neither at the time of the Will nor at the time of her death she had nothing of the said Manor of Tremington but the said Rent of one hundred thirty and six pounds Also it may be taken that she who devised was ignorant of the Law and conceived that it was a Manor when she had Rents and Services out thereof notwithstanding that those who are learned in the Law know that a Manor could not pass without there was two Suitors at the least 21 R. 2. Devise 27. Lands are devised to one for life the remainder Ecclesiae Sancti Andreae in Holborn there it is holden in an Ex gravi Querela that the Parson should recover for otherwise the Devise should be void if the Parson should not have the Lands and in Wills shall subserve and give place to the intent of the Party and therefore if a man deviseth that his Lands shall be sold for the payment of his debts his Executors shall sell them and to that intent the naming of them Executors is sufficient Plow Com. 523. in Weldens Case it is vouched to be adjudged that if one after the Statute of 27 H. 8. deviseth that his Feoffees shall be seized to the use of A. in Fee that it was a good Devise of the Lands to A. and yet then he had not nor could have any Feoffees c. But the Party was ignorant of the Statute and his intent to pass the Land was apparent in that Case the words were as much impertinent to the matter as in our Case for there he had not any Feoffees as here she hath not any Manor Br. recites That in 38 H. 8. it was holden by Baldwin Shelly and Morgan that if a man who had Feoffees to his use would after the Statute of 27 H. 8. that his Feoffees should make an Estate to J. S. that the Land should pass to J. S. 26 H. 8. Feoffments Faits 12. Land cannot pass by the Deed of an House for it cannot be parcel of an House but an Acre of Land may be given by the name of a Carve and a Carve of Land by the name of a Manor and yet a Carve can be no more a Manor than this rent yea Rents and Services more resemble a Manor than a Carve of Land. It cannot be intended that her Will was here to pass the Manor it self which was not in her but in another Also she by four years before had the rent and therefore it shall be intended that it was her meaning to pass the same which she her self received and no other thing and although in the Devise the rent be specially named and the Manor also yet the same shall not alter the Case for if a man grant the Reversion upon an Estate for life and by the said Deed grants the Land and the Tenant attorns and the Grantee deviseth all his Land the Reversion shall pass without all question If a man grant the Advowson of D. and in the same Deed the Church and Rectory of D. and the Grantee deviseth the Rectory of D. the Advowson shall pass In Adams Case Plow Com. 195. a man leaseth his Capital Messuage rendring rent there the question is If the Reversion or Rent shall pass It was adjudged That all which he had passed As to that that it cannot be levied out of the Rent for that no place is therein of Distress I say that she did not know whether a lesser rent might be paid out of a greater rent and 1 H 4. Multure was granted reserving rent and the Grant was good The words of the Will are All which Manors Lands and Tenements c. she devised to the Lord Mountjoy and these words expound her meaning for although the word Rent be not within the word Manor yet the words Lands and Tenements do comprehend it and words subsequent in Wills may express the Premisses As 16 Eliz. Dyer 333. Chapman seized in Fee of two Houses having three Brothers devised the House in which A. inhabited to his three Brethren and A. to dwell there and they not to raise the rent and devised the House in which B. his Brother dwelt to him and that he pay to C. his Brother 3 l. for to find him at School and otherwise to remain to the House Proviso that the Houses shall not be sold but shall go to the next of the Name and Blood which are Male and dyed B. his brother dyed without Issue the eldest of the two middle brothers entred and had Issue a Son and dyed It was a Question If the Son or the middle brother should have the House And it was holden that the Son of the eldest should have it in Tail which Exposition was by reason of the words in the Proviso that it should not be Sold and that it should go to the Heirs Males Shuttleworth The rent shall not pass by the Devise for the construction of a Will ought to be according to the words or according to the intent collected out of the words and not by a thing out of the Will for then a stranger shall be the maker of the Will of another And 19 H. 8. if a Will be doubtful it ought to be expounded for the Heir at the Common Law. And if the rent ought to pass it ought to have apt words and not the name of a Manor And thereupon he put the Case that where one deviseth certain Lands to one and afterwards his Goods Leases and other things to another All his Goods and Terms shall pass but not his Lands for that there wanteth apt words to pass them for the word other things shall not pass them and this set order ought to be observed for the avoiding of confusion And the Rent and Services shall not pass for the two parts admitting the words sufficient for they cannot be divided But Periam said That the rent might be divided Anderson said That it should be but a Rent-seck Periam said it was a Rent distrainable of Common Right but Anderson doubted of it but they all agreed that it might be divided but there should not be two Tenures Fenner The Rent should pass by the Devise of the Manor for there is do difference betwixt a Manor and a Seigniory in gross amongst Lay-men and then their intent shall be taken although it was not written by apt words for in Grants a Reversion shall be taken for a Remainder and à Fortiori a Devise And 7 E. 3. a Manor shall pass by the name of a Knights Fee and 19 H. 8. a Wood shall pass by the name of Land and 38 E. 3. by grant of totam terram which A. held in dower the Reversion shall pass Afterwards in Mich. Term the Plaintiff discontinued his Ation And Periam told me I being at his House that the Opinion of the Court was against the Plaintiff and if it had not been discontinued they would have given Iudgment accordingly Now this was the intent of the Lord Mountjoy The
which Ayliffe concessit Wray Chief Iustice was absent in the Star-Chamber Trin. 26 Eliz. In the Kings Bench. XLV Harvey and Harveys Case Suit for Legacies Prohibition CLare Harvey libelled against Sebastian Harvey the Executor of Sir James Harvey their Father for a legacy bequeathed to him by his Father in his Will. By which he willed that after his death his Goods should be divided and parted betwixt his Children according to the laudable custom of London and averred in his libel that the Goods and Chattels whereof the Testator died possessed amounts to such a sum and that it belonged unto him being one of his children to demand so much Virtute Legationis praedict The Defendant came and prayed a Prohibition and Wray Chief Iustice conceived he ought to have it for here is not any legacy but the Testator setteth forth his meaning that his pleasure is that the custom of London should be observed in the disposition of his Goods and the said Clare is put to his Writ de rationabili parte Bonorum But yet afterwards a special Consultation was granted Pasc 27 Eliz. In the Common Pleas. XLVI Sandersons Case Leet NOte It was adjudged by the Court that Pound-breach is not inquirable in a Leet for it is not a common Nusans But Rhodes Serjeant said that excessive Toll is inquirable in a Leet Vide Book of Entries 390. XLVII Pasc 37 Eliz. In the Common Pleas. Abatement of Writ IN a Quare Impedit by the Queen exception was taken to the Writ because the words were quod permittat ipsam praesentare ad Rectoriam de D. where it ought to be ad Ecclesiam the Court awarded that the Writ should be openly amended in Court by a Clerk of the Chancery Amendment XLVIII Pasc 27 Eliz. In the Common Pleas. Pleadings IN a Writ of Entry for Disseisin the Tenant said that the House in demand is within the City of London and that the said City is an ancient City and that King Henry 3. concessit Civibus Civitatis praedict quod non implacitentur de terris tenementis suis c. extra Muros Civitatis praedict and said that he himself is a Citizen of London and demanded judgment of the Writ and to the Pleading he further said Sed illis rectum teneatur infra Civitatem praedictam secundum Consuetudinem Civitatis praedict Exception was taken to the Plea because the Tenant did not shew before that by their custom they ought to be impleaded And by the Opinion of the whole Court the Tenant ought to have shewed that the Citizens for their lands there ought to be impleaded in the Hustings c. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam secundum consuetudinem Civitatis praedict do not supply the defect aforesaid And afterwards it was awarded that the Tenant plead Ouster Mich. 21 Eliz. In the Common Pleas. XLIX Hunt and Sones Case AN Action upon the Case by W. Hunt against W. Sone Assumpsit 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. 30. ibid. The Plaintiff declared Quod cum idem Hunt was seised in his Demesn as of Fee of certain lands and shewed the same in certain praedict Sone in consideration that the said Hunt permit the said Sone occupare terras praedict ab eodem die 20 Julij 27 Eliz. usque ad secundum diem Novembris which should be in Anno 1589. assumed and promised that he the said William Sone ad festum omnium Sanctorum proxime sequend 10 l. 2 s. 6 d. ac ab inde annuatim durante dict termino 20 l. 5 s. ad festa Annunciationis Beatae Mariae ac omnium Sanctorum per aequales portiones solvend eidem Hunt bene fideliter contentare vellet at licet praedict W. Hunt permisit praefat Sone occupare terras praedict a dict 20 die Julij 27 Eliz. Usque ad secundum diem Novemb. 28 Eliz. Licetque etiam post dict 20 diem Julij 27 Eliz. ante praedict diem secund Novemb. An 28 Eliz. dict fest omnium Sanctorum An. 27. Supradict ac fest Annunciationis Beatae Mariae Virginis ac fest omnium Sanctorum 28 Eliz. praeterierunt praedict tamen W. Sone dict 10 l. 2 s. 6 d. ad praedict fest omnium Sanctorum proxime sequend post permissionem assumptionem praedict ac aliam 10 l. 2 s. 6 d. ad fest Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest omnium Sanctorum An. 28. Eliz. superdict nondum solvit The Defendant pleaded that the Plaintiff entred into parcel of the Premises 6 October 28 Eliz. eadem occupare eundem Sone non permisit upon which they were at Issue and it was found for the Plaintiff it was moved in stay of Iudgment that the Plaintiff had no cause of Action before that all the Term was expired for it is an entire Assumpsit and cannot be severed by action and therefore it was said that if I promise to pay you 10 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. there before the last day of payment no Action lieth for the sum of 20 l. is one sum entire But if I promise to pay another at Easter next 10 l. and at Midsummer as much here they are several Assumpsits and upon default of payment of the first sum an Action will lie without excepting the latter payment But at last the Court agreed That Iudgment notwithstanding that exception should be given for the Plaintiff and that the Declaration was good enough as well in respect of the Exception aforesaid as also that the word Licet was effectual enough to set forth the permission L. Hil. 31 and 32 Eliz In the Common Pleas. A. Disseised B. of two Acres of Land and leased one of them to C. at will and the other Acre to D. at will and they entred accordingly B the Disseisee by Lease leased both Acres to E. for years and entred into one of the Acres in the name of both and sealed and delivered the Lease to E. It was holden by the Court to be a good Lease to maintain an Ejectione firmae of both Acres LI. Mich. 32 Eliz. In the Common Pleas. 2 Cro. 655 656 plus 2 Roll. 416. Johnson versus Smart cont A. Seised of certain Lands and having two Sons devised part of his Lands to his eldest Son in tail and the other part of his Lands to his younger Son in tail with this clause in the Will that if any of his Sons dyed without Issue that then the whole Land should remain to a stranger in Fee and dyed the Sons entred into the Lands devised to them respectively and the younger Son died without issue and he to whom the Fee was devised entred It was adjudged That this Entry was not lawful and that the eldest Son should have the Land by the implicative devise Mich. 32 Eliz. In the
reversion shall be to both of them but if it be by Deed indented the rent shall go to one only according to the literal reservation Vide Litt. 80. 346. But if the Lease had been made by several Limitations as Habendum one Manor for 20 s. and the other Manor for 10 s. then the Lease and the Reversion had been several but here the rent shall not rule the reversion but the reversion the rent and the rent shall be of the same nature as the reversion Tenant for life makes a Feoffment in Fee upon condition and re-enters for the condition broken now by that re-entry the Freehold is reduced to the Lessee for life and the Fee unto the Lessor but the Forfeiture remains Two Ioyntenants one of them makes a Feoffment in Fee of his Moiety upon condition and for the breach of the condition re-enters the Ioynt Estate is revived And he conceived that the Grantee of part of the Estate or part of the Land should not take advantage of the condition and he said that the Bargainor is an Assignee within the Statute If Tenant in Tail makes a Lease for years and afterwards bargains and sells the reversion the Vendee hath a Fee simple determinable and may enter for the condition broken If a reversion be granted to two and to the Heirs of one of them they are Assignees within the Statute and if he who hath but an estate for life surviveth he also is an Assignee for the entire reversion passeth out of the Grantor and that is my Rule Iudgment was given against the Re-entry LXXXIII Pasc 30 Eliz. In the Kings Bench. Surrender LEssee for 21 years took a Lease of the same Lands for 40 years to begin immediately after the death of J. S. It was holden in this case that the same was not any present Surrender of the first term but if J. S. dye within the term then it is a Surrender for it may be that J. S. shall survive the first term Pasc 30 Eliz. In the Kings Bench. LXXXIV Anderson and Heywoods Case Copyholder A Copyholder of an Inheritance of a Manor which is in the hands of the King is ousted of his Copyhold It was holden that he hath not gained any Estate so as he may make a lease for years upon which the Lessee may maintain Ejectione firmae but he hath but a possession against all Strangers And it was holden in this case that if a Copyholder dyeth 1 Leon. 100. Rumny and Eves his heir within age he is not bound to come to any Court during his Nonage to pray admittance or to tender his Fine also if the death of his Ancestor be not presented nor proclamations made he is not at any mischief although he be at full age Pasc 30 Eliz. In the Kings Bench. LXXXV Cook and Songates Case IN Assumpsit Assumpsit the Plaintiff declared whereas Lis controversia had been moved between the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold the same by Copy c. And both the said parties submitted themselves to the Iudgment and Arbitrement of Mr. Godfrey a man learned in the Law. concerning the said Land and the title of the Defendant to the same The Defendant in consideration that the Plaintiff promised to the Defendant that if the said Mr. Godfrey should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the said Defendant to enjoy the said Land accordingly without molestation the Defendant reciprocally promised to the Plaintiff that if the said Mr. Godfrey should adjudge the said Copy not to be sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the Land to the Plaintiff without any Suit. And shewed further that the said Mr. Godfrey did award the said Copy utterly to be insufficient c. Yet the Defendant continued the possession of the said Land It was moved that the same was not a good and sufficient consideration to ground an Assumpsit But Gawdy Iustice said it was a good and sufficient consideration because it was to avoid Controversies and Suits And afterwards Iudgment was given for the Plaintiff Trin. 26 Eliz. In the Kings Bench LXXXVI Taylors Case IN Assumpsit the Case was Assumpsit That the Defendant promised to carry certain Apples for the Plaintiff by Boat from Greenwich in the County of Kent to London and the Apples being in the Boat the Boat in which they were by a great and violent Tempest was sunk in the River of Thames so as the said Apples perished c. It was holden to be no Plea in discharge of the Assumpsit by which the Plaintiff had subjected himself to all adventures LXXXVII Trin. 26 Eliz. In the Kings Bench. Devise A. Seized of Lands in Fee and having Issue two Sons Richard and Gilbert by his Will willed That if his Son Richard dye before Issue so that the Land descend to my Son Gilbert then I will that my Overseers shall have the Government of my Lands and of my Son Gilbert Richard took a wife and dyed she being young with Child with a Daughter the Devisor died the Daughter was born It was adjudged in this Case that by this Devise the Daughter was excluded from the Inheritance and that Gilbert should have the Land. Trin. 32 Eliz. In the Kings Bench. LXXXVIII Lukes Case LUke Esq of Tedcaster was Indicted upon the Statute of 13 Eliz. cap 8. for being a Broker in a Vsurious Contract for which he encurred a Praemunire Who pleaded Not Guilty upon which they were at Issue and at the day of the Return of the Distringas the Iurors appeared and the same day that the Iury was to be taken Popham Attorney General sent for the Distringas and for certain causes for the Queen would not proceed Note that the Attorney was informed that the Iury was partial It was moved by Cook that the Attorney could not stay the Proceedings the Writ being returned and the Iury appearing he could not stay the Tryal for no President is thereof Popham The Entry shall be in this case Vicecomes non misit breve Cook That is false and the Sheriff is sworn to make a true return but by consent of the Parties such a thing may be done for Consensus tollit Errorem Quaere 33 Eliz. In the Exchequer LXXXIX The Queen and Painters Case Accompt of the King against a Stranger SIr William Pelham was Surveyor of the Ordnance and delivered the money of the King to Painter Clerk of the Ordnance It was holden in this case That for the said money the Queen might have Accompt against Painter although he wanted a privity which cannot be so in case of a common person for if any Receiver make one his Deputy I shall not have an Accompt against him Popham Attorney General If one of
of giving the Reversion by her Will to whom she pleased and such a Grantee shall be in by A. and his Will for A. hath given expresly to his wife for life and therefore by Implication she shall not have any further Estate But if an express Estate had not been appointed to the wife by the other words an Estate in Fee should have passed Mich. 19 Eliz. In the Common Pleas. CXI Sir Thomas Kemp and Windsors Case SIr Thomas Kemp was outlawed at the Suit of one Windsor who had against him four Capias utlagat ' and none of them were served and afterwards he sued out a fifth Capias It was moved by Mead that the said Sir Thomas keepeth open House and yet the Sheriff had not served the Capias Dyer The Sheriff may justifie to break the House to take his body and seize his Goods for the Queen for this Process is in Law at the Suit of the Queen but contrary where the Process is sued at the Suit of a Subject And the Iustices commanded Ford Prothonotary to make a special Capias for Body and Goods and a pain in the Writ of 100 l. upon the Sheriff to execute the Writ accordingly CXII Mich. 19 Eliz. In the Common Pleas. THis Case was moved by Anderson Serjeant at Law Improvement of Common if in case of Common appurtenant by Prescription without number the Lord of the waste might improve for it is not admeasurable therefore not improveable for the Common being without number the sufficiency cannot be proved Dyer and Manwood Iustices although it be without number yet it may be reduced to a certainty being by Prescription as the number of the Cattel and the best and most substantial Tenant of the said Tenement at any time within time of memory had kept upon the said waste and then the Plaintiff the Lord might improve leaving sufficient according to such Rate Mich. 19 Eliz. In the Common Pleas. CXIII The Earl of Derbys Case Debt not against the Husband upon a Contract by the Wife DEbt by a Merchant of London against the Earl of Derby and his Wife and declared upon a Contract for Silks and it appeared upon the Evidence that the Countess during the Coverture had bought of the Plaintiff certain Silks for her own wearing and for the mony which the Countess agreed to pay for the same the Action was brought It was the Opinion of Dyer Manwood and Mounion that the contract by the Wife during the Coverture should not bind the Husband but admit that the Husband should be bound yet this Action is not well brought against the Wife for she ought not to be mentioned in the Writ CXIV Mich. 19 Eliz. In the Kings Bench. Indictments ONe was indicted in the Country because he commanded J.S. to take up a Bridge being in Regia via leading from such a Town to such a Town and also the said J. S. was indicted for executing the command of the other Exception was taken to the first Indictment because no place of the commandment is alledged in the Indictment and for that cause the Indictment was taken insufficient although Mr. Plowden strongly insisted upon the contrary as in Trespass the Defendant justifies by the commandment of J. S. the same is good without any place of the commandment for in the first Case the commandment is traversable but contrary put by Mr. Plowden Vide 3 H. 7. 11. Markenfields Case Another Exception was taken to the Indictment because it is not there alledged that the Bridge was a common Bridge but because there was other words in the Indictment which supplyed the same scil in via Regia the Indictment was holden good enough CXV 19 Eliz. In the Common Pleas. IN a writ of Partition between Tenants in common upon the Statute of 20 Acres of Land the Defendant as to part scil 10 Acres pleaded Non tenet pro indiviso and as to the residue confessed the Partition and by Manwood and Ford chief Prothonotary the confession ought to be in the beginning of the Plea and Non tenet pro indiviso in the second place last so as that part of the Plea which agrees with the Demand ought to preceed the part which denies demand And the truth of the Case was that the Defendant had but 10 Acres in all and of them was sole seized Manwood If your Case be such you may safely plead to the whole Non tenet pro indiviso 20 Eliz. In the Common Pleas. CXVI Duffams Case A Man made a Lease by Deed indented for 20 years to begin after the expiration of a former Lease thereof made to one Duffam in an Action brought by the second Lessee against the Lessor the Lessor said there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam It was said that such a Plea did not lye for the Lessor Estoppel for he is estopped to say against the Indenture that no such Duffam was c. And also if no such person was then the first Lease was void and the second Lease should begin presently which Mounson and Manwood concesserunt And Manwood said that the Defendant should be estopped by the recital of the first Lease to say that no such Duffam was and although that the common ground is that a recital is not any estoppel yet where the recital is not material as it is here for the second Lease is to be begun upon the expiration of the Lease recited there is an estoppel Recital Trin. 29 Eliz. In the Common Pleas. CXVII Brown and Fulsbyes Case UPon the Statute of 5 Eliz. of Vsury the Case was this Stat. 5 Eliz. of Usury A. borrowed of B. 80 l. and was bound in an Obligation to pay to him 90 l. at the end of the year It was the Opinion of the Iustices that although the 90 l. was tendred and B. the Lender did tell the same yet if he take and except but of 80 l. it is not Vsury within the Statute to make a treble forfeiture but yet in that Case the Obligation it self is void CXVIII Trin. 29 Eliz. In the Exchequer NOte in the Case of the Tenants of Owning and Northmaston It was holden by Manwood Chief Baron That he who hath vesturam terrae cannot dig the Land. And Gent Baron said where many have Lot-Meadow to be divided every year by lot who shall have the Grass of such an Acre and who of such an Acre c. and so change every year according to Lots they have not any Freehold therein but only Vesturam terrae Trin. 32 Eliz. In the Exchequer CXIX Sir Walter Wallers Case 3 Leon. 259. Execution a Leon. 77. IN the Case of Sir Walter Waller it was moved if one hath Iudgment in Debt and thereupon within the year and day sueth a Capias ad satisfaciend although he doth not prosecute the same in two or three years yet when he pleaseth he may proceed
he conceived that during the vacation the rent should go to the King and therefore perhaps he especially limited it to be paid to the Dean and Chapter of York and there the Proviso did not make a Condition For although it was limited to be paid to the Dean and Chapter in the time of the vacation with a Proviso or by way of Promise yet there it is a Condition for all is one Corporation for the Dean and Chapter are part of the Corporation to whom it was reserved before for it was reserved before to the Bishop and his Successors But 15 and 16 Eliz. Andrews and Cromwells Case where John Blunt sold a Manor to Andrews and his Heirs and Blunt covenanted to suffer a Common Recovery for the better assurance thereof and afterwards there was a Proviso Provided always That Andrews re-grant the Advowson which was appendant to the Manor to Blunt for his life and because there it stands substantivè by it self therefore it was holden to be a Condition and yet truly it was not the meaning that for not granting of a pelting Advowson that the whole former Estate of the Manor being of great value should be defeated yet notwithstanding it was holden to be a Condition and there also the Opinion of Br. 35 H. 8. is controuled That where also the Opinion of Br. 35 H. 8. is controuled that where a Proviso is jumbled amongst Covenants that it doth not make a Condition Proviso never makes a Covenant therefore either the Sentence shall be void or it shall be a Condition As if a Lease for years be made Proviso that the Lessee for years do not commit Waste it is no covenant He said as to the second point that the same was adjudged between Andrews and Cromwel where a rent was payable every half year and there as here the whole rent was demanded and it was good for he is not to pay the one moiety and he is at his peril to pay the one moiety and he who denies the whole denies every part Et quicquid dicitur de toto dicitur de partibus It was adjourned Hil. 29 Eliz. In the Common Pleas. CLXII The Lord Mountjoyes and Barkers Case IN an Ejectione firmae upon a Special Verdict the Case was this King Ed. 6. granted the Manor and Hundred of Tremington in Fee rendring rent to hold of the Manor of East Greenwich in Socage reddendo annuatim 136 l. Queen Mary reciting the first Grant in the first year of her reign granted the rent and fealty and the Manors of Cauford D. S. Et etiam Manerium nostrum Hundredum de Tremington although she had not the Manor to the Marquess of Exceter after which the Marchioness being seized of the Manor of Cauford holden in Capite and of other Lands 4 and 5 Philip and Mary devised the Manor of Cauford D. S. and whereas she had nothing in the Manor of Tremington but the rent and fealty out of it she devised the same with the others to the Lord Mountjoy and also she devised divers Legacies and Annuities to her Servants and others And devised by the same Will that they should be levied of the Manor of Tremington and of the Manors of D. S. whereas D. S. were not Manors but Farms And one Barker was found Heir to the Devisor who claimed to have the third part The first question was If the rent and fealty here holden in Capite passed by the name of the Manor or not and if they passed what quantity passed Walmsley They do not pass by that name for this rent nec in rei veritate nec in reputatione was ever taken for a Manor Also she hath named it in her Will between those which are very Manors by which it appeareth that her intent was not to pass it unless it was a Manor as the other which sense is also fortified that they shall be levied parcelled and taken by which I conceive her meaning was that there should be some place to which the Devisees might resort to levy it Further It is taken for Law in Wills that a thing implyed shall not destroy a thing expressed But if by implication the Rent should pass then the Manor of Cauford should not pass which was her express will to pass As 16 Eliz. Dyer 330. where a man deviseth his Lands to one and his Heirs Males and if he dye without Heir of his Body c. Here he shall not have Tail general to the Heirs of his Body but to the Heirs males of his body for that was the express limitation and the other after but implication So 16 Eliz. Dyer 333. in Chapmans Case But our Case is better for that there are not words sufficient to warrant any implication for nec in veritate nor in common speech was it ever taken for a Manor 27 H. 6. 2. 22 H. 6. 39. Green Acre may pass by the name of a Manor although it be but an Acre of Land because it is known by such name In 27 H. 8. a man having suffered a common Recovery to his use willed that his Feoffees should sell c. So in Chapmans Case a man in his Will limited a Remainder to his Family there it is taken the same is a Remainder to those which are his next of Blood. So 41 E. 3. a man deviseth Land to A. his Daughter in truth she being a Bastard she shall have it because she is known by the name of Daughter So if there be Grandfather Father and Son the Father dyeth and the Son gives Lands to his Father and his Heirs the Grandfather shall have it for that the Son so called him 19 H. 8. Lands are devised to the right Heirs of J. S. who is attainted having Issue a Son the Son shall not have the Land for the word Heir intends one who may inherit but he cannot because a man attainted cannot have an Heir And that is a stronger Case than our Case in which there is not any affinity with a Manor for it is but a sum in gross but if it had been an Acre of Land peradventure it should have passed but being Rent Common Estovers or other Profits they cannot pass for they have not any resemblance to the Mannor but peradventure a man having a Manor parcel in Demesn and parcel in Services if he alieneth his Demesns and afterwards deviseth his Manor the Services will pass Gawdy All the difficulty of the Case is this If by the Devise the rent out of Tremington shall pass for if not then the third part thereof cometh to Barker And I conceive clearly That the rent shall pass for Wills shall have a favourable construction according to the intent of the Devisor and no part thereof shall be void if by any means it may be made good for intent then appeareth that something should pass out of the Manor of Tremington for otherwise a Clause in her Will would be frivolous For it is precisely found by the Iury that
Marchioness had devised all her Lands and had not left any thing to her Heir for which Case the Heir of the Marchioness entred into the third part of the Manor of Cauford of which the Lease upon which the Ejectione firmae was brought was made by the Lord Mountjoy to Insley and into the third part of the residue of the whole land now his meaning was That if the rent was not well passed by the name of the Manor then the same descended to the Heir which was sufficient for him For the Special Verdict found also That the rent was the third part of the value of the whole Land of the Marquess So that thereupon it may be collected That if a man hath three Manors some of them holden in Capite and of equal value and he deviseth two of them and suffereth the third to descend that the Devise is good for every part of the two Manors and the Heir shall not have the third part of each Manor Pasc 28 Eliz. In the Common Pleas. CLXIII Spring and Lawsons Case ONe recovered in an Ejectione firmae and afterwards the Defendant made a new Lease for years and he who recovered ousted him and he brought an Ejectione firmae and the other pleaded the former Recovery It was holden a good bar by all the Iustices but Windham and Periam and by them the same is no Estoppel for the Conclusion shall be Iudgment if Action and not Iudgment if he shall be answered And although that it be an Action personal and in the nature of a Trespass yet the Iudgment is quod habeat possessionem termini sui during which Term the Iudgment is in force it is not reason that he should be ousted by him against whom he recovered for so Suits should be infinite and by Rhodes an Entry pendent the Writ shall abate it CLXIV Hil. 29 Eliz. In the Kings Bench. AN Action of Covenant was brought against one who had been his Apprentice The Defendant pleaded that he was within age The Plaintiff maintained his Action by the Custom of London where one by Covenant may bind himself within age Exception was taken to it that that was a Departure For 18 R. 2. an Infant brought an Action against his Guardian in Socage who pleaded that the Plaintiff was within age The Plaintiff did maintain his Declaration That by the Custom of such a place an Infant of 18 years might bring accompt against his Guardian in Soccage and it was there holden to be no departure Wray Chief Iustice was of Opinion that it was no departure for he said It should be frivolous to shew the whole matter in his Declaration viz. That he was an Infant and that by the Custom he might make a Covenant which should bind him But Quaere of the Matter and of his Opinion for that many learned Lawyers doubted much of it And vide the Case in 19 R. 2. of the Guardian in Soccage Mich. 29 30 Eliz. In the Kings Bench. CLXV Savage and Knights Case ERror was brought upon a Iudgment given in Leicester in Debt Tanfeild assigned Error because in that Suit there was not any Plaint for in all Inferior Courts the Plaint is as the Original at the Common Law and without it no Process can Issue forth and here upon this Record nothing is entred but only that the Defendant Summonitus fuit c. and because the first entry ought to be A. B. Queritur versus C. Clench a Plaint ought to be before any Process issueth and the Summons which is entred here is not a Plaint and for that Cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred But it was answered That that did not help the matter for there ought to be a Plaint out of which Process shall issue as in the Soveraign Courts out of the Original Writs 28 Eliz. In the Common Pleas. CLXVI Grindal Bishop of Yorks Case GRindal Archbishop of York made a Lease for one and twenty years another Lease for years of the same Land being in being not expired by four years and dyed and in time of vacation the Dean and Chapter confirmed it Clench It is a good confirmation A Bishop makes a Lease for years reserving the ancient rent but where it was payable at four Feasts of the year it is now reserved payable once in the year the same is within the Letter of the Statute but not within the intent the same Law if the Rent before was usually reserved to be paid upon the Land now it is reserved to be paid at any far remote place And he said that although his lease was in possession yet not to take effect before the four years of the former Lease are expired cannot be said an Estate within the Statute of 1 Eliz. whereby any Estate may pass before the commencement of it for he to whom it was made had but a right to have the Land and he could not surrender And he held that the second Lessee should pay the rent as well by the Contract as by the Estoppel Periam At the Common Law a Bishop with the Confirmation of the Dean and Chapter might have made a Feoffment Gift in Tail and a Lease for any Term of years and he spake much What shall be said the Possessions of a Bishop And therefore if a Bishop disseiseth another of certain Lands and makes a Lease thereof under the Seal of his Bishoprick it shall be now his Seal and it shall be his election in what capacity he will take and then this Land is to be reputed parcel of the Possession of his Bishoprick Mich. 29 Eliz. In the Common Pleas. CLXVII Hoo and Hoes Case JOhn Hoo brought a Writ of Intrusion against Richard Hoo depending which Writ the Demandant prayed Estrepement and had it and declared upon it scil That the Tenant after the Prohibition fecit Vastum Estrepementum in prosternendo c. To which the Tenant pleaded Not Guilty But the Plea was not allowed by the Court for there is no Issue in this Case but he might to plead Quod non fecit vastum c. after the Prohibition 29 Eliz. In the Common Pleas. CLXVIII Clinton and Bridges Case DEbt The Condition was for performance of an Award which was to pay 10 l. to the Plaintiff and to do divers other things The Defendant pleaded Quod perimplevit Arbitrium and shewed how the Plaintiff assigned for a Breach that the Defendant had not paid the 10 l. The Defendant rejoyned that he rendred it to the Plaintiff and he refused it It was the Opinion of Dyer that the same is a Departure for in the Bar the Defendant pleads that he hath performed the Award and shews how and now in the Rejoynder a Tender and Refusal which is not a performance of the Award although it is not any Breach of it 29 Eliz. In the Exchequer CLXIX The Bishop of L's Case Tenures THe Case of the Bishop of
upon all that matter it was holden that the said Francis was inheritable 19 Eliz. In the Kings Bench. CCXXIV. Grey and Edwards Case IN an Attaint by Grey against Edwards it was holden by Wray Gaudy and Jeoffries That if one makes a Deed and that by these words Dedi conveyeth Lands to another without any words of Bargain and Sale and that for a sum of mony If the Deed be debito modo enrolled the use shall pass as well as if the words of Bargain and Sale had been in the Deed because that a sum of mony was paid for the Land. 19 Eliz. In the Kings Bench. CCXXV. Webbs Case IN Action upon the Case the Plaintiff declared That whereas Cobham was indebted to J. S. and J. S. to the Defendant the said Defendant in consideration that the Plaintiff would procure the said J. S. to make a Letter of Attorney to the Defendant to sue the said Cobham promised to pay and give to the Plaintiff 10 l. It was objected Here was not any Consideration for to induce the Assumpsit for the Defendant by this Letter of Attorney gets nothing but his Labour and Travel But the Exception was not allowed of For in this Case not so much the Profit which redounds to the Defendant as the Labour of the Plaintiff in procuring of the Letter of Attorney is to be respected Temps Roign Eliz. CCXXVI Heggor and Felstons Case IN Trespass the Case was A Copyholder surrendred to the use of his Wife for Life and after to the use of his Daughter in Fee the Wife is admitted It was holden that the Daughter after the death of the Wife Copyholder Surrender by Attorney might without any admittance surrender the same Land for the first admittance was sufficient And Manwood said that Roper was Steward of a Mannor and one of the Copyholders of the said Manor being in Ireland he made a Commission to one to receive a Surrender from him there and it was holden a good Surrender CCXXVII Trin. 32 Eliz. In the Exchequer NOte by Manwood chief Baron for a Rule to all Counsellors That they do not advise any Collectors of Subsidies or Fifteens to exhibite any Bills in the Exchequer Chamber for the not payment of Subsidies for such Bills shall not be allowed hereafter because they have remedy by Distress Also it was That if any be assessed for the Fifteens which he ought to pay or if two Towns ought to pay together and one Town be taxed more than it ought to be or hath been accustomed those who are grieved by such Assessment may have a Commission out of the Exchequer which is called ad aequaliter taxand and that was put in practice in a case between Bartace and Hind where one of these was Lord of Little Marlow and the other of Hedsore It was also holden That Fifteens are to be levied of Goods and Chattels properly and a Township is sometimes richer than at other times and therefore it is not reasonable they pay their Fifteens always according to the same proportion But Clark Baron held where the Custom hath always been that the Fifteens shall be taxed according to the quantity of Acres then the rate and proportion shall be always on whosoever holdeth the Land. And as to the Commission ad aequaliter taxand Manwood and Fanshaw said That they could shew twenty Presidents of it Trin. 30 Eliz. In the Kings Bench. CCXXVIII Harris Case THe Case of Harris of the Middle Temple was Tenant in tail in remainder upon an Estate for life is attainted of Felony 2 Leon. 122. Hughs Qu. 13. 3 Leon. 185. 1 Inst â— If he hath forfeited his Remainder during his Life Popham Attorney General He hath forfeited it to the Queen for after his attainder the Law will not suffer it to remain in him and it cannot vest in the Lord of whom the Land is holden for the person attainted being Tenant in tail in remainder was not very Tenant to the Lord therefore if in none of them the Queen shall have it and the Law shall punish the offence so sharply that it suffer nothing to remain in him So Tenant in Dower and by the Courtesie And it is a Maxim What a man hath in his own right he may forfeit but it is not a certain rule Whatsoever a man may grant he may forfeit as Guardian in Socage and Executors may grant that which they cannot forfeit 2 Leon. 126. A man seized in the right of his wife is attainted of Felony the Queen shall have but the profits of the Land during the life of the Husband Vide Register 292. Where the husband seized in the right of his wife of certain Lands is outlawed of Felony the King seizeth and hath the Lands during the life of the husband after the death of whom issued a Diem clausit extremum Vide F.N.B. 254. D. Cook Tenant in tail in possession is attainted of Felony the King shall have but the profits but as our Case is being Tenant in tail in remainder upon an Estate for Life nothing shall be forfeited during his life and after the death of the Tenant in tail so attainted of Felony the Issue in tail may enter for the King hath not the Freehold for if the King had the Freehold the Issue in tail could not enter without Office vide Old Natura Brevium in the Writ of Escheat That the King shall have only the profits At another day it was argued by Egerton Solicitor That the Queen hath the Interest of him in the Remainder during his life for a man so attainted cannot be receiv'd against the Queen and if a man attainted of Felony purchaseth Land and dyeth his wife shall not be endowed of it And he said that this Remainder vested in the Queen without Office then not pardoned by 23 Eliz. It hath been objected That if the Remainder be in the Queen without Office by this attainder of Felony by the Common Law then also in case of attainder for Treason and then what need was there that the Statute of 33 H. 8. should be made which enacteth That in cases of Treason it shall vest in the King without Office. As to that I answer That that Statute was made in affirmance of the Common Law and also for other things given to the King by the Statute which were not given by the Common Law as Conditions Rights c. So as the King might grant over without Office and also the Subject have a Petition of Right before Office which was not at the common Law 33 H. 8. 20. in the saving in the end of it And as to the Statute of 18 H. 6 cap. 6. such things were in the King without Offce for by the common Law before Office the King might grant them but he could not grant them if they were not vested in him and the said Statute was made to such intent that the Queen should be fully informed of her Title c. by
23 Eliz. is If any Person do any thing to move the People to Sedition the same is Felony but then it must be Sedition against the Queen and of that Opinion was the whole Court. Trin. 32 Eliz. In the Kings Bench. CCXLV Ratcliffe and Shirleys Case THe Lady Ratcliffe brought an Action upon the Case against Shirley for these words Words My Lady Ratcliffe is a beggerly Lady and giveth thread-bare Coats she bought Sheep and cosen'd men of their money and she is as very a Thief as he that robbeth by the High-way Vpon Not Guilty the Iury found that the Defendant spake these words She is a worse Thief than he that robbeth by the High-way It was holden that the words found by the Verdict were actionable as well as if the Defendant had called the Plaintiff Thief generally But it seemed to the Court that upon that Verdict the Plaintiff should not have Iudgment for it may be that the Defendant dixit utrumque at several times and so several Causes of Action And it is not like to the Case 3 Ma. 118. where part of the words is found quoad alia verba non dixit and so expresly acquit him of the remnant so it is not here for this Verdict doth not acquit him of the other words and for that Cause Iudgment was stayed Hil. 26 Eliz. In the Kings Bench. CCXLVI Herne and Crowes Case IN an Action upon the Case by Herne against Crowe and declared that whereas certain Irish Merchants had imported Furs here into England which were offered to be sold in London which Furs the Defendant desired to buy but because he was a Foreigner he could not buy them without peril of forfeiture and then the Plaintiff was in communication with the Merchants to have bought them that the Defendant in consideration that the Plaintiff promised to the Defendant that when he had bought the said Furs the Defendant should have such a quantity of the said Furs as he pleased upon equal price assumed and promised that he would speak no more with the said Merchants for the buying of the said Furs yet that notwithstanding he proceeded in the said bargain and offered to the said Merchants sixty pound more than any other by reason of which the Plaintiff could not have them for such reasonable price as he might have had them before It was holden by Wray Chief Iustice That the Declaration here was insufficient upon which the Defendant might have well demurred Mich. 26 Eliz. In the Common Pleas. CCXLVII. Bakers Case A Writ of Partition by Baker Heir of Gertrudi Marquess of Exeter who devised all his Lands to Blunt by which the third part descend to the Plaintiff Estrepement and prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ is not to be granted for the Plaintiff may have a more proper remedy upon the Statute Cum duo vel tres and in a Writ of Partition no Land is demanded CCXLVIII Mich. Eliz. In the Common Pleas. Conditions A Man was bound in an Obligation that he should release all his right in Black Acre to the Obligor and in the performance of the said Condition he made such a Lease and delivered the same to C. to the use of the Obligor The Opinion of the whose Court was That the Condition was not performed because the Obligor had not the Lease in his own hands to plead but is put to his Writ of Derinue against C. which was not the intent of the Condition Mich. 31 Eliz. In the Common Pleas. CCXLIX Seaman and Brownings Case SEaman brought Debt in an Obligation against Broshnin and others Executors of one Marshall The Condition was That whereas the said Marshall had sold certain Lands to the Plaintiff If the Plaintiff peaceably and quietly enjoyed the said Lands against the said Marshall c and assigned the breach That the said Marshall had entred upon them and cut down five Elms there upon which they were at Issue And it was found that a Servant of the said Marshall had entred and cut them and that in the presence of the said Marshall his Master and by his commandment It was the Opinion of the Court that the Condition was broken and that the Master was the principal Trespasser Trin. 30 Eliz. In the Common Pleas. CCL Babingtons Case HUmphrey Babington brought a Writ of Disceit and counted that T. S. was seized of Land and held the same of the Manor of Rodely which Manor is ancient Demeasn And that the said T. S. being so seized a Writ of Entre sur Disseisin was brought against him in which T. S. pleaded and lost and Iudgment was given against him Et quod ipse Humphridus extitit Dominus Manerii praedicti and concluded ad exhaeredationis ipsius Humphrâ—di periculum manifestum Exception was taken to the Count because the words are quod cum ipse existit Dominus Manerii praedicti where he ought to say further Amendment Et tempore Judicii praedicti existebat for if the Recovery was before he purchased the said Manor his Action doth not lye which Rhodes and Anderson concesserunt wherefore day was given to the Plaintiff to amend his Count. 32 Eliz. In the Exchequer CCLI Sir William Pelhams Case THe Case was A. Tenant for life the remainder in tall to B. c. A by Deed indented and inrolled bargained and sold the Messuage so conveyed to W. P. in fee who suffered a common recovery in which A. is vouched and so a common recovery had and executed and this was before the Statute of 14 Eliz. And if the recovery should bind B. and his remainder in tail was the question or if it be a forfeiture Altham argued that here is a forfeiture 1. It is to see if a common recovery suffered by Tenant for life which here is the Bargainee be a forfeiture or no by the common Law 1 Leon. 264. it s not forfeited 2 Leon. 60 65. if no Execution be sued upon the same Recovery 2. If it be executed then if he in the remainder may enter for the forfeiture When the Tenant for life bargains and sells the Messuage although upon it an estate in fee be limited yet nothing passeth from him but what he may lawfully pass and that was the estate for life of the Bargainor for such an estate only he might lawfully pass and here the Vendee is but Tenant for the life of another and when of his own assent he suffers a common recovery and that without right it is a forfeiture By matter in Fait a particular Tenant may commit a forfeiture as well as by matter of Record By matter in Fait he cannot commit a forfeiture if not thereby the reversion be not pulled out of him in the reversion As if a Lessee for 10 years make a Lease for 1000 years it is not a forfeiture for by that the reversion is not touched but if he by matter of Record do
of the Conusee it might now be Inrolled It was the Opinion of all the Iustices That upon the request aforesaid it might be Inrolled like as it was of a Conusance of a Fine taken before a Iudge which may be removed out of his hands by a Certiorari although it be not a Record before that it be certified in the speaking of that Case It was made a question whether the Court of Chancery might help a man who purchased Lands for valuable Consideration where there wanted the words Heirs in the Deed of Purchase or not but the point was not resolved But in that Case it was agreed by all the Iustices That after a Fine is levied of Land Chancery Attornment that the Chancery may compel the Tenant of the Land to Attorn And so where an Annuity or Rent is granted to one for life or in Fee and the Deed is Executed Sealed and Delivered but no Seisin is given to the party of the Rent or Annuity the Court of Chancery may decree a Seisin of the Rent to be given and the Rent to be paid to the Grantee and that was said to have been often times decreed in the said Court of Chancery CCLXXXIV Mich. 30 Eliz. In the Common Pleas. Intrusion Trespass NOte by Anderson Chief Iustice If one intrude upon the Possession of the King and another man entreth upon him that he shall not have an Action of Trespass for that Entry for that he who is to have and maintain Trespass ought to have a Possession But in such Case he hath not a Possession for every Intruder shall answer to the King for his whole time and every Intrusion supposeth the Possession to be in the King which all the other Iustices agreed except Periam who doubted of it And Rhodes Iustice said and vouched 19 E. 4. to be that he cannot in such Case say in an Action of Trespass Quare Clausum suum fregit CCLXXXV Mich. 29 Eliz. In the Common Pleas. NOte It was holden by Popham Chief Iustice Remainder and so said by him to have been resolved upon a Special Verdict in the County of Somerset 20 Eliz. That where a Lease was made unto Husband and Wife for their Lives the remainder to the Heirs of the Survivor of them that the same was a good remainder notwithstanding the incertainty and that in that case after the death of the Wife he should have Iudgment to recover the Land. But if a man be possessed of a term for 20 years in the right of his Wife and he maketh a Lease thereof for 10 rendring rent to him his Executors and Assigns and dyeth that in such case though the Wife surviveth yet he shall not have the rent because that she cometh in paramount the Lease But if a man be possessed of a term in the right of his Wife Mortgage and Mortgageth for payment of a certain Sum of Money at a day certain and before the day the Wife dyeth and the Husband payeth the Money at the day and then dyeth whether his Executors or the Administrators of the Wife should have the term was not then resolved Ideo Quaere that Case Trin. 32 Eliz. In the Exchequer CCLXXXVI Bartase and Hinds Case NOte Manwood Chief Baron gave it for a general Rule for all Counsellors at Law That they did not advise any Collectors of Subsidies or Fifteens to exhibit Bills in the Exchequer Chamber for the Non-payment of Subsidies c. for such Bills should not be allowed hereafter because they had remedy by Distress Also it was holden That if any be assessed for the Fifteen which he ought to pay or if two Towns are to pay together and the one Town be taxed more than it ought to be or had been accustomed those which are grieved by such Sesment may have a Commission out of the Exchequer which is called Ad aequaliter taxand ' and that was put in ure in a Case between Bartase and Hind where one of them was Lord of the Town of Little Marloe and the other of Hedford And it was also holden That Fifteens are to be levied of Goods and Chattels properly and one Township sometimes is richer than another and therefore it is not reason that they pay their Fifteen always according to the same proportion But by Clark Baron where the Custom hath been that the Fifteen should be taxed according to the quantity of Acres there the Rate and Purport shall be always one whosoever holds the Land and as to the Commission Ad aequaliter taxand ' Manwood and Fanshaw said That they could shew above twenty Presidents of it Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVII Barnard and Tussers Case Debt BArnard recovered in a Scire Facias upon a Recognizance against Tusser and afterwards brought an Action of Debt upon the same Recovery and it was adjudged maintainable notwithstanding that it was Objected That the Iudgment in such Scire Facias is not to recover Debt but to have Execution of the Iudgment And by Wray Chief Iustice If in a Scire Facias to have Execution of an Annuity the Plaintiff hath Iudgment upon such Iudgment he shall have an Action of Debt Mich. 17 18 Eliz. In the Kings Bench. CCLXXXVIII The Earl of Arundel and Bradstocks Case THe Case was The Earl of Arundel let Lands to Bradstock for years upon condition that the Lessee should not do any Act by which his Goods and Chattels might be forfeited Bradstock committed Felony and before any Attainder he obtained his Charter of Pardon It was holden in this case That the Earl might lawfully enter but if the words of the Condition had been Whereby the Goods ought to be forfeited chen it had been otherwise for before Attainder they ought not to be forfeited Mich. 17 18 Eliz. In the Kings Bench. CCLXXXIX Taylors Case Outlawry How avoided by Plea in Person TAylor was Outlawed in Debt and a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent It was holden that the party should avoid the same by Plea then it was moved if the Plea should be pleaded by Attorney or in Person To which it was said by Manwood That where matter in fait is pleaded in avoidance of an Outlawry it ought to be pleaded in Person but matter of Record by Attorney And Ford Prothonotary said It was so agreed in Sir Thomas Chamberlains Case in 7 Eliz. and so it was adjudged in this Case CCXC. Mich. 17 18 Eliz. In the Kings Bench. THe Case was The Prior of Norwich made a Lease for life by Indenture by which the Lessee covenanted to find Victuals to the Cellerer at all times when the Cellerer came thither to hold Court the Priory was dissolved and the Possessions given to the Dean and Chapter newly erected It was holden in this case That the Lessee should perform that covenant to him who supplyed the Office of Cellerer scil the Steward And
Land Rents and Reversion until of the Issues and Profits thereof certain Sums of Mony should be paid to his younger Sons and dyed And Exception was taken to the pleading because it is not specially shewn that the Land devised was holden in Socage And that was holden a sufficient Exception And the Court was of Opinion That the Opinion of Dyer Devises Whiddon and Bendloes in 16 Eliz. was not Law for by the common Law no Land was devisable but by Custom which ought to be pleaded where Title is made by Devise Tenances And now by the Statute all Lands holden in Socage are devisable and but two parts of the Land holden by Knight Service and therefore he who would make Title to himself by a Devise ought to shew the Tenure of it and so it was lately adjudged in the Kings Bench in Thompsons Case And by Anderson and Periam This Feoffment was well executed for the manner of it Attorneys make Livery for the Letter of Attorney is Conjunctim divisim ad intrandum in omnia singula praemissa and upon these words one Attorney may make Livery in one parcel of the Land and the other Attorney in the other parcel and in this case if one of the said Attorneys make Livery in one part only without medling with the residue by himself or by any other the same shall pass for it is not necessary that all pass or nothing at all 7 Eliz. Dyer 79. CCCXI. The Dutchess of Suffolks Case ADrian Stokes and the Lady Francisca Dutchess of Suffolk his Wife brought a Quare Impedit against the Bishop of Exeter and others The Bishop pleaded and demanded Iudgment of the Writ because he said It appeareth by the Writ Quod praedicta Francisca uxor praefati Adriani nominatur in dicto Brevi Domina Francisca Ducissa Suffolk ubi per Legem terrae eadem Francisca by her Marriage betwixt the aforesaid Adrian and her the said Frances had lost her name of Dignity and ought to be named Francisca uxor praefati Adriani Wherefore and because the said Frances is named Lady Dutchess of Suffolk in the said Writ therefore he demanded Iudgment of the Writ And afterwards the Plaintiffs did discontinue their Suit and durst not proceed Vide the Case 7 E. 6. Dyer 79. Mich. 4 5 Phil. Mary CCCXII The Queen Due and Kirbys Case THe King and Queen brought a Writ of Disceit against Due and Kirby and declared That Colley was seized of certain Lands in Fee and holden of the King and Queen as of their Manor of Westbury which Manor is ancient Demesne and so seized levied a Fine to the said Due for Conusans de droit c. Due rendred unto Colley for life the Remainder over to Kirby in Fee Colley dyed Kirby entred as in his Remainder Kirby pleaded That the Land is Frank-fee c. upon which they are at Issue which Issue depending not tryed Due dyed It was moved that the Writ should abate But it was allowed for this Action is but Trespass in its Nature for to punish the said Disceit And Due had nothing in the Land but is named only because he was party to the Disceit And no Land is to be recovered but only the Fine reversed Pasc 26 Eliz. In the Kings Bench. CCCXIII. Russels Case RUssel was condemned in an Action of Debt Execution and after the year and day the Plaintiff sued a Capias ad satisfaciend ' against him and he was taken by force of it and committed to the Marshal as in Execution It was holden by the Court That the same was a void Execution and not only avoidable by Error and therefore the Defendant was discharged for it is not at any Execution and the Plaintiff may have a Scire Facias when he will. Pasc 26 Eliz. In the Kings Bench. CCCXIV Wroth and Capells Case BEtween Wroth and Capell the Case was 3 Leon. 102. That A. was indicted upon the Statute of 8. H. 6. and Exception was taken to the Indictment because there were no words of Freehold in it or to prove that the party grieved had any Freehold whereof he might be disseised But because the words of the Indictment were Expulit disseisivit which could not be true if the party expelled and disseised had not Freehold therefore the Exception was not allowed c. Another Exception was taken to the Indictment for that the words were in unum Tenementum intravit and this word Tenementum is too general and an incertain word and therefore for that cause the party was discharged But the Indictment was further in unum Tenementum 10 Acras terrae eidem pertinent and as to those Acres he was put to answer CCCXV. Pasc 26 Eliz. In the Common Pleas. Execution NOte It was agreed by the Court and affirmed by the Clarks That if an Action of Debt be brought upon an Obligation against two upon one Ioynt Praecipe and the Plaintiff hath Iudgment to recover that one Ioynt Execution ought to be sued against them both but if the Suit were by Original and several Praecipe's Execution might be sued forth against any of them Mich. 8 9 Eliz. In the Common Pleas. CCCXVI. Belfield and Rous's Case IN Dower by Sibill Belfield who was the Wife of Anthony Rous against Thomas Rous they were at Issue upon Detinue of Charters and it was found for the Demandant and it was further found That the Husband of the Demandant of whose Seisin she demanded Dower dyed having Issue Charles Rous Quodque idem Carolus dict' Sibill perceperunt receperunt per spacium sex annorum proxime post mortem dict' Anthonij the Issues and Profits of the said Lands whereof the Demandant now demands Dower and that the said Charles afterwards dyed without Issue after whose death the said Thomas Rous entred c. And Iudgment was given for the Demandant and to recover damages after the death of her Husband CCCXVII Pasc 7 Eliz. In the Common Pleas. Uses BEfore the Statute of Vses a Feoffment is made to the use of a Man sole and a Woman sole and their Heirs and afterwards they inter-marry and afterwards the Statute of Vses came It was the Opinion of the Iustices That they should hold the Land in such sort as they held the Vse scil by several and divided Moieties for by the said Statute the possession shall be executed to the Vse in such Nature Condition and Quality as it was before Mich. 28 29 Eliz. In the Kings Bench. CCCXVIII Sir Gervaise Clyftons Case A Quo Warranto was brought against Sir Gervaise Clyfton 3 Leon. 184. Quo Warranto and shewed That the said Sir Gervaise was seized of a Manor and a Messuage within which he claimed to have a Court with view of Frank-pledge and other Liberties and that without any Grant or Authority usurpavit Libertates praedictas That the Defendant pleaded Quod non usurpavit Libertates praedictas
Bayliff of his Lord could not do better than admonish the said Bayliff of his duty for it concerned the Honour of his Master and also his Inheritance in the said Liberty But if the said Townsend had been a meer stranger to the said Earl so as no such privity had been betwixt them the same had been clearly Maintenance in Townsend as it was lately adjudged in that Court in the case of one Gifford where the parties being at Issue and a Venire Facias to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to do in that cause according to his Conscience and the same was adjudged Maintenance And afterwards upon full hearing of the cause the said Townsend by the Sentence of the Court was acquitted of any Maintenance with great allowance and approbation of many Lords of the Counsel there present Bromley Cancellario tantum exclamante CCCXXVII Mich. 15 16 Eliz. In the Common Pleas. IN a Writ of Partition the Defendant prayed in Aid the Plaintiff counterpleaded the Aid upon which Issue was joyned and found for the Plaintiff It was the Opinion of the Court That it was peremptory for the Defendant And the Plaintiff shall have the Partition scil Quod fiat Partitio and the reason thereof is for the delay of the Plaintiff and for the vexation of the Country who are to try it otherwise it had been if it had been adjudged against the Defendant upon a Demurrer CCCXXVIII Mich. 21 Eliz. In the Kings Bench. IN a Formedon of a Manor the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant averred the Tenant sole Tenant as the Writ supposed and upon that Issue was joyned and found for the demandant Vpon which a Writ of Error was brought and Error assigned in this That whereas upon Ioyntenancy pleaded by Fine the Writ ought to abate without any Averment by the Demandant against it the Averment hath been received against the Law And by Southcote at the common Law If the Tenant plead Ioyntenancy by Deed the Writ should abate without any Averment but that was remedied by the Statute of 34 E. 1. but Ioyntenancy by Fine doth remain as it was by the common Law for he hath punishment enough in that because by that Plea if it be false he hath by way of conclusion given away the Moiety of the Land in demand to him with whom he hath pleaded Ioyntenancy and the Law doth not intend that he will so slightly depart with his Land for the abatement of a Writ Else in a Praecipe quod reddat the Tenant confesseth himself to be Villain to a Stranger the Writ shall abate without any Averment of Frank-estate for the Law intends that the Tenant will not enthrawl himself without cause Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he who levied the Fine was his Disseisor upon whom he hath before entred c. And if Tenant in Fee-simple be impleaded and he saith he is Tenant for life the Remainder over to A. in Fee and prayeth in Aid of A. the Demandant shall not take Averment That the Tenant the day of the Writ brought was seized in Fee. Note That in this Fine Ioyntenancy was pleaded but for parcel and it was holden by â—ray and Southcote That the whole Writ should abate as in a Writ against many the misnosmer of the one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the Land in demand if the Land in demand be one entire thing it shall abate the Writ in all In this Case the Demandant ought to have in his Writ a Foreprise of the Land parcel of the Land in demand whereof the Ioynt-tenancy by Fine is pleaded for this dismembring of the Manor and destruction of the Land whereof the Ioyntenancy is pleaded is peravail and beneath the Gift whereof the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore it ought to be demanded accordingly with a Foreprise But if A. gives to B a Manor except 13 Acres in Tail there if after upon any Discontinuance the Issue in Tail is to have a Formedon in such Case there needs not any Foreprise for the said 10 Acres were never severed from the Manor upon the Gift But if Land in demand be several as 20 Acres but two this Foreprise is not good Vide Temps E. 1. Fitz. Br. 866. Praecipe unam bovat ' terrae except a Selion and the Writ was abated for every demand ought to be certain but a Selion is a parcel of Land uncertain as to the quantity in some places it is an Acre in some more and in some less Another point was That because that the Tenant hath admitted and accepted this Averment scil Sole Tenant as the Writ supposeth if the Court notwithstanding the admittance of the Tenant ought without exception of the party ex Officio abate the Writ And Wray conceived that it might for it is a possitive Law As if a Woman bring an Appeal of Murder upon the death of her Brother and the Defendant doth admit it without Challenge or Exception yet the Court shall abate the Appeal 10 E. 4. 7. And Vide the principal Case there Non ideo puniatur Dominus And if an Action be brought against an Hostler upon the common Custom of the Realm and in the Writ he is not named Common Hostler and the Defendant doth accept of such a Writ without any Exception unto it yet the Court shall abate the Writ ex Officio Vide 38 H. 6. 30. CCCXXIX Mich. 21 Eliz. In the Kings Bench. NOte this Case A. makes a Feoffment in Fee to B. and binds himself only to warranty without more B. is impleaded and voucheth A. who enters into the Warranty and loseth so as Iudgment is given against B. and also to recover in value against A. who before Execution dyeth It was the opinion of the Court that B. should have Execution in value against the Heir of A. CCCXXX Mich. 21 Eliz. In the Common Pleas. A. Seized of Lands in the right of his Wife for the term of the life of the Wife made a Feoffment in Fee to the use of his said Wife for her life In that case the wife is remitted and it is not like Townsends Case Plowd Com. 111. for in that case the Entry of the Wife was not congeable for she was Tenant in tail which Estate was discontinued by the Feoffment of her Husband Periam Iustice cited Siâ—enhams case Baron seized in the right of his Wife for the term of the life of the Wife They both surrendred and took back the Land to them and a third person And it was holden that the Wife was not presently remitted but after the death of her Husband
and before the 13 Weeks past the Lessor dyed and the Plaintiff his Executor brought Debt for the Rent It was adjudged by Cook and the other Iustices That the Action did not lye forthe Rent For the Rent being to be paid at Mich. or within 13 Weeks after the Lessee hath Election to pay it at any of the days and before the last day it is not due and when the Lessor dyeth before that day his Executors have not any right to the Rent but after the death of the Lessor having but an Estate for life the Rent is gone But if the Lessor had had a Fee-simple in the Land and had dyed before the last day the Heir should have had the Rent as incident to the Reversion But if the Lessor had survived both days the Rent had been a thing vested in him and his Executors should have had it but if the Rent had been reserved at Mich. and if it be behind by 13 Weeks that then it should be lawful for the Lessor to enter if the Lessor survive Mich his Executors shall have Debt for the Rent for then the Rent is due and the 13 Weeks are but a Dispensation of the Entry of the Lessor until that time And in this case as well as where the Rent is reserved at two days in the disjunctive it is sufficient that the Rent be demanded at the latter day without demanding of it at the first day Mich. 10 Jac. In the Common Pleas. CCCCIV Sir Baptist Hix and Fleetwood and Gotts Case Roll. tit Condition THe Case was Fleetwood and Gotts bargained and sold Weston Park being 300 Acres of Land to Sir Baptist Hix for 11 l. for every Acre which did amount to 25 30 l. and in the premises of the Indenture of Bargain and Sale it was agreed by the parties That the said Park being wood-Wood-Land should be measured by a Pole of 18 Foot and a half And further it was covenanted That Fleetwood and Gotts should appoint one Surveyor and Hix another who should measure the said Park and if it by the measure should exceed the Number of Acres mentioned in the Indenture that then Hix should add to them according to the proportion of 11 l. for every Acre and if it wanted of the Measure then the said Fleetwood and Gotts should repay to Hix the Surplusage of that Mony according to the proportion of 11 l. the Acre And upon the Indenture Hix brought Covenant and Assigned a Breach because upon Measure it wanted 70 Acres and the Defendants did demur upon the Declaration because the Plaintiff had not therein shewed by what measure it was measured for they said by Shirley That although it was agreed in the first part of the Indenture that the measure should be by a Pole of 18 Foot and a half yet when they come to the Covenants there they do not speak of any Measure for which cause it shall be taken for such a Measure as the Statute speaks of scil a Measure of 16 Foot and a half the Pole and by such Measure there wants not any part of the Acres Dodderidge contr And he put this ground That if certainty once appeareth in a Deed and afterwards in the same Deed it is spoken indifferently Reference shall be unto the certainty which appeareth And therefore if by an Indenture Lands be given to a man Haeredibus masculis and afterwards in the same Deed it appears it is Haeredibus de Corpore suo It shall be an Estate-tail because the first words were indefinite and the last certain by which it appeared that he passed but an Estate in Tail And 4 E. 4. 9. b. the words of a Declaration was Noverint universi per praesentes nos J. S. teneri c. W. B. in 20 l. solvendum eidem J.S. It was holden by the Court the same did not make the Obligation void because it appeared by the first part of the Obligation that he should be bound to the Plaintiff and therefore the intent being so the Plaintiff might declare of a Solvendum to himself And the words J. S. should be Surplusage And 22 E. 3. 4. the Abbot of Selby granted quandam annuam pencionem 〈◊〉 ad rogatum J.E. illam scilicet quam idem J. E. habuit ad terminum vitae suae Et solvendam quousque sibi de beneficio Competo provisum fuerit It was holden by the Court in a Writ of Annuity brought That the word sibi should have reference to B. the Grantee and not to J. E. And Cook said That the original Contract did leave the Measure in this Case and for that he vouched Redwellys Case in Plowd Comment A Lease rendring Rent at Mich. at D. and if it be behind for a month after demand that the Lessor shall re-enter it shall be demanded at the first place Trin. 12 Jac. In the Star-Chamber CCCCV. Sir Richard Egertons Case IN this Case the Wife of Sir John Townsend being sentenced in 1000 l. and in Execution in the Fleet for the Costs of the Plaintiff these Points were resolved by the Court 1. If a man be Sentenced in the Star-Chamber to pay a Fine and to Imprisonment and the Delinquent renders his Body to Prison that notwithstanding the Body continues in Prison the King shall be satisfied the Fine out of the Profits of the Delinquents Lands 2. If a Feme Covert be sentenced there and she renders her Body to Prison and there abides That the Lands of her Husband shall be sequestred and the Profits thereof for the Fine of his Wife And that now upon the Statute of Recusancy the Lands of the Husband for the Recusancy of his Wife if he do not render her to Prison and discharge the same 3. If a man be Sentenced in the Star Chamber to pay a Fine and to have Imprisonment and he yield himself to Prison That before his Fine be also paid he shall not proceed in any Action at the Common Law against the Party in the same Suit. Pasc 12 Jac. In the Common Pleas. CCCCVI Crane and Parkins Case IN Trespass The Defendant pleaded that the Land in which was parcel of the Manor of Broughton Astley demisable by Custom and shewed That the Custom of the Manor was that if any Tenant for life dyed that the Lord for three years Fine ought to grant the same to his Heir and pleaded a Grant of the Manor to the Lord Grey of Grooby And also pleaded another Custom of the said Manor That if any Tenant for life of the said Manor had a Wife and dyed that the Wife shall have in the Land her Widows Estate And that after the death of the Wife that the Son for a Fine of three years paid to the Lord should have it for his life and that the Defendant claimed as Son according to that Custom The Plaintiff made Title as Lessee for years to the Lord Gray of the Manor and traverseth that there was not any such Custom
that the Son for a Fine of three years paid should have the Land for his life Hutton said That the Traverse was good for if there was not any such Custom that the Son should have it so for life then ex consequente sequitur that there is not any such Custom that the Son should have it after the death of the Wife or her Surrender and therefore he needed not to Traverse the last Custom alledged But the whole Court was against him and ruled That the Traverse was not good for he ought to have traversed the last Custom because there are several Customs and the one is immediately to him the other not and the Defendant claimed by the Second Custom and therefore the Court awarded That he should amend his Plea. Pasc 12 Jac. In the Common Pleas. CCCCVII Sir Henry Rolls and Osborns Case Hob. Rep. 20. More Rep. 859 2 Brownl 169. SIr Henry Rolls brought a Writ of Warrantia Chartae against Sir Robert Osborn and Katharine his Wife and shewed That the Defendant ought to warrant him a Messuage 40 Acres of Land 700 Acres of Pasture in Kelmarsh and shewed That Sir Robert Osborn and his Wife levied a Fine to him and his Heirs of a Manor and of the Lands aforesaid with warranty to him and his Heirs and further shewed That a Writ of Entre sur disseisin was brought against him of the said Messuage 40 Acres of Land 700 Acres of Pasture and that he had demanded the Warranty of the Defendant or that he would minister to him a Plea which the Defendant hath refused to do to his damage of 1000 l. the Defendant confessed the Fine and Warranty as aforesaid but further pleaded That in the same Term that the Fine was levied a Writ of Entry was brought against Sir Henry Rolls in which Writ he vouched to Warranty the said Defendant who alone entred into the Warranty and vouched over the common Vouchee and so a Recovery was had accordingly And averred That the said Recovery was to the use of Sir Henry Rolls for his life and if there was a Marriage between him and A. S. within 4 years then to the use of the said A. S. for her Ioynture with divers remainders over and averred the life of Sir H. Rolls Vpon which the Plaintiff did demur in Law. Shirley Serjeant argued for the Plaintiff That the Warranty was not destroyed but that the Plaintiff might well mantain his Warrantia Chartae and for the same he vouched 22 H. 6.22 Cliffords Case That there ought to be an alteration of the Estate to which the Warranty is annexed and here is no alteration of the Estate for although the Recovery was had the said Term and a Voucher upon it yet because the uses did not take effect presently but were contingent uses he remained Tenant in Fee-simple as he was before and so the first Warranty remained and was not destroyed Mountague Serjeant contrary and that the Warrantia Chartae was gone and that for four Causes 1. He who comes to an Estate in the Post shall not have a Warrantia Chartae but Sir Hen. Rolls cometh to the Estate in the Post ergo he shall not have Warrantia Chartae And for that vide 29 Ass 34. Lord by Escheat shall not have Warrantia Chartae 22 Ass 57. The Lord of a Villain shall not have a Warrantia Chartae 21 H. 6. Disseisor shall not have Warrantia Chartae and so 19 H 6.25 10 H. 7.10 Tenant by the Courtesie shall not have the Writ because all these come to the Lands in the Post But see Cook 3. part Lincoln Colledge Case they may have peradventure benefit of a Rent or of a Condition but not of a Warranty 27 E. 3. garr ' Statham acc ' 2. Every Warranty ought to have the same Estate continuing to which the Warranty is annexed but Sir Hen. Rolls had not the same Estate continuing ergo he shall not have the Warranty because the Fine was to him and his Heirs with Warranty but this Recovery which was but a further assurance was but to the use of himself for life with divers Remainders over so as the first Estate is altered And 42 E. 3.2 40 E. 3. 14. it is a good Plea in a Warrantia Chartae that the Demandant is not Tenant And 41 Eliz. in Bointon Chesters Case it was adjudged in this Court That if a man makes a Feoffment with Warranty who enfeoffs the first Feoffor upon Condition that that Warranty remains he shall vouch by reason of the first Warranty but if upon that Feoffment he had limited any new use there because the Estate was altered the Voucher was gone Vide F. N. B. 135. 19 E. 3. T. Voucher 12.2 48 E. 3. 18. acc ' And it was Resolved 34 Eliz in Banco Regis in Kempe Henninghams Case That in such Case he should not have several Warrantia Charta's And therefore because in the principal Case he hath once vouched upon this Recovery and upon that the Estate is altered he cannot now have Warrantia Chartae 3. Every Warranty is a Covenant real which consists in privity and therefore destroy the privity and the warranty is gone But now in this Case the first privity is destroyed therefore the warranty is gone And therefore 11 H. 4. 8. if two Ioyntenants be with warranty and one of them maketh a Feoffment in Fee the warranty is destroyed because the first privity is destroyed 21 H. 6. 51. acc ' But Vide 19 E. 3. Statham Garr ' 31. If two Ioyntenants are with warranty and the one Releases to the Feoffor there the warranty remains because the privity remains Vide 2 H. 6. 7. Cook 1 Part Chudleighs Case 125. acc ' And see M. 31 Eliz. in this Court King and Watts Case Land is given to Husband and Wife and to the Heirs of the Body of the Husband and Wife the Husband levies a Fine and dyes without Issue the Wife is impleaded and adjudged that she could not have Aid nor Warrantia Chartae because the Estate was bound by the Fine the Husband being Tenant in special Tail. 4. No warranty can have but one recompence and if there be recompence given the warranty is gone and extinct But here is a recompence made by the Voucher in this Recovery therefore the warranty is extinct 34 Ass pl. 15. 23 E. 3. garr ' 77. acc ' and 15 E. 4. 13. 12 E. 4. 12. If he will not take advantage of the warranty when he may he shall never have it after Vide F. N. B. 134. acc ' And 36 Eliz. it was adjudged in Owens Case That if Tenant in Tail bargains and sells his Lands and suffers a Recovery and afterwards Inrolls the Deed that that Recovery is a good bar to the Estate tail because there is a supposition of recompence and so he prayed Iudgment for the Defendants It was adjourned Vide this Case now Resolved in the Lord Hoberts Reports
THE FOURTH PART OF THE REPORTS OF SEVERAL CASES OF LAW Argued and Adjudged in the several COURTS at WESTMINSTER In the Time of the late Queen ELIZABETHS Reign Collected by a Learned Professor of the Law WILLIAM LEONARD Esq Then of the Honourable Society of GRAYES-INN PUBLISHED BY WILLIAM HVGHES of Grayes-Inn Esq With TABLES of the Names of the CASES and of the Matters contained in the BOOK LONDON Printed by the Assigns of Richard and Edward Atkins Esquires For Henry Herringman Ben. Griffin Charles Harper and Samuel Keble MDCLXXXVII Cum Gratia Privilegio Regiae Majestatis THE NAMES OF THE Principal Cases Reported in this BOOK A. ACton and Pitcher Pag. 51 Anderson and Heywood 30 Applethwaite and Nertley 56 The Scholars of All Souls and Tamworth 178 Archbishop of York's case 168 214 Arden and Goads 243 Ashpoole and the Inhabitants of Weringham 218 Lord Audleys case 166 210 B. BAbingtons case 123 Bakers case 122 Barkers case 60 Barlow and Pearson 102 Barnard and Trusser 186 Barton and Edmund 5 Bartace and Hind 185 Baspoells case 35 Baxter and Bartlet 156 Bedfield and Rouse 198 Bedingfields case 89 Beechers case 190 Bell and Langley 230 Bettuans case 22 Bills Case 238 Bingham and Squire 61 Bishop of Rochesters Case 23 Bishop of Londons Case 80 214 Bishop of Exeter and Sir Henry Wallop 247 Blaby and Estwick 15 Blithe and Colegate 88 Bluets Case 18 Bluet and Cooke 241 Box and Mounslowe 230 Brookhouses Case 3 Brasiers Case 104 Broome and St. Johns Case 96 Browne and Stulsbye 43 Browne and Peters 144 Browne and Tucker 241 Buckhursts Case 2 Bulwer and Smith 52 Burgess and Foster 215 Bussey and Milfield 61 Butler and Lightfoot 9 C. CAnnon and Osborn 49 Capells Case 150 Chomley and Conges 88 Christian and Adams 54 Clemp and Clemp 8 Clark and Kempton 91 Clarks Case 11 Sir Gervaise Cliftons Case 199 Clinton and Bridges 79 Cook and Sengate 31 Cooks Case 245 Collier and Collier 194 Connies Case 37 Connies Case 20 Lord Cromwell and Townsend 203 Crane and Parkins 249 Cursons Case 10 Curtis's Case 51 Corpus Christi Colledge Case 223 D. LOrd Dacres and Fines 97 Daubney and Gores 194 Dean and Chapter of Christ-Church 190 Doylies Case 101 Dolemans Case 86 Doughty and Prideaux 101 Dowhall and Catesby 113 Duke and Smith 238 Duffams Case 86 Duncombs Case 293 Dutchess of Suffolks Case 196 E. EArl of Derby's Case 42 Earl of Northumberlands Case 91 Earl of Huntington and the Lord Mountjoyes case 147 Earl of Rutland and Spencer 243 Earl of Arundel and Bradstock 186 Edwards and Watton 240 Egertons case 249 Englefields case 135 169 F. FItch and Peirce 121 Foles and Griffin 94 Frice and Foster 14 Fullers case 4 Fullers case 208 G. GArdians of the Monastery of Otleries case 117 Germies case 82 Germin and Ascott 83 Gerrards case 7 Sir Henry Gilfords case 156 Glascocks case 238 Glover and Archer 247 Godboults case 33 Goram and Fowkes 150 Goore and Winkfield 208 Greens case 85 Greindall and Archbishop of Yorks case 182 Grey and Edwards 110 Grenden and Albany's case 133 Grubhams case 246 H. HAltens case 8 184 Harris and Whiting 91 Harris and Coverley 98 Harris's case 112 Harvy and Harvy 12 Harvy and Thomas 15 Haselwoods case 114 Hawkins and Chapman 9 Hern and Crow 122 Hegger and Helston 111 Hide and Hill. 110 Higham and Cook. 144 Hills case 187 Hinds case 21 Sir Baptist Hix and Fleetwood 248 Holland and Hopkins 8 Hobbies case 5 Hore and Bridleworth 15 Hoo and Hoo. 78 Sir William Hollis's Case 119 Hollingshead and King. 182 Houtiers case 106 Hoven and Gerrard ibid. Hodges case ibid. Hunt and Sim's 13 Hunt and Gonnel 24 Hungerford and Watts 181 J. JAckson and Darcy 40 Jerons case 149 Johnsons case 193 Josselin and Josselin 19 K. KEenes case 121 Sir Thomas Kemp and Windsor 41 The King and Cotton 7 39 Kirkman and Reignot 3 Knevit and Cope 59 Knightly and Knightly 102 L. LAuntons case 1 Sir Richard Lee and Arnold 27 Sir Francis Leake and Hollis 24 Lees and Lord Stafford 58 Sir Rich. Lewknors case 162 225 Limver and Ivery 68 Long and Hemoning 216 Lukes case 32 M. MAnning and Andrews 2 Mayes case 7 Mansors case 62 Megett and Davis 60 Michel and Norden 201 Milborne and the Inhabitants of Dunmore 191 Morgen and Cox. 40 Morris's case 92 The Lord Mountjoy and Barker 73 Mounjoy and Andrews 150 194 N. NEals case 96 219 Newman and Sheriff 25 Marquess of Northamtons case 17 O. OGnell and Underhill 115 Onions Case 36 Old and Cony 7 Owen and Morgan 26 93 222 P. LOrd Pagetts Case 6 Par Marquess of Northamptons Case 17 Parry and Herbert 5 Paston and Townsend 97 Pelhams Case 33 Sir William Pelham 114 123 Peake and Pollert 121 Peirs and Levesuch 48 Penhalls Case 49 Penson and Higbed 99 Pophams Case 4 Pouley and Siers 208 Prowes Case 47 Provost of Queens Colledge Case 85 President of Corpus Christi Colledge Case 223 Price and Atmore 246 Q. QUeen and Earl of Shrewsbury 19 Queen and Lord Vaux 26 Queen and Painter 32 Queen and Paine 81 Queen and Bishop of Lincoln 95 Queen and Sir John Savile 104 Queen and Faine Archbishop of Canterbury 107 Queen and Due 197 Queen and Bishop of Norwich 217 R. RAtcliff and Shirley 121 Ratcliff and Chaplain 242 Rawlins and Somerford 116 Robinsons Case 55 Sir Henry Rolls and Osborne 250 Ropers Case 47 Rowson and Browne 3 Ruithbrooke and Pusaine 16 Russels Case 24 197 Russel and Pratt 44 S. SAer and Bland 24 Sandersons Case 12 Sapland and Ridler 238 Savages Case 88 Savage and Knight 78 Lord St. John and Sir John Gray 22 Scotts Case 51 Scott and Scott 39 70 Seamar and Browning 122 Seixtbank and Peirces 85 Shrewsbury and Inhabitants c. 18 Smith and Babb 193 Spring and Lawson 77 Starkeys Case 61 Mark Stewards Case 106 Lord Stafford and Sir Rowland Haywood 55 Strangborough and Warner 3 Strangdon and Burnett 4 106 Stroads Case 40 Countess of Sussex and Wroth 65 T. TAylors Case 31 Taylors Case 22 186 209 Terrets Case 51 Thetford and Thetford 50 Townsend and Pastor 52 Trecarham and Friendship 64 Trivilians Case 195 Tutor and Norton 6 Tyrells Case 92 V. VErney and Verney 207 Vernon and Sir Tho. Savile 191 W. WAite and Cooper 207 Sir Walter Wallers Case 44 William Wallers Case 169 Walsgrave and Somerset 167 Wards Case 239 Wards Case 241 Wath and King 57 Webbs Case 110 Weshbournes Case 49 Wheelers Case 240 Willet and Wilkinson 7 Windham and Meede 96 Wingate and Sands 202 Wood and Chivers 179 Wroth and Capell 197 Y. YOung and Taylor 94 THE FOURTH PART OF THE REPORTS OF SEVERAL Excellent Cases Argued and Adjudged in the several COURTS of Law at WESTMINSTER In the time of the Late Queen Elizabeths Reign Hil. 20 Eliz. I. Launtons Case A. Is bound in an Obligation Emblements that B. shall enjoy a Lease of black Acre immediately after his death The Land
Mich. 29 Eliz. In the Kings Bench. XXII Barton and Edmunds Case AN Infant and another were bound for the debt of the Infant Infant the Infant at his full age promised to save the other harmless the Infant died It was adjudged that upon this Assumpsit Assumpsit an Action upon the Case did lie against his Executors XXIII Mich. 36 Eliz. In the Kings Bench adjudged IF an Executor promise to pay a Debt when he hath not Assets It was the Opinion of all the Iustices that no Action upon the Case lieth against him but if he hath assets then it is otherwise And the Heir if he hath nothing by descent is not subject to an Action upon such a promise Mich. 28 Eliz. XXIV The Lord Pagets Case Indictments AN Indictment was Quare vi armis clausam A. B. apud D. fregit whereas A. B. then had a Lease at Will of the land the matter was for digging of Turfs the Indictment was holden to be good XXV 25 Eliz In the Kings Bench. Indictments INdictment De uno Equo where it was a Gelding holden not good But otherwise it is where Trespass was brought de Equo castrato and the Iury found a Gelding and adjudged for the Plaintiff 26 Eliz. XXVI Tucker and Nortons Case Execution AN Infant in Execution upon condemnation in Debt sued a Writ of Error his Father and Brother bailed him It was said the Recognisance shall be by them two only that the Infant shall appear and if the Iudgment be affirmed that they pay the mony and not that they shall render his body to prison for when he is once discharged out of Execution he shall never be in Execution again XXVII Mich. 29 Eliz. In the Common Pleas. Nobleman Recognizance IT was holden by the Iustices That a Nobleman shall be bounden with his bail in a Recognizance that he shall render his body and that upon the Statute of 13 E. 1. If he hath not goods or lands his body shall be taken in execution for the Law in such case excepts only Clarks XXVIII Hil. 26 Eliz. In the Exchequer Felo de se THe Queen granted to one Catalla utlagatorum felonum de se within such a Precinct One indebted to the Queen having Goods is felo de se within the Precinct Resolved the Queen should have the Goods to satisfie her debt 26 Eliz. In the Kings Bench. XXIX King and Cottons Case LEssee for life the remainder in tail the remainder in fee Disseisin Lessee for life makes a Deed of Feoffment of the Land and delivers it and makes a Letter of Attorney to another to deliver Seisin who enters and makes Livery accordingly adjudged that the Attorney is a Disseisor 26 Eliz. In the Kings Bench. XXX Gerrards Case THe Owner of the Lands severed his Tythes Prohibition and a stranger took them and carried them away The Parson libelled in the Spiritual Court against the Owner of the Land for the Tythes who thereupon prayed a Prohibition It was adjudged no Prohibition should issue in this Case for that he might plead the same matter in Bar in the Spiritual Court. Hil. 31 Eliz. XXXI Willet and Wilkinsons Case NOte it was adjudged Surrender that if Lessee for years take another Lease from the Guardian in Soccage that the same is a Surrender of his first Lease Note the second Lease was made in the name of the Guardian Trin. 26 Eliz. XXXII Ould and Conyes Case IT was adjudged Commoner Conies that a Commoner cannot kill Conies which destroy his Common though he hath not any other remedy Trin. 29 Eliz. In the Kings Bench. XXXIII Mayes Case ONe sent a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him receiving a certain sum of mony the Merchant sent the Merchandizes by the Carrier without receiving the mony It was the opinion of the Iustices that the Buyer should not be charged for the mony for it was a conditional bargain and it was the folly of the Merchant to trust the Carrier with the Wares Mich. 30 Eliz. XXXIV Haltons Case A Recognizance was acknowledged before Sir N. Read one of the Masters of the Chancery Recognizance Inrollment and the Recognizor died before it was enrolled it was doubted if it might be enrolled at the Petition of his Executors it was agreed by the Iustices that it might be well enough for it is like to a Conusans of a Fine before a Iudge which may be removed out of the hands of the Iudge by Certiorari and yet it is not a Record till the perfection of it At the same time it was doubted also if the Chancery would aid a man when there wanted the words Heirs in a Deed where the land was sold for mony Chancery compel Attornment But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn Hil. 27 Eliz. XXXV Holland and Hopkins Case IN Ejectione firmae it was agreed by the Court that if a Disseisor be of an 100 Acres and he lets the same to divers for Years that the entry into one Acre by the Disseisee is an entry against them all but if they had been Tenants for life Quaere for that then he might have his Action against them And it was said Entre congeable that if one makes a Lease for years rendring for the first two years 10 l. and afterwards 30 l. every year with condition if the rent of 30 l. or any part of it be behind that the Lessor enter The Lessor enters for not payment of the 10 l. that his entry is lawful for the 10 l. was parcel of the rent for it was but one rent Trin. 29 Eliz. In the Kings Bench. XXXVI Clamp and Clamps Case Copyholder Surrender A Copyholder in possession surrendred the Reversion of his land post mortem suam to the Lord to an use c. It was adjudged that thereby nothing passed XXXVII Trin. 21 Eliz. In the Common Pleas. A Lease was made of a Mannor with all Gardens Orchards Yards c. and with all the profits of a Wood except to the Lessor forty Trees to take at his pleasure It was a Question if the Lessee should have the Wood It was the opinion of Dyer That the Wood was not comprised within the Lease but the Lessee should only have the profits as pawnage Leases herbage c. And he said it was a Case adjudged a man made a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit that the Lessee thereby could not cut the Trees nor do waste Mich. 33 Eliz. In the Exchequer XXXVIII Butler and Lightfoots Case IT was holden by the Barons Copyholder Surrender 3 Leon. 239. That if Tenant for life be of a Copyhold the Remainder over in Fee to another he in the Remainder may surrender his Estate if there be no custom to
be made rendring rent with clause of re-entry The Lessor grants the Reversion for life such a Grantee is an Assignee within the said Statute Jefferies The Condition is gone A. leaseth two Acres for years rendring rent with clause of re-entry the Lessor accepts a surrender of one Acre the whole Condition is gone but the rent shall be apportioned A Parson leaseth land whereof he is seized in his own right and land whereof he is seized in the right of his Church for years rendring rent with clause of re-entry and dieth the rent shall go according to his respective capacity and the Condition divided Condition apâ—â—â—â—â—â—ned So if part of the land so demised be evicted the Rent shall be apportioned and the Condition also And he said that the Bargainee is not an Assignee within the Statute Barham If the Reservation doth not make the lease several yet it shall make the Reversion several c. Mead 6 Eliz The Court was moved in this Case A. leased for years rendring rent with clause of re-entry and afterwards became bound to another by Recognizance the Recognizee extended the moiety of the rent and Reversion in Execution Condition suspended and the clear Opinion of the Court was that the Condition was suspended If A. let lands for years rendring rent with clause of re-entry to a Man and to a Feme sole and afterwards the Lessor intermarries with the Feme the Condition is suspended Mounson Iustice The Demise is joynt although that the Reservation be several Cestuy que use is seized of an Acre in possession and of another in reversion and makes a Lease for years of both rendring rent Severance here are several rents 13 E. 3. A. seized of two Acres of lands before the Statute of Westminster 3. made a Feoffment thereof to hold the one Acre by Knight Service and the other in Socage the Tenancy in such case is several 9 Ass 24. a lease is made of a Mill. and of a Wood rendring for the Mill 10 s and for the Wood 20 s. these are several rents and so here they are several rents and several conditions Two Tenants in Common make a lease for years rendring rent upon clause of re-entry the condition is several according to the reversion for joynt words in the Letter have sometimes as the matter requires constructions in the severalty As A and B covenant by Indenture and are reciprocally bound the one to the other to perform all Covenants contained in the said Indenture the same is to be construed such Covenants which on the part of A. are to be performed and so of the other part B. And he conceived that by the distracting of the reversion the condition was gone a condition by an act in law may be divided but not by the act of the party Conditions by act in Law divided not by act of the Party As a man makes a lease for years rendring rent with clause of re-entry takes a Wife and dyeth The Wife recovers the third part of the land devised for her Dower now that third part is discharged of the condition during the estate in Dower but the residue is subject to the condition and vide F. N. B. 21 the Heir at Common Law shall have a writ of Error for his part and the Heir in Borough English for his part two Ioyntenants make a lease for life upon condition and one releaseth the condition Statute of 32 H. 8. of Conditions taken by Equity the same barred the condition And he conceived that the Bargainee is an Assignee for the Statute of 32 H. 8. shall be taken by Equity c. As if a man leaseth lands for years to begin at Michaelmas next and before Michaelmas he makes a Feoffment and at Mich. the Lessee enters the Feoffee is an Assignee within the Statute two Ioyntenants make a lease for years rendring rent with clause of re-entry and the one releaseth to his companion he is an Assignee within the Statute Manwood He is an Assignee and in by the Bargainor The words of the Statute of 32 H. 8. are Grantees or Assignees to or by any Person or Persons and here the Bargainee is an Assignee to the Bargainor as to the use and for the possession he is an Assignee by him He who is in by a common recovery is not an Assignee although the recovery was to his use for the Writ disaffirms his possession if Tenant for llfe be disseised and he in the reversion confirms the estate of the Disseisor and the Tenant for life re-enters the Disseisor is now an Assignee but otherwise it is if he in the reversion doth release to the Disseisor and he conceived that the Lessor should recover part of the land in an action of Waste or enter in part of the land for a forfeiture for an alienation in fee that the condition remains Harper Several reservations do not make several leases for the reservation is not of the essence of the lease for it is good without any reservation and whereas it hath been said that a Lease is a contract I say Difference between a Reservation and a Contract that there is a great diversity between a reservation and a contract for if I sell to you a Horse for 40 s. and afterwards I take this Horse out of your possession yet I shall have an action of Debt for the 40 s. But if I lease land to you reserving rent and afterwards enter into parcel of the land demised I shall not have the rent and if I lease two Acres for years with several reservations I shall have but one action of waste but several Avowries according to the several reservations And here if any part of any of the said rents be behind the party may re-enter into the whole therefore the lease is but una eadem And I conceive that the Assignee of the Assignee is by the Statute to take advantage of the condition even to the twentieth degree as a warranty to one of his Heirs and Assigns extendeth to the twentieth Assignee But here in our case he is not such an Assignee that shall take advantage c. for he is in by the Statute scil in the Post but not in the Per and here the Bargainee hath but an use by the act of the Party and the possession of the Statute of 27 H. 8. But admitting that he is an Assignee yet he is an Assignee but of part and therefore shall not have advantage Condition suspended in part is suspended in all c. When a condition is suspended in part it is suspended in all A. leaseth lands for years upon condition and afterwards the lessor confirms his Estate in part for life the condition is gone Dyer The Lease is one and entire although there be several reservations for here are not several capacities nor several interests 42 Ass Two Ioyntenants lease for life rendring rent to one of them yet the rent and
of the said Anne and of the right heirs of the same W. Wallshot Anne died and if this Lease should bind the Conusee was the question for it was agreed by all that the Issue in Tail was bound by the Fine Quaere the Case was only put but not resolved CXLV Trin. 30 Eliz. In the Common Pleas. UPon a recovery in a writ of Entry sur disseisin of two Acres of Lands an Habere facias seisinam was awarded the Sheriff as to one Acre returned Habere feci and as to the other tarde And that return was shewed to the Court Amercement of the Sheriff and all the Iustices but Periam held that the Sheriff should be amerced for that return being contrary repugnant in it self but Periam said it may be that the Acre of which no seisin is had was so distant from the other Acre whereof the seisin was had that the Sheriff in time could not make execution of both being so remote the one from the other To which it was answered That if the truth of the case was such Then might the Sheriff make Execution in one Acre in the name of both Acres And if upon a Capias ad satisfaciend against two the Sheriff retorn as to one a Cepi and as to the other Tarde he shall be amerced for his several retorns cannot stand together Mich. 29 Eliz. In the Common Pleas. CXLVI Lees and Lord Staffords Case COmpton made Conusans as Bayliff to Edward Lord Stafford and shewed that Henry Lord Stafford Father of the said Edward and Ursula his Wife were seized of the place where and let the same for years to Edward Lees the Plaintiff Robert Lees and Elizabeth Atwood upon Condition they nor any of them should alien the said Term nor any part of the same without the leave of the Lord or his Heirs Henry Lord Stafford and Ursula died and that the Reversion thereof descended to Edward Lord Stafford and shewed further that the said Edward Lees the Plaintiff had aliened To which the Plaintiff in bar of the Conusans said that the said Edward now Lord Stafford gave License that the said Edward Lees Robert or Elizabeth might alien and that was without Deed. It was conceived by some that this Licence was not of any force to dispense with the Condition because it is uncertain and doubtful in the disjunctive and it was resembled to the Case of 11 H. 7. 13. where a man gives a thing to J. S. or A. B. it is void for the incertainty But all the Court was to the contrary For here the thing which is given is but a Liberty and is not to be resembled to a Gift or Interest and the intent of the Lord Stafford was that one of them might alien but not all of them and afterward Iudgment was given for the Plaintiff Trin. 31 Eliz. In the Kings Bench. CXLVII Limver and Evories Case LImver as Administrator of one A. brought Debt against Evory and the case was F. made G. his Executor and G. made H. an Infant his Executor and died and during the minority Administration was granted to the Plaintiff who as Administrator of G brought an Action of Debt upon a Bond made to the first Testator and that was assigned for Error for the Plaintiff ought to bring his Action as Administrator of the first Testator vide 10 E. 4. 1. 26 H. 8. 7. and for that Cause the Iudgment was reversed Mich. 33 Eliz. In the Kings Bench. CXLVIII Knevit and Copes Case KKnevit brought Ejectione firmae against Cope and declared 3 Leon. 266. whereas John Hopkins by his Deed bearing date the 20 of May 32 Eliz. had let to him a House and two yard Lands containing forty Acres of Land Meadow and Pasture at Tithingham de forecomb in the Parish of Steep c. and upon Not Guilty the Visne was of Tithingham de Forecomb Exception was taken by Cook that the Declaration had not certainty for it is not shewed certain how much Meadow Land and how much Pasture is contained in the said two yard Lands and the Iury may find the Defendant Guilty as to so much Land but not to the residue also he hath not shewed in the Declaration when the Lease was made but only saith that by Indenture bearing date 20 May c. but doth not shew any day of delivery of the Indenture for then is the demise To which Exception it was said by the Iustices That the Declaration as to that was good enough for it shall be intended to be delivered at the day of the date Another Exception was taken to the Visne because that the Visne ought to have been from the Parish and not from Tithingham 11 H. 7. 23 24. Forcible Entry in the Manor of B. in B. the Visne shall not be from the Manor of B. but of B. Gawdy You shall never have a Visne of the Parish for divers Towns may be in one Parish but here the Visne is well of Tithingham for it may be that it is a Town Cook It is but a Vill conus from which a Visne cannot come CXLIX Trin. 28 Eliz. In the Common Pleas. Rot. 1027. MIlbourn brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex it was found by Special Verdict that the Plaintiff was robbed 23 Aprilis inter horam secundam matutinam tempore nocturno ante Lucem ejusdem diei and the Opinion of the Court was clear that the Plaintiff should be barred for the said Statute provided for ordinary Travel as in the Case of Archpool who came to his Inn post Sunset ante noctem in tempore diurno which is an usual time for travelling to come to his Inn but the Law doth not receive any in protection of this Stat. who travel in extraordinary hours for it is the folly of the Traveller to take his journy so out of season and the Inhabitants are not bound to leave their Houses and to attend the ways tempore nocturno and another reason was alledged by the Iustices because the said Statute appoints watch to be kept in the time of night à Festo Ascensionis usque ad Festum Sancti Michaelis and this Robbery was done the 23 of April so as it was out of that time and afterwards Iudgment was given against the Plaintiff Mich. 26 Eliz. In the Common Pleas. CL. Barkers Case Estrepement in Partition A Writ of Partition by Barker heir of Gertrude Marquess of Exceter who devised all her Lands to Blunt by which the third part was descended to the Plaintiff and he prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ ought not to be granted for that the Plaintiff might have a more proper remedy upon the Statute cum duo tres c. and in a Writ of Partition no Land is demanded Trin. 29 Eliz. In the Kings Bench. CLI Megot and Davies Case
on the other side That the Estate of the Alien is so weak that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be infeoffed to anothers use and if he be such use is void For there is not a sufficient seisin in an Alien to carry an use And it hath been adjudged on Forset Case Where an Alien and the said Forset were Ioynt-Purchasers and the Alien dyed that Forset should not have the whole by Survivour but that upon Office found the Queen should have the moiety Vide 11 Eliz. Dyer 283. Mich. 30 Eliz. In the Common Pleas. CLXXVI Jermine and Arscots Case THe Case between Jermine and Arscot was this A seized of Lands in Fee had Issue six Sons and one Daughter and devised the Manor of c. parcel of his said Lands to J. S. for ninety years if the said J. S. and G. his Wife or any of them should so long live the remainder to P. his eldest Son and the Heirs males of his Body the remainder to his other Sons in tail the remainder to his Daughter Provided That if the said P. his Son or any of the Sons of the Devisor or any of the heirs males of their bodies should endeavour by any Act or Thing to alien bargain or discontinue c. that then after such attempt or endeavour and before such Bargain and Sale c. were executed that the estate of such Person attempting should cease as if he were naturally dead and that then the premises should remain and come to such person to whom the same ought to come remain or be by the intent and meaning of his Will and died P. levied a Fine of the Manor he in the next remainder entred and claimed the Land by force of the Devise This Case was this Term argued by Walmesly Serjeant that an Estate tail cannot cease for it is an Estate of Inheritance and here is not any limitation for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender but a Limitation determines the Estate utterly which is not here but here it appeareth as well by the meaning of the Devisor as by the words of the Devise that the Estate tail upon such act should be suspended and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee and that it shall cease during the Nonage of every Heir the Rent is but suspended between the Parties and Privies to the Gift as in the Case of Littleton of Re-entry and Retainer quousque but that a Stranger should re-enter and retain quousque that cannot be And in the Case of Scholastica reported by Plowden the Estate tail by such Offence is determined by the limitation But in our Case by the meaning of the Devisor only suspended so our Case is not like to that Case Shuttleworth to the contrary The purpose of the Devisor appeareth to be the continuance of the Land in the name and Family of the Caries and as to the difference of ceasing and suspending of an Estate tail the same is not to the purpose for the Tenant in tail himself may suspend his Estate tail therefore à fortiori the Donor upon the Creation of the Estate tail As by Littleton Tenant in Tail grants totum statum suum the Estate tail is thereby suspended and by Anderson if in such a Case after such a grant Tenant in tail levy a Fine in our Case If Tenant in tail offend and the party to whom the next interest is limited enters and after the Offender levies a Fine to a Stranger there although his Estate was determined by the offence yet the Estate tail is bound by the Fine Ad quod caeteri Justiciarii murmurabant Tenant in tail hath Issue two Sons the eldest in the life of his Father levieth a Fine and after the Father dieth the Estate tail is bound contrary if the Father had survived his eldest Son And afterwards in the end of this Term Iudgment was given against the Plaintiff for by the Will here is a good limitation and an estate to cease upon an act and upon another contingent to be revived is good enough Vide 30 E. 3. 7. A Lease for life rendring rent and if the rent he behind that the Lessor shall return quousque agreement be made so as a Freehold may cease and rise again according as the same is limited And all this was agreed by Rhodes Periam and Windham and afterwards Walmsley for the Plaintiff took an Exception to the Bar for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict non habet exitum and doth not say that tempore quo ipse Henricus clamabat reversionem praedict the said Peter had not Issue for he said if Peter had Issue when Henry claimed the Reversion nothing had vested on him by the said claim But all the Court besides Anderson said that needed not be but if the matter had been such the same should come on the part of the Plaintiff Also they said That the Estate was vested in Henry without claim and although after the Offence committed and before claim Peter have Issue yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation CLXXVII Mich. 30 Eliz. In the Common Pleas. Alien suffers a common Recovery 9 Co. 141. LAnd was given to an Alien in tail the Remainder over to another in Fee the Alien suffered a common Recovery and died without Issue All this matter was found by Office. It was moved That this Office should have return so as upon the matter the Alien was not Tenant of the Land at the time of the Recovery suffered But the whole Court held the contrary and that the Recovery was good and should bind him in the Remainder Mich. 30 Eliz. In the Common Pleas. CLXXVIII Seixtbark and Percies Case EJectione firmae of Lands in Knolton and Woodland the Parties were at Issue and the Venire facias was of Knolton only and it was found for the Plaintiff It was shewed in stay of Iudgment that the Venire facias was not well awarded for it ought to have been De vicineto de Knolton Woodland which was granted by the Court And that that defect was not relieved by any Statute for it is a Mis-trial and for that cause Iudgment was stayed and a Venire facias de novo granted 30 Eliz. In the Common Pleas. CLXXIX The Provost of Queens Colledge in Oxfords Case THe Provost Fellows and Scholars of Queens Colledge in Oxford are Guardians of the Hospital and Meason de Dieu in Southampton and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of
Praepositus Socii Scholares Collegii Reginalis in Oxonia Gardianus Hospitalis c. And in an Ejectione firmae upon that Lease it was found for the Plaintiff It was objected in Arrest of Iudgment That this word Gardianus ought to be in the Plural Number Gardiani for the Colledge doth consist of many persons and every one of them capable and not like to Abbot and Covent The Court was all of Opinion that the Exception is not to be allowed but that as well the Lease as the Declaration were both good for the Colledge is a Body and as one Person and so it is as well Gardianus 30 Eliz. In the Common Pleas. CLXXX Greens Case AN Action upon the Statute of Huy and Cry was brought by Green The Case was Upon Statute of Hue and Cry. That the Plaintiff delivered to his Servant certain monies to carry the same from Bristol to London in which journey the Servant was robbed upon which matter the Master brought his Action It was moved That the Plaintiff by the Statute of 27 Eliz. c. 13. is not a person able to bring this Action because he was not examined twenty days before the Action was brought but the Exception was disallowed for the Court was clear of Opinion that the Master should not be examined but the Servant CLXXXI 30 Eliz. In the Common Pleas. THis Case was moved upon the Statute of 1 and 2 Phil. and Mary cap. 12. The Town of Coventry was within the Hundred of Offley in the County of Stafford and Queen Mary by her Letters Patents made the said Town a County And now a Distress was taken in the residue of the said Hundred and brought into the Town of Coventry and if that be within the Statute was the question It was holden by the Court clearly That now the Town of Coventry is exempted out of the Hundred aforesaid and is a thing by it self and it is a good challenge for the Hundred of Offley that the Iuror challenged dwells in the Town of Coventry for now it is not parcel of Offley as to the King But as to the Lord of the Hundred the said Town remains parcel of it notwithstanding the Queens Grant. And the Citizens of Coventry shall do suit at the Court of the Hundred but in an Action upon the Statue of Hue and Cry of a Robbery committed in the residue of the Hundred the Citizens shall not be charged 25 Eliz. In the Common Pleas. CLXXXII Dolmans Case A. Seized of a Mannor to which two parts of the Advowson was appendant presented and afterwards aliened the Manor cum pertinentiis the Alienee presented and purchased the third part of the Advowson and presented again one J. S. Chaplain to the Earl of Rutland who had a dispensation and took another Benefice and was inducted 1 Eliz. and died 11 Eliz The Queen presented for Lapse and her Clerk was instituted and inducted the Alienee Lord of the Manor died seized inter alia this Manor was allotted to the Wife of Dolman for her part and he brought a Quare Impedit It was moved If Dolman should not joyn in this Quare impedit with her who had the third part and by Walmsley he need not Vide 22 E. 4. 8. By Brian If an Advowson descend to four Coparceners and they make Partition to present by turns and the third presents when the second ought for that time his presentment is gone but when it comes to his turn again he shall present which proves that they are several Tenants CLXXXIII Mich. 26 Eliz. In the Common Pleas. ONe recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint in the nature of a Writ of Right It was moved in the Common Bench If a Precept may be made and awarded out of the said Court for the Execution of the said Recovery and to put him who recovered in possession with the Posse Manerii Posse Manerii Comitatus differ as in such Case at the Common Law with Posse Comitatus it was resolved clearly that force in such Cases is not justifiable but by Mandate out of the Kings Courts Hil. 29 Eliz. In the Common Pleas. CLXXXIV Anne Bedingfields Case DOwer was brought by Anne Bedingfield against Thomas Bedingfield the Tenant brought out of Chancery a Writ de Circumspecte agatis containing this matter that it was found by Office in the County of Norfolk that the Husband of the Demandant was seized of the Manor of D. in the County of Norfolk and held the same of the Queen in Chief by Knight Service and thereof died seized the Tenant being his Son and Heir apparent and of full age by reason of which the Queen seized as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre as they came to her hands it was commanded them to surcease Domina Regina inconsulta It was resolved that although the Queen be intituled to have Primer Seisin of all the Lands whereof the Husband died seized yet this writ cannot extend to any Manors not found in the Office for by the Law the Queen cannot seize more Lands than those which are found in the Office and therefore as to the Land found in the Office the Court gave day to the Tenant to plead in chief And it was argued by Gawdy Serjeant for the Tenant that the Demandant ought to sue in the Chancery because the Queen is seized to have her primer Seisin And cited the Case 11 H. 4. 193. And after many Motions the Court clearly agreed that the Tenant ought to answer over for the Statute of Bâ—gamis cap. 3. pretends that in such Case the Iustices shall proceed notwithstanding such Seisin of the King and where the King grants the Custody of the Land it self 1 H. 7 18 19. 4 H. 7. 1. Ã multo fortiori against the Heir himself where he is of full age notwithstanding the Possession of the King for his Primer Seisin by the Statute of Bigamâ—s where the Heir was of full age there the wife could not be endowed in the Chancery But now per Prerogativa Regis cap. 4. Such women may be there endowed si Viduae illae voluerint And after many Motions the Court Awarded that the Tenant should plead in Chief at his peril for the Demandant might sue at the Common Law if she pleased Vide Cook 9. Part Acc. CLXXXV Savages Case ONe Savage was presented to a Benefice and afterwards took another and then purchased a Dispensation which was too late and then was qualified and afterwards accepted of the Archdeaconry of Gloucester and Underhil who had the Archdeaconry libelled against the said Savage in the Spiritual Court. Vide the Case reported in the first Part of Leonards Reports Sect. 442. Ideo Quaere there CLXXXVI Pasc 26 Eliz. In the Kings Bench. HVsband and wife Copyholders for Life the Husband surrendred to the Lord who granted the Land over by Copy to a Stranger
that It was agreed by the Court that that had been a good Exception if the matter had not been relieved by the Statute of 27 Eliz. of Demurrers Another matter was objected upon the Statute of 32 H. 8. cap. 37. upon the words of the said Statute so long as the Lands remain in the possession of the Tenant in Demeasn who ought immediately to have paid the said Rent And it was said by Anderson and Rhodes that the Conusans was good enough and within the relief of that Statute For Lewknor was the immediate Purchaser and although he had let the Lands to another at will that did not make any thing for yet the Estate of the Land is within the words of the Statute for the Land remains in the Seisin of the first Purchaser And note that in this case Bouchier dyed before the Lease expired so as the Rent was not determined in his life And afterwards Iudgment was given for the Defendant Mich. 30 Eliz. In the Kings Bench. CCXXXV Rawlins and Somerfords Case IN Ejectione firmae the Case was Cartwright possessed of a house for the term of 30 years demised a Stall parcel of it to Wartow for two years and afterwards assigned the whole house to Rawlins for all the years Rawlins redemised the same Stall to Cartwright for twenty years but Wartow did not attorn but before the said Redemise Cartwright by Deed indented demised the said Stall to Wartow for six years after the said two years ended and afterwards Rawlins redemised all the house to Cartwright for 21 years rendring rent with clause of re-entry and upon the Indenture of the said Redemise was endorsed that before the sealing and delivery c. it was agreed between the Parties that Wartow should have the said Stall according to the Lease for six years to him made And afterwards Cartwright redemised the said Stall to Rawlins for ten years and afterwards the Rent was behind And if the Rent reserved by Rawlins upon his demise to Cartwright was suspended or not was moved a question Cook argued it was not suspended for Rawlins had in the Estate but an Interest in futuro which cannot suspend the Rent before in possession And he put the Case 31 E. 1. Fitz. Discent 17. Lord and Tenant the Tenant is attainted of Felony and dyeth now the Seignory is not presently extinct For if the Lord takes Fealty of the Son the Seignory doth continue in Esse and Vide Acc. Fitz. N. B. 144. 26 E. 3. 72. Houghton the rent is suspended as if I lease Land and an Advowson rendrint rent and I take back an Estate in the Advowson now the rent is suspended But as to that it was answered That there the party hath a present interest in the Advowson but so it is not in the Case at Bar. And by Cook A. seized in Fee of three Acres makes a Lease of two of them for 21 years rendring rent and afterwards the Lessee leaseth one of the said Acres for years to the Lessor to begin two years after it is not a present suspension of the rent until the Lease come into possession c. And afterwards it was adjudged that by the Lease in futuro the rent was not suspended Pasch 28 Eliz. Rot. 255. Mich. 26 Eliz. In the Exchequer CCXXXVI The Guardians of the Monastery of Otleries Case IN the Exchequer it was found by Special Verdict 1 Leon. 4. That the Guardian and Chanons Regular of Otlery were seized of the Manor of O c. and that 22 H. 7. at a Court holden granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Manor and afterwards 30 H. 8. they leased the same Land by Indenture to H. rendring the ancient and accustomed rent and afterwards surrendred their Colledge c. and afterwards W. and W. dyed And if the said Lease so made during the Estate Customary notwithstanding the Statute of 31 H. 8. were good or not that was the Question being within a year before the Surrender c. And it was argued by Egerton Solicitor That the said Lease was void by the Statute the words of which are Whereof or in the which any Estate or Interest for term of Life year or years at the time of the making of any such Lease had his Being or Continuance and was not then determined finished or expired And therefore we are to see if this right or possession which W. and W. had at the time of the making of the said Lease was an Interest or Estate for Life And as to the word Estate est nihil aliud than measure of time for an Estate of Fee-simple is as much as to say an Interest in the Lands for ever and so of the rest and therefore W. and W. had at the time of the making of the Lease an Estate for the thing demised And although such Customary Tenants are termed in Law Tenants at will yet they are not simply so nor meer Tenants at will but Tenants at will secundum Consuetudinem Manerii which Custom warrants his possession here for life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord and so cannot a Tenant at will whose estate is determinable at the will and pleasure of his Lessor and although this estate is but by custom and by no conveyance yet it is such an estate which the said Statute intends non refert by what conveyance the estate is raised so it be an estate and this estate being supported by custom is acknowledged in Law to be an estate and so accounted in our Law and the Law hath notably distinguished Copyhold tenancies by the custom and tenancies at will at the Common Law for a Copyholder shall do fealty and have aid of his Lord in an Action of Trespass he shall have and maintain an Action of Trespass against his Lord his wife shall be endowed the husband shall be Tenant by the Curtesie without a new Admittance So customary Tenancies are within the Rules and Maxims of our Law As in the Case of Horewood There shall be a possest o fratris of it without admittance and it was adjudged 8 Eliz in the Kings Bench That if a Copyholder surrender to the use of another for years and the Lessee dyeth his Executors shall have the residue of the term without any admittance M. 14 15 Eliz. A Copyholder made a Lease for years by Indenture warranted by the custom the Lessee brought Ejectione firmae it was adjudged maintainable in the Common Pleas Although it was objected That if it be so then if the Plaintiff recover he should have an Habere facias possessionem and there Copyholds should be ordered by the Common Laws of the Land. 10 Eliz. Lord and Copyholder for Life the Lord grants a Rent-charge out of the Manor whereof the Copyhold is parcel the Copy-holder surrendreth to the use of
the Estate for the life of another by the accession of the Fee-simple and the Queen is in by a new right It was adjudged 29 Eliz. here That where the Queen had the Land of a Fugitive for the life of another and leased the same to another Quam diu in manibus nostris fore contigerit and after the Fee-simple of the Fugitive came to the Queen by his Attainder the same Lease was void King E. 6. gave to his Sister Mary Manerium de B. for her life secundum tenorem effectum Testamenti sive ultimae voluntatis of King Hen. 8. whose Will was that she should have it as long as she remained unmarried she granted a Rent-charge King E. 6. dyed by which the Fee descended to the said Mary being Queen of England and afterwards she married He made it a Quaere if the Rent be not gone Dyer 3 4 Phil. Mary 240. But Bendloes Reports the same Case to be adjudged That the Rent was gone Sir Francis Englefield 1 Eliz. with leave of the Queen went beyond Sea his Licence expired the Queen directed to him a Privy Seal with her Commandment to return which he received but did not return but adhered to the Queens Enemies there upon which the Queen seized his Lands and 8 Eliz. granted a Manor parcel thereof and all profits thereof quam diu in manibus nostris fore contigerit afterwards by Act 14 Eliz. for there was some doubt if the Queen might make Leases grant Copyholds or usual Woodfalls of such Lands or only take the ordinary profits thereof as vesturam terrae it is explained that during the Interest of the Queen she might do ut supra as Tenant for the life of another might do upon which a new Seizure was made for the Queen and a Steward appointed by the Queens Letters Patents who held a Court and took Surrenders in the hand of the Queen and granted Admittances c. And it was resolved by the two Chief Iustices That the two Seizures gave not the Queen any other or better Seisin in the said Manor than she had before by the first Seizure at the Common Law notwithstanding both the said Statutes and so the Courts holden by the Queen void and all Surrenders and Admittances also And so it is adjudged 23 Eliz. Dyer 375. upon which it may be concluded That if by the said Statutes or any of them had had a new right the last Copy had been good notwithstanding the Grant of the Manor before Also for 8 Ass the King grants Custodiam terrae haeredis quam diu in manibus nostris fore contigerit the Heir being a Daughter and after a Son is born now the Grant of the King is void Tenant in tail the Reversion in the King discontinues the Discontinuee is attainted the King seizeth and leaseth for years Tenant in tail is attainted of Treason now the Queen shall avoid her own Lease So if the Disseisor be attainted upon which the Queen seiseth and leaseth and afterwards the Disseisee is attainted And he cited the Case of the Abbot of Colchester 13 Eliz. The Abbot committed Treason and afterwards by the Statute or by Surrender the Abby came to the Crown who leased the Land for years the Abbot is attainted of the said Treason now the King shall be seized by force of the Attainder and shall avoid his Lease As to the Leases made to the Defendant by the Queen one was made after the Statute of 29 Eliz. and the same is not saved by the saving there for the words are of Estates then in esse 1. Such Estate as they had before the making of the Act As to Leases made before they are drowned in the Fee-simple which accrued to the King by the Attainder c. and here by this Statute the Estate of the Queen for the life of another is not saved by the Statute and then the Leases derived out of it are not saved The Queen is not bound by the said Statute to exhibit any Conveyance for she shall not take any Oath according to the Statute and if the Queen be not within the Body of the Act she is not within the saving Now as to the Condition The Statute of 33 H. 8. gives to the Queen Vses Rights Conditions It hath been Objected That such Conditions are intended to be given to the King which are to be performed on the part of the Donee Lessee Grantee Covenantee but not on the part of the Grantor c. For it was in the will of the Grantor if he would perform them or not and a Will cannot be transferred over But as to that it may be answered That a Will by Parliament may be transferred over for Parliamentum omnia potest It hath been Objected If that shall be said the Will of Sir Francis which now is the Will of the Queen it shall be a great prejudice to Francis Englefield the Nephew for now he shall be doubly bridled by his Vncle and by the Queen It hath been Objected That here is a Conditional Condition 1. If the Nephew shall be given to intolerable Vices and it is not added to enable the Queen to take advantage of the Condition that he is otherwise than of good behavior and conversation but the words of the Proviso clear the matter 1. Lest he should be given to intolerable Vices and not if he be given c. So as it is not a Condition to a Condition but a Motive to a Condition And the Statute of 29 Eliz. by which Sir Francis was attainted gives to the King all conditions It hath been objected that in the said Statute of 29 Eliz. is a saving by which Leases made by the Queen are preserved But if that Proviso be well observed it doth not extend to our case 1. That Act extends to make void any Grant Lease c. made by the Queen after the Treason committed c. but that shall be of such force as if the said Act had not been made As to that I say That this Statute doth not add or detract from such Leases but leaves them as it found them for the Statute gives to the Queen the Condition which Condition avoids the said Leases for it avoids the Estate of the Queen out of which the said Leases are derived And although that the Conveyance as to the benefit of Sir Francis or his Nephew be void by the Statute for not Inrollment of them yet it is not utterly void as to the Queen also The Statute of 1 Eliz. Enacts That Leases made by Bishops against the Form of the Statute shall be void Yet they shall not be void against the Bishop himself or against the Lessor Exception hath been taken for that the tender of the King is not found by Office But he needs no Office for the tender is the Act of the Queen her self there she ought not to be informed of it for to what purpose shall the Queen be certified
rather a portion of the profits c. and therefore the Land shall be said the Chauntry and not the Sum and here the intent of the Statute extends to the intent of the Founder So that if the intent of the Founder was to give the Land to Superstitious Vses the same is within the Statute If Cestuy que use wills that his Feoffees have the profits of his Lands ut supra to the Sustentation of a Chauntry Priest and the Feoffees imploy but 20 l. per Annum whereas the Land is of the value of 100 l. per Annum by this Statute the King shall have all for the intent of the Founder was That all should be imployed And so here for upon the Matter the Dean and Chapter are but as Feoffees and see that this Statute of Chauntries makes a great difference between Obits and Lights and Chauntries for in the Case of Obits and Lights the King shall not have but that which was imployed Whetstones Case was That Whetstone seized of the Manor of Cocke made a Feoffment thereof to certain Feoffees to find two Obits in such a Chappel and with the residue of the profits to maintain the Chappel and Iudgment was given for the Queen Here the Condition knit to the Reversion upon a Lease made by the Dean and Chapter to Nicholas Wilford passeth to the King by the Act of Parliament for a Condition is an Hereditament and when the King grants over the reversion to Butcher the Condition also passeth by 32 H. 8. Bromley Solicitor The Statute extends to Chauntries in existence only and not to Chauntries in reputation Chauntry hath divers significations in Law 1. For the Service which the Chauntry Priest is to do as cessavit de Cantaria 2 Sometimes for the Advowson of the Chauntry scil Quod permittat praesentare ad Cantariam 3. Sometimes for the Body of the Chauntry scil the Land of which it is endowed and in that sense it is taken by the Statute I will agree if the same had been an ancient Chauntry time out of mind c. and the Incumbents thereof had taken the profits and made Leases of it that then it should be a Chauntâ—y within this Statute for it might be corporated by prescription But the Chauntry here in question is not a Chauntry by prescription for the beginning of it is known so it is a Chauntry in reputation only and not in facto And he said That in that case the rent limited to the sustentation of the Priest shall go to the King and not to the Land for the Land was not given for the sustentation of a Priest but the rent only so as the Land was not immediately imployed for the finding of the Priest And he resembled this case to the case lately in question upon the Statute of 31 H. 8. An Abbot was seized of a great Wood which was never imployed in kind to the use of the House being seven Miles distant from the House but was never in Lease but was yearly sold by parcels and the Woodward rendred an Account of the same to the Auditor And the Opinion was That a Lease for years made of it within a year before the Dissolution was not within the said Statute for it was not immediately imployed for Hospitality But see the same reported by the Lord Dyer to the contrary 3 4 Eliz. 207. that such a Demise was void although that the Wood was not immediately imployed c. And see also the words of the Statute scil That the Land shall be in the actual Possession of the King in as ample manner as the Priest had it and the Priest had nothing in the Land but only in the Rent It was adjorned to be further argued c. Temps Roign Eliz. CCLXVI. Harveys Case HArvey seized of a Manor made a Feoffment thereof to divers persons to the use of himself for life and after to the use of his Son and the Heirs Males of his Body and if the said Son or any of the Heirs males of his Body discontinue or alien otherwise than for 21 years or three lives that then his Feoffees should be seized to the use of Nic. Harvey his Brother in Fee the Feoffor dyed the Son made a Lease for 21 years and afterwards discontinued against the Proviso if that lease should bind Nic. Harvey who came in by the latter use c. Dyer It is hard to avoid the lease for at the time of the making of it the lessor had a good interest and authority to make the lease and the act which impeacheth the Estate of the lessor commenceth after the lease by the discontinuance and therefore shall not avoid the lease Manwood The second use doth determine the first use and all Estates derived out of it Mounson contr ' For here this word Otherwise than for 21 years c so as such a lease is excepted As if a man man makes a Feoffment in Fee to the use of J. S. and his Heirs until J. D. shall pay to him 20 l. and then to the use of J. D. and his Heirs here if J. S. makes a a lease for years and afterwards the Monies are paid to J. D. now J. D. shall hold the Land discharged of the lease for there is no word Otherwise c. for these words Otherwise qualifie the second use Dyer The word Otherwise amounts to an Exception Manwood doubted of it and moved and demanded if the wife of the Cestuy que use should have Dower or not Barham conceived that she should c. CCLXVII Mich. 31 Eliz. In the Common Pleas. TEnant in Socage made a lease for four years and dyed his Heir within age of 8 years the Mother being Guardian in Socage leased by Indenture to the same lessee for 14 years It was holden that in this Case the first lease is surrendred but otherwise it is of a lease made by Guardian in Nurture CCLXVIII Mich. 29 Eliz. In the Common Pleas. IN Debt it was found for the Plaintiff 20 Eliz. and 21 Eliz. the Plaintiff released to the Defendant and the continuance was made until this Term scil Mich 29 Eliz. per Curiam advisare vult And now the Plaintiff against his own Release prayed and had Iudgment A Release pleaded after Judgment and Verdict without any knowledge to the Defendant and Process of Execution issued and now Walter a Clerk of the Court on the behalf of the Defendant shewed the Release to the Court and also the whole special matter and prayed the Release of the Court against this practice Anderson presently granted a Supersedeas But afterwards before the Process issued forth he and the other Iustices were of Opinion That the Defendant could not plead the said Release nor any further matter after Verdict and demanded the question of Nelson chief Prothonatory who advertised the Court That he could shew a President where an Arbitrement had been pleaded after a Verdict and Issue joyned upon it and that
to it because it ought to be Liberam Elemosinam without puram perpetuam Also it ought to be with a double ee and not Elemosinam sed non allocaturâ— for as to the first Exception it is but Surplusage and as to the other it is the common course Another Exception was taken to the Writ because that the words are Quod clamat este jus haereditat ' sua without saying in jure Collegij Anâ—erâ—on The Writ is good enough If a Parson pleads that he is seized he shall say in jure Ecclesiae for he hath two Capacities and without those words he shall be intended to be seized in his own right But if an Abbot plead that he was seized he needs not such words for that he hath not any other capacity And so of Dean and Chapter Mayor and Commonalty and afterwards the Writ was awarded good and that the Tenant should answer over Vide Liber Entries 236 237. It was also moved If the Colledge should count of his Seisin within 30 years because that the Corporation never dyes and then if he count upon his own possession And it was holden That if the Warden of the Colledge that now is was ever Seised he ought to count upon a Seisin within 30 years But upon the Seisin of his Predecessor he ought to count of a Seisin within 60 years as another common person For the change of the Head if such Seisin is as the dying seized and descent of a common person Mich. 15 Eliz. In the Kings Bench. CCLXXVIII Wood and Chivers Case IN Ejectione firmae between Wood and Chivers the Case was That the Bishop of Salisbury let the same Chivers the Manor of Lanington for 80 years for 40 l. rent payable at four usual Feasts upon Condition that if the rent be behind by the space of three Months after any of the Feasts in which c then a re-entry The Bishop dyed after confirmation J. S. was created Bishop who granted to R. the Office of Receiver of all his Revenues c. exercend ' per se vel Deputat suum and afterwards the Bishop made a special Letter of Attorney to the said R. to demand the rent and if it were behind to re-enter R. at the last day of the three Months came to the Capital Messuage of the said Manor an hour before the setting of the Sun for to demand the rent due at Midsummer then last past but none was there on the part of Chivers the Lessee to pay the rent for which R. left his Servant in the Hall of the said Messuage commanding him to stay there and if any came to pay the said rent that he give to him Notice thereof and afterwards he went out of the same House and walked in a Lane which was within the Gate of the House and did not return into the House until the Sun was set and then he returned and because the rent had not been paid he digged a Clod of the Land in the Name of the Bishop and so re-entred And afterwards the Bishop let the said Manor to W. for three years by Deed signed and Sealed and because Câ—â—vers continued his possession notwithstanding the re-entry he made also a Letter of Attorney to M. to enter into the said Manor in the Name of the Bishop and to deliver the said Deed of the said Lease to the said W. upon the Land as his Deed and these two Deeds the Bishop in his Chamber delivered to the said W. but not as his Deed But he said unto him Here is the Lease and a Letter of Attorney to M. and he shall enter in my name and deliver to you the Deed of his upon the Land as my Deed upon the Land Whereupon he took the two Deeds and delivered them over to M. who by force thereof entred upon the Land c. An Exception was made because it doth not appear here that the Bishop delivered the Letter of Attorney to M. himself nor to the use of M. and then it may be taken that the Deed of Letter of Attorney was delivered to M. to keep only and not as his Deed. But that Exception was now allowed For it was holden that the Livery in the Manor was good enough and so the Letter of Attorney sufficient for in all Deeds of Feoffments in which Letters of Attorney are contained the Livery of the Deed is to the Feoffee only and no mention made of any delivery to the Attorney for by such Letter of Attorney no Interest is to pass but only an Authority And note It was resolved by all the Iustices That in the computation of these three Months there ought to be allowed to every Month 28 days And now we are to see if this Rent be well demanded because the demand was made an hour before Sun-setting and then the party went out and walked in the Lane till the setting of the Sun without any other demand And it was moved that this walking in the Lane which was not a common High-way but a private way and that the House of the said Farm was of the one side of the Lane and the farm-Farm-land on the other and so the Land parcel of the Farm and then his walking there is a continuance of the demand quod Catlin concessir was the Lane a High-way or not for the Manor is on both side And it was agreed by all the Iustices That if the Lessor cometh to the Land before the last hour viz. in the Morning or in the Afternoon and demands the Rent and afterwards goes off the Land and is not there at the last instant of the day the same is not a sufficient demand although that return be presently after the Sun is set And by Gerrard Attorney General If the Lessor cometh upon the Land at the last day before the last instant as in the morning c. and demands the Rent and continues there upon the Land till the Sun be set without making any other demand yet the demand for the Manor is good enough for his presence there is the continuance of the demand Quod fuit concessum per totam Curiam And by Catlin If the Lessor after his demand in the Morning departeth off the Land and before the last instant returneth and stays upon the Land till Sun-setting there is the continuance of a demand without any further demand which Wray Chief Iustice concessit And it was holden in this case That where R. left his Servant in the House to stay there and to signifie to him that if any person came to pay the Rent that that was not any continuance of the demand for R. himself was but a Servant and he in that business could not make a Servant And Catline said That the Bishop himself might by word command his Servant to demand a Rent and to make a Re-entry Quod fuit concessum but in our Case R. had not commanded his Servant to make any demand And so here upon
she might disagree CCCXXXI Mich. 21 Eliz. In the Common Pleas. A. B. and C. three Brothers A. hath issue and dyeth the middle Brother Purchaseth Land and deviseth the same to his Son in Tail and if he die without Issue that the Land shall remain to the King and Lineage of the Father sc of the middle Brother and if the Son of the eldest Son or the youngest Brother should have the Land was the Question and it was the opinion of the Lord Dyer That the Son of the eldest Brother should have it CCCXXXII Mich. 21 Eliz. In the Common Pleas. A Lease for life was made to B the Remainder to C. and D. in Tail It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record for they are Tenants in Common but if the Remainder had been limited to them in Fee so as they took joyntly it had been otherwise for then by the disagreement of the one the other shall take the whole Land. Mich. 32 Eliz. In the Kings Bench. CCCXXXIII Waite and Coopers Case IN Ejectione firmae between Waite and Cooper It was found by Verdict That Cranmer late Archbishop of Canterbury was seized of the Manor and Borough of Southwark in the right of his Bishoprick and that the Prior of Morton was seized of the House in which the Ejectment is supposed and held the same of the said Archbishop as of his said Manor and Borough after which 30 H. 8. the said Archbishop gave to the King the said Manor and Borough with confirmation of the Dean and Chapter and that the same year the said Prior surrendred by which the said King was seized as well of the said Manor and Borough as of the said House and afterwards the King by his Letters Patents gave the said House and other Lands in Middlesex and Essex to Curson and Pope in Fee tenend in Libero Burgagio per fidelitatem tantum non in Capite pro omnibus serviciis demandis And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London Curson and Pope covey the said House to Welsh in Fee who dyed without Heir All the Question was What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope It was said It could not be a Tenure in Burgage because here is not any Rent reserved which see by Littleton 162 163 164. And the Lord Anderson at the first very strongly insisted upon that Another matter was because here is reserved for all the Lands and Tenements but one Tenure so that if the Court should adjudge the Tenure reserved to be Burgage then Lands at the Common Law out of Boroughs should be holden in Burgage Also a Tenure in Burgage cannot be created without these words ut de Burgagio And to that purpose Shute Iustice agreed Vide Br. Tenures 94. Mich. 29 Eliz. In the Kings Bench. CCCXXXIV Fullers Case NOte It is holden by the whole Court in Fullers case That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years if he his Wife and four of his Children so long shall live That this is not within the Statute of Vsury So if there had not been any Condition but care is to be taken that there be no Communication of borrowing of any Money before Trin. 30 Eliz. In the Kings Bench. CCCXXXV Goore and Winkfields Case 3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield the Obligation was written in this Form Know all by these Presents That I H. Winkfield am bound to William Goore in the Sum of c. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year until the same be paid To which the Defendant pleaded That the Plaintiff had levied parcel of the said Sum c. and did not shew how much and therefore the pleading was holden not good And it was clearly agreed by the whole Court That the Plaintiff was at Liberty either to bring his Action upon the said Obligation or to levy the Debt according to the Clause aforesaid Pasc 26 Eliz. In the Kings Bench. CCCXXXVI Powley and Siers Case POwley brought Debt against Sier Executor of the Will of one A. The Defendant demanded Iudgment of the Writ For he said That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor so as the Writ ought to have been brought against the Defendant as Executor of an Executor and not as immediate Executor of the said A. The Plaintiff replyed That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ upon which the Defendant demurred Wray was for the Writ for although here be not any Probate of the Will of A. or any other Administration yet when B. makes his Will and the Defendant his Executor it is an acceptation in Law of the Administration and Execution of the first Will. Gawdy and Ayliff Iustices that the Writ was not good Vide 23 Eliz. Dyer 372. Mich. 19 Eliz. In the Kings Bench. CCCXXXVII Taylors Case TAylor was Outlawed in Debt where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent It was holden that the Party should avoid the same by Plea Then it was moved If the Plea should be pleaded by Attorney or in Person To which it was said by the Iustices That where matter in fact is pleaded in avoiding of an Outlawry he ought to plead it in Person but matter of Record by Attorney And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain 7 Eliz. and so it ought to be in the principal Case here CCCXXXVIII Mich. 18 Eliz. In the Kings Bench. NOte It was agreed for Law in the Kings Bench if Lessee for years grant all his Estate and Interest to A rendring rent by Indenture and for default of payment a re-entry And the Grantor demandeth the rent and A. demands an Acquittance but the Lessee for years refuseth in such case A. may refuse to pay such rent for the rent is to be paid in this nature without an Acquittance but contrary if Lessee for years had leased parcel of his Estate rendring Rent with Clause of Re-entry c. CCCXXXIX Mich. 18 Eliz. In the Kings Bench. THe King seized of a Manor to which an Advowson is appendant a Stranger presented and his Clerk in by 6 Months It was holden that in such case the Grantee may present for the Advowson was always appendant and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have Quare Impedit
one John Whettesley and Ann his Wife examinand ' Ann ' praedict ea intentione That the said John and Ann should take back an Estate thereof for their lives the Remainder to one John Buck in Fee. Note the Surrender ought to be de duobus Messuagiis Mariot Two several Surrenders of the said Husband and Wife of the said two Messuages and took an Estate for their lives the Remainder over to the said John Buck in Fee upon condition to pay certain Moneys c. It was moved That the Surrender is void and without warrant for the Warrant was ad Capiend ' unam sursam redditionem and here are two several Surrenders and so the Warrant is not pursued and then the Surrender is void Another matter was because the Remainder to John Buck by the words of the Letter of Deputation should be absolute and without condition and now in the Execution of it is conditional so as the conditional Estate is not warranted by the Deputation But the Court was clear of Opinion to the contrary in both the points That the proceedings here are sufficient and well warranted by the Deputation Another matter was objected because the Surrender and Regrant is entred into the Roll of a Court dated to be holden 2 Maij and the Letter of Deputation bears date the 3 of June after but as to that the Court was clear That the Mis-entry of the Date of the Court should not prejudice the party for that Entry is not any matter of Record but only an Escroll and if the parties had been at Issue upon the time of the Surrender made or of the Court holden the same should not be tryed by the Rolls of the Manor but by the Country And the party shall give in Evidence to the truth of the matter and shall not be bound by the Rolls and according to this Resolution Iudgment was given Trin. 31 Eliz. In the Common Pleas. CCCXLIX Long and Hemmings Case GIles Long brought a Quare Impedit against the Bishop of Gloucester Hemmings and Hadnell Hemmings pleaded That one Tho. Long seized of the Manor of F. to which the Advowson was appendant by his Deed granted the Advowson unto him 17 Eliz. The Incumbent pleaded the same Plea to which the Plaintiff Replicando said That before the said Grant viz. 6 Eliz. the said Tho. Long granted to him the said Manor c. and upon Issue joyned the Iury found this Special Matter That the said Feoffment was by word and Livery and Seisin was made and afterwards the said Tho. Long granted the said Advowson to the Defendant and afterwards Attornment was had and if without Attornment the Advowson passed with the Manor was the Question Shuttleworth argued That the Advowson passed as appendant to the Demesns for an Advowson shall be more properly appendant to the Demesns than to the Services for the Services may be determined many ways so cannot the Demesns for if the Services be determined by Escheat c. yet the Advowson remains appendant to the Demesns and an Advowson may be appendant to an acre parcel of the Manor but not to the Services and so an Advowson may well pass without Deed as upon a Feoffment of a Manor the Services pass without Deed. And if a man seized of a Manor with an advowson appendant makes a Feoffment of one acre parcel thereof with the advowson the advowson is appendant to that acre 33 H. 6. 5. although it be not by Deed. Vide contra Temps E. 1. Faits Feoffments 115. 17 E 3. 4. It ought to be by Deed 43 E. 3. 24. Walmsley argued to the contrary The Verdict is That Tho. Long give not the Manor but the Capital Messuage of F. and all other Lands and Tenements of the same which words of the same have relation to the Messuage and therefore neither the Manor of F. nor the advowson pass and admit that all the Demesns pass yet the advowson cannot pass as appendant for that advowson shall pass as appendant to the whole Manor and not to such or such part of it And by Littleton 7 E. 4. 27. if a man holds of me three acres by 12 d. and I grant the Services of the third acre the same is void so here there is no advowson appendant to the Demesns And he said That in this case the advowson is appendant to the Services and although Services are Inheritances incorporeal yet an advowson may be appendant to them as one Office may be appendant to another Office and one advowson to another advowson 33 H. 8. Dyer 48. A Man seized of a Manor to which an Advowson is appendant enfeoffeth one by Deed of one acre parcel thereof and also by the same Deed grants the Advowson the Advowson shall pass as in gross for they are several Grants although but one Deed. Another matter was That Thomas Long enfeoffed and here the Iury have found that Thomas Long gave in tail c. And he conceived that the Plaintiff upon that Verdict should have Iudgment As in Waste the Plaintiff assigns the Waste in cutting down of 20 Oaks and upon Not Guilty It was found that he cut down but 10 the Plaintiff shall have Iudgment upon that Verdict The Case was adjourned CCCL Trin. 19 Eliz. In the Kings Bench. THe case was Lessee for life of another bargains and sells by Deed indented and enrolled and afterwards levies a Fine to the Conusee Sur Conusans de droit come ceo c It was holden by the whole Court That it was a forfeiture of his Estate for when the Bargainee being now Tenant for the life of another accepts a Fine of a Stranger sur Conusans de droit c. that he admit the Fee in him by matter of Record otherwise it is of a Fine sur Release And by Manwood If Lessee for life be disseised and levies a Fine to the Disseisor sur Conusans de droit c the Lessor shall re-enter Quod Dyer negavit Because that the Lessor at the time of the Fine levied had not any thing in the Reversion but only a Right Manwood put this Case Land is given to A. and B. and to the Heirs of B. they are disseized by two A releaseth to one of the Disseisors now they are Ioyntenants but for a moiety and the Estate in the other moiety is changed into an Estate for life Trin. 31 Eliz. In the Common Pleas. CCCLI The Queen and the Bishop of Norwich's Case IN a Quare Impedit the case was That the title to present to the Church was devolved to the Queen by Lapse The Patron himself presented and his Clerk was inducted and afterwards deprived It was the Opinion of the whole Court That if the Deprivation was without any covin that the title of the Queen by Lapse was gone Trin. 29 Eliz. In the Common Pleas. CCCLII. Ashpool and the Inhabitants of Everinghams Case IN an Action upon the Statute of Winchester of Huy and Cry by Ashpool
Tenants and therefore ought not to joyn c. It was Adjourned Temps Roign Eliz. In the Kings Bench. CCCLVII The President of Corpus Christi Colledge Case NOte It was holden by Cholmley Serjeant Plowden and many others in the Case of the President of Corpus Christi Colledge in Oxford That if the said Master or President of any such Colledge by his Will deviseth any Land to his Colledge and dyeth such Devise is void For at the time when the Devise should take effect the Colledge is without a Head and so not capable of such Devise for it was then an imperfect Body And so it was holden by the Iustices upon good advice taken thereof CCCLVIII Temps Roign Eliz In the Kings Bench. IN a Warrantia Chartae the Defendant said that the Plaintiff had not any thing in parcel of the Land the day of the Writ brought If in a Praecipe quod reddat the Tenant aliens and afterwards vouches the Vouchee is not bound to enter into the Warranty But here in this Case it may be That at the time that the Plaintiff requested the Defendant to warrant he was Tenant of the Land in which Case the warranty is attached and then if ever the Land be recovered against him he shall have this Writ and of this Opinion was Brown Iustice For the Land which the Defendant had at the time of the request is bound by the request but if he alieneth after the request he shall not have the Warranty CCCLIX Mich. 9 Eliz. In the Kings Bench. A Man seized of a Manor in which there are divers Copy-holds and the Custom there is That if any Copyholder leaseth his Land above the term of one year that he shall forfeit his Copyhold A Copyholder committed such a Forfeiture and afterwards the Lord leased the Manor for years and the Lessee entred for the Forfeiture and Weston said that his Entry was not lawful for although that the Heir may enter for a Condition broken in the time of his Ancestor because he is privy in blood yet the Lessee or Feoffee cannot do so for he is a Stranger such a one of whom an Estranger shall not take advantage Dyer If this forfeiture be preserved by Homage and enrolled in the Court Rolls the Lessee may well afterwards enter for by the forfeiture the Copyhold Estate is void and determined as if a Leafe for years be made rendring Rent upon Condition to cease if the Rent be not paid here presently by the not payment the Interest of the term is determined and of that the Grantee of the Reversion shall have advantage CCCLX Mich. 10 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a way The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life and that the said Duke and all those whose Estate c. have used time out of mind c. to have a way over the Land of the Defendant to the Park of D. to carry and recarry Wood necessary for the said House from the said Park to the same House and further declared That the Defendant Obstupavit the way It was moved by Carus That upon that matter no Action upon the Case lay because the Freehold of the House is in the Plaintiff and also the Freehold of the Land over which c. is in the Defendant But if the Plaintiff or the Defendant had but an Estate for years then an Action upon the Case would lye and not an Assize and it is not material If the Plaintiff had but an Estate for years in the Park quod fuit concessum per totam Curiam It was also holden That this word Obstupavit is sufficient without any more without shewing any special matter of the stopping as the erecting of any Gate Hedge Ditch c. for Obstupavit implyes a Nusance continued and not a personal disturbance as forestalling or saying to the Plaintiff upon the Land where c. that he should not go over or use the said way for in such case upon such a disturbance an Action upon the Case lyeth But as to a local and real disturbance the word Obstupavit amounts to Obstruxit and although in the Declaration is set down the day and year of the stopping yet it shall not be intended that it continued but the same day for the words of the Declaration are further By which he was disturbed of his way and yet is and so the continuance of the disturbance is alledged and of that Opinion was the whole Court. Leonard Prothonotary He hath declared of a Prescription habere viam tam pedestrem quam equestrem pro omnibus omnimodis Carriagiis and upon that Prescription he cannot have a Cart-way for every Prescription est stricti juris Dyer That is well observed and I confess that the Law is so and therefore it is good to prescribe habere viam pro omnibus Carriagiis without speaking either of a Horse or a Foot-way CCCLXI. A. Enfeoffed B. to the intent that B. should convey the said Land to such person as A. should sell it A. sold it to C. to whom B. refused to convey the Land and thereupon he brought an Action upon the Case against B. And by Wray Chief Iustice and Gawdy Iustice here is a good consideration for here is a trust and that which is a good consideration in the Chancery is in this case sufficient Shute Iustice was of a contrary Opinion And afterwards Iudgment was given for the Plaintiff Mich. 29 Eliz. In the Common Pleas. CCCLXII Sir Richard Lewknors Case SIr Richard Lewknor seized of Wallingford Park Ante 162. made a lease thereof for years and dyed the Lessee granted over his term to another excepting the Wood the term expired and an Action of Waste was brought against the second Lessee by the Coparceners and the Husband of the third Coparcener being Tenant by the Courtesie Shuttlewood and Snag Serjeants did argue That the Action would not lye in the form it was brought and the first Exception which was taken by them was because the Action was general viz. Quod fecit vastum in terris quas Sir Roger Lewknor pater praedict ' of the Plaintiff cujus haeredes ipsae sunt praefat ' Defendent demisit And the Count was that the Reversion was entailed by Parliament unto the Heirs of the Body of Sir Richard Lewknor and so they conceived that the Writ ought to have been special cujus haeredes de Corpore ipsae sunt For they said that although there is not any such Writ in the Register yet in novo Casu novum est apponendum remedium And therefore they compared the Case to the Case in Fitz. N. B. 57. viz. If Land be given to Husband and Wife and to the Heirs of the Body of the Wife and the Wife hath Issue and dyeth and the Husband committeth waste the Writ in that case and the like
in a way to the Church and that by reason of the custom of the Land and not in their Person Vide 7 E. 4. 26. Where it is pleaded That all the Inhabitants within such a Town have used to have Common there and for a Township to have a way to the Church and by Danby it is good and Littleton said it ought to be pleaded by way of Vsage and 18 E. 4. 3. All the Inhabitants of such a Town time out of mind have used to have Common c. Where a difference was taken where the Prescription is in the Person and where in the Land. 15 E. 4. 29. Cooper Inhabitants of a Town may well prescribe and he vouched Bracton 222 223. Quando acquiritur ex longo usu sive constitutione cum pacifica possessione continua non interrupta ex scientia negligentia patientia Dominorum Et etiam omitti potest per negligentiam and he vouched Britton 144. Common is obtained by long sufferance and also may be lost by long negligence c. The Case was adjourned CCCLXX Mich. 5 Jac. In the Common Pleas. TEnant for life of a Rent acknowledgeth a Statute and releaseth to the Terr-tenant the Statute is forfeited It was holden by Cook and two other of the Iustices in Communi Banco That the Rent as to the Conusee was in esse CCCLXXI IT was holden by Yelverton in his Reading That if a man makes a Lease for two years and confirms the Estate of the Lessee for 20 years it is a good confirmation for 20 years because that all is but a Chattel CCCLXXII IF 2 Ioyntenants are for life and the one grants his Estate for the life of his Companion it was holden to be a Forfeiture for first it is a Severance of the Ioynture and then a Lease for the life of another CCCLXXIII Mich. 5 Jac. In the Common Pleas. TWo men were joyntly bound in an Obligation the one is Principal the other is Suerty the Principal dyed the Suerty took Administration and the Principal having forfeited his Obligation the Suerty made an Agreement with the Creditor and took upon him by Bond to discharge the Debt In Debt brought by another Creditor of the Intestate upon fully Administred pleaded by the Administrator it was a Question if upon shewing of the Obligation and that he had satisfied it and contented it in his proper Debt he should be relieved upon that Plea. It was adjudged he should not because by the joyning with the Principal the Debt became his own Debt CCCLXXIV IF Land be given to A. and B. for the life of C. the remainder to the right Heirs of A. or B. who shall survive It was holden That if A do release to B that the remainder was destroyed And if Land be given to one in Tail and if J. S. comes to Westminster such a day the remainder to J. S. in Fee if the Estate-tail descends to two Coparceners who make Partition now if J. S. come to Westminster the Fee shall not accrue because the particular Estate is not in the same plight as it was before CCCLXXV Mich. 5 Jac. In the Common Pleas. IT was resolved That a Copyholder was not within the Statute of Wâ—â—ls CCCLXXVI Mich. 5 Jac. In the Common Pleas. A Man makes a Feoffment with warranty If the Feoffee brings a Warrantia Chartae against the Heir who pleads riens per discent at the time of the Voucher and it is found for the Tenant It was holden That the Plaintiff should never after have Execution of Lands which after descend for that it is peremptory for the Demandant CCCXXLVII Mich. 5 Jac. adjudge acc ' THe Queen hath the Isle of Garnsey and cognisance of Pleas within it for her Ioynture A man within Garnsey being disturbed to present to a Church which is void brings a Quare Impedit in Communi Banco It was holden in this Case That Garnsey is an Island where our Law runneth not but it is otherwise of the Isle 〈◊〉 Man c. And it was said That if the King grants cognisance of Pleas a man shall not have cognisance of Quare Impedit Assise Redisseisin c. CCCLXXVIII Mich. 5 Jac. In the Common Pleas. NOte It was resolved by the Iustices That if a Parson takes a Benefice above the value of 8 l. with a Dispensation and afterwards takes a 3 l. Benefice that the first Benefice is void by the Statute of 21 H. 8. cap. 13. CCCLXXIX 44 Eliz. In the Kings Bench. NOte It was said that it was adjudged 44 Eliz. in Banco Regis That if Lessee for life granteth his interest to his Lessor that the same shall not enure as a Surrender because there wants words of Surrender but shall enure by way of Grant only CCCLXXX Hil. 5 Jac. In the Kings Bench by Cook. IT was holden by Cook Chief Iustice 1 Roll. 844. Syderf 445. If a man seized in Fee deviseth that after the death of his Son without issue that J. S. shall have his Lands that in that case the Son hath an Estate in Fee determinable and that the Remainder is good Mich. 5 Jac. In the Kings Bench. CCCLXXXI Balls Case A Copyholder pleaded That the Custom of the Manor was that every Copyholder for life might appoint in the presence of two others that such a man should have his Copy-hold after his death without any Surrender to his use and that the two Tenants should assess for his Fine what Sum they pleased so as it was not lesser than had used to be paid where the Lord would assess a reasonable Fine and it was adjudged that it was a good Custom Pasc 6 Jac. In the Common Pleas. CCCLXXXII Glascocks Case A Copyholder alledges the custom to be That all the Tenants within such a Manor in Essex had used to cut down Trees to repair their Copyhold and Freehold Tenements within the Manor and also to sell their Trees at their pleasure And adjudged a good custom Mich. 1 Jac. In the Common Pleas Rot. 854. CCCLXXXIII Sapland and Ridlers Case IT was adjudged after long Argument That where the custom of a Copyhold Manor was to admit for life and in remainder for life at any time when there is but one Copyholder for life in possession And during the minority of the Heir within the age of 14 years his Guardian in Soccage in his own name admits a Copyholder in remainder for life that it was a good Admittance according to the custom and he was Dominus pro tempore well enough as to that purpose although it was objected by Walmsley That the Guardian is but a Servant and not Dominus but because it was agreed that he had a lawful interest the admittance was good And so it was adjudged Pasc 3 Jac. In the Common Pleas. CCCLXXXIV Duke and Smiths Case IT was agreed That if he in the Reversion suffereth a Common Recovery to Vses his Heir cannot plead that his Father had not any thing at the
time of the Recovery for he is estopped to say that his Father was not Tenant to the Praecipe and therefore it is a good Recovery against him by way of Estoppel CCCLXXXV Mich. 6 Jac. In the Kings Bench. IN a Writ of Error brought upon a Iudgment given in Communi Banco in an Ejectione firmae upon a Lease of a Running Water it was agreed by the Court That no Livery could be made of Running Water because it is fugitive but otherwise it is of Water in a standing Pool for that is certain and peramount and of that Livery ought to be with a dish of part of the Water CCCLXXXVI Duncombs Case In the Common Pleas. THe Grantee of a Rent-charge for life acknowledgeth a Statute and afterwards he released to the Terr-tenant It was the Opinion of Cook Chief Iustice in Communi Banco that the Rent after the Release should be put in Execution upon the Statute CCCLXXXVII The Opinion of Popham Chief Justice in the Kings Bench. IT was the Opinion of Popham Chief Iustice That if a man covenant to stand seized to the use of himself for life the remainder to the use of his Executors that in that Case the Executors shall take to the use of their Testator But if a man covenant upon good consideration to stand seized to the use of the Executors of a stranger that the word Executors is a word of Purchase and they shall take to their own use CCCLXXXVIII Mich. 7 Jac. In the Common Pleas. COok Chief Iustice put this case If the custom of a Manor is that every Tenant at his death shall pay his best Beast for a Heriot if a Feme sole who is Tenant for life of this Manor taketh a Husband and afterwards dyeth if the Lord shall have a Heriot Dodderidge the Kings Serjeant said that he should not because that the Wife had not Goods Mich. 7 Jac. In the Common Pleas. CCCLXXXIX Wards Case AN Information was against Ward and his Wife for his Wives not coming to the Church upon the Statute of 28 35 Eliz. It was said by Cook Chief Iustice That the Husband is chargeable for the Recusancy of his Wife and he said there needed no Conviction but before an Information the Husband shall not be chargeable for his Wife but where he is named with the Wife and he said That the King had a Fee-simple in their Lands for he hath it to him and his Heirs and Successors until conformity with satisfaction of the Arrearages Vide Statut. 28 Eliz. Rastal Tit. Corone Mich. 3 Jac. In the Common Pleas. CCCXC Wheelers Case A Copyhold custom is That a Woman shall have a Free Bench quam diu se bene gesserit and live chaft and she is incontinent of which the Lord hath not notice and the Lord admits her Tenant It was holden it should bind the Lord although he had not notice of the Incontinency Mich. 5 Jac. In the Star-Chamber CCCXCI Edwards and Wattons Case NOte for Law in the Star-Chamber If a man write a scandalous Letter unto another and put his name to it if the party who writ it publisheth the same either before or after the delivery an Action upon the Case lyeth against him at the Common Law But if the party who writes it doth not publish it yet he may be sued for the same in the Star-Chamber And it was said in this Case That he who receives Books which are written against the Religion established in the Kingdom and shews them to others with Comments of them he runs into a Praemunire by the Statute of 4 Eliz. CCCXCII Rolls tit Waste THe Case was A. made a Lease of White Acre to B. upon condition he should do no Waste in which there was a Fish-pond stored with Carps Pikes and their Fry C. destroys all the Fish B. being upon the Land for which A. enters 1. If the destruction of all the Fish and their Fry be Waste within the Statute of Gloucester It was said that it was for they are parcel of the Inheritance as are Deer within a Park enclosed But it was adjudged 29 Eliz. in Communi Banco in Moyle and Ewers Case That where a Lease of a Manor was in which was a Warren of Conies and the Lessee destroyed the Conies that it was not waste for they were ferae naturae and the Land bettered by them and such was the Opinion of Walmsley Iustice although the Conies were in a Warren paled and enclosed with a Wall but the destroying of Doves in a Dove-house is Waste And it was adjudged in Sir Francis Palmers Case 9 Jac. in B.R. That although the cutting of Vnderwood was not Waste yet the eradicating of it was Waste The other matter was If the destruction of the Fish by a Stranger the Lessee being upon the Land were waste it was said it was waste for qui non vetat peccare cum possit jubet and it was said That if a man commit waste or suffer another to do it he did incur the penalty in the Statute But in this case it was said That a Condition to defeat an Estate should be taken strictly As if a Custom be that if a Copyholder for waste done shall forfeit his Estate if a stranger doth the waste it is no Forfeiture for three things in Law shall be taken strictly Conditions Customs Penal Laws As if the Custom be That an Infant at the age of 15 may make a Feoffment he cannot make it by Attorney And it was adjudged 1 Jac. in Communi Banco in Woodleys Case So the Statute of 5 E. 6. a Penal Law is That a man shall not buy any Victual to sell the same again Yet it was adjudged That where a man buys Meal and makes the same into Starch and sells it he may well justifie the sale thereof and it is out of the Statute because it is not the same thing Pasc 8 Jac. In the Kings Bench. CCCXCIII Wards Case IT was adjudged in this Court That if a Mill be set upon Posts that no waste lyeth for it and that a Copyhold might be of a Mill as it was adjudged in Green and Harris's Case Also it was said That there is a real and personal Forfeiture of Copyhold Lands Real is not necessary to be found by the Homages as was resolved in Brocks Case but otherwise it is of a Personal Forfeiture And Hil. 8 Jac. a Woman Copyholder built a new House upon the Land and it was agreed to be a Forfeiture Pasc 8 Jac. In the Common Pleas. CCCXCIV Brown and Tuckers Case IF a man have Estovers to such a House 4 Co. 84. and he enlargeth his House or buildeth more Houses or Chimneys the Estovers remain to all the Houses and Chimneys which were there before and not to those added or new builded as it was adjudged Pasc 8 Jac. In the Common Pleas. CCCXCV Batcliffe and Chaplins Case 1 Roll. 623. IN an Ejectione firmae between Ratcliffe and Chaplin upon not
guilty pleaded it was given in Evidence That time out of mind a Custom had been used and that proved by Witnesses that the eldest Heir be it Male or Female should inherit the Land and that it appeared in the Court Rolls of the said Manor of which the Land in question was parcel two Presidents to prove that the eldest Sister ought to inherit and that the youngest Sister should have nothing in the Land the one President was 8 Eliz. and the other 18 Eliz. In the other side in disaffirmance of the custom it was given in Evidence divers Court-Rolls 6 H. 4. and especially one President That both Sisters should inherit as Coparceners did by the common Law notwithstanding which the Iury found for the custom in regard they upon their own knowledge knew the usage of the Country and that in divers places it had been so used in the Hundred within which this Manor was But in this case it was agreed by the Court That if the custom had been that the eldest Sister only should inherit yet by that custom the eldest Aunt or the eldest Neece should not inherit the Land And so it is in the case of Borough English where the custom is That the youngest Son shall have the Land it doth not give it to the youngest Vncle for customs shall be taken strictly and Foster Iustice said That so it was adjudged in one Totnams case And in the Argument of this case it was said by Cook Chief Iustice That there are two Pillars of Custom one the common usage the other that it be time out of mind and therefore upon the Evidence given to the Iury the Court enforced the parties which maintained the custom to shew Presidents in the Court-Rolls to prove the usage and he said that without such proof and that it had been put in ure although it had been deemed and reported to have been the true custom yet the Court could not give credit to the promise by Witnesses Pasc 8 Jac. In the Common Pleas. CCCXCVI Arden and Goads Case IN an Action of Trespass upon the Case for divers Goods the Declaration was of Trover and Conversion of them to the Defendants use Vpon Not Guilty pleaded they were at Issue and there an Inventory of the Goods was given in Evidence to the Iury as the Goods were apprised by Vpholsterers And in this Evidence another Point did arise These Goods were taken in Execution and delivered to the Defendant by the Sheriff and afterwards the Owner of the Goods against whom the Execution was awarded made a Deed of Gift of them to the Plaintiff by these words scil He granted all those Goods which were late put in Execution Cook Chief Iustice said That Quacunque via data that Deed could not entitle the Plaintiff to the Goods for it is a Dilemma for Posito that the Goods were put in Execution then they did not pass and admit that they were not put in Execution he did not grant but only those Goods which were in Execution and so there is an opposition and afterward Iudgment was given for the Defendant Pasc 8 Jac. In the Common Pleas. CCCXCVII The Earl of Rutland and Spencers Case THe case was 8 Co. 55. The late Queen Elizabeth granted to the Earl of Rutland the Office of Parkership and Constable of c. Habendum from the time of his full age for life and also by the same Patent she granted him the Stewardship of a Manor Habend ' praedict ' Officia pro termino vitae per Deputatum suum vel Deputatos suos c. eidem Officio pertinent ' in tam amplis modo forma c. Volentes quod subditi nostri sint auxiliantes assistentes to him And after that one as Steward to that Court came and made Proclamations and also did the Deputy of the Earl of Rutland And thereupon the Earl of Rutland brought an Action upon the Case against the other In this case three Points were moved by Nicholls Serjeant 1. If a Stewardship granted by the King might be exercised by a Deputy without such authority given him in his Patent And he took a Difference between an Office of Trust and other Offices as in 28 H. 8. of a Carver c. and 11 E. 4. 1. the Office of the Chancellor of the Exchequer and such Offices cannot without special Authority be assigned over 39 H. 6. 34. Of the Office of Marshal per se vel sufficient ' Deputatum c. Nevills Case in the Commentaries Offices of trust which are inheritances may be executed by Deputy 8 Eliz. Dy. 248. A Steward may be retained by word and he said There is a difference between a Deputy and an Assignee for an Assignee can forfeit but his own Estate but a Deputy shall forfeit the Estate of his Master and therefore if a Steward grant his Office for life who hath the Office in Fee the Grantee shall forfeit no more than his Estate for life 2 E. 6. Br. If the under Steward make Admittances it is good and yet he is but a Deputy but if it be out of Court then it ought to be by a special Custom Vide 2 Eliz. Dyer The Office of Chyrographer granted for life and exercisable by a Deputy And he said That in these Letters Patents the intent shall be taken beneficially for the Subject and that for the Honour of the King if the King be not deceived in his Grant. Vide 6 E. 6. Dyer 77. Dodderidge to the contrary and he took a difference between Offices of Trust granted for life and those which are granted in Fee for he who hath it but for life cannot assign them over for the Grantor did not intend that another person should have the Office unless express mention were made in the Grant of Assignees But when the Office is granted in Fee there is no such confidence put in the person of the Grantee for his heir shall have it who is a person not known to the Grantor But in all cases the Grantee is elected for his skill I agree 10 E. 4. 10. he may make a Deputy by special words but then that Deputy by those words cannot make a Deputy That a Steward is an Officer of trust is proved for he enters Plaints in the Court and Surrenders and although he hath not a Iudicial Place yet he hath a Ministerial Place and the Lord and Tenants repose their trusts in him And it is also an Office of Skill Vide 21 E. 4. 20. That the Office of the Keeper of a Park Steward c. cannot be assigned without special words of Assignees And as to the Case which was put by Nicholls 8 Eliz. That one may make a Steward by word and therefore an Assignee for life by word it is a Non sequitur And he said That for another cause in the Patent it self no Deputy in this case could be made for although the words are Habendum Gaudendum c.
20 Of omnia bona by an Executor what passeth 22 Of a Reversion by a Bishop 23 Of the Office of a Sheriff 33 Habeas Corpus WHere the cause of Commitment must be retorned upon it Where not 21 Heirs The second Son shall inherit the Land purchased by his eldest Brother notwithstanding the Attainder of the Father 5 Jeofails WHere upon a Jeofail the Court awarded a Repleader 19 Indictment Quare Clausum A. B. fregit held good notwithstanding A. had but a Lease at will of the Land. 6 De uno Equo for a Gelding not good But where Trespass is brought de Equo ellato and the Jury find a Gelding c. it is otherwise ibid. Upon Stat. 13 Eliz. c. 8. for being a Broker in an usurious Contract for which he incurred a Premunire 32 Upon Stat. 5 E. 6. against P. for drawing his Dagger in the Church against J. S. holden void for that it is not said he drew it with intent to strike the party 49 Upon Stat. 8 H. 6. two Exceptions taken to it but disallowed ibid. For stopping quandam viam valde necessariam quashed for want of the word Regiam and for that the party indicted had not any addition therein 121 Infant Makes a Lease for years and at his full age says to the Lessee God give you joy of it the Lease is thereby affirmed 4 If an Infant being in Execution sues a Writ of Error and is bailed the Recognisance shall be by his Bail only that he shall appear and if Judgment be affirmed that they pay the mony and not render his Body to Prison 6 Inmates Who shall be accounted Inmates upon the Stat. of 31 Eliz. 10 Interest Difference between an Interest and a Limitation 33 Judgment Shall not be stayed upon Allegation that one of the Defendants was dead after Verdict for the Court cannot take notice of it judicially nor any of the parties have day in Court to plead it besides the party is not without remedy for he may have a Writ of Error 15 If the Court may reverse their own Judgment Quaere 60 Reversed for Error in omitting the Costs the Jury gave 61 Jurors Where bound by confession of the parties where not 56 A Juror before the Retorn of the Pannel became a Minister of the Church and therefore prayed to be discharged according to the priviledge of those of the Ministry but it was not granted because he was a Lay man at the time of the Pannel made 190 Justice of Peace One cannot be Justice of Peace by Prescription 149 Lease OF a Manor c. with all the profits of a Wood except 40 Trees to the Lessor to take at his pleasure the Wood is not comprised within the Lease but the Lessee shall only have the profits as Pawnage Herbage c. 9 If a man makes a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit the Lessee cannot thereby cut the Trees nor do waste 9 Made by a Corporation void for Misnosmer 11 Good to maintain an Ejectione firmae 14 Leases by a Baron contrary to Act of Parliament void 17 By Tenant at will if a disseisin 35 Leases made by Prebendaries within the Equity of the Statute of 32 H. 8. c. 28. 51 Leet Pound breach is not inquirable there 12 But excessive Toll is ibid. Nobleman SHall be bound with Bayl in a Recognizance to render his Body 6 By 13 E. 1. if he hath not Goods or Lands his Body shall be taken in Execution ibid. Obligation Forfeited 18 Outlary How avoided by Plea in person 22 186 Payment OF Rent before the day by the Obligee doth not discharge him 4 Of a Debt generally by a Surety Executor to the Principal if it shall be as Executor or as Obligor Quaere ibid. Pleadings In a special Justification in Trover the place of Conversion may be traversed but where a Justification is general the County is not traversable at this day 4 It is no good Plea for the Tenant in a Writ of Entry sur disseisin to say that the House in demand is within the City of London whereof he is a Citizen and that King H. 3. concessit civibus c. quod non implacitentur c. extra muros Civitatis praed sed illis rectum teneatur infra Civitatem praed secundum cons Civit. praed For he ought to have shewed That the Citizens for their Lands there ought to be impleaded in the Hustings 13 In Trespass for pulling Hurdles c. the Defendant justified by Prescription to have a free course for Sheep in the place where c. and because the Plaintiff erected Hurdles without leave of the Lord of the Manor the Defendant cast them down prout c. the Plaintiff replyed of his own wrong without cause and held naught for he should have traversed the Prescription 17 Traverse of the place in Trover where good 22 Special Plea to an Assumpsit not good and why 31 Posse Comitatus It differs from Posse Manerij 87 Possessio Fratris Where it shall not be of Copyhold Lands 38 Previledge Denied to the Treasurer of the Records of the Kings Bench and why 81 Prohibition If the Parson Libels in the Spiritual Court against the owner of Lands for Tythes which he severed but a Stranger took and carried away no Prohibition shall issue for that he might plead the same matter in bar in the Spiritual Court. 7 To the Spiritual Court to stay a Suit commenced there for Tythes upon a Prescription shewed in the Kings Bench. 25 Granted to stay a Suit in the Court Christian commenced against an Executor by one for a Legacy bequeathed to him by his Father who willed his Goods should be parted amongst his Children according to the Custom of London 12 Upon claim of Property 150 Quare Impedit May be brought by Executors to remove a Clerk collated wrongfully in the life time of the Testator 15 Recognizance IF a Recognizor of a Recognizance acknowledged before a Master in Chancery dye before it be inrolled it may be inrolled at the Petition of his Executors 8 Common Recovery Feme not party to the Writ of Covenant not bound by Recovery 26 Remainder Where void 21 Resceit One prayed to be received in a Formedon and was ousted of it by the Court. 51 Reservation Of Rents upon a joint Lease 27 Difference between a Reservation and a Contract 29 Retorn Of the Sheriff where void 21 Sale. OF a Bayliwick of an Hundred is not within the Statute of 5 E. 6. c. 16. 33 Of Goods by the Sheriff upon Execution where good where not 20 21 Surrender If Lessee for years take a second Lease from Guardian in Soccage made in his name it is a surrender of the first Lease 7 What shall be said to be a surrender of a Term what not 30 Treason UPon Attainder of Treason who shall seize the Goods for the Queen 34 Tythes Unity no discharge of Tythes 47 Venire Facias GRanted de novo after Verdict for that the first Venire Facias was of K. only for that it ought to have been de Vicento de K. W. 85 Vesturam terrae He who hath Vesturam terrae cannot dig the Land. 43 Those who have Lot-Meadow viz. to change every year according to Lots have not any Freehold therein but only Vesturam terrae 43 Writ DE fama gestu what it is 40 FINIS