harvey moved to stay the Judgement because the Writ was not brought within one year after the Robbery done according to the forme of the Statute of 27 Eliz. And the Court held it a good Exception CAmblyn versus Hundredum de Tendring Trin. 15. Jacobi rotulo 1952. The Plaintiff in his Declaration had mistaken to alleadge the very Day of the Robbery for he shewed the Robbery to be committed in October where in truth it was committed in September and the Court was moved that the Record which was taken out for Triall but never put in might be amended for the notice given to the Hundred as the Record is would appear to be before the Robbery and they granted that it should be amended Actions in Partition THe Process in Partition are Summons Attachment and Distress and the Process are returnable from fifteen Dayes to fifteen Dayes and if the Writ be brought against two or more several Essoines will lie but no View and the Sheriff upon the Distress is compellable to return the value of the Land from the teste of the Original untill the Return thereof and if the Writ be against two or more Deâ—eâ—â—iants and onely one appears the Plaintiff cannot declare against him untill the residue of the Defendants appear and Partition lies by the Statute of 31 H. 8. cap. 32. between Joint-tenants Tenants in Common Tenants for Life or for years but at the Common Law Partition was onely between Coparceners his Petit. is no Plea in Partition and in this Action there are two Judgements the first is that Partition shall be made and if the Plaintiff die after the first Jugement and before the second Judgement the Writ shall not abate but his Heir shall have a Scire facias against the Defendants to shew cause why Partition should be made and a Writ of Partition will not lie of the View of Frank Pledges and the Death of one of the Defendants abates the Writ And note the Plaintiff may have a general Writ but a special Count and if the Defendant confess part and plead Quod non tenet insimul pro indiviso for the residue the Plaintiff may have Judgement upon the Confession and a Writ to make Partition upon the Confession before the Triall and afterwards try the Issue for the residue or else he may respit his Judgement upon the Confession untill the Issue be tried but this is dangerous for if the Plaintiff be non-suit at the Assise then the whole Writ will abate and if the Sheriff return the Tenant summoned when in truth he was not an Action of Deceit lies not but an Action upon the Case because the Plaintiff shall not recover the Land by default and you shall never have a Writ of Partition against one where he cannot have one against the other thirteen men joyn in a purchase of a Mannour the Conveyance was of the moity to one of them in Fee and the other moity to the other twelve men in Fee the twelve make a Feoffment to one of twelve several Tenements and Land and that Feoffee makes twelve several Feoffments to those twelve men now the thirteenth man which had the other moity bringeth one Writt of Partition against them all pretending that they held insimul pro indiviso and by the opinion of the whole Court it would not lie but he ought to have brought several Writs and Mich. 6. Jacobi in Partition because both of them are in Possession he that is not prohibited may cut down all the Trees and no Estrepment will lie COcks versus Combstoks The Plaintiff declares that one A. was seised in Fee and demised for years to J. and L. and to the Plaintiff for term of Life and one of them demised to one of the Defendants for years the Defendant as to part pleads that he did not demise and the other pleads Non est informat and a Demurrer to the Plea of Non demisit because it is but argumentative Quod non tenet insimul and it was adjudged a naughty Plea a Writ of Error lies in Partition upon the first Judgement before the Writ be returned MIll versus Glemham The Defendant pleads that he before the purchasing of this Writ had brought a Writ of partition for the same Land against the Plaintiff which yet depends and demands Judgment if the Plaintiffs Writ were brought And the Court held that the Writ last brought is well brought for if the first Plaintiff will not proceed upon his Writ and the Defendant shall confess the Action yet the Defendant cannot sue a Writ to make partition upon that Plaintiffs Writ and therefore it is reasonable that the Defendant in the first Action may sue out a Writ to make partition and that the Defendants plea is naught and the last Writ is well prosecuted Actions upon Quare Impedit THe Process in this Action are Summons Attachment and Distress peremptory by the Statute of Marlborough cap. 13. the Sheriff must summon the Defendant by good summoners and return their names upon the original Writ and not return common summoners as John Doo and Richard Roo for a Writ of deceit lyeth in this Writ if the summons were not made indeed The Writs hereupon are returned from 15. days to 15. days The summons upon the first Writ may either be made at the Church door to the person of the Defendant And although a nihil be returned upon the first summons Attachment and Distress yet if the Defendant make default upon the Distress a Writ shall goe to the Bishop upon the title made by the Plaintiff but at the common Law
sides they shall recover costs and dammages LEe versus Edwards Trin. 19 Jacobi rotulo 470. The Case was in Replevin a Copy-holder claims Common in another mans Land the Lord infeofleth the Copy-holder of his Copy-hold Land whether he hath now lost his Common and held that he had but if a Copy-holder hath Common in the Lords waste and the Lord inseofeth him of the Copy hold with all Commons the Common is not gone Oabel versus Perrot Hill 9 Jacobi rotulo 2734. Tenant in Tail hath power to make a Lease for 89 years if three persons live so long and reserving the old Rent due and payable yearly and he maketh a grant in Reversion for years and whether that be good or no was the Question there being a Lease for life in possession the second Lease was for 89 years if three live so long for the matter in Law the Court held the Lease good but for want of an averment of the life of c. the Plea was not good ROberts versus Young Hill 9 Jacobi routlo 1835. the Defendant in a Replevin pleads that he offered amends and doth not shew that he offered it before the impounding of the Cattle and adjudged an ill Plea and the offer of amends cannot be made to him that maketh cognisance BAcon versus Palmer Trin. 12 Jacobi rotulo 3947. A Copy-holder in Replevin prescribes to have Common of pasture appurte nant to the Copy-hold the other party pleads an Extinguishment of Common because the Lord had inclosed Land lying in another field in which field and in the other field the Lord had Common by cause of vicinage and note that in Common for cause of vicinage if one inclose part it is an extinguishment of all the Common SHarp versus Emerson Mich. 12. Jacobi The Defendant makes avowry for Homage Fealty and Rent the Plaintiff prayes in aid and hath a Summmons in aid and at the return of the Summons the Prayee in aid was Essoined and after the Ession the Defendant moved the Court that the Homage might be put out of the Avowry which was entred with by consent of parties was raised out of the Will ARundell versus Blanchard and Jackson Pasch 13 Jacobi rotulo 2037. The taking in Replevin was supposed to be at Southwark and one of the Defendant pleads non cepit and the other Bailiff of the Governors of the possessions revenues and good of the Free-Grammar-School of c. for the Parishoners for the Parish of Saint Olaves in Southwark in the County of Surrey and the Advowry was made for damage fesant the Plaintiff prescribed for a way belonging to his house in the Parish of Saint Olaves in Southwark and the Venire facias was of Southwark in the Parish of Saint Olaves in Southwark and exception taken to that and held good because one Defendant had pleaded non cepit and another exception was because he had not shewed when the Corporation begun and held an idle exception for one need not shew when they were incorporated another exception was because the name of one of the Jury was mistaken because in the Return of the Venire it was to Lisney of Croydon and in the Pannell of the Habeas Corpus it was written to John Lisney of Croydon and because in sound it is all one and the Sheriff made oath that he was the man that was returned in the Venire facias the Return was amended in Court and Judgement given by the whole Court for the Plaintiff PAin versus Mascall Hill 12 Jacobi rotulo 3400. The Lord avows the taking of one Mare as for Rent behind so for the fourth part of a Releif and doth not expresse the same due for the releif and for the Rent the Plaintiff pleads tender and demurres for the Releif because he had not expressed the same and because he had distrained one thing for the Rent and Releif pretending that if one cause passe against him and another for the Avowant that he could not have a Return habend but the Court were of a contrary opinion but if two men shall distrain one and the same Mare for two severall causes and one hath Judgment for himselfe and the other for himselfe In this case no return habend can be made of the Mare BRown versus Goldsmith Trin. 13. Jacobi rotulo 607. A Court of Pipowders is incident to a Fine and a Court Baron to a Mannor And a Court Baron cannot be separated from a Mannor for it is a wealth to a Mannor the like of a Court of Pipowder to a Fair by the grant of a Mannor with cum pertinencijs the Court passes for it is an incident inseparable to the Mannor and a man cannot grant his Court but he may grant the profits of his Court. MAgistri socij Collegij Emanuel is in Cambridg The writ was adjudged naught in replevin because they had distrayned in their proper names for a Corporation as Maior and Comonalty cannot distrain in their own persons but by their Bayliff The Court held that the Sheriff could not take a Bond in replevin but must take pledges according to the old custome JVid versus Bungory Trin. 8. Jac. rotulo 3059. The Defendant shews that one was seised of Land in fee and held it by Knights service of a Mannor and for the rent of two Cocks and two Hens and the Lord grants the third part of the Mannor to another who avows for the seruice and the Cocks and Hens and held he could not alone avow for that joynt service but the other should joyn with him WEnden versus Snigg Trin. 11. Jac. rotulo 1137. In replevin the question was upon a Lease for life made to three to have and to hold to them the said A. B. and C. and every of them for the term of their lives and the longest liver of them successively one after another as they are writ in order And the question was whether this was a remainder or no and it was held to be a remainder upon the reading of the Record but if the grant had been only successively not saying as they are named in the writing it had been naught because he could not tell who should begin THorold versus Hadden Trin. 11. Jac rotulc 451. In replevin a Juror was returned by the name of Payly and in the distress the name was T. P. and in the Pannell he was written Baily and tryed by that name of Baily and moved in arrest of Judgment for the mistaking of the name And the Court held that if the right name was sworn yet notwithstanding the mistake it was good for if the name in venire was not mistaken all was good and the Sheriff ought to amend his misprision and the Court demanded if any one could swear that Paly was sworn and one then present in Court made oath that Paly was sworn and the Court ordered that it should be amended
Winch held that the Plaintiffe should not be barred for the Misnomer and for the second he held that his house was within the Statute of Chaunterys and so the interest in the King H. 6. And so the Lease made by the Master of the Hospitall void Dyer 246. 287. And Warburton held the Plaintiffe should be barred upon both points SWynerton versus Mills Hill 14 Jacobi rotulo 2049. In a Replevin the Defendant a vows for a rent charge reserved by a Copiholder who is seised in Fee and made a Lease by the license of the Lord reserving Rent at foure Feasts or within one and twenty days being lawfully demanded and afterwards the Copiholder surrendred one moity in Fee to a stranger and afterwards surrendred the reversion of the other moity to another to which the Termer atturned and so avowed for Rent The Plaintiffe pleaded in Barâ— that he was seised of a Close adjoyning to the place in which c. and put therein his Cattell and that they escaped by fault of inclosure and issue taken upon that And after a Verdict by default those exceptions were taken to the Avowry in Arrest of Judgement First because it appeared by the Advowry that the Copiholder had surrendred a Reversion which could not be because a Copiholder is a Tenant at will and so could not have a reversion for he cannot make a Lease for yeers without the license of the Lord but this exception was over-ruled by the Couâ—t Secondly because there was no Atturnment alledged in the first surrender And it was held no exception because the Rent for which he avowed was reserved by the Copiholder by the second surrender to which the Termer had atturned And also the Court said that an Atturnment is not necessary for a Copiholder because there is no time when the Terme should atturn For before the surrender he cannot atturn and after the surrender and admittance it is too late And the Copihold estate is like an estate raised by uses or devise in which an Atturnment is not necessary As also in an estate raised by Fine and the like an Atturnment is not necessarie for if the Termer will not atturn he is compellable by Law as by a Quid juris clamat but a Copiholder hath no means to make the Termer atturn if he refuse And thirdly in the conclusion of the Advowry he doth not say that the Rent was behind such a day and one and twenty dayes after at least and this exception was disallowed because the distresse is a sufficient demand of the Rent and it appears that the day of the taking of the distresse was one and twentie dayes after the Feast at which the Rent was due and Judgment was given for the Advowant and note that a Covenant to distrain is idle for a man may distrain of common right HOwell versus Sambay Mich. 13 Jacobi rotulo 2009. In Replevin the Defendant a vows for a Rent charge and a Nomine pene granted by Tenant in tail generall and one Fine levied afterwards and the use expressed the Plaintiffe replies and saies that the Grantor had only an interest for life and so makes inducement and traverses the use of the Fine The Defendant demurrs And held by the Court that the Grantee was not seised in tail nor to the use of the Fine And it was said that in this case that it was necessary for the Advowant to plead the Fine with the estate tail for if the Tenant in tail grant a Rent charge and dye no Fine being levied and the estate tail discends the issue in tail is not chargable with the Rent And note the Advowry was as well for the Rent as for the Nomine pene and no speciall demand was alledged in pleading the Rent and it was adjudged by the Court a naughty advowry as to the Nomine pene but good for the Rent as it hath been adjudged in one Mildmaies Case COtterell versus Harrington Pasch 6. Jacobi rotulo 545. In a Replevin the Defendant avows for an Annuity for 20 d. granted for yeers payable upon demand and alledges a demand the Plaintiffe demands either of the Deed and by the Deed it appeared that for a hundred and ten pound one Rent of twenty pound was granted for eight yeers and another for 20 l. for two yeers if E. R. and T. should so long live the Plaintiffe pleads the Statute of Usury and sets forth the Statute and a speciall usurious Contract If it had been layed to be upon a loan of Money then it was Usury but if it be a bargain an Annuity it is no usury But this was alledged to be upon a lending VVOod versus Moreton Hill 6 Jacobi rotulo 1802. In Replevin the Defendant advows to have Common Appendant out to his house and Land the Plaintiffe saith that he had Common Appendant to his House and Land And the Defendant to avoid the Common saith that the Commoner sold to the Plaintiffe five Acres of the Land to which the Common is appendant pretending that he should not have Common for that Land being but parcell of the Land to which the Common was appendant Common Appurtenant cannot be to a House alone purchasing of part of Common Appendant doth not extinguish the Common otherwise it is of Common Appurtenant And it was pretended to be Common Appurtenant because it is to a House and Land whether by severance his Common is gone and held to be common Appendant and Judgment given for the Plaintiffe MOrse versus Well Replevin for Common of Pasture the casewas that the Father was seised of two yard Land with Appurtenances and had Common of Pasture for four rother Beasts three Horses and sixty Sheep and he demised part of the said two yard Lands in being And whether the Common should be apportioned and if it should be apportioned whether the Prescription failed because the issue was taken that he and all those c. had Common in the said two yard Land A Release of Common in one Acre is a Release of all If I have Common Appurtenant and purchase part the Common is gone but otherwise it is of Common Appendant And note this Common was Common Appendant and the purchasing of Common Appendant doth not extinguish the Common and Judgment was given for the Commoner by the whole Court HVghes versus Crowther Trin. 6 Jacobi rotulo 2220. In a Replevin a Lease for years made to Charles H. and the said A. T. to have and to hold from c. for sixty years if they live so long Charles dyed in this case Judgment was given that the Lease was ended by the death of Charles but otherwise it had been if it had been for life BIcknall versus Tucker Trin. 9 Jacobi rotulo 3648. in a Replevin the case was whether a Fine with five years will bind the Copy-holder in remainder there was a Copy-hold granted to three for lives to have and to hold successively the
first had the Free hold granted to him by the Lord of the Mannor And then he leavied a Fine and five years passe whether he in the Remainder be Barred or no those whose estates are turned to rights either present or future are meant by the Statute to be barred of a Copy-hold for years be put out of possession and a Fine Leavied and no entry by him he is barred by the Statute by the Bargain and Sale he in the Remainder is not put out of possession if a man make a Lease to begin at Easter next and before Easter a Fine is leavied and five years passe this Fine will not barr because at the Leavying of the Fine he could not enter for then his right was future if the Lease had been in possession and the Lessee had never entered he had been barred A Lease for years Remainder for years if the first man taketh for life the first estate is not so determined but that the Remainder standeth if a Copy-hold surrender for life there passeth no more from him then so much as maketh the estate and no more and the rest remaineth in him CRantley versus Kingswel Pacsb 15 Jacobi rotulo 710. The Defendant makes cognisance as Bailiff of Kingswell his Father for Rent service due to his Father at such a Feast And shews that Cramley holds of him by fealty and rent paiable at such a Feast and for Rent due at such a Feast made Cognisance the Plaintiffe in Barr saies that he at the said Feast offered the Rent upon the Land and that no body was there to receive it And the Plaintiffe saith that afterwards he demanded the Rent upon the Land and the Plaintffe made a Replevin pretending the Lord should make a personall demand but the whole Court was against him And Warburton took acception against the pleading the Tender because he saith that he offered the Rent to pay when as he was not present And the question was whether the Lord for a Rent service did not demand it at that day whether he can distrain without a demand of the person and held he might for the Tenant is yet bound to tender and the Land is debter and the Lord may resort thither when he pleases to demand the Rent upon the Land but if he tender his Homage and the Lord refuses it he cannot distrain without a demand of the Person and Judgment for the Defendant STokes versus Winter Trin. 15. Jacobi rotulo 2242. In Replevin the Defendant makes cognisance as Bayliff to Tenant for life to whom the Annuity was granted for life to begin by will after the death of the devisor And alledges the death of the devisor but not the day of the death after whose death the said H. was seised of the yeerly rent aforesaid in his demesn as of his Free-hold for terme of his life by vertue of the devise aforesaid And because seven pounds of the Rent aforesaid for one yeer ended at the Feast c. and by the space of 14. dayes then next following were behinde to the said T. the said time with c. the said T. as Bayliffe of the said H. doth make cognisance of the taking of the cattell aforesaid in the said place in which c. for the said 7 li. for the yeerly Rent aforesaid being so behind c. and issue was taken whether the said I. at the time of his death was seised of the said six Acres of Land in his demesne as of Fee as c. And after tryall exception was taken to the Advowry because it was not alledged that the annuity at such a Feast after the death of the devisor was behinde but it was over-ruled because there is so much expressed and Judgment given for the Defendant HVmfrey versus Powell Trin. 12. Jacobi rotulo 2791. Replevin wherein the Defendant avows for one Annuity granted to the Defendant to whom the office of Catorship of the Church of Roffen in Kent was granted by the Dâ—an and Chapter of that Church for life with an Annuity of 6. pounds for the exercising of that Office with a clause of distresse by vertue of which grant he was possessed and avowes for the Annuity and avers that it was an ancient Office pertaining to the Dean and Chapter of Roffen and doth not aver that the Annuity was an ancient Annuity The Defendant pleads the Statute of the 13 Eliz that all Devises Donations Grants c. made by any Master and Fellows of any Colledge Dean and Chapter c. other then for the terme of twenty and one yeers or three lives from the time of this Devise c. should be totally void And shews that the old Dean died and another was elected And a Demurrer thereupon And Judgement that the Grant was void HYen versus Gerrard Mich. 13. Jacobi rotulo 752. The Defendant in Replevin avows that one being seised in Fee made a Lease to him and avows for Damage feasant The Plaintiffe in Barr pleads and maintains his Declaration and traverses the Lease upon the Avowant demurrs and adjudged a goodtraverse IEnyx versus Applefourth Trin. 17. Eliz rotulo 543. The Defendant avows for a Rent charge the Plaintiffe in Barr pleads that the Defendant had presented a Writ of Annuity And that he had an Imparlance thereunto And demands Judgement if the Defendant did well make cognisance to the taking of the cattell in the said place in which c. in name of a distresse for the rent aforesaid by vertue of the said writing as Bayliffe of the said R. the said Writ of Annuity being prosecuted c. upon the said writing in form aforesaid c. And a Demurrer thereupon and Judgement by the whole Court for the Plaintiffe it is not needfull to lay a prescription to distrain for an Amerciament in a Court Leet but it is otherwise for an Amerciament in a Court Baron by the whole Court DArcy versus Langton The Defendant avows for a Rent charge and for a Nomine penae and no mention made in the Avowry of the Rent charge and the Plaintiffe was non-suit and afterwards in Arrest of Judgement this matter was alledged and at first held to be a good exception but afterwards Judgement was entred an Advowry is in the nature of a Declaration if that be vitious no Judgement can be given for the Advowant TRin. 9. Jacobi Regis rotulo 2033. Replevin for the taking of Cattell at Andover in a certain place there called R The Defendant makes cognisance for damage feasant the Plaintiffe saies that he was seised of the Messuage c. in C. in the Parish of A to which he claimed Common of Pasture And issue taken upon the prescription and a Venire Facias of A. and exception taken because it was not tryed of C. and A. or of the Parish of A. but it was adjudged to be good TRinbone versus Smith Trin. 12. Jacobi rotulo 626. In Replevin foure and twenty were returned upon the
village is in question or could come in Issue yet it was resolved by the whole Court but him that those of the village of Bail might well know whether the Plaintif being an inhabitant within the village in which the Leet was were a chief Pledge at the Court or no for to have cheif pledges doth properly belong to a Leet which Leet is within the village and therefore they of the Mannor cannot have so good knowledge of the matter as they of the Mannor and village together and therefore they all ought to have been of both as in the Case of Common or a way from one village to a house in another village this ought to be tried of both villages and so also of the Tenure of Land in D. held of the Mannor of Sale the triall must be as well of the village where the Land lies as of the Mannor of which the Land is holden as it was adjudged Hill 45. El. in the then Queens Bench in the Case between Lovlace and and Judgement was reversed and see 6 H. 7. and Arundels case in my Lord Cooks Reports BVrglacy versus Ellington Burglacy brought a Replevin against Ellington for the taking of his cattell c. the Avowant pleads that one W. B. was seised of the place in which c. in his Demesne as of Fee and being so seised died by reason whereof the Land descended to one Crist. his Daughter and Heir who took to Husband the Avowant the Plaintiff in his Barr to the Avowry confesses that W. B. was seised and that it descended to C. who took to Husband the Avowant but he further said that the 16 of April primo Jac. the Husband and Wife by their Deed indented and inrolled did bargain and sell the same Land unto one Missenden and a Fine levied by them and that M. the 30 of James bargained and sold it to F. M. in Fee and he being so seised licensed the Plaintiff to put in his cattell the Avowant replies if in the said Bargain and Sale made by the Husband and Wife a Proviso was contained that if the said Ellington should pay one hundred pounds a year after then c. and pleaded the Statute of 13 Eliz. of usury with an averment that the profits of the Land were of the value of twelve pounds by the year the Plaintif rejoyned that true it is there is such a clause in the Indenture but he further said that before the sealing of the Indenture it was agreed by word that the said Ellington should have and receive the profits and not the Plaintif and thereupon the Avowant demurres and the Case was thus Ellington bargains his Land to M for the payment of one hundred pounds a yeare after to be paid and that the Bargainee should have the profits the bargainor enters as upon a void Sale because of the statute of usury for by the Proviso â—he is to have the hundred pounds and ten pounds for the forbearance and by the Law he is to have the profits and the which did amount above ten pounds by the hundred the bargainee to avoid the usury pleaded an agreement by word before the sealing of the Bargain and Sale and the question arising upon this was if the Bargainee might plead this verball agreement for the avoiding of the Deed which did suppose the contrary and Moore of Lincolns â—nne counsell was of opinion that he could not put that maxime that every thing must be dissolved by that by which it is bound and his whole argument depended upon that and he cited divers Cases as 1 H. 7. 28. 28 H. 8. 25. 1 Eliz. Dier 16. 9. Rutlands Case 5 Rep. and Cheyney 6 Case there but the whole Court without any argument were of opinion that he might plead the verball agreement and avoid the usury and first they all agreed that when a Deed is perfected and delivered as his Deed that then no verball agreement afterwards may be pleaded in destruction thereof as it is in the Cases put but when the agreement is parcell of the Originall contract as here it is it may be pleaded and secondly otherwise it would bring a great mischief being the custome so to do by word but if it had been expressed within the Deed that the Bargainee should have the profits and that it was delivered accordingly that no agreement or assignment of the profits could now avoid it for it is an usurious contract and therefore the whole court gave Judgement for the Plaintif that he might well plead the agreement Actions of Trespass and Battery JOhnson versus Turner Trin. 44 Eliz. Trespasse brought for breaking the Plaintifs house and the taking and carrying away his goods the Defendant justifies all the Trespasse the Plaintif as to the breaking of the House and taking the goods and the matter therein contained demurres upon the Defendants Barr the Defendant joins in demurrer in this form to wit because the Plaintif aforesaid as to the breaking of the House and taking the goods is sufficient demands Judgement and Judgement given in the Common Pleas for the Plaintiff and a Writ to inquire of Damages upon which Damages are assessed for the breaking of the House and taking the goods and whether the subsequent words to wit and the matter therein contained go to the whole matter in the Barr to wit to the carrying of the Goods away also for when the Defendant joyned in Demurrer with the Plaintiff he joyned specially to wit to the breaking of the House and taking the Goods but nothing of the carrying them away and so as to the carrying of them away nothing is put into Judgement of the court yet the Writ to inquire is for the whole and the Judgement also and the carrying of the Goods away being parcell of the matter and for which greater Damages are adjudged and that being not put into the Judgement of the Court by the Demurrer therefore the Judgement is erronious for there is a discontinuance as to the carrying of the Goods away which is part of the matter and this businesse concerned Mr. Darcy of the privy chamber concerning his patent for Cards PVrrell versus Bradley Pasch 1 Jacobi The Plaintif declares in Trespass wherefore by force and Arms such a day the Defendant did assault him and one Mare price six pounds from the person of the Plaintiffe then and there did take and Yelverton moved for the Defendant in arrest of Judgement and the Declaration was not good for the Plaintif did not shew any property in the Mare for he ought to have that it was his Mare or the Mare of the Plaintif for as it is laid in the Declaration the words may have two intendments that the property of the Mare was to the Defendant and then the taking was lawfull or that the property was in the Plaintif and then the taking was wrongfull and it being indifferent to whether it shall be taken most strongly against the Plaintif for his
an inquiry of damages between the Plaintiffs and Dawby according to the Award upon the Roll which is the warrant for the Venire facias and it was shewed that the Jury knew nothing of the matter for which they were warned for they ought to have onely given their Verdict against Scullard and not against Dawby and it was likened where two matters are in Issue and they give a Verdict for one and nothing for the other it is naught for all And this was the opinion of the whole Court except Justice Williams who relyed upon 9. Eliz. Dyer Sir Anthony Cook and Wottons Case in partition against two one confessed the Action and the other pleaded to Issue and the Venire facias was to try the Issue between the Plaintifs and the two Defendants and it was amended by the opinion of the Court But marke the difference for no damages are to be recovered in partition but it is otherwise in Trespass and therefore in Cooks Case it was found by the Court that it was as if a meer stranger to the Record had been named in the Venire facias WInckworth against Man Mich. 5. Jacobi The Plaintiff declares for a Trespass in one Acre of Land in D. and abuts that East West North and South and upon not guilty pleaded the Jury found the Defendant guilty in halfe an Acre within written and moved in Arrest of Judgment because upon the matter no Trespass had been found for there is no such moity bounded as the Plaintiff had declared for the whole Acre is onely bounded by the Plaintiff containing his Trespass within those bounds and the Defendant ought to be found a Trespassor within those bounds for otherwise it is not good and it is impossible for the moity of one Acre to be within those bounds But the whole Court except Fenner were of opinion that the Plaintiff should have his Judgement for if the Plaintiff layeth his Action for a Trespass committed in one Acre and the Jury find that onely to be in one foot of it it is good and here they have found the Trespass in the moity of the Acre bounded which is sufficient in this Action where damages onely are to be recovered but if it had been in Ejectment the Verdict had been naught for it is incertaine in what part he should have his Writ of Habere facias possessionem BVckwood against Beale Mich. 5. Jacobi In an action of Trespass it was sayd by the Court That if a Sheriff execute a Capias and there is no Originall to warrant it he is excused it for he is not to examine whether the Originall be sued out or no and for this Trewyrmards Case 38 H. 8. And so if a Bailiff execute a Process made to him by the Steward for damages recovered in the Mannor in a thing in which they had no authority to hold Plea The Bailiff is excused and shall not be punished because he is not to examine the jurisdiction of the Court 7 H. 4. 27. 22 Ed. 3. 22. Ass But if Process come to the Sheriff to arrest J. S. and he arrest J. N. or to make execution of the Goods of J. S. and he make execution of the Goods of I. N. he is a Trespassor for in this Case he must take notice at his perill of the Person and the Goods for when he arrests I. N. or does execution upon his Goods he doth it without warrant And so if I. S. sue a Replevin to the Sheriff to replevin his Cattell and I. S. comes to the Sheriff and shews him the Cattell of I. N. and saith they are his Cattell and he makes replevin of the Cattell he is a Trespassor to I. N. and the Sherif may have an Action of Trespass against I. S. for his false information for the Sherif must at his owne perill take notice whose Cattell they be 3 H. 7. 14 H. 4. but if there be any fraud in the matter he may averr that MOnrey versus Johnson An Action of Trespass brought for entring into a mans House The Defendant pleads that he was a Constable c. And it was held by the whole Court that a Constable may justifie his entry into the House of any man for Felony or Treason STrickland against Thorpe Pasch 6. Jacobi Thorpe brought an Action of Trespass against Strickland wherefore he broke his close the 20. of June 3 Jacobi with a continuance thereof untill the sixth of November after and upon a not guilty pleaded it was found for the Plaintif and Judgment entred but it was entred nothing of the Fine because it is pardoned And upon a Writ of Errour brought he assigned for Errour that the Judgment should have been entred with a Capiatur because the King and Parliament pardoned all offences before the 25. of September and therefore the Trespass being alleadged to have been continued untill the sixth of November following onely part of the Trespass was pardoned and therefore as to that it should have been a Capiatur but the whole Court were of opinion that the Judgment was well entred for the first Trespass which was by force and Armes being pardoned all that depends on that was pardoned and the continuance of the Trespass being onely as to the entring and consuming the Grasse is for increase of damages onely but not for the Kings Fine for the first entry being only with force and Arms makes the Trespass REpps against Bonham Trin. 6. Jacobi The Case in Trespass was that a Feofment was made of three Acres to R. Repps and Mary his Wife for their lives and afterwards to the first second and third Son of the body of the sayd Mary and after to the heirs of the body of the said Mary by the said Richard to be begotten and they had no Son but one Daughter Richard levies a Fine of the Land and Mary dyes the Plaintif enters and the Defendant pleads Richards Fine and adjudged that the Plaintif is not barred by the Fine for Richard had onely an Estate for life and the Estate tayle was in the woman only by the opinion of the five Justices for they said that the Husband is only named to declare what heir of the body of the woman should inherit and not any Heir but such an Heir as Richard her present Husband should beget And if the limitation had been to the Heirs of the body of the woman by her Husband and by I. S. to be begotten the Inheritance had been only in the woman but by the last words for if shee had no Heirs by her Husband and afterwards marries I. S. the Heirs that shee should have by I. S. should inherit And they were all of opinion that the Inheritance was only in the woman because the word Heir which makes the estate of inheritance is annexed only to the body of the woman but if it had been to the Heirs which the Husband should have got of the body of the woman there the
intaile had been in both 19. H. 6. 75. And the like Law if it had been to the Heirs which the Husband should beget of the body of the woman Little 82. 6. HOrn against Widlake Mich. 6. Jac. An action of Trespass brought wherefore he broke his Close and spoiled his Grass in D. The Defendant pleads that in the Close wherein the Plaintiff supposes the Trespass to be done time out of mind there hath been a foot-way for all people passing in by and through the said Close untill such a day and that such a day the Plaintiff plowed up the said Foot-way and sowed it with Corn and laid thorns on the sides of it And further pleads that in the said Close neer the said ancient Foot-way the Plaintiff before the Trespass supposed to be committed left and set out another Foot-way for all people who would use that new way which way since it was laid forth hath been used by all Foot-passengers by reason whereof the Defendant the time in which c. went in the way so laid forth unto such a place c. which is the same trespass c. and demands judgment c. and the Plaintiff demurs and adjudged against the Plaintiff because the Plaintiff made the first wrong in stopping up the ancient way and had assigned a new way for passengers And therefore the Defendants plea is good by way of excuse as to the Plaintiff for it is not fit he should punish the Defendant against his own agreement As if there were a Foot-way through the Close of I. S. over an hedg and I should remove the hedg into a new place if passengers in using their way goe over the hedg where it is newly placed and fixed they shall not be punished for that for it arises of the Act and wrong of the Plaintiff himselfe and volenti non fit injuria As if water run by the Land of M. and M. stop the water-course so that it surround my ground if now abate this hee shall not have an action against me for entring into his Close because the stoppage was his own Act and the same law in the principall case And although the Defendant hath pleaded generally that the Plaintiff hath set out a way and shews not where it is is not materiall for that which is common to all cannot be assigned to any particular person which was the opinion of the whole Court except Justice Yelverton MEtham versus Barker Mich. 6. Jacobi An action of Trespass brought for that the Defendant the first of August in the fifth yeare the Plaintifs Close at L. in the County of Suffolke hath broken and entred and spoiled his Grass with his Cattel c. The Defendant pleads that in the time when the Trespass c. the free-hold of the Land where c. was in Sir Jo. T. And that the Defendant as servant and by his commandement hath entred and put in his Cattell The Plaintiff replyed that true it was that the Free-hold was in Sir John T. But said that a long time before the Trespasse c. Sir Iohn leased the Close to the Plaintiff at will by reason whereof he entred and was possessed untill the Defendant did the Trespass and traverses without that that the Defendant by the command of Sir Io. entred and put in his Cattell and the Defendant demurred and adjudged against the Plaintiff for the plea in Barre is good and in no wise avoided by the Replication for the Replication must be good only by way of Title And the Plaintiff doth not intitle himselfe to any good Lease at will for he doth not alledg indeed any Seisin in Sir Iohn or any possession in him out of which a Lease at will may be derived And although a Declaration may be good to a common intent and in debt upon a Lease as 21. H. 7. is the Plaintiff may declare that he devised And need not alledg a seisin in himself when he made the Lease c. Yet when a title is made by Barre or Replication as 2 E. 4. 9. is that ought to be certain to all intents because it is traversable and because the Defendant had made a good Justification in Law that ought to be answered by the Plaintiff with a good title to wit that Sir I. T. was seised and made a Lease to him at will which is not so done but it is all one as if he should have replyed that Robin-Hood in Barnwood stood without that by the command of Sir Iohn c. which observe And this by the opinion of Fennor Williams and Cook being only then in Court and Judgment was given accordingly GOodman against Ayling Mich. 6. Jac. An action of Trespass brought that the Defendant the 8. of February 4. Iacobi broke the Plaintiffs house and took and carried away one Brasse Chafer of the Plaintiffs price 20 s. The Defendant pleads that the house is parcell of halfe a yard Land in P. and that it was holden of H. Earl of North as of his Mannor of W. by homage fealty escuage incertain suit of Court inclosure of the Park-pale rent one pound of Comyn and for the Rent behind for three years and the homage and fealty of Th. P. Tenant thereof the Defendant as servant of the Earl and by his command justified the Entry and taking c. The Paintiff replies that the house was held of R. Stanley as of his Mannor of Lee without that that it was held of the Earl in manner and form and upon this they were at issue and the Jury found it was held of the Earl as of his Manner of P. by homage fealty inclosure of the pale rent of a pound of Comyn and no otherwise And if it seemed to the Court that it was not held in manner and form they found for the Plaintiff c. And adjudged for the Defendant for although the verdict did not agree with the plea in manner and form of the tenure yet it agreed in substance in the point for which the taking was to wit that the Land was holden of the Earl and that suffices for there is difference between a Replevin and Trespass For in Replevin because the Avowant is to have return it behoves the Avowant to make a good Title in all things but otherwise it is in Trespasse for there the Defendant is bound only to excuse the Trespass and therefore if there be any tenure it suffices for if the Lord or Bayliffe in his right distrains for that which is not due yet he shall not be punished in Trespass as Littleton 114. for the manner and form And 9. H. 7. which mark by the whole Court and Fleming Justice vouched the 33 H. 8. Dyer 48. B. where the issue was whether a Villain regardant c. or free And the Jury found a Villain in grosse yet it was held good for the substance of the Villianage and of the issue were found H. 5. Jac. rotulo 834.
try the Issue anew DOwglas against Kendall Mich. 8. Jacobi The Plaintif declared that the Defendant the 21. of January 6. Jac. by force and Arms thirty Loads of Thornes of the Plaintifs ready to be carryed in a place called the Common wast at Chipping-warden in the County of Norfolk did take and carry away to the Plaintifs damage of ten pounds the Defendant pleaded not guilty to all but to ten Loads and as to them that the place where c. contained one Acre of pasture and that one William Palmer was seised in fee of a Messuage and three quarters of a yard Land in C. aforesayd and that he and those whose estate he had in the sayd Messuage c. time out of minde were used to have for their farmers c. all the Thornes growing upon the sayd Acre of pasture to their use to be imployed and spent upon the sayd Messuage c. as appurtenant thereunto and the sayd ten Loads were growing and unjustly cast downe by the Plaintif upon the sayd Acre of wast and being ready for them to carry the Defendant as servant to Palmer and by his command took them and carryed them away and imployed them upon the House as it was lawfull for him to doe the Plaintiff by protestation that Palmer and such c. time out of minde had not the Thornes growing upon the sayd Acre of pasture parcell of the wast and that Sir Richard Saltonstall was seised of the Mannor of Chipping-warden whereof the common wast was parcell in fee and that he the 21. of January the sixth yeare of K. James granted license to the Plaintif to cut and carry away thirty Loads of Thornes mentioned in the Plea in barr growing upon the Wast by reason whereof they cut those ten Loads of Thornes growing upon the wasts and they were ready to be carryed by reason whereof they were possessed thereof untill the Defendants took them away and upon this Replication the Defendants demurred and adjudged against the Plaintif and there was a differance taken by the Court where a man claimes reasonable Estovers in anothers Soyle and where a man claimes all the Thornes in anothers Soyle for in the first case if the Owner of the Soyle shall cut downe the Thornâ—s first he that hath title to the Estovers cannot take them for the property and interest of all the Thornes continues in the Owner of the Soyle and the other hath onely Common there and if the Owner of the Soyle cut them downe all he that should have the Estovers shall have an Action upon the Case onely and not an Assise for when all the Wood is destroyed it cannot be put in seisin as the Abridgement of the Assise is fol. 21. And so it appeares by Sir Thomas Palmers Case Co. lib. 5. fol. 25. And if one grant an hundred Cords of Wood to be taken at the election of the Grantee and the Grantor or an Estranger cut downe the Wood the Grantee cannot take the Wood but must supply his Grant out of the residue for the Grantee hath but an especiall interest in part of the Wood and not in all but now in this Case the Defendant in right of Palmer claimes all the Thornes in the name of all the Thornes growing upon the sayd Acre of pasture and if he hath all Sir Richard S. cannot have any and so by consequence cannot license the Plaintif to cut any and so the whole interest is in Palmer and it is not in the nature of Estovers for Estovers is but parcell of the Wood and that to be taken to a speciall purpose and in this case it was agreed that although the Defendant had alledged an imployment of the Estovers yet since the Defendant had claimed all the Thornes and Trees the imployment is not traversable for he that hath the generall interest and property in Trees by custome or prescription cannot be restrained but may use them at his pleasure And see 10 E. 4. 2. and adjudged accordingly MAssam against Hunt Mich. 6. Jacobi A Copi-holder of a Messuage and two Acres in fee. The Lord grants and confirms the Messuage and Lands with the appurtenances to the Copy-holder in fee and whether he to whom the confirmation was made shall have by the usage as a Copy-holder common in the wasts of the Lord was the question and adjudged he should not for the Copy-holder by that confirmation is extinct and infranchiz'd for the words with the appurtenances will not create a common for at first the Common was gained by custome and annexed to the customary estate and is lost and perished with that for Common of its own proper nature is incident to a Copy-hold Estate FArmer against Hunt Hilar. 8. Jacobi An Action of Trespasse brought for chasing the Plaintiffs Cattle in such a Close the Defendant justifies taking damage fesant in his Free-hold The Plaintiff replies and shewes one grant of Common in the place where c. by the Defendant to the Plaintiff and that afterwards the Defendant had erected a reek of Corn and the Plaintiff put in his Beasts to use his Common and the Defendant chased them But note that the Plaintiff in his replication in pleading the grant of the Common by Indenture did omit the bringing it into Court. And by all the Judges the chasing of the Cattell by the Defendant is not lawfull for by such means he may defeat his own grant for by the grant of common in such a place the Grantee may use the whole Common And then when the Grantor erects a Reek of Hay upon part of the Common he had granted he will diminish the Common and tend to the enfeebling of his Grant which ought not to be for the Beast ought to range over the whole place and eate the Hay without doing any wrong for the wrong did first begin in the Grantor who is the Defendant of which he shall never take advantage And whereas hee hath erected one Reek of Corn hee may erect twenty and so the Beasts shall have no liberty of pasture there but because the Plaintiff did not shew to the Court the Indenture of the Grant which is the ground of his title for that very cause judgment was given against the Plaintiff DVrant against Child Hillar 9. Jaco An Action of Trespasse brought for chasing the Cattell of the Plaintiff and shews what Cattell and that the Trespasse was done at B. to his damage of c. The Defendant justifies the chasing in one Close called M. in B. which is his Free-hold and that the Cattell were there damage fesant The Plaintiff replies and shews that one B. is seised of one Close called Catley in D. in fee and made a Lease thereof to the Plaintiff for years and that the Defendant is seised of one Close called Fursey in Fee which lies next adjoyning to the Close called Catley and that the Defendant and all those whose Estate he hath in Fursey Close have used
time out of mind to repair the Fence and Hedges betweene Catley Close Fursey Close which Fursey Close doth next adjoyn to the Close called M. where the Cattel were chased and shews that the Plaintiff put his Cattell in Catley Close to feed the Grass there which by default of inclosure escaped into Fursey Close as above but he said that between Catley Close and Fursey Close there is a little Brook which Brook at the side of Catley close had a banck next adjoyning to it which banck the Lessor of the Plaintiff and those whose Estate they have c. have used time out of mind c. to repair And that the Brook at the side of Fursey Close had another Brook next adjoyning which the Defendant used to repair and shews because the Plaintiff had not repaired the banck on the side of Catley Close the Cattell did escape into Fursey Close and stayed in the Close called M. By reason whereof the Defendant chased them as it was lawfull for him to doe whereupon the Plaintiff demurres and adjudged for the Plaintif for the Defendant had pleaded a good Barre and the Plaintif had replyed a good replication and had removed the fault from himselfe and laid it upon the Defendant by his negligent inclosure between Catley and Fursey and the rejoynder doth not confess and avoid the replication but perplexes the matter by adding one point of prescription on the Plaintiffs part that he ought to repair one banck between Catley and Fursey upon which an issue could not be taken for then two prescriptions should be an issue together which cannot be no more then two affirmatives as the 5. H. 7. 12. And also the matter contained in the Records doth not answer the matter contained in the Replication but by way of Argument only And whether that be true is no matter in evidence against the Plaintiff who is bound to prove his Replication true For the Plaintiff saith that Catley and Fursey doe lye together that is without any space between them And the Defendant in his Rejoynder saith there is a banck between Catley and Fursey which if it be so they do not lye together but the Defendant ought to have traversed the prescription alledged by the Plaintiff which had made an end of all the matter which observe was by the opinion of the whole Court SVtcliffe against Constable Trin. 10. Jac. Ch. Constable 32. Eliz. was seised in fee of the Mannor of East-hatfield in the County of Yorke and by his Indenture infeoffes H. Remingham paying for certain Lands parcell of the Mannor 60 l. at two Feasts with a clause of Distresse if it be behind by the space of 14. days Ch. 43. Elizab. by Indenture bargains and sells the 60 l. Rent to the Plaintiff which was inrolled by reason whereof he was seised of the Rent for the life of Ch. and being so seised loses that part of the Identure sealed by Remingham which the said day to wit the 24. Novemb 44. Eliz. came to the hands of the Defendant who by Force and Armes teared the seale of the Indenture against the Peace c. to his damage of 400 l. The Defendant pleads that Ch. hath not granted the Mannor of E. to Remingham paying the rent c. in manner and form and the Plaintiff demurres upon this Plea And it was argued that the Bar was good which is a direct traverse to the title of the Plaintiff to destroy the ground of the Plaintiffs action for if no rent were granted then the Indenture concerning which the Plaintif complains did not belong to the Plaintiff for it passes not to the Plaintiff but as an incident to the second Grant of necessity to make good his title As the Lord Buckhursts Case Co. 1. 7. E. 4. 30. in assize of rent the Plaintiff made his title by deed of a rent charge it was a good plea to say that nothing passed by the grant because the issue is taken upon the speciall matter and not the generall but in an Assize brought of an Office it is no plea to say there is no such Office for that amounts to no more but that he hath not disseised him 45. E. 3. In trespass for taking away of writing it is no plea to say that he never had such a writing but must plead not guilty So in an Action of Trespass for Goods it is no Plea to say that the property of them was to an Estranger and not to the Plaintif because by that plea hee denies not but that the Plaintif was in posaession which is sufficient to maintain the Action 20. H. 8. 28. which books prove that the Plea in Bar is not good for the Defendant destroys the Plaintifs Action but by way of Argument And the rent by such Action is not demanded but damages for tearing the Indenture and so the Title of Rent is not in question and exceptions were taken to the Declaration First the Action was brought for tearing the Counter-part by which the Rent was not created And the Indenture is not expresly granted to the Plaintif but the rent of 60 l. only is bargained and sold and by that the counter-part that pertains to Remingham doth not pass to the Plaintif as an incident for it is not the Originall Deed by which at first the rent was reserved which was granted by all but the Cheife Justice for he said that the counter-part waited upon the interest and was good evidence for that Secondly the Plaintif had not averred that Ch. for whose life the Rent was granted was alive at the time of tearing the Indenture and if C. was dead the Indenture pertained to the Defendant of right as Heir of Ch. for so much appeared by the Plaintifs own shewing which was granted And thirdly the Plaintiff shewed not that ever hee was posaessed of the Deed but by way of Argument to wit that he casually lost it which is not sufficient for none shall have trespass but he who is in actuall posaession which was also granted by the Court. Fourhly the counter-part whereof the Plaintif complains by the Plaintifs own shewing contained as well a warranty as the rent reserved And therefore without a special gift made of that Deed by Ch. to the Plaintiff that Deed doth not pass by Law to the Plaintiff as it is adjudged in Lord Buckhursts Case Fifthly if Ch. the Father be dead then the writing hath lost his force as to the rent for by his death the rent is determined and therefore of necessity the Plaintiff ought to averre the life of Ch. For no Action lies for a Deed that is determined and for these reasons the Plaintiff did discontinue his Action An Action of Trespass was brought for entring into a mans House and continuing there divers dayes c. And after a Tryall and verdict for the Plaintiff Yelverton moved in Arrest of Judgment and shewed for cause that the Plaintiff had declared with a continuando for breaking
John W. was seised of three hundred Acres of Land in R. aforesayd of which the place in question called G. is parcell and that 30 H. 6. the sayd John Whithing reciting that whereas N. de la moore 31 E. 1. the Plaintiffs Ancestor Son and heire of H. de la Moore grants to William de la Moore Corsum aque which runs from W. thorow the middle of the Land of the sayd M. And shews further that by meane discents it discends to the Defendant c and so justifies The Plaintiff replies if W. S. was seised of the place where c. and made a Lease thereof to him for yeares and traverses that the three hundred Acres of Land were parcell and Issue joyned upon that and found for the Plaintiff and it was moved in Arrest of Judgement that the Defendant had not made any answer to the Plaintiff and so no Issue joyned for the Plaintiff layes the Trespass in G. in L. the Defendant sayes he was seised of three hundred Acres of which the place c. was parcell but he conveys no title to himselfe but by a course of water thorow the middle of the Land of M. but whose Land that was it doth not appeare and is another thing and therefore an Issue upon that which the Defendant doth not claime is voyd and although Issue be joyned yet it is not helped by the Statute of Jeofailes of 18 Eliz. or 32 H. 8. for it is as no Issue when it is of a thing not in question but if the Issue had been of a matter in question although ill joyned yet it is ayded as Nichols Case is 5 Rep. 43. upon payment pleaded without Deed And Doddridge and Crooke Justices agreed to that but Haughton seemed to incline that it was an Issue and so helped by the Statute FVller against Pettesworth Knight Mich. 11. Iacobi Fuller brought an Action of Trespass against Pettesworth and his Servant for breaking his Close and taking one Cow in D. in the County of B. One of the Defendants plead not guilty the Servant pleads that the Plaintiff holds of Sir Peter P. as of c. in the County aforesayd and for services behinde by the command of his Master he seised the Cow c. The Plaintiff traverses c. and one Venire facias was awarded out of both the Villiages and being found for the Plaintiff it was new moved in Arrest of Judgement by Finch of Grays Inne that two Venire facias ought to have been awarded because the Issue is of things in severall places for if there be severall Issues in one place one Jury shall be onely Impannelled but if in severall places for severall things locall severall Juries shall be but the whole Court held that one Jury onely should be impannelled and one Venu onely should be awarded out of both the places and it is all one as if it had been in one place but it had been otherwise if in severall Counties as 41 Eliz. DAme Petts Case Mich. 11. Iacobi In an Action of Trespass brought by the Lady Petts upon not guilty pleaded the Jury being at Bar the matters following came in question upon the evidence by Haughton and the other Justices If A. be seised of a great Close where c. and a Stranger enter and occupy part of the Close yet notwithstanding A. continues the posaession of the residue whether this shall preserve his possession in the residue and he shall be judged to be in possession of that because it is an intire thing 5 E. 4. 2. and 8 E. 3. 13. Seisin of part of the services is the seisin of the whole and so is Bettisworths Case 2. Rep. The possession of the House is the possession of the Land for the Lessee against his Lessor of that which passes by one demise But if a stranger enter and sever part by metes and bounds nothing is wrought by the possession of the residue Another question was this A Lessee for yeares of ten Acres paying twenty shillings Rent the Lessee is outed of parcell yet he payed all the Rent to him in Reversion the Lessor having notice of the enter whether this protects the Reversion so that nothing is gained by the entry but the interest of the Lessee and shall be no disseisin And Yelverton at the Barr was of opinion that it should be no Disseisin Rithen Sect. 590. saith That so long as the particular Tenant continues his possession so long is the reversion in the Lessor for in such case as to the Lessor the Lessee shall be alwayes deemed in possession by force of the Lease and the reason why the Lessee shall be adjudged in posaession of all as to the Lessor is because the Lessor cannot have notice of the alteration of the posaession for when the Lessee by his owne Act or sufferance doth a thing in alteration of the posaession of which by common intendment the Lessor cannot have or take notice there the Law will not prejudice the Lessor And see for that Farmers Case in the third Rep. 79. If Tenant for life levy a Fine having Land in the same Villiage this shall not bind the Lessor if five yeares pass before he take notice of what Land the Fine is levied And the same Law if Tenant for life make a Feofment to one who hath land within the same Village levies a Fine and in this cafe if the Lessee hath continually payd all his Rent the Lessor cannot intend or suspect but that the Lessee is absolute Tenant of the whole and in Farmers Case it is sayd That if the Lessor levy a Fine the Disseisee is barred without claime for it is impossible but he to whom the wrong is done shall presently know it But if he that hath the particular estate by Grant or trust reposed in him shall secretly practice although he pay the Rent and continue posaession yet it is otherwise But the Reporters opinion was that if in the principall case no Rent had been reserved then the Reversion had been devested by the entry for there had been no act done to mislead or hinder the knowledge thereof and also although rent be reserved and all payd yet if he had express notice thereof the reversion had been devested And secondly if it should be a Disseisin a great mischeif would follow for if a discent should be it would take away the Lessors entry and yet no fault in them because in common presumption the Lessee alwayes continued Tenant but Cook of a contrary opinion for he said it could not be denyed but that the Lessee is out of the posaession and then it follows of necessity that the Lessor must be out of his reversion And as to notice to make his claime he must take notice at his perill 4 M. Dyer 143. b. But note that this is when the Law intends that he may take notice which it will not intend in this Case Haughton was of opinion that it was a
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
observed with the feare of God And another Canon That custome of not Tything or of the manner of Tything if they paid lesse then the tenth part see Panormitan upon that seek of the Case between Vesey and Weeks in the Exchequer upon the Statute of 27. H. 8. for the dissolution of small Monasteries Also the Lord Darcy in quo warranto was discharged of purveyance by Patent granted by the King Edward 6. of such priviledges which such a one had and by the same reason the King shall be discharged of Tythes by the Act of Parliament also he remembred the Book of 10. Eliz. Dyer 277. 60. to be resolved in the point and also 18. Eliz. Dyer the Parson of Pekerks case 399. 16. upon the Statute of 31. H. 8. and so concluded and prayed judgment for the Plaintiffe and that the Prohibition should stand and it was adjourned Trinity 9. Jacobi Priddle against Napper UPon a speciall verdict the cause was The Prior of Mountague was seised of an Advowson and of divers acres of Land and the 20. of H. 8. the King licensed him to appropriate that and 21. H. 8. the Bishop which was Ordinary assented and after that the Church became void that the Prior might hold it appropriate and 27. H. 8. the Incumbent dyed so that the Appropriation took effect and was united to the possession of the Rectory Appropriate and also of the Land out of which Tythes were due to the said Prior in respect of the said Rectory and then the Priory is dissolved and the Impropriation and the Lands also given to the King by the Statute of 31. H. 8. which granted the Impropriation to one and the Lands to another And if the Patentee of the Land shall hold it discharged of the payment of Tythes in respect of that unity was the question And Harris Serjeant for the Defendant in the Prohibition that the unity ought to be perpetuall and lawfull as it was adjudged between Knightley and Spencer 2 Coke 47. a. cyted in the Arch-Bishop of Canterburies case and for that unity by or by lease for years or for two or three years as in the case at the Barre shall not be sufficient to make discharge of the payment of Tithes and so it was adjudged Pasche 40. Eliz. Rot. 454. between Chyld and Knightley that is that the unity of the possession ought to be of time that the memory of man doth not run to the contrary And in the argument of this Case it was said by Popham cheif Justice that if no Tithes were paid after the Statute that then it shall be intended that no Tithes were paid before the Statute and so he concluded and prayed Consulation see 2 Coke 48. a. The Arch-bishop of Canterbury for the reason by which unity of possession is discharged of payment of Tithes that is for that that some houses of Religion were discharged by Buls of the Pope and many were founded before the Councell of Lateran and for that it shall be infinite and in a manner impossible to find by any searches the means by which they are discharged the unity is no discharge in respect of it selfe for the reasons aforesaid and none may know if Tithes were paid or not before the union And if Tithes be not paid in time of memory by a house of Religion and they lease of that for years and receive Tiths then the lease expiâ—es two yeares before the Dissolution of the same house the King shall not be discharged of the payment af Tithes by the Statute of 31. H. 8. by Coke and Walmesley against Warburton and Foster Dorwood against Brikinden UPon the Statute of 5 Ed. 3. a man libelled in the Spiritual Court for Wood cut and a Consultation was granted Yet the Defendant in the Court Christian might have a new Prohibition if it appeared the first Consultation was not duly granted So if a man libell for Tithes for divers years and Prohibition is granted for part of the years and after that a Consultation is awarded yet the Plaintiffe may have a new Prohibition for the residue of the time notwithstanding the Statute of 50 Ed. 3. and that it be upon one selfe same libel Admirall Court NOte that the Admirall cannot imprison for any offence but if the Court hath Jurisdiction of the Originall cause and sentence is there given this sentence may be executed upon the Land 19. H. 6. But no Ordinary may meddle out of his own Diocesse 8. H. 6. 3. 2. H. 4. The Parson of Salt-ashes Case That this Court tooke notice of Jurisdiction of all Ecclesiasticall Courts and Ordinaries for they write unto them for tryall of Bastardy and Matrimony And there are 3. Legates First a born Legate as the Arch-bishop of Canterbury and Yorke Remes and Pylazam Second a Latere as all Cardinalls The third a Lagate given as those which have their Authority by commission and Lynwood Provinc saith that the Arch-Bishop of Canterbury as Arch-Bishop cannot meddle out of his Diocesse of Canterbury and his Peculiars but as a Legate borne which is in respect of his Office he hath prerogative and if a man inhabit in one Diocesse and ought to pay tithes to another which inhabits in another Diocesse there the Ordinary ought to prefer the suit to the Metrapolitan but seek what Ordinary shall transfer it Trinity 9. Jacobi 1610. in the Common Bench. Jones against Boyer HEnry Jones Parson of Bishopton sued Bowen the Executor of Holland the last Incumbent in the Arches for Dilapidations upon which a Prohibition was prayed upon the statute of 23. H. 8. for that that it was sued out of his Diocesse which was Saint Davids but it appears that the Vicar generall of the same Ordinary hath made generall request to the Metropolitan to determine that without shewing any cause speciall and if the inferiour Ordinary may transmit any cause but only for the causes mentioned in the statute of 23. H. 8. And if the causes ought to be expressed in the Instrument was the question note that the generall words of the statute of 23 H. 8. chap. 9. Rastall Citation 2. are afterwards many particulars or in case that any Bishop or any inferiour Judge having under him Jurisdiction in his own right and title or by commission make request or instance to the Arch-Bishop Bishop or other inferiour Ordinary or Judge to take treat examine or determine the matter before him or his substitute And that to be done in case only where the Law civill or Canon doth affirm execution of such request or instance of Jurisdiction to be lawfull or tollerable and for the better discussing of this question the Judges had appointed to heare two Doctors of the Civill Law which at this day attended the Court the first Doctor Martin said that these generall words have reference to the Executor and not to the maker of the request and this request may be made for all causes but ought to be made to him which hath
a Fee simple conditionall and not an Estate tayl and he said that the sole question was if the Statute of Westminster 2. conevrted and changed Fee simple conditionall of copy-hold into an Estate tayl for if it be not an Estate tayl within this Statute it shall not be an Estate tayl at all for Littleton saith before the making of the said Statute these Estates were Fee simple conditionall and for that cannot be by prescription also he said that copy-hold Estate was so base an Estate that at the Common Law a copy holder had no remedy but only in the Court of the Lord But as to Littleton who sayth that he may have a Formedon in discender to that he saith that the Heire which hath Fee simple conditionall may have it by the Common Law for this was at the Common Law before the making of that Statute of Westminster 2. As it appears by 4. Ed. 2. Formedon 50. 10. Ed. 2. Formedon 55. And by Bendlowes in the Lord Barkleys case in the Commentaries 239. b. by Benlose where it is said by him that a Formedon in discender was not at the Common Law but in a speciall case where an Assise of Mortdancester would not serve the Issue that is if a man had Issue a Sonn and his Wife died and after that he takes another Wife and Land was given to him and to his second Wife and to the Heires of their two Bodyes begoten and they have another Sonn and the Wife dies and after the Father dies and a stranger abates there he sayth that before the Statute the youngest Soon could not have an Assise of Mortdancester and for that he shall have a Formedon in discender which was no other but a writ founded upon his Case see 10 of Ed. 2. Formedon 55. And for that when Littleton speakes of an Estate tayl of copy-hold that ought to be understood of Fee taile which may be Fee simple conditionall and so Littleton may be reconciled 〈◊〉 will well agree with himself also it seems that Copy-hold is ouâ—â—f the intent and meaning of the Statute of Westminster 2. For at the common Law in ancient times this was base Estate and not more in reputation then villinage and also if such an Estate then might be created of that which shall be perpetuall and no means to barr it for surrender of that doth not make any discontinuance and Recovery was not known till 12. Ed. 4. and he saith that in ancient time the name of Copy-holder was not well known for in ancient time they were called Tenants in Villinage and Tenants by copy is but a new terme see Fitzherberts Natura Brevium 12. b. and the old Tenures fol. 2. and Bracton lib. 2. charter 8. In gifts made to servants calleth them Villaines and Sokemen and in the old Tenures it is said that the Lords may expell them and upon this he inferred that if it be so baseâ— Tenure though it be of Lands and Tenements yet they shall not be intended to be within the intent of the makers of the Statute of Westminster 2. and also by a second reason that is that it was not the intent of the makers of the Statute that this should extend to any Lands but only to those which are free Lands for the parties are called Donees and Feoffees and the will of the Giver should be observed according to the forme in the Charter of his gift manifestly expressed by which it appears that it ought to be of such Land of which a gift may be made and also the Statute provides that if the Donee levy a fine that in right it should be nothing by which also it appears as to him it seemed that it ought to be of such Land of which a fine may be levied And also for a third reason which was the great Inconvenience which would ensue upon it for then the Donees have no meanes to dispose of that nor give that for the advancement of his Wife nor her Issues and also the Lord shall loose his signiory for the Donee shall hold of him in Reversion and not of the Lord and it is resolved in Heydens Case 3 Coke 8. a. That when an act of Parliament alters the service Tenure Interest of the Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act shall not extend to Copy-holders see the opinion of Manwaod cheife Baron there and he agreed that admitting it shall be an Estate taile that then Surrender shall not make discontinuance and so he concluded and prayed Judgment for the Plaintiffe his Clyent see Hill and Vpchars Case which was adjudged in the Kings Bench and the principall case was adjourned untill the first Saturday of the next Tearme See Hillari 7. Jacobi in this Book in Replevin the Plaintiff was non-suited between the same parties See also Pasche 9. Jacobi 149. Hillary 1610. 8. Jacobi in the Common Bench. Wallop against the Bishop of Exeter and Murray Clark IN a Quare impedit the case was Doctor Playford being Chaplaine of the King accepted a Benefice of presentation of a common person and after he accepted another of presentation of the King without any dispension both being above the value of eight pound per annum if the first Benefice was void by the Statute of 21 H. 8. chapter 13. or not was the question for if that were void by the acceptance of the second Benefice without dispensation then this remaines a long time voide so that the King was intituled to present by Laps and presented the Plaintiff the Statute of 21 H. 8. provides that he which is Chaplain to an Earle Bishop c. may purchase license or dispensation to receive have and keep two Benefices with cure provided that it shall be lawfull to the Kings Chaplaines to whom it shall please the King to give any benefices or promotions spirituall to what number soever it be to accept and receive the same without incurring the danger penalty and forfeiture in this Statute comprised upon which the question was if by this last Proviso Chaplaine of the King having a Benefice with cure above the value of eight pound per annum of the presentation of a common person might accept another Benefice with cure over the value of eight pound also of the presentation of the King without dispensation the words of the Statute by which the first Church is made void are and be it enacted that if any parson or parsons having one Benefice withcure of Soules being of the yearly value of eight pound or above accept and take any other with cure of Soules and be instituted and inducted in possession of the same that then and immediately after such possession had thereof the first Benefice shall be adjudged in the law to be void See Hollands case 4. Cooke 75. a. This case was not argued but the point only opened by Dodridge Serjeant
of his confirmation and not by the first see 11. R. 2. Grants 9. Ed. 3. 4. 12. R. 2 Feoffments 58. See Perkins fol. 8. b 9. a. Grants 10. Eliz. Dyer 279. 4. Hillary 8. Jacobi 1610 In the Common Bench. Styles against Baxter STyles brought an Action upon the case against Baxter for calling him perjured man the Defendant justified that he was perjured in such a Court in such a deposition and so pleaded that certainly and it was found for the Defendant at the Nisi prius and Judgment was given accordingly and the Defendant afterwards published the same words of the Plaintiff upon which he brought a new Action for the new publication in which the Defendant pleaded in Barr the first Judgment upon which the Plaintiff demurred and it was adjudged without any Contradiction that it was a good Barr. Hillari 8. Jacobi 1610. In the common Bench. Andrewe against Ledsam in the Star Chamber ANdrewe exhibited his bill in the Star Chamber against Ledsam the matter Andrew being a rich Usurer delivered to Ledsam being a Scriâ—ener one thousand pound to be imployed for him for Interest that is for ten pound for the use of every hundred pound for every yeare Ledsam being a Prodigall man as it seemes spent the Money and delivered to Andrewe diverse severall obligations every of them containing three severall persons well known to be sufficient being some of them Knights others Gentlemen and Esquires of great Estates and the other good Citizens without exceptions were bound to Andrewe in two hundred pound for the payment of one hundred sixty pound to Andrew at a day to come within six Moneths then next comming as Andrew had used before to lend his Money and delivered the Obligations with Seales unto them and the names of the parties mentioned to be bound by that subscribed and his own name also subscribed as witnessing the sealing and delivery of them as a publique Notary aâ— the good and lawfull obligations of the Parties which were mentioned in them where indeed the parties mentioned in them had not any notice of any of them But Ledsam had forged and counterfeited them as he hath confessed upon his Examination upon Interrogatories administred by the Plaintiff in this Court and at the hearing of the Cause and sentence of that it was moved if Ledsam shaâ—l loose both his Eares or but one for if it be but one forgery then by the Statute of 5. Eliz. Admitting that the Bill is grounded upon this Statute he shall loose an Eare and pay the double dammageâ— and cost to the party greeved And also if Andrew being but the Obligee and not any of the parties in whose names the Obligations were forged if he be such a party greived which shall have double costs and dammages and these doubts were resolved by Coke cheife Justice of the Common Bench where they were moved and Flemming cheif Justice of the Kings Bench that Ledsam should loose but one eare for that shall be taken as one forgery for that it was made at one time and also that Andrew was the party greived within the Statute but Coke said that the Bill was generall that is against the Lawes and Statutes of the Realme and not precisely upon the Statute of 5. Eliz. For he said that when a Bill is founded upon an Act of Parliament that this ought to containe all the branches which are mentioned in the Act the which wants in this Bill but insomuch that it was adjudged in Parliament what punishment such offenders shall have they inflicted the same punishment which is appointed by the Statute and added to that that he should be Imprisoned till he found good Suerties for his good behaviour and also that hee shall be brought to every one of the Kings Courts at Westminster with great Papers in his hatt containing his offence in Capitall letters but the Lord Chancellor expounded the double dammages in such manner that is that they shall not be intended double Interest but only the Principall Debt Note that if Execution be directed to a Sheriffe to Arrest any man or to make Execution within a Liberty And the Sheriffe direct his Warrant to a Bayliffe of the Liberty for to make Execution of the Processe which makes it and after is a Fugitive and not able to answer for that the Lord of the Franchise shall answer for that and shall be liable to answer for his Bayliffe by all the Justices Burdett against Pix IN Debt upon a single Bill by Burdett against John Pix as administrator of Freewen the case was this that is Freewen was bound in an Obligation of thirty four pound to Burdett the Plaintiff and was also bound to one William Pix in 80. l. Freewen dyed Intestate and the Letters of Administration of his Goods were Committed after his Death to the said John Pix the Defendant and the said William Pix also made the said John Pix the Defendant his Executor and died and the Defendant in this Action pleads that the said Freewen was indebted to the said William Pix and that he was his Executor and that he had Goods of the said Freewens sufficient to satisfie the said debt the which he retained for the satisfaction of that and that over that he hath not of his to satisfie him upon which the Plaintiff Demâ—…or that that the Defendant doth not plead that he hath â—…is election to retaine the said goods for the satisfaction of â—…own said Debt before the Action brought and by all the Justices he ought to make his election before the bringing of the Action otherwise he shall be charged with the other Debt See Woodward and Darcyes Case Commentaries 184. a. and 4. Cook 30. Coulters Case Hillary 8. Jacobi 1610. in the Common Bench. Bone against Stretton THe case was this A man seised of two Acres of Land makes a Lease for years of one Acre to one and another Lease for yeares of the other Acre to another and then he enters and makes a Feoffment and severall Liveryes upon the severall Acres and one of the Lessees being present doth not assent to the said Livery and the use of the said Feoffment was not the use of his last Will and then he declares his last Will and by that recites the said Feoffment and then declares the use of that to be to the use of himself for life the remainder over to a stranger and after the Tenant for years which did not assent to the Livery grants his Estate to the Feoffor and the Feoffor dies and Nicholls Serjeant moved first That this enures as a grant of a reversion and that the grant of the perticuler Tenant enures first as an Attornement and then as a surrender of his Estate as if it had been an expresse surrender and all the Justices agreed that this doth not enure to make Attornement and surrender as expresse surrender will for an expresse surrender admits the reversion to be in the Grantee to whom the surrender is made
others which were present at the said marriage or Actors in that And upon Evidence it appeared that Doctor Hussey was not present nor Actor in it and for that the Jury found him not guilty but they found all the other Defendants guilty of the said Ravishment for upon the Evidence it appeares that the Wife of Doctor Hussey procured and provided the Minister which married them and in the last Michaelmas Terme this was tried here at the Barr and the Jury assessed Dammages to ten pound and the value of the Ward to eighty pound for so much Moore proved that he could have sold him for and also the Jury found that the Ward doth appeare married being of the Age of 16. yeares at the time of his marriage and exceptions were taken to that for that it was not found of what age the Ward was at the time of the verdict and it was urged by Dodridge that by the Statute of Westminster 2. chapt 39. The precise age ought to be found at the time of the verdict Secondly it was found that the Ward did appeare married and doth not say without License of the Guardian and the Guardian may give his consent where the Ward marries himselfe and then there is no cause of action The third and other exception was taken in the behalfe of the Wife of Doctor Hussey for that shee being a married Wife was found guilty of Ravishment of Ward against the Statute of Westminster the 2. chap. 39. And it was urged that it was not the intent of the Statute that provides that he which did Ravish not having right in the marriage though he should restore the Boy naked and not married or should satisfie for the marriage he shall be punished for the transgression by Imprisonment for two yeares and if he shall not restore him or shall marry the Heire after the marrying yeares and cannot satisfie for the marriage he shall abjure the Realme or shall have perpetuall Imprisonment And it was objected that a married woman was not intended to be within this Statute for it is apparent that a married woman hath not wherewith to make satisfaction and it shall not be intended that she shall have perpetuall Imprisonment or make abjuration for this was to make separation betweene the Husband and his Wife and so it was adjourned And the Judges moved the parties to compound amongst themselves see Michaelmas 8. Jacobi Trinity 9 Jacobi Pasch 9. Jacobi 1611. in the Common Bench. Kenricke against Pargiter and Phillipps RObert Pargiter Gentleman and John Phillipps were summoned to answer to Robert Kenricke Gentleman of a Plea why they tooke the Beasts of the said Robert Kenricke and those unjustly detained against Suerties and Pledges c. And thereupon the said Robert Kenricke by Thomas Pilkington his Attorney doth complaine that the said Robert and John the fourth day of August the yeare of the Reigne of our now King seventh at Kings Sutton in a certaine place called Great Greenes took Beasts that is to say one Gelding one Mare and one Colt of the said Robert Kenrickes and do unjustly detaine them against Suerties and Pledges untill c. By which meanes he saith he is the worse and hath losse to the value of twenty pound and therefore bringeth this suit c. And the aforesaid Robert Pargiter and John Phillipps by John Barton their Attorney do come and defend the force and Injury when c. And the said Robert Pargiter in his owne right doth well avow and the aforesaid John Phillipps as Bailiff of the said Robert Pargiter doth well acknowledge the taking of the said Beasts in the aforefaid place in which c. and justly c. Because he saith that the said place in which it is supposed the taking of the said Beasts to be made did containe and at the aforesaid time in which it is supposed the taking of the aforesaid Beasts to be made did containe in it foure Acres of Meadow in Kings Sutton aforesaid which the said Robert Pargiter long before the aforesaid time in which c. and also at the same time in which c. was and as yet appeareth seised of one Messuage and one virge of land with the appurtenances in Kings Sutton in his Demesne as of Fee and that the aforesaid Robert Kenrick the aforesaid time when c. and long before was seised of a Messuage and foure Virges of land with the appurtenances in Kings Sutton aforesaid whereof the aforesaid place in which c. Is and at the aforesaid time when c. and also at the time to the contrary doth not appeare in the memory of man was parcell in his Demesne as of Fee And the said Robert Pargiter and John Phillipps further say that the said Robert Pargiter and all those whose Estate the said Robert Pargiter now hath and at the aforesaid time when c. had in the aforesaid Messuage and one Virge of Land with the Appurtenances of the said Robert Pargiter from time the contrary whereof doth not appeare in the memory of man had and have used to have and were accustomed to have Common of Pasture in the aforesaid place c. For six Horses Geldings or Mares two Colts six young Beasts called Steeres or young Beasts called Heifers and two Mares called breeders in and upon the said Messuage and one Virge of Land with the Appurtenances lying and rising in manner and forme following that is to say every year in and from the first day of August called Lammas day untill the feast of the purification of the blessed Mary the Virgin then next following as to the said Messuage and one Virge of Land with the Appurtenances belonging and the said Robert Pargiter and John Phillipps further say that the aforesaid Robert Kenricke of the aforesaid Messuage and foure Virges of Land with the Appurtenances whereof c. In the forme aforesaid appearing seised the said Robert and all those whose Estate the said Robert Kenricke now hath and at the aforesaid time in which c. had in the aforesaid Messuage and foure Virges of Land with the Appurtenances whereof c. time out of mind had and were used and accustomed to have the aforesaid place in which c. To their proper use in severalty every year in and from the feast of the purification of the blessed Virgin Mary untill the first day of August called Lammas day then next comming that by reason and in consideration therof he the aforesaid Robert Kenrick and all those whose Estate the said Robert Kenrick now hath and at the time in which c. had in the aforesaid Messuage and foure Virges of Land with the Appurtnances whereof c. time out of minde have had and were accustomed to have every yeare from the aforesaid first day of August called Lammas day and from thence untill the aforesaid purification then next following Common of pasture in the aforesaid place in which c. Only for three Mares
or Geldings and no more and because the Beasts aforesaid in the narration aforesaid specified over and above the aforesaid other three Mares or Geldings the aforesayd time in which c. were in the aforesayd place in which c the Grasse then growing there eating and the Common of pasture of the sayd Robert Pargiter overcharging and doing damage to the sayd Robert there the sayd Robert Pargiter in his owne right doth wel avow and the aforesayd John Phillips as Bayliff of the aforesayd Pargiter doe well acknowledge the taking of the Beasts aforesayd in the aforesayd place in which c. and justly c. they then doing damage there c. And the aforesayd Robert Kenrick saith That neither the sayd Robert Pargiter for the reason before alleadged the taking of the aforesayd Beasts in the aforesayd place in which c. can justly avow nor the aforesayd John Phillips as Bayliff of the aforesayd Pargiter for the same reason the taking of the Beasts aforesayd in the aforesayd place in which c. justly can acknowledge Because by protestation that he the sayd Robert Kenrick and all those whose estate the sayd Robert Kenrick now hath and at the aforesayd time of the taking c. had in the sayd Messuage and foure Virges of Land with the appurtenances whereof c. time out of minde had not nor used to have or were accustomed every yeare at the first day of August called Lammas day and from thence to the next Feast of the Parification then next following Common of pasture in the aforesayd place in which c. onely for three Horses Mares or Geldings and not more in manner and forme as the aforesayd Robert Pargiter and John Phillips above have alleadged for Plea the sayd Robert Kenrick sayth That he long before the time of the taking of the Beasts aforesayd and also at the same time of the taking c. was seised of the Mannor of Kings Sutton with the appurtenances in Kings Sutton and Astrop in the County aforesayd whereof the aforesayd Messuage and four Virges of Land with the appurtenances whereof c. are and at the aforesayd time of the taking c. and also time out of mind c. were parcell in his Demesne as of Fee and the aforesayd House and foure Virges of Land with the appurtenances thereof c. and of the taking and likewise time out of mind were parcell of the Demesne Lands of the Mannor of Kings Sutton aforesayd And the sayd Robert Kenrick so of the Mannor aforesayd with the appurtenances in manner aforesayd appearing seised the sayd Robert before the sayd time in which c. put his Beasts aforesayd which then were the proper Beasts of the sayd Robert Kenrick upon the aforesayd House and four Virges of Land with the appurtenances lying and rising in the aforesayd place in which c. to eate the Grafs there growing in the sayd place in which c. called Great Greens parcell c. the Grass in the same then growing feeding and the aforesayd Beasts were in the place aforesayd untill the aforesayd Robert Pargiter and John Phillips the aforesayd fourth day of August the seventh yeare aforesayd at Kings Sutton aforesayd in the County aforesayd at Great Greene parcell c. took the sayd Beasts of the sayd Robert Kenrick and those unjustly detained against Sureties and Pledges untill c. as he above against those complaines and this he is ready to verifie whereof and from which the aforesayd Robert Pargiter and John Phillips the taking of the aforesayd Beasts in the aforesayd place c. further acknowledge the sayd Robert Kenrick demands Judgment and his damages by reason of the taking and unjust detaining of those beasts to be adjudged unto him c. And the aforesaid Robert Pargiter and John Phillips say that the aforesaid Plea of the said Robert Kenrick above in the Bar avowed pleaded and matter therein contained is very insufficient in Law justly to avoid the said Robert Pargiter and the said John from just acknowledging the taking of the Beasts aforesaid to have and shut up and that he to the said plea in manner and forme aforesaid pleaded hath no need not by the Law of the Land shall be held to answer and this they are ready to averr whereof for default of a sufficient plea of the aforesaid Robert Kenrick in this part the said Robert and John as before demand Judgement and Returne of the Beasts aforesaid together with their Damages c. To them to be adjudged c. And the aforesaid Robert Kenrick in respect he hath sufficient matter in Law justly to avoid the said Robert Pargiter and the aforesaid John from justly acknowledging the taking of the said Beasts to be shut out as above alledged which he is reaoy to verify which truly matter of the aforesaid Robert Pargiter and John do not answer according to their verifying they altogether refuse to admit as before and demand Judgment and their Damages occasioned by the taking and unjust detaining of the said Beasts to be adjudged to them c. And because c. Upon the pleadings the Case was thus a Freeholder prescribs to have common in parcell of the Demesnes of the Mannor for six Horses and other Cattel in certain Land from Lammas to Candlemas that the Lord of the Mannor hath used to have the said Parcell of Land in severall to his owne use from Candlemas to Lammas and in consideration of that the said Lord hath used to have Common in the said parcell of Land for Horses only and not more and the Lord unjustly puts in other Beasts then the said three Horses in the said parcel of Land and surcharged the Common and the Free-holder distrayned them doing Damage and the Lord brings a Replevin and it was argued that prescription was not good for that that Free-holder claimes that as Common without number in his severall Soyle the Grantee cannot exclude the owner of the Soile 12 H. 8. Brooke so of him which hath Common Fishing in the severall of another he cannot exclude him which hath the severall 18 H. 6. 16. And it is not like to the Case of the time of Edward the first prescription the 55. Where is Prescription that the Owner of the Soile shall be excluded from his Common for part of the yeare for there the other claimes all the Vesture of the Land and so may well exclude the Lord but not when he claimes it but as Common but it was agreed that by Lawes by the Commoners consent they may order that their great Cattell shall be put in in such Feild only untill such a Feast and after that for sheep and swine and this is good as it appears by 46 Ed. 3. 25. And Coke cheife Justice said that such prescription to have Common and to exclude the Owner of the Soyle is not good and he saith that so it hath been adjudged between Whyte of Shirland 31 Eliz. And in
by Hull 9 H. 4 Wast 59. but this ought to be such Wast that is prejudiciall to the Inheritance as it is agreed in Herlackendens case 4 Coke Where it is agreed that the Bargainee hath severall Interests in the Land and in the Trees and by the Writings by the making of the Lease of the Mannor they are not reunited and annexed to the Free-hold again and then the cutting and selling is no prejudice to him in reversion and so no Wast to make forfeiture and so he concluded and prayed Judgment for the Defendant and is adjourned see the beginning fol. Trinity 9. Jacobi 1611. In the Common Bench. As yet Doctor Hūfreys Case see Hillary 8. Jacobi IN the Writ of Ravishment of Ward between Francis Moore Esquire Plaintiff against Doctor Hussey and Katharine his Wife Robert Wakeman Clark and many other Defendants Dodridge the Kings Serjeant argued for the Defendant Doctor Hussey that a marryed Wife is not within the Statute of Westminster 2. chapter 35. By which the Writ of Ravishment of Ward is given that which before the Statute was only Trespasse is by the Statute altered in manner and form of proceedings and in penalty of Judgment and he thought that this Writ being formed upon the Statute doth not extend to a married Wife for by the Statute if the Defendant cannot satisfie for the marriage he must abjure the Realme or shall have perpetuall Imprisonment which goes neer to every man next unto his Life the love of his Country and liberty and those the makers of the Statute did not intend against a married Wife and he grounded his argument upon these words of the Statute by which it appears that the makers of the Statute did not intend any person which had no property in any Goods nor power to make satisfaction For first the Statute provides that if he be able to make satisfaction that then he should satisfy if not that then he shall abjure the Realme by which it appears that the Statute intends those that have property and by possibility may satisfy but a woman cannot for her marriage is a gift of all her goods personall to her Husband see for that Fox and Girtbrookes Case Commentaries Secondly The Statute provides new form of proceedings for if the Ward or any of the parties dy hanging the Writ the Writ shall not abate but it shall be revived by Resummons by or against the Executors of him that is dead by this it appears that he which hath no power to make Executors shall not be intended to be within the Statute and a married Wife cannot make a Will and by consequence cannot make Executors see Coke 6. a. Forse and Hemblins case 3 Ed. 3. Devise 13. 4 H. 6. 6. and if the Executors have no assets then the statute gives remedy against the Heir Thirdly The Statute intends to give action against him which may have possession of the ward the which a married Wife cannot have for her possession is to the use of the Husband and by the words of the statute he against whom the Action is given ought to be made Fidei possessor and to the objection that though that the Wife married cannot by any possibility have sufficient to make satisfaction according to the intent of the statute yet if the Husband hath sufficient he shall answer for his Wife as in 48 Ed. 3. 26. and 17 H. 6. A married wife shall be attached by the Goods of the Husband he saith that there the reason is that the Wife is answerable by the Husband but this is only to make him to appear but he against whom the action is given by this statute ought to have property and in such cases a married Wife shall not be punished as in the same Parliament Westminster 2. chapter 25. Is provided that if a Disseisor faile of Record that he shall be imprisoned in Assise for this is the speedy remedy but if a married wife pleads a Record and failes of that to the Jury she shall not be imprisoned though that the Assise was brought against the Husband and the Wife or against the Husband and the wife is received see 1. 3 Ass 1 44 ass 3. 17. as 19. 11 H. 4. Also the statute of Conjunctim Feoffatis fol. 99. Which was made in the time of the said King Ed. 3. in which time the statute of Westminster 2. was made and is contemporary with the same statute by which it is provided that if any plead Joyntenancy which is found against him in the Assise that he shall be imprisoned by the space of a yeare and 16 Assise 8. Husband pleads Joyntenancy with his wife and maintaines the Exception which is found against them and resolved that the Wife should not be imprisoned by this statute 21 Assise 28. 31 Assise a. accordingly and he said there was not any president nor Book of Record by which it appears that a Writ of Ravishment of Ward was maintained against a marryed Wife for Ravishment after the Coverture but for Ravishment before the Coverture see 6 and 8. Ed. 3. and to the Objection that the Plaintiff hath election if he will have the sufficiency come in question may but admit the Defendants to be sufficient and then the imprisonment nor the abjuration shall not be inflicted as it seems to be some opinion 8 Ed. 3. 52. and to that he saith that the admittance of the parties cannot alter the Law for if it were not the intent of the makers of the Statute that this should extend to the Wife the admittance of the parties will not make that extend over the provision of that also it seems to him that the Verdict is not perfect for that it is not fonnd by whom the VVard was married but only that he appeared marryed and it ought to be without the consent of the Plaintiff and for that it might be that he was marryed by the Plaintiff and then there is no cause of action nor to have the value of the marriage and it appears by 22 R. 2. Damages 130 that they ought to inquire by whom he is marryed and also the value of the marriage and if it doth not appear whether he be married or not then the Verdict shall be conditionall and the Judgment also and all the Presidents are he appears married without the assent of the Plaintiff and so he concluded and prayed that the Judgment might stand Harris Serjeant for the Plaintiff prayes Judgment and he supposed that it is in the choyce of the Plaintiff what Judgment he would have for he ought to have Dammages and the value of the marriage and it remaines in the discretion of the Plaintiff what judgment he will have that is upon the Statute for to have the corporall punishment or allow the Defendants to be sufficient and so to have judgment for the Damages and the value of the Marriage without any Imprisonment or Abjuration as in 29 Ed. 3. 24. and 8 Ed. 3. 52. where
are to be recovered agreement is a good Plea as in 47. Ed. 3. 24. and 10. Ed. 3. in Debt upon a Lease for yeares concord is a good Plea and 7. Ed. 4. 23. in Detinue for charters it is a good Plea and in 6. Ed. 6. Dyer 75. 25. it is a positive rule that in all Cases and Actions in which nothing but amends is to be recovered in Dammages there an agreement with an execution of that is a good Plea and for that in Detinue it shall be a good Barr So in Covenant it was adjudged in Blakes Case 6. Coke 43. 6. As where an Obligation is with a Condition to pay money at such a day the payment of another thing is good if the Obligation be to pay a certaine Sum of money But if a man be bound in a Sum of money to make another Collaterall thing the acceptance of an other thing Collaterall shall not be a Barr for money is to the measure and the price of every thing if a man be bound in two Horses to pay one acceptance of another thing shall be no Barr But the acceptance of such a Sum of money in satisfaction is good Barr for this is the just Estimation and measure of every thing see 12. H. 4 Where a man was bound in an Obligation with Condition that he shall make acknowledgement of the Obligation of twenty pound to the Obligee before such a day c. And agreements are much favoured for it is a Maxim and Interest of the Common-Wealth that there be an end of suits for by Concord small thing increase and by Discord great things are consumed and the beginning of all Fines is Et est Cordia talis c. and the 11. of Rich. 2. Barr. 242. In Debt upon a Lease for yeares the Defendant pleads that by the same Deed by which the Land is let the Plaintiff grants that the Defendant ought to repaire the houses lett when they are ruinous at the costs of the Plaintiff and he retaines the Rent for the repaire of the houses being ruinous and a good Barr And if it be a right of Inheritance or Free-hold that cannot be barred or extinct by acceptance of another thing though it be of other Land as of another Mannor as it is agreed in Vernons Case 4. of Coke A woman accepts Rent out of the Land of which shee is not Dowable in recompence of her Dower this shall not be a Barr 5. Ed. 4. 22. 3. Eliz. Dyer and he said that the book of 11. H 7. 13. is misprinted insomuch that it is reported to be adjudged But in truth this was not adujdged for then it would not say in 13. H. 7. 20. the residue before 11. H. 7. 13. And in the 16. of H. 7. warranty it is agreed that in wast against Lessee for yeares Agreement is a good Plea otherwise if it be against Lessee for life And if they have adjudged 11. H. 7. 15. which was so small a time before they would not have adjudged the contrary in 16. H. 7. and Hillary 6. Ed. 6. Bendlowes in wast against Lessee for yeares in the Tenet Agreement is affirmed to be good Barr And in the book of Reports in the time of H. 7. printed in time of H. 8. the yeare of the 11. of H. 7. there was no print at all And he then upon that inferrs that as well as a man might agree for Trees so well might he agree for Tearme and to the booke of 9. H. 5. 15. a. That release of one Plaintiff in an Action of wast is a good Barr he said that this is to be understood in wast of the Tenant and then it shall be a good Barr see in the 12. of Ed. 4. 1. a. Two joyne in an Action of wast and the one was summoned and severed the other recovered the halfe of the place wasted and in the 26. H. 6. 8. Agreement is a good Barr in an Action of wast and he intended that in all Actions by force and Armes where a Capias lies at the Common Law Agreement or Arbitrement are good Pleas as Ravishment of Ward which is given by Statute in lieu of Trespasse for taking of a Ward where a Capias lies at the Common Law and Agreement was a Bar and for that now Agreement shall be a Barr in Ravishment of a Ward And he intended that an Ejectione Firme which is Trespasse in his nature and the Ejectment is added of later times And in all their Entries this is entred Trespasse and severs the Trespasse from the Ejectment and the Ejectment will vanish and the Statute of 4. Ed. 3. chap. 6. which gives Action to Executor of goods carried away in the life time of the Testator extends to that which proves this to be Trespasse for by the Statute the Executors may have Ejectione Firme for Ejectment made to their Testator notwithstanding that ancient Demesne is a good Plea in that and in the 44. Ed. 3. 22. That is called an Action of Trespasse and so all the Entries are De Placito Transgressionis and in the book of Entries in Mayhme it is cited to be adjudged 26. H. 6. Trin. Rot. 27. that concord is a good Plea in an appeale of mayne 35. H. 6. 30. But in an Action in the realty it is no Plea otherwise in Quare Impedit for there nothing is to be recovered but that which is personall and he intended that Agreement by one of the Defendants in personall Action is a good Barr as in 36. H. 6. Barr concord made by the freind of one of the parties was a good Barr Statham Covenant accordingly and 35. H. 6. 〈◊〉 7. H. 7. One of the petty Jury in Attaint pleads agreement and good and in an Ejectione Frime Lease made to try Title is not within the Statute of buying of Titles if it be not made to great men but to a Servant of him which hath the Inheritance and cannot mainetaine or countenance the Action and Bracton fol. 220. Lessee for yeares hath three remidies if he be evicted that is Covenant Quare Ejecit infra Terminum against the Feoffee of the Ejector or an Ejectione Firme against the Immediate Ejectors and in Ejectione Firme the Tearme shall be recovered as 12. H. 4. 1. H. 5. and 11. H. 6. 6. Non-Tenure is a good Plea in Ejectione Firme ergo the Tearm shall be recovered 7. Ed. 4. 6. 13. H. 7. 21 and 14. H. 7. It is adjudged that the Tearme shall bee recovered in Ejectione Firme and so he concluded that the agreement shall be a good Barr because Wise men seeke peace Fooles seeke strifes And that Judgement shall be given for the Defendant which was done accordingly Mâ—hcaelmass 1611. 9. Jacobi in the Common Bench. Mallet against Mallet LANDS were given to two men and to the Heires of their two Bodies begotten and the one died without Issue and the remainder of the halfe reverted to the Donor and he brought an Action of wast
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
H. 8. makes Leases being in the hands of Spirituall persons void this avoids these Covenants also which depend upon the Lease So if a Parson make a Lease and Covenant that he will not be non-resident and binds himselfe for the performance of that if the Covenants be released the Obligation also is released So if the Lease be avoyded the Covenants also are avoyded And as an action of Covenant doth not lye for the not injoying of Land after a surrender so Covenant doth not lye after the estate is avoyded see 4 H. 7. And to the case put by Wynch of counter-bond where the Principall was void by the staiute of Usury he said that there the Obligation was not void but voidable by plea. But here it is the estate is made void by the express words of the statute and he intended that this difference between expresse Covenant and Covenant in Law but that the one determines with the estate as well as the other and yet he agreed that express Covenant shall extend to charge the Covenanter upon Entry by a stranger which hath no title but yet this doth not charge the Lessor after the estate determined and so he concluded that Judgment ought to be given for the Plaintiff Coke cheif Justice accorded with Wynch that Judgment shall be given for the Plaintiff And he supposed that the livery was well executed by the Attorney after the 3 Rent dayes incurred and yet he agreed that it had been a probable objection made against that But he supposed that the Lessor was not prejudiced insomuch that the Law intends that they had the possession and the profits of the Land till livery made and the Attorney is only as a servant to the Lessor And he said that this is not like to Cromwels and Andrews Case of grant of a Mannor upon Condition to re-grant Advowson or Rent in which cases the Advowson or Rent ought to be re-granted before that the Church becommeth void or the Rent day be incurred insomuch that they are followers of the thing granted notwithstanding that the Feoffee hath time during his life to make the re-grant if it be not hastned upon Request 2. He supposed that the express Covenant shall bind the Lessor though it be referred to the tearm for tearm includes Estate and Interest but this is when it is Tearm but when it is no Estate then it shall be intended during the continuance of the years as it appears by the Rector of Chedingtons Case and this he held clear and so of promise also as if a man makes a Lease for years and before that the Lessee enters makes a lease to another and promises that the second Lessee shall enjoy during the tearm if the first Lessee enter the second Lessee may have an action upon the promise and he said that it was adjudged in the Kings Bench Hill 35 Eliz. between Foster and Wilson Plaintiffs and Mayes Defendant where the case was A man made a Lease of a Rectory for years and covenanted with the Lessee to save him harmlesse against one Blunt Parson of Dole which entered and outed the Lessee which brought Covenant against the Lessor and resolved that it lyes notwithstanding that it doth not appear whether he had Interest or no So that be the Lease good or void yet when there is an Eviction Covenant lyes though the Lease be originally void yet till it be avoided it shall be intended a good Lease And if a Covenant of Dean and Chapter doe not bind them none will take Lease of them so they shall be compellable to plow the Land themselves and also he supposed that the Lease was good against the succeeding Dean and Chapter till it be avoyded by Entry as it was adjudged Trin. 30 Eliz. between Elmer and Page where a Bishop made a Lease for years and dyes the Successor makes a Lease for 3 lives the Lease for years not determined And it was resolved that the Lease for 3 lives was void notwithstanding that the Bishop might make a concurrant Lease for years which is not made void by the Statute of 1 Eliz. insomuch that the Statute is in the definitive that is Leases for 3 lives or 21 years and so they cannot make both for then the Lessee for life should have the Rent reserved upon the Lease for years which is setled in the Lessee for 3 lives by the regress of the Lessee for years and so he said also notwithstanding that the statute of 18 Eliz. made void all Leases made by Deane and Chapters where there are more then 3 years in being he agreed that a Lease for years where there are so many years in being is good but if there be but two years in being that makes the Lease for life void And he agreed that notwithstanding the statute yet any Lease shall be good against the Deane himselfe insomuch that he is party to that and hath a negative voyce in the making of that And he seemed that the Proviso in the statute of 18 Eliz did not extend to Leases in possession but to Leases in reversion which are dormant of which a stranger cannot take notice insomuch that they are invisible and for that if a Dean and Chapter procure surrenders of them and within 3 years that shall make another Lease good and so they shall save their Covenant and for that the Lease here made to the Plaintiff had been good if the Defendants had procured the Lease made to Thimblethorp to be surrendred within 3 years after the taking of that Also he cyted the Case betwixt the Bishop of Lychfield and Coventry and Sale to be adjudged Michaelmass 32. and 33. Eliz. That a grant of the next avoydance is good against a Bishop himself that granted it and not made void by the Statute of 1 Eliz. as to him but to all Successors only And so in this case he said they all agreed that the Lease was not void which is made to Waters against the Deane himself which made it but only against the Successor And he said also Covenant in Law extends to lawfull Evictions and to estates in being and not where an estate is determined as if Lessee for life makes a Lease for years and dyes the Lessee shall not have an action of Covenant upon Covenant in Law as it is agreed in 9 Eliz. Dyer and 38 H. 6. before cyted So also he supposed to express reall Covenants which extends to Free-hold or Inheritance as Warrant and Defend upon which a man cannot have an action if he be not outed by one which hath title and as in 3 Edw. 3. 7. and 21. A man makes a Feoffment with warranty nonfeoffavit is a good Plea for if the Feoffment be avoided the Warranty also is avoided for that depends upon the Feoffment But if a man makes a Lease for years and covenants that he will warrant and defend the Land to the Lessee if the Lessee be outed by one which hath title or
and before the originall purchased the Indentnre was by the assent of the Plaintiff and the Defendant cancelled and avoyded and so demands Judgment if action and it seemes by Coke cleerly that the Plea is not good without averment that no Covenant was broken before the cancelling of the Indenture Pasch 12. Jacobi 1612. In the Common Bench. Barde against Stubbing IT was moved in arrest of Judgment that the Venire facias wants these words Et habeas ibidim nemina Juratorum but the words Venire facias duodecim c. were incerted and it seems by all the Justices that it was good and that the first words are supplyed in the last and they are aided by the statutes of Jeofai es after verdict and so it was adjourned In Audita querela sued by the sureties upon an escape made by the principall they being in execution offered to bring the Money into the Court or to put in sufficient Sureties to the Court and so prayed that they might be bayled and it was agreed that if Audita querela be grounded by specialty or other matter in writing or upon matter of Record Supersedeas shall be granted before that the party be in Execution and if he be in execution he shall be bayled but if it be founded upon a matter in Deed which is only surmise he shall not have Supersedeas in one case nor shall be bayled in the other case and so was the Opinion of all the Justices In an Action of Waste for digging of earth to make Brick Estrepement was awarded and upon Affidavit that the Writ of Estrement was delivered to the Sheriff and that he gave notice of that to the party and he notwithstanding that continues to make waste attachment was awarded Pasch 12 Iacobi 1612. In the Common Bench. Fetherstones Case Trinity 1612. IN Ejectione firme The Plaintiff had Judgment and an Habere facias possessionem to the Sheriff of Coventry which returnes that he had offered possession to the Plaintiff and he refused to accept it and it seems that the Plaintiff cannot have Habere facias possessionem insomuch that it appeares by the Record that he hath refused to have the possession The case was A Dean and Chapter being Lord of a Maunor parcell of the Demesnes of the Mannor being severall adjoyned to the Common which was parcell of the wast of the Mannor and one Copy-holder which had Common in the sayd Wast puts his Beasts into the sayd waste to take his Common and they for default of inclosure escape into the sayd Demesnes by which the Lord brings his action of Trespass and upon this the Defendant pleads the speciall matter and that the Lord and all those whose Estate he had in the said place where the trespass is supposed to be made have used to fence the said place which is parcell of the Demesnes of the sayd Mannor against the Commoners which have Common in the sayd Common being parcell of the waste and also of the demesnes of the sayd Mannor and that the Beasts of the sayd Defendant escaped into the sayd place in which c for default of inclosure and so demands Judgment upon which the Plaintiff demurrs in Law In the agreement of which it was agreed by Hutton and Haughton the Serjeants which argued it whether a man by prescription is bound to make fence against Commoners as it is agreed in the 22 H. 6. 7. 8. 21 H. 6. 33. But the doubt which was made in this case by Haughton which demurred was for that that the Lord which by the prescription ought to inclose is owner of the soyle also against which he ought to inclose and so he ought to inclose against himself and for that he supposed that the pleading should have been that there is such a custome there and of time out of minde that the Lord shall inclose against the Common insomuch that by that the Copy-holder would bind the Lord and upon that it was adjourned c. Pasch 12 Jacobi 1612. In the Common Bench. Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife IN Warrantia Charte the case was Sir Robert Osborne and his Wife levyed a Fine of the Mannor of Kelmersh with other Lands in Kelmersh to Sir Henry Rowles against all persons and this is declared for the Lands in Relmersh to be to the use of Sir Henry Rowles for life with diverse Remainders over and for the Mannor no use was pleaded to be declared at all and then a Writ of Entry in the Post was sued against the sayd Sir Henry Rowles which vouched Sir Robert Osborne and his sayd wifeâ— and this was declared for the sayd Lands to be to the use of the sayd Sir Henry Rowles for his life with other Remainders over which were declared upon the Fine of the Lands in Kelmersh only and of the Mannor of Kelmersh no uses were declared upon the Recovery also and upon this Recovery pleaded in barr the Plaintiffe demurred and it was argued by Dodridge Serjeant of the King for the Plaintiffe that the Plea in Barr was not good insomuch that it doth not appeare that the warranty which was executed by the Recovery was the same warranty which was created by the Fine and also the Fine was taken for assurance against the Issue in tayle and the Recovery to Barr the remainders and so one shall not destroy the other and for the first he sayd that a man may have of another severall warranties and severall causes of Voucher and all shall be together for warranty is but Covenant reall and as well as a man may have severall Covenants for personall things as well he may have severall reall Covenants for one self same Land as if the Father infeoff one with warranty and the Sonn also releases to the same Feoffee with warranty or if the Father infeoff one with warranty against him and his Heires and the Sonn release with warranty against all men the Feoffee may vouch one and Rebut against the other so of Warranty of Tenant in tayle and release of an Ancestor collaterall with warranty in Law and expresse warranty as it is agreed in 31 Ed. 1. Fitzh Voucher 289. And upon that he concluded that a man may have severall warranties of one selfe same man and the one may be executed and the other remaine notwithstanding that it be for one selfe same Land and he supposed the effect of these warranties are as they are used for if that may vouch generally and bind himselfe upon the Fine or upon his owne warranty or upon the warranty of his Ancestor notwithstanding that the voucher be generally as it is 31. Ed. 3. Warranty of Charters 22. So if he be vouched as Heire though that it were speciall but if he be Heire within age otherwise it is for that is a good Counter Plea that he was within age and so praied that the word might demur during his nonage 17.
appears by 9 Edw. 4. 33. 37 H. 6. 32 H. 6. 1. Ed. 4. 2. 50. Ed. 3. And he conceived that the burying is not any Administration nor the taking of the goods into his custody to preserve them no more then in Trover and Conversion when a man takes the goods for to preserve them And he agreed that where a man intitles himselfe to goods by Administration committed by any but by the Bishop he ought to pleade specially that he which committed it had power to doe it But here it is not so but only conveiance and for that need not here such precise pleading of that insomuch it is only execution of Administration and for that it is good without intitleing the Arch-Deacon And he agreed that an Executor of his owne wrong may pay Debts due to another and shall be discharged And he agreed also that the Confession of one Executor shall bind his Companion and that Judgement shall be given upon that for the Plaintiff And they all agreed that the pleading that the Defendant hath no goods besides the goods which do not amount c. it was not good and for these causes they all agreed that Judgement ought to be given to the Plaintiff Trinity 10. Jacobi in the Common Bench. Tyrer against Littleton 9. Jacobi Rot. 299. IN Trespasse for taking of a Cow c. Upon not guilty pleaded by the Defendant the Jury gives speciall Verdict as it followes that is that the Husband of the Plaintiff was seised of eighty Acres of Land held of the Defendant by Harriot service that is the best Beasts of every Tenant which died seised that he had at the time of his death and that the Husband of the said Defendant long time before his death made a Feoffment of that Land in consideration of marriage and advancement of his Son to the use of his Son and his Heires with such agreement that the Son should redemise to his Father for forty yeares if he so long lived and that after the marriage was had and the Son redemised the Land to his Father and the Father injoyed that accordingly and paied the Rent to the Lord and after died and that the Plaintiff had no notice of his Feoffment and that the Husband at the time of his death was possessed of the said Cow and that the Defendant took it as the best Beast in name of Harriot and also found the Statute of 13. Eliz. of fraudulent conveiances to deceive Creditors and so praied the direction of the Court and this was agreed by the Plaintiff aforesaid Nicholls Serjeant first that all conveiances made upon good consideration and Bona Fide are by speciall Proviso exempted out of the Statute of 13. Eliz. chap. And he conceived that this is made upon good consideration and Bona Fide and for that it is within the said Proviso and also he said that as upon the Statute of Marlebridge there is fraud apparent and fraud averrable as it appeares 12. H. 4. 16. b. Where in ward the Tenant pleads that his Father levied a Fine to a stranger the Lord replies that this was by Collusion to re-enfeoff the Heire of the Tenant at his full age and so averred that to be by Collusion to out the Lord of his Ward and this is fraud averrable But if the Tenant had enfeoffed his Tenant immediately in Fee-simple this is apparent without any averment and the Court may adjudge upon it And so upon the Statute of 27. Eliz. chap. 4. it appears by Burrells Case that the Fraud ought to be proved in Evidence or confessed in pleading or otherwise this shall not avoid conveiance for it shall not be intended 6 Coke 78. a. and see 33. H. 6. 14. b. Andrew Woodcocks case upon which he inferred that this is but a fraud averrable if it be a fraud at all and of this the Court could not take notice if it be not found by the Jury and he said upon the Statute of 32 H. 8. Of Devisees as it appeares by Knights Case 8 Coke and 12. Eliz. Dyer 295. 8 9 10 10 11 12 13 14 15 16 17. And so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the Circumstances which are found in the speciall Verdict are sufficient to satisfie the Court that it is fraud for as well as the Court may give direction to the Jury upon Evidence that it is fraud and what not as well may the Court Judge upon the special matter being found by special Verdict at large as in 9 El. Dyer 267. and 268. that is the special matter being found by special verdict at large as in 9 El. Dyer 267. 268. that is the speciall matter is found by Inquisition upon Mandamus and leave to the Court to adjudge if it be fraud or not and in 12 El. 294. and 295. 8. the speciall matter was found by Jury upon Eligit directed to the Sheriffe and by him returned to the Court And in Trinity 27. Eliz. between Saper and Jakes in Trover the Defendant pleades not guilty and gives in Evidence as assignement of a Tearme to him with power of revocation And the Court directed the Jury that this was fraudulent within the Statute of 27. Eliz. to defraud a purchasor and in Burrells Case 6. Coke 73. a. before the fraud to the Court upon Evidence to the Jury and the Court gave direction to the Jury that it was fraud and that upon the Circumstances which appeares upon the speciall Evidence And so in this case he conceived that insomuch the circumstances appear by the Verdict that the Jury may very well adjudge upon it and so he concluded and praied Judgement for the Defendant Coke cheife Justice that the Statute of 13. Eliz. Doth not aid the Defendant insomuch that the Feoffment was made for good consideration and for that shall be within the said Proviso for if that shall be avoided at all that shall be avoided by the Statute of Marlebridge which is ouly affirmance of the Common Law and this is the reason that not withstanding the Statute speakes only of Feoffment by the Father to his Son and Heire apparent yet a Feoffment to a Cosin which is Heire apparent is taken to be within the Statute and in the 24. of Eliz. in Sir Hamond Stranges Case It was adjudged that if the Son and Heire apparent in the life time of his Father purchase a Mannor of his Father for good consideration this is out of the Statute and so it was adjudged in Porredges Case also he said that the Law is an Enemie to fraud and will not intend it being a conveiance made for consideration of a marriage to be fraudulent no more then if the Father had made a Feoffment to the use of a stranger for life the remainder in Fee to his Son and Heire the which is not within the Statute of Marlebridge as it is agreed in Andrew Woodcocks Case 33.
Prerogative of a Prince and is part of Law and stands with it and this is reasonable custome and so it hath been adjudged in the Kings Bench the reason is insomuch that the custome is the life of the Copy-hold upon which that depends and the party is but a Conduit to nominate the Tenant and when he is nominated and admitted then he takes by the Lord and that stands with the rules and reasons of the Common Law that is that a man devises that a marryed wife shall sell his Land and she may sell notwithstanding the Coverture for she upon the matter nominates the party and he takes by the Devise and by this reason she may sell to her Husband as it is agreed by the 8 of Assises And also by devise that Executor shall sell Executor of Executor may sell notwithstanding that he is not in Esse at the time of the Devise and so a Lease for life to one Remainder to him that J. S. shall nominate is good after nomination and then he takes by the first Livery as it is agreed in 10 H. 7. and J. S. Only hath the nomination and nothing passes to him and with this also agrees 43 Ed. 3. 19 H. 7. So if a man makes a Feoffment to the use of himself for life with diverse Remainders over and power to himself to make Leases for three lives this is good as it is agreed in Mildmayes Case and Whitlocks Case 8 Coke and yet the Estate doth not passe from him but out of all the Estates and he upon the matter hath only the nomination of the Lessee and of the lives for all the estates apply their forces to make that good and the 2 El. Dyer 192. 23. Custome that the Wife of the Copy-holder for life shall have her Widdows Estate is allowed to be a good custome and there an Estate for life upon the matter is raised out of the estate for life and annexed to it and this is by the Custome and the reason he conceived to be for that that Women should be incouraged to marry with their Tenants and by that the marriage with the Tenant and the custome in this Case doth bind the Lord and so 4 Coke there are divers customes by which the Lord is bound and the 8 Coke Swaines Case where the Copy-holder by custome hath the Trees in Case where the Lord himself hath them not so if the Lord sell the Waste yet the Copy-holder shall not loose his Common in that notwithstanding that the Estate of the Copy-holder be granted after the Wast is severed from the Mannor and it is agreed in Waggoners Case 8 Coke that custome is more available then the Common Law And for that this cnse hath been adjudged in this point between Crab and Varney by three or four Judges he would not further question it And for the second custome he agreed that one bare Tenant for life could not meddle with the Sale or falling of the Trees but here is a Copy-holder for life which hath Aut ority given by the Lord and the Custome to dispose the Trees and he saith that Bracton and the old Laws of England calls Copy-holders Falkland and saith they cannot be moved but in the hands of the Lord they ought to surrender and agreed that this is within the Rules of the Common Law for Consuetudo privat communem legem and the Law doth nor give reason of that for this is as a ground and need not to be proved for the reason of every custome cannot be shewed as it was sayd in Knightly and Spencers Case and he sayd that Mannors are divided into three sorts of Tenures The first holds by Knights Service and this is for the defence of the Lord and they have a great number of Acres of Land and pay less Services The second holds by Socage and this for to plow and manure the Demesnes of the Lord and they shall pay no Rent nor do other services and this was at the first to draw such Tenants to inhabit there and for that they have Authority to dispose and sell the Trees growing upon theit Tenements The third holds by base Tenure and these were at the Will of the Lord and these were to do Services and then these in many Cases have liberty for their Wives in some cases to dispose that for another life and to dispose the Trees and so it is in Ireland at this day where some give more and greater priviledge then others to induce Tenants to inhabite and manure their Land for there every day is a complaint made to the Councell for inticing the Tenants of the Lord and 14 Ed. 3. Bar 277. The Tenant preseribes to have the Windfalls and if the Lord cut the Trees that he may have the Lops and 11 H. 6. 2. The Keeper of the Wood prescribes to have Fee and 46 Ed. 3. is prescription to stint the Lord in his own Soyl and all these are for the Incouragement of Tenants to inhabit upon the Land and time of Ed. 1. Prescription 75. A stranger prescribed to have all the profit of the Land of another for a great part of the yeare and to exclude the giver of the Soyl 6 Ja. It was adjudged in the Kings Bench between Henrick and Pargiter that the Lord may be stinsted for Common in his own Laud and in the Book of Entries 563. It appears that by Custome Copy-hold granted Sibi suis was a good Fee-simple and the reason of all this is shewed in the 4. Coke amongst his Copy-hold Cases where it is agreed that the Life of a Copy-hold Estate is the customes and then if the Custome gives life to the Estate this gives life also to all the Priviledges which are incident to the Estate and the Lord is but the means to convey the Estate from one to another and as in 38 Ed. 3. A man hath a House as Heir to his Mother and after a stranger grants Estovers to him and his Heirs to be burnt in the same House these Estovers shall go to the Heirs of the Mother insomuch that they are incident to the House so of Priviledg incident to a Copy-hold Estate by the Custome and at the Common Law if Tenant for life hath cut the Trees he hath not forfeited his Estate for he was trusted with the Land and was not punishable till the Statute of Glocester and at this day if there be a mesne Remainder for life which remains in Contingency and that shall prevent that the Tenant shal be punished for this waste and to make innovation of this custome will be dangerous and for that he concluded that the Plaintiff shall be barred Warburton Justice agreed And the first Custome that is for the nomination of the Successor he conceived that it is good and that it is good by the Common Law and good by Custome by the Common Law as a Lease for life remainder to him which the Tenant for life shall
Common Law mâ—â— be done by Custome and that an Estate may be created by such nomination it appeares by the case where a Remainder is Limited to him which the first Tenant for life shall nominate and it is very good and to prove that the Custome is good he remembred the custome of Millam in Norfolke where he was borne that is that if any Copy-holder will sell his Land and agree of the price that at the next Court when a surrender is to be made the next of his blood and if he will not any other of his blood may have the Land and so every one shall be preferred according to the neerenesse of his blood and with this also agreed the Leviticall Law as it appeares Leviticus 25. chap. verse 15. which appoints this to be at the yeare of Jubile and the Common Law within one yeare after the Alienation and upon this he infers that if Custome may appoint Heire in the life of the party then a Fortiore he may appoint Successor after his death and he conceived that at the beginning the Copy-holders might have had absolute Fee-simple of the Lord and they rather made choice to have such Estate insomuch that they did not know if their Children would be towardly or not and for that content themselves with the nomination of a Successor only and so is the Custome at Hamm also in Middlesex if any Copy-holder will sell the next Cleivener which is he that dwelleth next unto him shall have the refusall giving so much as another will and he which Inhabits one the East part first and the South and the West and last the North shall be preferred is the only way in his course and there the Successor is nominated by the Heavens and by the quarters of the Earth and so is the custome in Glocester And if any Husband hath an Estate for twelve yeares his Wife shall have it for twelve years also and so ad Infinitum and this makes nomination and so of Free-hold and so if it be good without nomination it shall be good by nomination And if the Estate determine by the Death of the Tenant without nomination when the Lord revives the Copy-hold Estates the priviledge also shall be revived But he conceived that the Tenant cannot nominate part to one and part to another nor that divided in fractions And he saith that this point hath been adjudged in the Kings Bench by foure Judges against Popham 5. Jacobi between Ball and Crabb And so he concluded this point and to the second custome he said he would speake to that Transitive but not Definitve and that it hath been adjudged 45. Eliz. between Powell and Peacock that bare Copy holder for life could not prescribe to cut and â—ell the Trees otherwise of Tenant in Fee-simple for he hath them cherished and fostered And it is against common reason incongruent and against the Common Law that a Copy-holder for life may cut and sell the Trees and custome ought to have reason and congruence for 10. Ed. 3. 5. Leete cannot be belonging to a Church insomuch that it is Incongruent and so in Writes Case 2. Coke Tythes cannot be appurtenant to a Mannor insomuch that it is incongruent and a spirituall thing shall not be pertinent to a temporall and so è Converso And so in the 5. Assis 9. and Hill and Granges Case Com. Turbary cannon be appurtenant to Land insomuch that it is incongruent but it ought to be to a house so in time of Ed. 2. Tenant of the Mannor prescribes to have free Bull and Bare and it is not good for the reason aforesaid otherwise it is of the Lord of a Mannor and 9 H. 5. 45. custome in Leete to present common and adjudged that it it is not good insouuch that it wants congruity for it is not proper to the Court and upon this he concluded that bare Tenant for life cannot prescribe to cut Trees for it is not congruent that such an Estate shall have such a priviledge and this for three reasons First insomuch that Trees growing are parcell of the Inheritance Secondly in respect of the perdurablenesse of them for it shall be intended that they will indure forever and so will not his Estate for this is as a shadow as Job said and 't is absurd that shadow should cut downe the Tree And also it is for necessity of habitation and Plow and Husbandry And it is for the Common Wealth that Copy-holder of Inheritanc might cut them by such custome for otherwise he would not be incurraged to plant and preserve them And notwithstanding that in this Case the custome be generall that the Copy-holder may cut down all yet that shall have a reasonable construction avd that this notwithstanding he leave sufficient for House-boot as if a man grants Common without number yet the Grantor shall not be excluded but shall have his Common there for excesse shall not be allowed As if a man which distraines another for Rent he shall not take excessive distress the Lessee for life excessive Tallage of villaines nor upon excessive Fines of Copy-holders and so it was adjudged in Heyden and Sir John Lenthorps Case that the Lord shall not take all but leave sufficient for reparations and so was the opinion of Wray cheife Justice in the 33 of Eliz. In evidence to a Jury but here he is in nature of Tenant in Fee-simple and it shall be intended that he hath cherished the Timber and every Copy-holders Estate granted is as a new Grant and hath affinity with Tenant in Fee-simple and he agreed that if Lessee for life the Remainder for years Remainder for life be and the first Lessee for life makes a forfeiture he in Remainder for years shall take advantage of that and that it hath been adjudged that the Lord of the Mannor shall take advantage of forfeiture made by the Copy-holder without presentment made by the Homage and in one Bacon and Flotsims Case and so Lessee for yeares of a Mannor shall take advantage of Forfeiture notwithstanding the Imbicillity of his Estate but the principall matter upon which he relyed was that the Trees were severed from the Free-hold and if the Lessee dy his Executors shall have them insomuch that they are meer Chattells and this First in respect of the Words of the Lease that is demise and to farm let the Mannor but bargain sell give and grant the Timber Trees to be felled and carried away at his Will As if a man makes a Lease for years except the Wood and after grants the Trees the Lease determines the Lessor shall not have the Trees again Secondly They are in two divided Sentences and also in respect of divided properties for the Executor of the Lessee shall have them and Quando duo Jura concurrunt in una persona equum est ac si esset in diversis also past at severall times for the Trees pass by the delivery of the Deed and the Land
this common being annexed to the Land though that the Estate be increased yet the common remaines his second reason was of the manner of conveiance and that was by confirmation and if that conveiance had been by Feoffment peradventure the common had been gone But a confirmation enures allwaies upon an Estate precedent and though that this somtimes inlargeth the Estate yet this doth not alter the Estate as to any priviledges annexed to it his third reason was of the matter of the confirmation and that is that he hath confirmed it with the appurtenances and this seemes to him admitting that the common had been extinct yet these words with the appurtenances amount to a new grant of a common as in the case of Corody in 22 Ed. 4. 17. and 18. If the King grant to one such a Corody as I. S. had he shall have so much bread and beere as I. S. had so here when he grants and confirmes that with the appurtenances this is with all such priviledges as I. S. had so here when he confirmes with the appurtenances this is with all the priviledges that the old Estate had and so this should be a grant of such common as was annexed to that and so it seemed to him for these reasons that the common remaines to which it was said by Davies of the other part that he agreed al the manners of Prescriptions but he denied that it was a locall Prescription that is to Land but only to an Estate and this proves well the words of the Prescription for the Copy-holder ought to prescribe that is that every customary Tenant within the Mannor c. So he hath his common in respect that he is customary Tenant and this is in respect of the Estate which he hath by the Custome and not in respect of the Land and that this shall not enure as a new Grant he cited a case to be adjudged Michaelmasse 43. and 44. Eliz. in the Kings Bench Rot. 367 Where in Trespasse the Defendant justifies the lopping of Trees in the wast of the Lord where the custome was that every Copy-holder might shride the Trees in the wast of the Lord and that he was a Copy-holder there and the Lord granted to him the Inheritance of his Copy-hold with all such Lands Tenements and Commons of Estovers pertaining to the Copy-hold and adjudged that insomuch that the Customary Estate was distroied this custome was not now annexed to the Land but being determined with the Estate cannot be said appertaining to it and for that the Justification ill and it seemed to him to be all one with the principall case and it was adjourned and after in Michaelmasse Tearme 8. Jacobi It was adjudged that the Common was extinct and not revived Hillary 7. Jacobi 1609. In the Kings Bench Proctor against Johnson THE Case hath depended seven yeares in this Court upon a Writ of Error was this Two Joynt Tenants for yeares of a Mill one grants his Estate severally to another and dies the Grantee doth not enter yet The other reciting the Lease to him made and to his companion joyntly and that his companion died so that all belonged to him as Survivor as he intended grants all the Mill to Johnson and all his Estate Right and Interest in that And covenants that the Grantee there shall continue discharged and aquitted of all Charges and Incumbrances or other Act or Acts done by him and after binds himselfe in a Bond to performe all Grants Covenants and Agreements contained in the Indentures according to the intent and meaning of the parties and after the Grantee of his companion entered into the halfe and the question was If the Bond were forfeit or not and it was adjudged in the Common Bench that the Obligation was forfeited And the matter was argued this Tearm in this Court by Yelverton of Grayes Inne that the Bond shall not be forfeited for the Bond was with Condition to performe all Grants c. According to the true intent and meaning of the parties and then let us see what was the intent of the parties and suerly this appeares by the recitall in the Indenture and for that he said that all appeares to him as survivor as he conceived so that he was doubtfull of that and for that his meaning was that if he had all then to grant all and if he had but a moity then to grant but the moity and this proves well the words subsequent where he saith that he granted the Mill and all his Estate Right and Interest in that so that he did not intend to grant more then his Estate and these words subsequent qualifie the generall words precedent and so it seemes to him that the Obligation shall not be forfeited And Sir Robert Hitcham the Queens Attorney to the contrary and that the Bond was forfeited for he hath bound himself to perform all grants and he hath not performed his Grant for he granted all the Mill and then though but a moity passeth yet he shall forfeit his Bond if the moity be evicted and for that if a man which hath nothing in the Mannor of D. makes a Lease by Deed indented to J. S. and binds himself to performe all Grants though that nothing passes yet if he enter and be ejected he shall have Debt upon his Obligation and he cited one Yelvertons Case to be adjudged but did not tell when where a man which hath nothing in the Mannor of Dale covenants with J. S. to stand seised to the use of him and his Heirs at Michaelmas and before Michaelmas he purchases the Mannor of Dale and it was resolved that no use shall be raised at Michaelmas for he had not the Mannor at the time of the Covenant and also it was resolved that no Action of Covenant lies upon the Covenant but he sayd that it is a cleer Case that if he had entred into a Bond to perform all Covenants in the Indenture that the Bond shall be forfeited though that he could not have action of Covenant upon the Covenant and also he sayd that he well agreed the Case of the Lady Russell which was adjudged also but Nescio quando where a man made a Lease for years of the Mannor of Dale except one Acre the Lessee binds himself to perform all agreements and after the Lessee enters into the Acre this shall be no breach of the condition for this exception is no agreement for nothing shall be sayd an agreement in an Indenture but that which passeth in Interest and so he sayd that though that the Lessee cannot have an Action of Covenant in the principall Case insomuch that this is so speciall yet the Bond shall be forfeited upon these Words grants and agreements and the Covenant special doth not qualify the generall express grant and after four Justices that is Flemming the cheife Justice Willams Yelverton and Crooke were of opinion that the Bond is forfeited and this for the generalty of the
Michaell then it is cleer that the Lessor hath no remedy by way of distress for the Tearm is ended before and by Action of Debt upon the Contract he hath no remedy as it seems as this case is for the Contract is that the Rent shall be paid yearly during the Tearm then when the Tearm is ended the contract is determined and for that the cheife Justice sayd That if a man makes a Lease at Michaelmas for a yeare rendring Rent yearely at our Lady day and the ninth of October which is after Michaelmas that the Lessor hath not any remedy for the Rent of the last halfe yeare for that is not reserved to be payd yearly according to the contract And Yelverton Justice agreed that the Lessee hath election as above but he saith when that is behinde the tenth day after Michaelmas then the Lessor shall bring his Action of Debt and declare that the Rent was behinde at the Feast of Saint Michaell and shall not make mention of the ten dayes after and Coke Justice sayd That it seems to him that the Lessee shall not have the benefit of these ten dayes after the last Feast for the words of the Lease are rendring Rent yearly during the tearme at the Feasts aforesayd or ten dayes after so that the Lessee shall have the benefit of these ten dayes during the tearme but not after then he shall not have these after the last Feast of Saint Michaell for then shall the tearme be ended And after in Trinity Terme 8 Jacobi The Case was moved againe and then Flemming cheife Justice conceived That the Lessee shall not have ten dayes after the last Feast and this upon construction to be made reasonably for otherwise the Tearm being ended the Contract should be determined with the Tearm and so the Lessor should be without remedy for his Rent and he sayd that reservations are not taken so strictly according to the letter And for that he cited the case of Hill and Granger in the Com. fol. 171. Where a man makes a Lease for a year And the Lease was made in August rendring Rent yearely at the Annunciation of our â—ady and Michaelmasse upon condition of Re-entry In this case the first payment shall be at the next Michaelmasse after the making of the Lease and not at the Annunciation of our Lady though this is first in words and this by reasonable construction for otherwise this word Yearely shall not be supplied and of this see the Action and so he said in this case Rent is reserved yearely during the Tearme at the Feasts of the Annunciation of our Lady or Michaelmasse or ten daies after he shall not have ten daies after the last Feast But Williams held his old opinion that the Lessor hath no remedy for the last halfe years Rent and it was adjourned Hillary 7. Jacobi in the Kings Bench. Grymes against Peacocke IN Terspasse for his Close broken The Defendant justifies that it was used within the Mannor of D. that every Farmer of such a house and averred that that had been allwaies let to Farme had Common in the Lords wast The house came into the hands of the Lord in Possession And he granted the house and the wast to J. S. in Fee J. S. Bargaines and Sells the house to J. N. with all Commons Profits and Commodities used occupied and pertaining to the same And after grants the wast to another If the Grantee of the house shall have Common in the wast was the question And Yelverton argued that the Common was gone for if he shall have Common this shall enure as a new Grant of a Common but this cannot so enure for two reasons First when a man will grant a Common he ought to shew the place in certaine where the Grantee shall have this Common or otherwise the Grant is void But here no place is shewed and for that it cannot enure as a new Grant of a Common Secondly If that be a new Grant yet this hath reference to the usage that is Quod Vsitatum est c. And this Vsitatum is void for it seemes to him that Lessee for yeares cannot alledge a usage for every Vsitatum ought to go in one selfe same currant not interrupted as in ths case of a Coppy-hold But here every new Lease is a new contract and so the usage is interrupted and then the Grant having the reference to the usage and that is void usage nothing shall passe by this Grant and for that in Long 5. Ed 4. 40. If a custome be against Law And that is confirmed by the Act of Parliament this is void confirmation for it hath reference to a void custome so here this Grant hath reference to the usage and for that it seemes to him that the Common is gone Hutton Serjeant to the contrary and that the Grantee of the Messuage shall have common for this usage is not a thing by strictnesse in Law appertaining to the Land but this hath gained his reputation that that shall passe very well in a conveiance by apt words And for that it will not be denied but if a man makes a Lease for years to one and grants him Common for all his Kine c. And after this Lease expires and he makes a new Lease and grants such Commons as the first Lessee had that this shall be a good grant of Common to the Lessee So he said in this case this grant of the house with all profits and commodities used occupied and appertaining to the said Messuage shall be said a grant of such Common which other Lessees of this Manner have used and this by reasonable construction in Law to make good the conveiances of Lay-men according to the common speaking for Benigne sunt Faciende Interpritationes Chartarum c. and for that he cited the case of Hill and Grange in the Comment Where the case was That a man made a Lease for yeares of a house and a hundred Acres of Land appertaining to that though the Land be not appurtenant to the house yet insomuch that this hath been usually occupied with the house this shall passe as appertaining to it and so 26. Assis 38. A man makes a Lease for life rendring Rent and after grants over the Rent to J. S. and dies The Heire grants and confirmes to the Grantee and his Heires the same Rent with clause of distresse and the Tenant for life dies now is the Rent reserved upon the Estate for life determined and yet this shall enure as a new grant of another Rent in quantity So in Sir Moyle Finches Case the case of uses and Durham in Ejectione Firme A Lease was pleaded of a Mannor whereof the feilds in which c. Were parcell And Issue was joyned Quod non Demiset Manerium And upon this Issue found it was that there were not any Free-holders but diverse Copy-holders and this was allwaies knowne by the name of a Mannor and it was adjudged that
twenty yeares if the Husband and wife and the Issue male of their Bodies so long live and it was there adjudged that the Lease doth not determine during the lives of any of them for in this disjunctive it is referred to an Intiâ—e Sentence and is as much as if he had sayd if the Husband or the Wife or the Issue of their Bodies so long live Hillary 7. Jacobi 1609. In the Common Bench. Borough of Yarmouth THE King John by his Letters Patents granted that the Burrough of Yarmouth should be incorporated and the grant is made Burgensibus without naming of their Successors and also he granted Burgensibus teneri placita coram balivis and in pleading it was not averred that there were Bailiffs there and it was objected that the Burrough cannot be incorporated but men which inhabite in that but to that it was resolved that the Grant is good and the Lord Coke sayd that he had seen many old Grants to the Citizens of such a Town and Good and so that the Grant Burgensibus that the Bâ—rrough should be incorporated being an old Grant should have favorable construction but the doubt was for that that it was not averred that there were Bailiffs of Yarmouth and if a Grant to hold Pleas and doth not say before whom the Grant is voyd according to 44 Ed. 3. 2 H. 7. 21 Ed. 4. and for that it was adjourned But the opinion of all the Court was that the Grant made Burgensibus was good without naming of their Successors as in the case of Grant civibus without more Note that Executors or Administrators shall not finde speciall Bail for the Debt of the Testator though that the debt be for a great sum as three thousand pound or more for it is not their Debt nor his Body shall not be lyable to execution for that 43 Ed. 3. Suit was commenced hanging another Writ it is a good Plea though that the Writ was returnable in the Common Bench and the last Suit was begun in a Base Court but if so be and doth not appeare to this Court that the Plaintiff begun suit in a base Court for the same Debt for which the Suit is here begun Attachment shall be awarded see 2 H. 6. 9 H. 6. but this ought to appear to the Court by Affidavit c. Hillary 7 Jacobi 1609. In the Common Bench. Chapman against Pendleton IN second deliverance the case was this A man seised of a house and fifty Acres of Land held by Rent fealty and Harriot service enfeoffs the Lord of three Acres parcell of the Land and after infeoffs the plaintiff in this Action of three other Acres and upon this rhe sole question was if by this Feoffment to the Lord of parcell Harriot service is extinct or not Harris Serjeant conceived that the Harriot remaines for he sayd that it is reserved to the Reversion of the Tenure but it is not as anuall Service but casuall and it is not like to rectify for that it is incident to every service And by 43 Ed. 3. 3 It is no part of the service but Improvement of the service And Bracton in his Tractate De Relevijs 2 Booke 2 7. saith that Est alia prestatio vocata Harriot c. Que magis fit de gratia quam ex Jure and it is not like to a releife see the Booke at large and he agreed that if the Tenant had made fifty severall Feoffments to fifty severall men that every of them shall pay a severall Harriot as it appears by Bruertons Case 6 Coke 1. a 34. Ed. 3. Harriot 1. 2 Ed. 2 Avowry 184. 〈◊〉 Ed. 2. Ibidim 206. 11 Ed. 3. Avowry 101. 24 Ed 3. 73. a 34 Assise 15. 22. Ed. 4. 36. 37. 29 H. 8. Tenures 64. But he grounded his Argument principally upon Littleton 122. 223. Where it is sayd that the reason why Homage and Fealty remaine if the Lord purchase part of the Tenancy is for that that they are of annuall Services and it seemed to him that Littleton is grounded upon 7 Ed. 4. 15. Extinguishment 2. 8 Ed 3. 64. 24. Ed 3 B. Apportionment last case which accords the reason and upon this he concluded that for that that the Harriot is not annuall it shall not be extinct by the Feoffment but remaines but he agreed if a man makes a Lease for years rendring Rent and parcell of the Land comes to the Lord the Rent shall be apportioned if it be by Lawfull means as it appears by 6 R. 2. F. Quid Juris clamat 17. Plesingtons Case and 24 H. 8. Dyer 4. 1. Rushdens case by which c. Nicholls Serjeant that it hath been agreed that it is intire service and that then he concluded upon that that it shall be of the nature of other intire services as it apperrs by 2 Ed. 2. Avowry 184. and 34 Ed. 3 F. Harriot 1. 5. Ed. 2. Avowry 206. And he agreed that in the case of Littleton the Homage and Fealty remain and the escuage shall be apportioned but this is not for the reason alledged in Littleton that is for that that they are not annuall services but for that that the Homage is incident to every Knights service and as the Lord Coke sayd fealty is incident to every service in generall and the Tenant shall make Oath to be faithfull and loyall to his Lord for all the Tenements which he holds of him and the reason for which the Escuage shall be apportioned is for that that it is but as a penalty which is inflicted upon the Tenant for that that he did not make his services as it appears by the pleading of it and shall be apportioned according to the Assesment by Parliament and by 22 Ed 4. It appears that this purchase by the Lord is as a release and if the Lord release his services in part this extincts the services in all and he sayd there is no difference where an intire service is to be payd every third or fourth year and where it is to be payd every year as to that purpose and yet in one case it is annuall and in the other it is casuall and yet in both cases if the Lord purchase parcell of the Land of the Tenant all the intire services shall be extinct and gone though that they are to be performed every third or fourth year by which c. Foster Justice that the Harriot is entire service and for that though that it be not annuall it shall be extinct by purchase of parcell of the Tenancy by the Lord as if a man makes a Feoffment with warranty and takes back an Estate of part the warranty is extinct as it appears by the 29. of Assise so if a man hold his Land by the service to repaire parcell of the fence of a Park of the Lords and the Lord purchase parcell of the Tenancy the Tenure is extinct as it appears by 15 Ed. 3. And it is
agreed in the 21 H. 7 In Kellawaies Reports by Frowick that there is no difference between Harriot and Releife and Releife shall be extinct and so he concluded that the Harriot is extinct Danyell Justice accordingly and he said that this purchase shall be as strong as release And if the Lord hath released the service intire for part it shall be extinct for all and if Tenant holds by Suite to the court of the Lord and the Lord purchase parcell of the Tenancy the Suit is extinct as it appeares by 27. H. 7. and Fitz. Na. Bre. And so concluded that the Harriot service is extinct by the purchase aforesayd Warburton accordingly And saith that in Littletons Case the Homage and Fealty shall remain for they are personall services and for that shall remaine intire and of Rent shall be an apportionment by the Statute of Westminster 3. De quia emptores terrarum But for other intire services by the purchase of the Lord be they annuall or casuall and they are extinct and 21 Edward 4 was a Suite for a Hawke which was kept back twenty yeares and so for Suit if the Tenants make a feoffment to diverse they shall make but one Suit but they all shall make contribution to the Suit but if the Lord purchase parcell he cannot make contribution And though that the Homage and Fealty are personall services the Horse and Hawke are of the nature of land so the Harriot is of his goods and if the Tenant hath no goods the Lord shall loose it and for that he concluded as above Walmesley accordingly And he said if a Tenant hold by intire services of two Lords and one purchase parcell of the Tenancy all the intire services shall not be extinct but the other Lord which did not purchase shall have them for Res inter alios acta nemini nocere debeat To which Coke cheife Justice agreed and he said if Harriot custome be due peradventure it shall not be extinct by purchase of parcell of the Tenancy for that is personall and it is not Issuing out of land but for intire services which are Issuing out of land he said there is no difference betwixt annuall services and casuall services which are intire and so he concluded as above Coke cheife Justice accordingly and he said there is no difference between annuall intire services and casuall so that they are services to be paid at the death or alteration of every Tenant or otherwise but he said there is no doubt but that Rent service shall be apportioned though that the Lord purchase parcell be that in the Kings case or of a common person and this by the common Law without the aid of any Statute for there is not any Statute that shall aid that if it be not remedied by the Common Law and he said that some Intire services may multiply as if a man holds by payment of a payre of gilt Spurrs or of a Hawke or a Horse or others such like and makes a feoffment of parcell the Feoffee shall hold by the same intire services But if the Tenant hold by personall services as to cover the Table of his Lord or to be his Carver or Sewer at such a Feast or such like these personall services cannot multiply if the Tenant makes a feoffment of part for by this the Lord may be prejudiced for peradventure at his house he will not include them but he may distrain every of them to make the service And he saith the reason for which Knights service shall be apportioned is for that it is for the publick good and for the good of the Common Wealth But so are not the other personall services and in the principall case he conceives that if the Tenant had made a feoffment first to a stranger and after the stranger had infeoffed the Lord that by that all the intire service shall not be extinct for by the feoffment of the estranger was severence of the services and he holds by a Harriot as well as his Feoffor and for that nothing shall be extinct but the Harriot due by that parcell of which the estranger was infeoffed and he agreed with Walmesley that a Harriot custome shall not be extinct where the custome is that every Tenant shall pay a Harriot for there it is paid in respect that he is Tenant and custome shall not be drowned by unity of Tenancy and Signiory And for that he concluded that the Harriot for that that it was intire service though that it were casuall and not annuall that yet it shall be extinct and Judgement was given accordingly Hillary 7. Jacobi 1609. In the Common Bench. Michelborne against Michelborne UPON a motion made for consultation upon Prohibition awarded It was said by the Lord Coke that no Subject of the King may trade with any Realme of Infidells without licence of the King and the reason of that is that he may resinquish the Catholick faith and adhere to Infidelisme and he said that he hath seen a licence made in the time of Ed. 3. where the King recited that he having speciall trust and confidence that his Subject will not decline from his Faith and Religion licenced him ut supra And this did rise upon the recitall of a licence made to a Merchant to trade into the East Indies Hillary 7. Jacobi 1609. In the Common Bench. Reade against Fisher IN debt the Defendant exhibits his suit in the Court of Requests and there the Plaintiff in that Court denied that the debt was paid and the Court of Request awarded an Injunction and upon Information of that this Court awarded a Prohibition to inhibit the Suit there Hillary 7. Jacobi 1609. In the Common Bench. Mors against Webbe IN Replevin the case was this A man was seised of two Virgates of Land and prescribed that he and his Ancestors and all those whose Estates he hath in the said Virgates of Land have used to have common in the feilds c. That is when the feilds are fallow all the yeare and when they are sown with Corn or otherwise severall when the Crop is mowed and removed for two Horses four other Beastes and a hundred and twenty Sheep as appertaining to the said two Virgates of Land The Defendant traverseth the prescription and upon this they are at Issue and the Jury found that there is such prescription But further they say that the Plaintiff made a Lease of six Acres parcell of the said two Virgates of Land in one of the feilds of c. with the Common of that thereunto belonging for the Tearme of ten years and the Beastes for which the Replevin was brought were in another feild of c. And if the prescription be suspended or remaines they praied the advise of the Court and it was agreed that common appendant and appurtenant was all one to the severance for if such a Commoner grant parcell of that Land to which the Common
Tenement and also prescribed for House-boot Plow-boot and Cart-boote and averred that he had nourished the growing of the Trees upon his sayd Copy-hold and that the sayd Messuage and buildings upon that were ruinous and the Trees growing upon that twenty Acres of Land were not sufficient for the repairing of it and so demanded Judgment if he should be debarred of his Action upon which these Defendants demurred in Law and it was adjudged by Coke Warburton and Foster Daniel being absent that the Action was wel maintainable against Walmesley who objected that if a Copy-holder may cut Trees as it was here pleaded at his pleasure without pleading first that his House was in decay and ruinous and that then he cut trees for the repaire of that that then he hath an Estate at wil according to the Custome and not at the Wil of the Lord and he sayd that he could not cut a tree and imploy that for Reparations twenty years But the cause of this cutting which is the Ruines ought to precede the cutting and he sayd that such Copy-holder hath no property in the Trees by such prescription no more then he which hath Common of Estovers or tenant at wil and if he cut a tree without special custome he shal be punished in trespasse as Littleton saith of Tenant at Wil and also he ought to plead how the House was ruinous and what place and what part of that was in decay and then that this so being in decay that he cut trees for the repaires of that and also that the Prescription to cut off the boughs Pro ligno combustibili is not wel pleaded for by that he may cut all the timber and others also and he who prescribes to hate Estovers ought to prescribe to have reasonable Estovers for Fuell and the averment that all the trees are not sufficient for reparations is surplusage and so hee conceived that the Action for these causes is not maintainable that is that it is not maintainable without speciall custome and that the custome as it is pleaded here is voyd but it was answered and resolved by Coke and the other Justices before cited that the Action was wel maintainable at the Common Law without such Custome and that the pleading of the custome was surplusage for it was agreed that the Copy-holder hath special property and the Lord a general property and it was sayd by Coke and Foster that the Lord may as wel subvert the Houses as cut down the Trees for without them the Copy-holder hath no means to repaire that and for that if the Lord cut the Trees the Copy-holder may take them for repaire of his house for the Copy-holder hath as large an Estate in the trees as in his Copy-hold Land and it was resolved that the Prescription was very wel pleaded insomuch that the Copy-holder pleads that as a custome and also that prescription Pro ligno combustibili is Good and this is an apt word by which he may claim it and that boote in any sense is maintainable and in some sense is Recompence or Reparation and it is House-boote Hedge-boote Fire-boote Plow-Boote c. Is in it self a Saxon word and the Lord Coke sayd that it was adjudged Michaelmas 25. and 26. Eliz. in Doylyes Case Where it was a custome that the Copy-holder might cut Merisme for to repaire that if the Lord carry it away that an Action of Trespass lies for the Tenant and Pasch 36. Eliz. Taylers Case A man was Tenant by copy of Court Role of wood and the soyle was excepted to the Lord and yet the Copy-holder maintained an Action of trespass against his Lord for cutting of wood And Trinity 4. Eliz. Stebbings Case Copy-holder prescribes to have the Loppings of all the trees growing upon the Copy-hold and the Lord cut a tree himselfe and the Copy-holder brought an action upon his case and adjudged that it lyeth wel and 9 H 4. Fitz. Waste 59. by Hull that Tenant by copy of Court Roll cannot make waste nor cut woods to fel but for his Benefit in repairing of his House and 2 Henr. 4. 12. a. It seemes that if a stranger cut a Tree the Lord may have an Action of trespass and the Copy-holder another and every one of these shal recover Damages according to his interest that is the Lord by his general property and the Copy-holder for his special property it appears by Clark and Pennyfathers case 4 Coke 23. b. That the Heir of the Copy-holder may have an Action of Trespass before admission by which it appears that the heir doth not take his Estate of the Lord but of his Father and also agree that if such an Heire dye before Admission the Heir may enter and take the profits and so it was adjudged that the Action of Trespass brought by the Copy-holder against his Lord was well maintainable Pasche 1610. 8. Jacobi In the Common Bench. Earle of Rutlands Case EARLE of Rutland Plaintiff in an Action of trespasse upon the Case against Spencer and Woodward Defendants the case was The last Queen Elizabeth Anno 42. Eliz. by her Letters Patents under the great seale of England granted to the Earle of Rutland the Office of the custody of the Porter-ship of the Castle of Nottingham Habendum to the sayd Earl to be executed by him or his Deputy during his natural Life and further the same Queen by the same Letters Patents granted to the sayd Earl the Office of Stewardship of diverse Mannors Habendum exercendum cum omnibus feodis vadis proficuijs eidem Officio pertinentibus to the sayd Earl from the time that he should be of ful age during his Life and further the sayd Queen granted to the sayd Earle the Office of Keeper-ship of divers Parks and forrests Habendum exercendum Officium predictum cum omnibus singulis suis proficuijs vadis feodis emolumentis quibuscunque eidem Officio pertinentibus aut ratione ejusdem percipiendis per se vel sufficiendem deputatum sunm c. And after in the sayd Patent it is recyted that the sayd Earl was of ful age An 40 Eliz. Vt informamu r mandamus quod omnes singuli Officiarij alij quicunque sint intendentes obedientes dicto Commiti deputatis suis in exerendo officium predictum and if this patent were good or not was the question And Hutton serjeant conceived that the Patent was good and that the sayd Earl may exercise the sayd Office of Stewardship for which this Action was brought by Deputy by force of the sayd Grant The first question which hee moved was if Steward of a Court may execise his Office by Deputy without speciall Grant of that Secondly if there be words within the Patent to enable him to execute that by Deputy Thirdly if upon this disturbance action upon the case Quare vi armis lies And to the first he conceived that the Patentee may exercise the
a Writ this is disturbance and Action upon the case lies And so in Quare Impedit And also he sayd that the Earle cannot make a Deputy but by writing as it is resolved 28. H. 8. Br. deputy 17. Where it is sayd that Deputation of an Office which lyes in Grant ought to be made by Deed and not by Word But here the Jury have found that the Earle hath made his Deputy this shall be intended in lawfull manner and cannot be but by writing And also he agreed that the Habendum mentioned in the third Grant shall extend only to this Grant which is his proper Grant that the Office of the Habendum And it appeares by Wrotsleys and Adams case Comment 17. That the Office of Habendum is to make certain the Estate and not the thing granted for this is the Office of the Premisses of the Deed And if the Habendum in the third Grant had had reference to the second Grant this would make the Grant void And in Grants of the King other construction shall be made as it was adjudged in the Court of Wards Michaelmasse 28. and 29 Eliz. between Brunkar Plaintiff and Robotham Defendant where the case was the King Hen. the 8. had two Mannors whereof diverse Lands of one Mannor extended the other Mannor and then the King granted one Mannor and all his Lands in the same Mannor Nec non omnies singulas Terras c. In the same Town and adjudged that the Lands which were parcell of the other Mannor which was not granted passe by this Grant though that they are in the other Mannor in the same Town and he denyed that the words Precipientes volentes shall be taken as a Grant for they are not spoken to the Patentee but to other Officers which are strangers to the Grant But if the thing granted had been a Chattell that a Covenant might enure as a Grant and 10. Eliz. Dyer 270. 22. The King Phillip and Queen Mary granted for them and their Heires and Successors to A. B. That he and his Factors and Assignes might Tavern and keep a Tavern c. Commanding all Mayors and Sheriffs c. and other Officers and Subjects and their Heires and Successors to permit and suffer the said A. B. during his life to hold and use a Tavern and to sell Wine without Impeachment and it seemes that the Grant is void for that that there is not any time limited for how long it shall indure and the mandate in the last clause shall not make any limitation for by the death of the Prince this altogether ceaseth for Omne mandatum morte mandantis expirat And for that all Proclamations made in time of the Raign of Queen Eliz cease and determine by her death And to the person of the Earle he said that it was a Maxime that Honour and Order shall be observed and that was a common saying of the said Queen and for that it was not her intention that this Maxime should be broken and that the said Earle should exercise the said Office in person but she intended the said Earle should overlook the said Mannor and place here a sufficient able man to exercise the said Office because he should answer for the misdemeanour of such a Deputy is the forfeyture of the Office and he saith that the Dignity of an Earle was the most high Dignity in this Realm that any Subject doth possesse till the 11. Ed. 3 The black Prince was the 1 Duke and Aubry de Vere the 1 Marquess in the 11. R. 2. and Beamount the first vicount in the time of H. 6. And none of these Dignyties are above an Earle in degree but only in precedency for Bracton lib. 1. chap. 8. saith Quod Comites dicunter a socitate quia Comitantur Regem And in ancient time none were made Earles but only those which were of the blood Royall and this is the reason that they are called Consanguinij Regis and also they may be called Consules a Consulendo Tales enim Regis sibi associunt ad consulendum regendum populum Dei And at their creation the King gives to them a Robe and Cap which signifies Councell and Corronet which signifies the greatnesse of his Blood and Honour and also sword Vt sit in ntrumque tempus as well ready for War as peace And for that it should be unfit that one of such Honour State and Dignity should be imployed in holding of Court Barons and there sit to enter Plaints and have a peny for every Plaint for his paines and to make Copies and such like base imployments which are Vividae rationes which was not the intent of the Queen that he should exercise the said Office in person and the Law requires conveniences in all Grants as in 12. and 13. H. 8. One licensed a Duke to come and hunt in his park and the Duke came with his Servants and many others of his Retinue and hunted there and it was adjudged that the Grant was sufficient to warrant his hunting in this manner in respect of the conveniency for it is not fit and convenient that the Duke should go alone and 21. Ed. 3. 48. The Bishop of Carlile sued the Executors of his Predecessor the Ornaments of the Chappel of the sayd Bishoprick and then recovered and though that the sayd Chappel was in the private House of the sayd Bishop yet it was thought fitting that such Chappel should be adorned with convenient Ornaments and that these Ornaments should go in succession to the Successors and not to the Executors and if conveniency be so required in all these cases then by the like Reason such inconveniency shall not be admitted that the Earl should be Clark to Suitors as every Steward is And for that he conceived that the Grant is good And that the sayd Earl may exercise this Office by a Deputy as well as if a Common person grant an Office of Fostership to the King he may exercise that by any party or grant it over though therebe no words of deputation in the Grant and this in respect of the quality of his person and in many other cases an Earle or another Noble man shall be priviledged as in 3 H. 6. A Noble man shal not be examined upon his Oath in account And 48 Ed. 3. 30. He shal not be sworn upon Inquests which is to serve God and his Country Register 179. And if a common person be in debt to me a hundred pound I may have a Capias and arrest his person for this Debt but if the King create him Baron or Earl then his person is so privileged that that cannot be attached for this Debt and this is without wrong to me as it appears by the Countesse of Rutlands case 6. Coke And if a Baron be returned of a Jury and if Issue be taken if he be a Baron or not this shal be tryed by Record whether he be a Baron or not 35 H. 6. 46.
in the name of Baptisme onely it would be otherwise and secondly although the party had admitted her to have the same name yet the Sherff in pleading had taken expresse Conusance of the contrary and had made it appear to the Court that it was not according to his authority and therefore he shall be punished but the whole Court was of a contrary opinion for first the Scire facias was according to the Judgement in the Common Pleas and well then might all the subsequent Processe be according in course of Law but if the Husband had come upon the Scire facias and shewed how that she was covert then the Action ought to be against both of them and secondly the parties themselves in all the proceedings throughout have all admitted that she is the same person and that she had the same name and therefore this differs from the 10 E. 4. 15. and therefore they shall be concluded from saying the contrary and although the Sheriff had shewed the marriage that was but a bare allegation and suggestion of the Sheriff and it appears not judicially whether it were so or no and thirdly it would be dangerous for the Sherif to return a Non est inventus for because the parties have admitted her name to be so in all the proceedings the Sheriff shall be estopped also as the 3 H. 7. 10. and then an Action of the Case would ly upon the false Return or if the Woman should be in the company of the Sheriff and the party shew her to the Sheriff she might escape CArrill against Baker Trin. 11 Jacobi The Plaintiff brough an Action wherefore by force and Arms he entred into his Warren and digged his Land and chased his Conies and took them the Defendant pleads to all except to the entring the Warren chasing the Conies and digging the Land not guilty and as to the entring of the Warren chasing of the Conies and digging the Land he pleads an especiall Justification to wit that he had Common there time out of mind and because the Plaintiff stored the Borrows there with Conies and made new holes by reason whereof the Defendants sheep feeding there fell into them to their great damage the Defendant did with a Ferret chase the Conies and stopped up the holes with the earth digged out c. and upon that Plea the Plaintiff demurred and George Crook was of opinion that it was not a good justification and the Question was single whether a Commoner might drive out Conies which surcharged the Land and he conceived he could not for the Freehold and possession of the Land is in the Terr-Tenant onely and the Commoners cannot intermeddle with it for a Commoner hath onely the grasse of the Land and not absolutely neither to do with it what he pleases but onely to take it with the mouths of his Cattel and for this see 12 H. 8. 2. a. and 27 H. 6. 10. and 13 H. 8. 16. the espleas in a Quod permittat is alledged in taking the grasse with the mouths of his Beasts and for that see 22 Assis 48. 10. E. 4. 4. and 46 Ed. 3. 23. if a stranger put in his Cattell the Commoner cannot have an Action of Trespass and 13 H. 8. 15. ruled that if a Commoner dig the Land to make a trench he is a trespassor but he may drive out or distrain for doing damage and 15 H. 7. 12. 13 H. 7. 13. and 12. H. 8. 2. a. because after a manner he hath interest in the grasse which is spoiled and consumed by the Cattell of the stranger but although he may drive out and distrain the Cattell of an estranger yet he cannot meddle with the Lords Cattel or the Terr-Tenants although there be more then reasonable as in Fitzherberts Na. brev 125. D. and 8 E. 3. 30. if the Lord surcharge the Common The Commoner may have an Assise against the Lord and if he be a copy-holder he shall have an Action of the case 9 Rep. 112. but the Lord may distrain H. 9. Ja. Kings Bench a prescription for a Commoner to kill Conies of the Lords is not good and he cited Pasch 43 Eliz. Kings Bench rotulo 234. Belly and Laughorns Case the Lord may use the Sale as he pleases but as his Case is the Commoner although Tenant of the Land cannot kill the Conies with his Ferret For a free Warren in such a precinct is a charge upon the Land in what hands soever it comes but if he hath a Warren adjoyning and the Conies come into the Lands of another out of the Precinct then he may kill the Conies and he cited Boslers and Hardies Case in the Common Pleas and for an express authority he cited Old and Conies case Hill 29 Eliz. and Sir Robert Fitcham he was against it and he agreed he could not kill the Conies but as to the digging he took this difference if a Commoner makes any thing de novo in the Land he is a Trespassor as it is adjudged in the Case of a trench before and the like but if a commoner amends and reforms a thing abused it is no Trespass and therefore if the Land were full of Mole hills he may dig them down 13 H. 8. and 42 Assis if the Lord make a Hedge the commoner may pluck it down 23 E. 3. 6. a. See if the Lord make a Pond in the Land the commoners may dig and let the Water out and therefore holes that were made long in a hurt and Damage to the Land the commoner may put the earth digged out again into its place Secondly the Defendant hath shewed that the Cony holes were made by the Plaintiff himself and he shall never take advantage of his own wrong and Thirdly the Law will allow every man to preserve his inheritance and it cannot be preserved any other way for if he should bring his Assise yet he in that shall recover but Seisin and no Reformation of the Trespass and wrong done and the opinion of the Court seemed to incline for the Plaintiff and Doddridge Justice said that a Lord or his Feoffee may make new conie-Borrows lawfully for they are necessary for the preservation of the conies but one fault found by Justice Haughton in the pleading nothing was done for the Plaintif declared for entring into his Warren the Defendant pleads to all but the Warren digging and chasing not guilty and as to the digging and chasing he justifies for common here but answers nothing as to the Warren neither by confession or traverse and therefore all was discontinued as Herlackendons Case is Co. 4. Rep. and to this the whole court Fleming being absent agreed WAldron against Moore Trin. 11. Ja. The Plaintiff brought an Action of trespass against Moore wherefore his Close called Gerleford at Rentesbury in the County of Devon by force and Arms hath broken and entred c. The Defendant pleads that a long time before the Trespass was supposed to be done one