he lost his Common the Jury found that the Defendant did not put in the Beasts but they of themselves depastured there 1. The Jury have found the substance of the issue for the Plaintiffe the depasturing there and it is not materiall if he put them not there 2. This Action lyeth for the Commoner for he may distreine damage feasant and it may be that with strong hand he is hindered to distreine and so if he shall not have this Action he is remedilesse 2. A Commoner who had freehold in the common shall have an Assize Ergo a Copy-holder shall have this Action 3. The wrong ought to be so great that the Commoner loose his Common as a Master shall not have an Action for beating his Servant without losse of his Service and it appeareth not to the Court that there are more Commoners then he and if there be yet an Action lyeth because each had private damage and it is not like to a common Nusans which shall be punished onely in a Leete if there be not speciall damage but be the Trespasse never so little the Lord may have an Action of Trespasse The Lord Sanchars Case 10. Jacobi fol. 117. For procuring the Murther of John Turnor Mr. of Defence 1. REsolv That a Baron of Scotland shall be tried by Commons of England 2. The Indictment of the accessory in one County to a Fellony in another County by the Statute of 2. E. 6. c. 24. shall recite that the fellony was done in the other County for an Indictment is no direct affirmation of the fact 3. The Justices of the Kings Bench are within these words of the Statute Justices of Gaole-delivery or Oyer and Terminer for they are the supreame Judges of Gaole-delivery 4. The Lord Sanchar cannot be in the Terme-time Arraigned in Midd. before Justices of Oyer and Terminer because Justices of Oyer and Terminer shall not sit in the same County where the Kings Bench is but the principalls were Arraigned in L. in the Terme-time because this is another County 5. There needs not be 15. dayes for the returne of the Venire facias upon an Indictment in the same County where the Kings Bench is otherwise in another County 6. Because there is no direct proofe that the Lord S. commanded one of the principalls but that he associated himselfe to one who was commanded the best way is to arraigne him as accessory to him whom he commanded but if he be Indicted as accessory to two and found accessory to one of them this is good The word Appeale in the Statute of W. 1. c. 14. is to be intended generally Viz. By Indictment by Writ or Bill c. and attainders is to be intended upon any such accusation Ergo if upon any such accusation the principall be attainted erroneously the accessory may be arraigned because the attainder is good untill it be reversed but if the Accessory be Hanged and after the Attainder against the principall is reversed the Heire of the Accessory shall be restored to all which his Father lost either by entry or Action By 5. H. 4. cap. 10. none shall be imprisoned by Justices of Peace but in the Common Gaole whereby it appeares that Justices of Peace offend who commit Fellons to the Counters in L. and other Prisons which are not Common Gaoles Cases in the Court of Wards Anthony Lowes Case 7. Jacobi fol. 122. A. L. Tenant of 59. Acres parcell of the Mannor of A. by chivalry and Suite of Court to B. whereof A. was parcell and both A. and B. were parcell of the Duchie of L. out of the County Palatine holden formerly of the King in Chivalry in Capite and of another House there holden of A. by fealty and rent H. 8. grants the rent by release to him and confirmeth his estate in the said Lands by fealty onely and grants to him the Mannor of A. Tenendum by fealty and rent It was Objected that when the King grants the Seigniory to his Tenant the ancient Seigniory is extinct and a new one that is best for the King created Viz. Chivalry 2. When he extinguisheth services parcell of the Mannor of A. this shall be holden as the Mannor of A. is that is by Chivalry But resolved that the 59. acres and house shall be holden by fealty onely and as to the said Objection the release of the King doth not extinguish service which is inseparable to a Tenure that is fealty but all others are gone and true it is when the K. grants and expresseth no tenure it shall be by Chivalry but when the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be as Feoffee of Tenant in Frankalmoigne shall hold by fealty onely and here although they grant the services yet he limits the grantee to doe fealty A Knights fee is not to be taken according to the quantity but the value of the Land as 20. l. per annum and a Hide of Land is as much as a Plough can Plough in a yeare Reliefe is the fourth part of the annuall value that is of a Knight five pound of a Baron a 100. Markes of an Earle 100. l. of a Marques 200. Markes of a Duke 200. l. The Eldest Sonne of E. 3. called the black Prince was the first Duke in England and Robert Earle of Oxford in the Raigne of R. 2. was the first Marques and the Lord Beaumont was the first Viscount created by K. H. 6. Floyers Case 8. Jacobi fol. 125. BAron and Feme seized of Lands holden in Chivalry in right of the Feme in Fee levy a Fine to one who grants and renders to them and the heires of the Baron and levy another Fine to their use for life the remainder to their three Sons in taile one after another the remainder in fee to the heires of the Baron the K. shall have neither wardship of body nor Land 1. Resol That is out of the Statute of 32. H. 8. cap. 2. if he who had the fee dye c. in respect the estate by the first Fine did not continue and this although both the Conveyances are voluntary 2. The King shall not have wardship of the third part because it is not for advancement of the Wife for in the first Fine the Land moved from her and shee had no more by the second Fine then by the first 3. In regard the particuler estate is out of the Statute no wardship accrueth to the King by advancement of him in the remainder but if a revertioner upon an estate for life convey it to the use of his Wife this will give wardship of the body of the heire for he in revertion is tenant if a Lease for life be the remainder to two and to the heires of one he who hath the fee dyeth his heire shall not be in ward if the heire of one joyntenant who had the fee dye of full age living the tenant for
a Stranger be not in another part of the House but this was before 39. Eliz. cap. 15. whereby clergy is taken away without putting any feare if he rob any man of above the value of five shillings Accessory before in robbing a House in the day is ousted of Clergy by 4. 5. Phiâ— Mary Accessory in robbing a Booth in the night or day or out House upon 39. Eliz. shall have his Clergy Nota Although a Statute takes away Clergy from the principall yet the accessory before or after shall have it and where by statute for any offence a man is ousted of his Clergy the indictment must containe the offence with the circumstances in the Statute Dyer 99. and 183. And A. P. was ordered to be hanged in Chaines c. Metcalfs Case 12. Jacobi fol. 38. In Accompt IUdgement is given against M. Quod computet ideo in misericordia quia prius non computavit and before finall Judgement Error is brought 1. Resol It lyeth not 1. Because the Writ of Error saith Si juditium inde redditum sit which shall be intended of the principall Judgement as the Feast of St. M. shall be intended the principall Feast and the Feme shall be received upon default of her Baron after judgement of admeasurement before the principall judgement 2. It shall be intended an intire judgement therfore in an action against two if one plead to the issue and the other confesseth and judgement given against him he shall not have error before the Plea determined against the other for otherwise there would be a failer of right for the Kings Bench cannot proceed upon the Record nor the Common place because it is removed 3. The first judgement is not ad grave damnum for by that he looseth nothing but judgement of the arrearages and damages is the end of the originall 4. This is not properly a Judgement but an Award of the Court as ouster of ayde in partitione facienda an awarde quod partitio fiat c. which are but interlocutory and not definitive 5. They have day by the Roll untill the last judgment but if a Felon dye after the exigent awarded and before attainder a Writ of Error lyeth for necessity for otherwise his goods are forfeited by awarding of the exigent without remedy if diverse are sued by severall Praecipes and Judgement given against one he shall have error before judgement given against the other and if error be in the originall the tenor onely shall be certified for otherwise the Court cannot proceede against the others 2. It was Resolved That the Record is not removed because untill finall Judgement be given the Chiefe Justice of the Common place hath no authority to send it and they may proceed notwithstanding the Roll be marked Mittitur Richard Godfreys Case 12. Jacobi fol. 42. TWelve chiefe pledges according to the custome of the Mannor to present at the Leet that every one of themselves ought to pay for themselves 10 s. pro certo letae the Stewart imposeth a Fine of 6 l. upon them the Lord distreineth for the Fine and certainty of Leet one of the pledges brings Replevin and judgement was given for the Plaintiffe 1. Resol The Fine is not well assessed for it ought to be severall and not joynt as it is because the offence is severall and although that the offence be joynt yet the Fine shall be severall as in disseisin and trespasse But for the incertainty of the persons and infinitenesse of the number many may be fined together as a Towne for the escape of a Felon and the reasonablenesse and excessivenesse of the Fine shall be determined by the Judges Excessus in re qualibet jure reprobatur communi as excessive distresse excessive ayde and excessive amerciament are against the Common Law 2. If the Fine be imposed erroneously it may be avoyded by Plea for he had no other remedy 3. The Lord cannot distraine pro certo Letae without prescription because it is against common right but he may for a Fine or amercement but for an amercement in a Court Baron the Lord must prescribe a Fine because it is assessed by the Court needs not to be affered but an amercement must be affered by the Countrey 4 Admitting that he may distraine pro certo Letae he shall have a returne although hee had not cause to distraine for the Fine for where one brings an Action for two things and it will not lie for one of them it shall abate onely for that if he cannot have a better action for it but if he may it shall abate for the whole as in a Formedon of Land and of an advowson the Writ shall stand for the Land so if a man avow for diverse Rents arreare and it appeareth that parcell is not yet due yet the avowry is good for the residue but if a man bring a Writ of Entry in nature of an Assize of two Acres where it appeareth that for one Acre he ought to have a Writ of Entry in the per there all shall abate for this extends not to the action but to the Writ onely Richard Lifords Case 12. Jacobi fol 46. IN trespasse the Defendant pleads that J. L. was seized in fee and demised to T. S. and M. P. excepting Trees above twenty one yeares growth if not decayed for their lives and covenanted to stand seized de tenementis predictis cum pertinentijs superius dimissis to the use of R. L. in taile c. and the Defendant as Servant to the sayd R. L. entered and sold Trees and Judgement was given against the Plaintiffe 1. Resol That the Trees notwithstanding the exception remaine parcell of the inheritance and are not Chattels but shall descend to the Heire for the Law doth not favour severance of the Trees from the Land therefore if one bargaine and sell Land upon which there are Trees they shall not passe without inrolement 2. If there had not been such an exception the generall interest of them is in the Lessor and the Lessee had but a particular interest in them and the Lessor may sell them without license of the Lessee to take effect after the Lease determined and tithes shall not be payd for them because they are parcell of the inheritance 2. By the exception of them the soile is not excepted but onely so much as sustaineth the Tree and if he by licence of the lessee root them up the lessee shall have the soile but by exception of Wood the Land it selfe is excepted if an Acre or an advowson be severed from the Mannor by exception upon a Lease for life it shall not be parcell of the Mannor againe otherwise of trees for they were not severed in facto because they grow out of the Land 3. A thing in possession cannot be parcell of a reversion upon an estate for life but Trees which grow out of the Land and Fish or Deer in the Land may and shall passe with it
the estate of the land which all the Court agreed 5. If the Fine had not been the auncient uses were determined without entry or claime because he himselfe was tenant for life of the land and the act of revocation is as strong as claime and this point was agreed in the Earle of Salops case 6. By the same conveyance that the auncient uses are revoked others may be raised without claime or other act and the Law adjudges a priority of operation Whites case adjudged according Maildmayes Case 24. Eliz. fo 175. A Use cannot be raised by any covenant proviso or bargaine c. upon a generall consideration and therefore if a man by Deed indented and inrolled c. for divers good causes considerations bargaine and sell his Land to another and his heires nihil operatur inde for no use shall be raised upon such generall considerations for it doth not appeare to the Court that the bargain or had quid pro quo But the bargainee may averre that money or other valuable consideration was paid or given if in truth it was so and the bargaine and sale is good It was resolved that when uses are raised by covenant in the consideration of advancement of any of his bloud and after in the same Indenture a Proviso that the Covenantor may make Leases for yeares c. that the Covenantor in this case may not make Leases for yeares to his sonne daughter or any of his bloud much lesse to any other person because that the power to make Leases for yeares was voyd when the Indenture was sealed and delivered For the covenant upon this generall consideration will not raise any use and no particular averment in this case may be taken but if the uses be limitted upon a recoverie fine or feoffment there needeth not any consideration to raise any of the uses Resolved that the words other consideration cannot comprise any consideration expressed in the Indenture before the proviso for other ought to be in quality nature and person different and advancement of his daughter is a consideration mentioned before Anthonie Mildmay brought an action of the case against Roger Standish for saying that Lands were lawfully assured to John Talbott for 1600. yeares and that he was lawfully possessed of the same tearme whereas in truth the said Lands were not lawfully assured for the said tearme nor the said John Talbott was lawfully possessed of the interest thereof And so for slaundering of the title by speaking of the words Mildmay brought an action Standish justified the words and shewed the title of Talbott and it was adjudged that the action was maintaineable and good although that Talbott had a limitation of the Land by will which was the reason that Standish being a man not learned in the Lawes affirmed the words yet because he tooke upon him the notice of the Law and medled in a matter that did not concerne him Judgement was given for Mildmay Et ignorantia juris non excusat THE SECOND BOOK Of Sir Edward Cooke Lord c. Mansers Case 26. Eliz. fo 3. IF a man be unlearned and cannot read and be bound to doe an act of sealing assurances writings c. upon tender c. he is not bound to seale and deliver any such writing if there be not some ready which may read the Deed if the party so require it and in the same language and tongue that he understandeth Ignorantia duplex est facti juris and ignorance in reading or of the language Quae sunt ignorantia facti may excuse but ignorantia juris non excusat and if it be read unto him he may not have a reasonable time to shew it to his Councell learned to see whether it agree with his bond or covenant for he must seale it at his perill or if the same be truly expounded to him it is good enough But if it be read amisse or declared contrary to what it is and thereby the illiterated man is deceived he may very well plead non est factum For the Law saith it is not his Deed and so it was adjudged in Throughgoods case being the third case in this second Booke Resolved that if a man be bound that a stranger shall doe an act in such case he takes upon him that he shall doe it at his perill for he which is bound takes more upon him for a stranger then for himselfe in many cases If a man plead that he hath kept a man indemnified c. he ought to shew how otherwise where he pleads in the negative Non fuit damnificatus Goddards Case 26. El. fo 4. AN obligation dated the fourth of Aprill Anno 24. El. and delivered as the Deed of the partie 30. July An. 23. El. adjudged the Deed of the partie for though the plaintiffe in pleading cannot alledge the delivery before the Date because he is estopped yet a Jury which are sworne to speake the truth shall not be estopped The Date of a Deed is not the substance of the Deed. For if it want date or have an impossible Date as the 30. February the Deed is good For there are three things of the essence or substance of a Deed viz. writing in paper or parchment sealing and delivery And if it have these three although it want In Cujus rei testimonium Sigillum suum apposuit c. yet the Deed is good and when a Deed is delivered it takes effect by the delivery not by the date Throughgoods Case 26. Eliz. fo 9. REsolved that 't is not materiall whether the party to whom the Deed is made or another by his procurement or a Stranger of his owne head reades the writing in other words then the writing is so that he that seales it be a lay man and without covin in him deceived and the pleading of it is alwayes generall without shewing by whom 't was read and A. shall voyde an obligation to B. by pleading that he did it â—y menace of C. Resolved that such a lay-man is not bound to deliver a Deed if no body be present that can reade it in such language as he can understand and if it be read in other words it shall not binde him and 't is at the perill of him to whom 't is made that the very effect and purport of it be declared if it be required but if he doe not request it he shall be bound by it though it be made contrary to his meaning Resolved that it shall not binde if the effect be declared in other words then it is as if the Deed had been read in other words Two Justices a Feoffement of two acres is read as of one it shall not binde see Mansers case before Wisemans Case 27. Eliz. fo 15. TEnant in tayle of certaine Lands the remainder to another in Fee he in remainder by Deed indented and inrolled in consideration of bloud c. as for other good considerations doth covenant to stand seized of the said
House and Tenant at will of Land and Tenant by coppy of other Land within the Mannor of S. to Fermor leased all for life to I. S. and also seised of other Land there in Fee levyed a fine with Proclamations of all Messuages and Lands which comprehends all those leases and also his inheritance by covin to dissinherit his lessor and after the fine alwayes continues in possession and payes the severall rents to F. The lessee for life dyes the yeares expire S. claimes the inheritance Resolved that the Lord of the Mannor was not barred by the said fine 1. The makers of the Statute of 4. H. 7. never intended that a fine levyed by Tenant at will yeares or Coppy which pretend no Inheritance nor title to it but intend the disherison of the Lord c. should barre them of their inheritance and where the Statute sayth That Fines ought to be of greatest strength to avoyd strife and debate This Feoffement and fine by the Lessee shall be the cause of strife where none was before 2. The Statute doth not intend that those who of themselves without such fraud could not levy a fine to barre those which had the freehold and inheritance should be inabled to levy a fine by making of an estate to another by practise and fraud 3. If doubt be conceived upon an act of Parliament 't is to be construed by the reason of the common Law and that so abhorres fraud and covin that all acts as well judiciall as others and which of themselves are lawfull and just yet being mixt with fraud and deceit are tortious and illegall If a Woman intituled to have Dower which is favoured in Law by covin causes a stranger to disseise the terretenant to the intent to bring Dower against him and recovers accordingly 't is all voyd So if a Feme covert or Infant much favoured in Law of covin causes another to disseise the discontinuee and infeoffe them they are not remitted Sale in Market overt shall not binde if the Vendee had notice that the property was to another or if the Sale be by covin the Law hath ordained the common Bench as a Market overt for assurance of Land by fine for it sayth Finis finem litibus imponit yet covin shall avoyd them A Vacat was made in Banco of a recovery had by covin 33 34. of the Queene adjudged where Tenant for life levyed a fine with Proclamations and five yeares passed and he dyed that the Lessor shall have five yeares after his death for though the Statute saves the right which First shall grow and the right first accrued to the Lessor by the forfeiture yet because the Lessor by covin of the Lessee might be barred for he expected not to enter till after the death of the Lessee 't is no barre and namely when the Lessee hath Land of Inheritance in the same Towne as in this case so 't was agreed in the same case if the Feoffee of the Lessee for life hath Lands in the same Towne and levys a fine c. the Lessor shall have five yeares after the death of the Lessee for he knew not of what land the fine was levyed not being party to the Indenture or agreement c. So the Judges have construed the act against the Letter for Salvation of the Inheritance of him in reversion And 't was said if the Feoffee of a Lessee for yeares who made a feoffement by practise hath Land in the same Ville and levy a fine and the Lessee payes the rent to the Lessor it shall not binde and in the principall case the payment of the rent after the fine makes the fraud apparant for by this the Lessor was secure and not cause of any doubt of fraud But 't was resolved if the Bargainee or Feoffee of A. perceiving that C. hath right levies a fine or takes a fine of a Stranger to the intent to barre C. this fine levyed by consent shall binde for nothing was done in this that was not lawfull and the intent of the act was to avoyd strife So if A. pretending title disseise B. and to the intent to barre the disseissee levies a fine for the desseisor Venit tanquam in arena and 't is not possible but the disseisee had knowledge of it and if he doth not enter 't is his folly But in the case at barre every one will presume that the fine is levyed of his owne Land because that he might lawfully doe and though this conteines more acres then his owne Land this is usuall almost in all fines and the covin of the Lessee is the cause of non-claime of the Lessor and a man shall not take advantage of his owne covin and here the fraud is the more odious because of the great trust viz. Fealty To the objection that it should be mischievous to avoyd fines upon such nude averments 't was answered that it should be a greater mischiefe principally if fines levyed by such covin should binde And an averrment of fraud may be taken by the Statute of 27. of the Queene against a fine leavyed to secret uses by fraud for to deceive Purchasors So by the Statute of 13. of the Queene an averrment may be taken against a fine levyed upon an usurious contract Twynes Case 44. Eliz in Cam. Stel. fo 80. IN an Information per Cooke Atturney Generall against Twyne of Hampshire for contriving and publishing of a fraudulent Deed made of goods The case upon the Statute 13. Eliz. ca. 5. was thus Pierce was indebted unto Twyne in 400. l. and to one C. in 200. l. C. brought an action of Debt against Pierce and hanging the Writ Pierce being possessed of goods and Chattells to the value of 300. l. in secret made a deed of all his goods and Chattells to Twyne in satisfaction of his Debt yet Pierce continued in possession of the same some of them he sold and his Sheepe he marked with his owne marke after C. had judgement a Fier fac to the Sheriff by vertue thereof Bayliffs came to make execution of the goods and divers persons by the commandement of Twyne with force resisted them claiming them to be the goods of Twyne by vertue of the same deed and whether this deed was fraudulent or no was the Question and 't was resolved by Sir Thomas Egerton Keeper of the Great Seale of England and by the chiefe Justices Popham and Anderson and all the Court of Star-chamber that this deed was fraudulent and within the Statute of 13. El. And in this Case divers things were resolved First That this Deed had the markes of fraud it was generall and without exception of his apparell or any thing of necessitie for dolosus versatur in generalibus Secondly The Donor continueth in the possession Thirdly It was made in secret Et dona clandestina semper sunt suspiciosa Fourthly it was made hanging the Writ Fifthly there was trust betweene the parties for
a grant but the common Law requires that he be so instructed that he be not deceived there a Non obstante supplies it and makes the grant good As the King having made a lease for life or yeares grants the land Non obstante that it be in lease for life yeares c. or if he grants the land and further grants the reversion of it depending upon an estate for life yeares c. 't is good See the booke at large Resolved when the words are not sufficient ex vi termini to passe the thing granted but the grant is voyd there a Non obstante will not serve as in the principall case and the Pattents were not holpen by 18. of the Queene ca ' 2. for Pattents of concealement are expressely excepted out of the Act. Terringhams case 27. El. in banco regis fo 36. REsolved that prescription doth not make a thing appendant except the thing which is appendant agree in quality and nature to the thing unto which it should be appendant as a thing incorporate as an advowson to a thing corporate as a Mannor or as a thing corporate as Lands to a thing incorporate as an office these may be appendant but every thing incorporate may not be appendant to a thing corporate as common of turbary may not be appendant to Land but to a Messuage or house as it is holden 5. ass 9. for the thing which is appendant ought to accord with the nature and quality of the thing to which it is appendant and turves ought to be expended in a Messuage The commencement of common appendant by the ancient Law was in this manner viz. When a Lord of a Mannor infeoffed another of arrable Lands to hould of him in Soccage id est per servicium socae the Feoffee ad maintenand ' servicium socae had common in the wasts of the Lord for his necessary beasts that did plowe and ayre his Lands and this common is of common right and commenceth by operation of the Law and in favour of tillage and therefore it needeth not to prescribe in that for so it is houlden 4. H. 6. 22. H. 6. as one ought if it were against common right But it is onely appendant to the ancient arrable Lands and onely for oxen horses kyne and sheepe c. And because it is against the nature of common appendant to be appendant to meadowe or pasture and because that here the prescription was to have common time out of minde to a house meadow and pasture as well as to arrable by which it appeares to the Court that there hath been a house meadow and pasture time out of minde 't was resolved that this common was appurtenant not appendant But if of latter times men have builded upon some part of such arrable Lands and some part thereof is imployed to meadow and pasture and this for maintenance of tillage the originall cause of common the common remaines appendant and it shall be intended in respect of the continuall usage of the common for beasts leavant and couchant upon such lands that at the beginning all was arrable But in pleading he ought to prescribe that the same is appendant to Land for though terra dicitur a terrendo quia vomere territur yet terra includes all and is arrable though converted to meadow c. For it may be plowed A man may prescribe to have common appendant to his Mannor for all the demeanes shall be intended arrable at least in construction of Law redd ' singula singulis it shall be appendant to such demeanes which are ancient arrable c. And when a man claimes common appendant to his Mannor no incongruity appeares of his own shewing as here So common may be appendant to a Carve of land which may containe pasture meadow and wood but it shall be applyed to that which agrees with the nature of the common Resolved that common appendant may be apportioned because 't is of common right for if a commoner purchase part of the Lands in which he hath common yet the common shall be apportioned as well as if the Lord purchase parcell of the tenancy the rent shall be apportioned And if A. a commoner enfeoffe B. of parcell of his ancient Lands the common shall be apportioned and B. shall have common pro rata And 't was agreed that such common which is admeasurable remaines after severance of part of the land to which c. But here for that the common was appurtenant 't was adjudged that by the purchase all was extinct for 't was against common right for by the act of the parties it cannot be in esse for part and extinct for part 'T was said that pertinens is the Latine word as well for appurtenant as appendant and therefore subjecta materia and the circumstances ought to direct the Court to adjudge the common appurtenant or appendant Resolved that unity of possession of the intire land to which c and of the intire land in which c. extinguishes the common appendant By Wray chiefe Justice common for vicinage is not appendant but for that it ought to be by prescription 't is resembled to common appendant but common appurtenant or in grosse may commence at this day by grant or prescription and by him the one may inclose common for vicinage against the other as hath been adjudged in Smith and Redmans case Resolved that a man may chase out beasts that doe him trespasse with a small dog and shall not be compelled to distraine them damage feasant Cases of Appeales and Indictments Brookes case 28. of the Queene fo 39. REsolved that in an appeale of Burglary 't was an insufficient count that the defendant domum c. felâ—… burgaliter fregit for it ought to be burglaâ—… or burgulariter which is vox artis as murdravit â—…it which cannot be otherwise expressed Resolved if the count had been sufficient he being â—…icted once should not be againe impeached but here he was discharged upon the insufficient count By Wray Chiefe Justice if upon accident a man and all his family are out of the house and one in the interim breakes the house and commits felony 't is burglary for the indictment is domum mansionalem fregit and so 't was resolved 38. of the Queene where a man hath two mansion houses servants in both and in the night when the servants are out c. the house is broken 't is burglary Wetherell and Darlys case 35. of the Queene fo 40. IN an appeale of murder the Defendant was found guilty of homicide and had his Clergy after indicted and arraigned for murther pleaded this conviction Resolved that 't is a good barre at common Law and restrained by no Statute the reason is because the life of a man shall not be brought twice in question for the same offence Youngs case 38. of the Queene fo 40. AN Indictment that dedit unam plagam mortalem circiter pectus
his consent and after the other two did alien without license and it was adjudged 28. Eliz. that in this case the condition being determined as to one person by the license of the Lessor it was determined in all for when the Lessee alieneth any part of the residue the Lessor may not enter into any part aliened with license and therefore the condition being determined in part is determined in all for the condition being entire may not be apportioned and 16. Eliz. Dyer 334. fuit deny per Popham Chiefe Justice Vide lit 80. b. 4. and 5. Ph. and M. Dyer 152. Bustards Case 1. Jac. fo 121. IN every lawfull exchange of Land this word Excambium imports in it selfe Tacite a condition and a warranty and the other a Voucher and recompence and all in respect of reciprocall consideration the one land being given in exchange for the other but that is a speciall warranty for upon the voucher he shall not recover other Lands in value but those onely which were given in Exchange and this warranty followes onely in privity for none may vouch by force thereof but the parties to the Exchange and their heires and no assignes If A give in Exchange three acres of Land to B. for other three acres and after one Acre is evicted from B. in this Case all the exchange is defeated and B. may enter into all his Lands Beverleys Case de non compos mentis in banco regis 1. Jac. fo 123. EVery act that a man De non compos mentis doth eyther concerning his Lands life or goods eyther done in Court of record or out of Court of record all acts that he doth in any Court of record eyther concerning his Lands or goods shall bind himselfe and all others for ever and those acts which he doth out of Court of record shall binde himselfe during life and in some Cases shall binde all others for ever so as the party himselfe shall not be admitted to stultifie himself or disable himself but an ideot a nativitate may not make Feoffment Gift Lease or Release but it may be avoyded during his Life by office at the Kings suite which shall have relation a tempore Nativitatis to avoyd all acts done by him and after his death the King shall deliver his Lands Rectis Haeredibus foure manner of men de non compos mentis 1. An ideot or foole naturally 2. One which was of good and perfect memory and by the visitation of God hath lost the same 3. Lunaticus qui gaudet lucidis intervallis who somtimes is of good and perfect memory and some other times Non compos mentis 4. He that is so by his owne act as a Drunkard All acts which a Lunatick during the time of his Lunacy doth and all acts which a mad man doth who once was of perfect memory and by the act of God hath lost his understanding are equivalent to the act done by an Ideot but the act which a man doth Qui Gaudet lucidis intervallis at such time as he is of good and perfect memory shall binde him and are good And a Drunkard who for the time of his Drunkenesse is Non compos mentis yet his drunkennesse shall not extenuate his act or offence but doth aggravate his offence and doth not derogate from the act which he doth during the time of his drunkennesse and that as well touching his Life Lands and goods as any other thing that concernes him The King shall have the custody of the Land goods Chattells c. of one non compos mentis to the use of him his Wife Children and Family a man non compos mentis shall not loose his life for felony or murder for no felony or murder can be committed without a felonious intent and purpose and he is deprived of reason understanding and intentions Dicta est fellonia quia fieri debet felleo animo furiosus non intelligit quid agit animo ratione caret non mulum distat a brutis as Bracton saith and stultus dicitur a stupore The End of the Fourth Booke THE FIFTH BOOK Claytons Case 37. Eliz. in Com. Banco fo 1. AN Indenture of demise dated 26. May 25. Eliz. to hold for three yeares from henceforth it was delivered at foure a clock in the afternoone of the twentieth of June after The Question was when the Lease should begin from henceforth shall be taken the day of the delivery inclusive idefi from the making or delivery Traditio loqui facit cartam this Lease must end the nineteenth of June in the third yeare after The day of the delivery is parcell of the tearme but a Die confeccionis or a Die datus the terme beginneth the day after the date from the date and from the day of the date is all one because that in judgement of Law the date includes all the day of the date c. Elmers Case 30. Eliz. Banco Regis fo 2. 1. REsolved that the Statute of 1. El. is a private act whereof the Court shall not take notice without pleading of it 2. Whereas the Bishop ousted his Lessee for yeares and made a Lease for three lives this is voidable by the successor for first the Statute giveth him power to make a Lease for twenty one yeares or three lives and therefore cannot make both 2. Lessee for lives shall have the rent reserved upon the Lease for yeares and shall not pay rent to the Bishop untill the terme determined and so hospitality will decay in the meane time and where 32. H. 8. ca ' 8. provided that the old Lease be surrendered before the making of a new illusory surrender upon condition is not within the act but judgement given against the Plaintiffe for not pleading of the said act of 1. Eliz. Jewells Case 30. Eliz. banco regis fo 3. LEase of a faire reservaing rent is not within the Statute of 1. Eliz. for although the rent be due by reason of the contract yet it is not incident to the reversion and 't is also without remedy by assise or distresse Lord Mountjoyes Case 31. 32. El. banco regis fol. 3. TEnant in tayle according to the Statute with power to make Leases c. reserving the ancient rent maketh a Lease of two distinct farmes reâ—erving the ancient rents in one summe out of both sthe farmes this is a new rent and not the accustomed rent and if he reserve a lesser rent during his life and after his death then the ancient rent the Lease is not good If Tenant in tayle be seised of three acres of Land every one of them of equall annuall value and all have beene demised for 3. shil per annum in this case he may not demise one of them for 12. d. per annum or two of them for 2. shil per annum and so Pro rata Justice Windams Case fo 31. 32. Eliza. Banco Regis in a Writ of Error fo 7
The question was whether they have an estate for life or an inheritance in taile And it was resolved that if they had children at the time of the Demise made then they had but an estate for life But if they had no children then they had an estate of inheritance in taile Sir Edward Cleeres case 42. Eliz. fol. 17. A Man is seized of three acres of Land houlden in Capite and maketh a Feoffment in Fee of two of them to the use of his wife for her life and after maketh a feoffment by Deed of the third acre to the use of such persons and of such estate and estates as he should limitt and appoint by his last Will in writing And afterwards by his last Will in writing hee Devised the said third acre to one in fee and if this Devise was good for all the third acre or not or for two parts thereof or voyd for all was the question And it was adjudged that the Devise was good For the Feoffor by his last Will limitted the estates according to his power reserved to him upon the Feoffment the estates should take effect by force of the Feoffment and the use is directed by the Will So as in this case the Will is onely directory But if he declared his Will by writing without any reference to his authoritie or power as owner of the Land and to limitt no use according to his power In this case the Land being houlden in capite the Devise is good for two parts and voyd for the third part If a man make a Feoffment in Fee of Lands in capite to the use of his last Will although he Devise the Land with reference to the Feoffment yet the Will is voyd for a third part for a Feoffment to the use of his last Will and to the use of him and his heires is all one In this case when the partie had conveyed two parts to the use of his wife by his act executed hee cannot as owner of the Land Devise any part of the residue by his Will and therefore because he hath not an election as in the case put before whether to limit according to his power or Devise the same as owner of the Land for in the case at Barre as owner of the Land having conveyed two parts to the use of his wife he cannot make any Devise The Devise of necessitie must inure to a limitation of the use otherwise the Devise should be altogether voyd Packmans case 37. Eliz. Banco Regis fol. 18. WIlson brought an action upon the case upon a trover against Packman The case was thus A man dyed intestate and the Ordinary committed the administration to a stranger and after the next of kindred of the Decedent sued out a Citatiō in the Court Christian to have it repealed and pendente lite the administrator to defeate the plaintiffe selleth the goods of the decedent to the defendant and after the Letters of administration were revoked by sentence and the first sentence anulled and made voyd and the administration granted to the plaintiffe And it was resolved that the action did not lie and in this case the diversitie was houlden betweene a suite by Citation for to countermand or revoke the former administration and an appeale which is alwayes a reversing of a former sentence for an appeale doth suspend the former sentence otherwise of a Citation And in this case because the first administrator had the absolute propertie of the goods in him without question he may sell them to whom he will and although the administration be revoked afterwards yet that cannot defeat the Sale But if the sale or gift be by covine it is voyd against Creditors by the Statute of 13. El. but it is good against a second administrator And if an administrator wast the goods and afterwards the administration is granted to another yet every debtor shall charge him in debt An administration may be granted upon condition and whatsoever the administrator doth before the condition broken is good Gregories case 38. El. Banco Regis fol. 20. VErba aequivoca in dubio posita intelliguntur in digniori potentiori sensu secundum excellentiam as if the speech be or writing of J. S. generally it shall be intended of the father where the father and sonne are both of a name and if it be of two Brothers both of a name it shall be intended of the eldest for these are more worthy so where the Statute of 4. 5. Phil. Ma. speaketh in any Court of Record it shall be intended of the foure Courts at Westminster because the Kings Attorney is attendant there Michelbornes case 38. Eliz. Banco Regis fol. 21. THe Court of Marshalsea doth onely hould plea of actions of trespasse within the verge if the one of the parties be of the Kings houshold and in contracts and Covenants where both parties are of the Kings houshold and of none other actions nor persons by the Act of Articuli super Chartas 28. E. 1. Butler Goodalls case 40. El. Banco Regis fol. 21 IT was resolved upon the Statute of 21. H. 8. that a Parson of a Church ought to stay and be Commorant upon his Rectorie viz. upon the Parsonage-house and not in any other house although it be within the Parish but lawfull imprisonment without covine is a good excuse of non-residence also if there be no Parsonage-house for impotentia excusat Legem also sicknesse without fraud if the patient remove by advice of his Councell in Physicke bona fide for better aire and recovery of his health Ambrosia Gorges case 40. El. fol. 22. in Cur. Wardorum IT was resolved that the Father shall have the Wardship of his Daughter and heire apparent so long as shee continueth his heire apparent But when the Father hath issue a sonne then shee shall be in ward to the Queene for then he is heire apparant and not the Daughter Ambrosia was daughter of Sir Arthur Gorge by Douglas Daughter and heire of Vicount Bindon and was married to Francis Gorge which Francis dyed when Ambrosia was of ten yeares of age It was resolved also that the Queene notwithstanding the said marriage should have the Wardship of the said Ambrosia for it was not a compleat marriage because to every marriage there ought to be a consent For consensus non concubitus facis matrimonium consentire non possunt ante annos nubiles And upon conference had with the Civilians it was agreed after such a marriage if the husband and the wife marry again it shall not be counted Bigamie And 30. E. 1. tit Gard. 156. if the ancestor marry his heire infra annos nubiles and dye the Lord shall recover the body of the Infant because the heire may disagree It was agreed that the grandfather shall not have the wardship of the sonne within age the father being dead in his life time Marquesse of Winchester his case 41. Eliz. fol. 23.
make a Lease for yeares and after enter into the Land and make wast and the Lessor recover in an Action of wast against the Lessee for life he shall avoid the Lease for yeares made before the wast committed But if a Lessee for life make a Lease for yeares and after enter and make a feoffement in fee the Lessor shall not avoid the Lease for yeares and so if a Tenant make a Lease for yeares and after is attainted of felony or dyeth without heire the Lord by escheate shall not avoide the tearme But because the feoffement in the case at barre was executed by Letter of Attourney it was resolved to be void and the Land escheated to the Queene Jehu Webbes Case 6. Jacobi com banco fo 45. THe King grants the office of the Kings Tennis plaies at W. to one who being disseised brings an assize The Patent shall have a reasonable construction not onely when the King himselfe playes but when any of his Houshould As if a Commission be made to take Singing-Boys in a Cathedrall-Church for the Kings Chappell those that Sing there for their pleasure cannot be taken but such as get their living by it There were but two manner of assizes at the common Law assizes De libero tenemento and De communia pasturae but for no other common but for this onely there is a Writ in the Register But the Statute of W. 2. c. 25. giveth it De proficuo in certo loco capiendo in lieu of a Quod permittat and although that there offices amongst other things are named yet an assize lay of an office at the common Law and although that no Tenant for life may have a Quod permittat yet an assize did lye for him but that is to be understood of an office of profit for it lyeth not of an office of charge Originall Writs made by Statute cannot be altered without Statute In an assize of a new office it ought to be shewed what profit belongs to it but not for an ancient office because that is sufficiently knowne Syms Case 6. Jacobi fo 51. TEnant in taile levyeth a fine with warranty and dyeth the warranty discends upon the issue of him in the remainder inheritable to the taile and another the issue in taile brings a formedon and is barred for all for the warranty is intire and barreth every one upon whom it discends of all his right as if one seised of three acres maketh a feoffement of one with warranty and dyes having issue two Daughters who make partition the Mother purchaseth the part of one brings dower against the feoffee who Vouches the Daughters shee shall recover all the other acre of the other Daughter if Tenant by the curtesie make a feoffement with warranty and dyes and his Sonne heire of the Feme recovers and assets discends after the feoffee shall have a Scire facias to have the Land first recovered by the Statute of Glouc. c. 3. but if assets descend to the Heire in taile bound with a lyneall warranty after recovery in formedon the Feoffee shall have a Scire facias to have the assets for otherwise if the recoverer alien the assets the issue of him will recover the Land in taile againe but in these cases the discontinuee ought to confesse the title of the Demandant and pray that if assets descend after they may discend unto him for if he plead a warranty and assets this is peremptory unto him if it be found that assets did not discend for the Statute is that a Scire facias shall issue out of the rolls of the Justices and in this case there is no ground for the Scire facias in the Record but in this case if the issue in taile pleads no assets and assets are found but not to the value the tenant shall have a Scire facias to recover the assets discended after for that false plea of the Vouchee Warranty and estoppell discend upon the heire generall and warranty barreth although that he upon whom it discends claimeth not by him that made it but so doth not an estoppell but estoppells with recompence binde the right of one who claimeth not by him that made it Roger Earle of Rutlands Case 6. Jacobi fo 55. THe King grants the pannage and herbage of a Park to M. for life and reciting this grants it to the Earle of Rutland for his life 1. Resolved the King hath three manner of inheritances 1. Some which he cannot excercise himselfe and cannot grant them in reversion or remainder as Corodies and Churches of which he is Patron 2. Others which he cannot excercise himselfe but may grant them in reversion or remainder as offices 3. Others which he may excercise himselfe and may grant as Lands Houses c. 2. The King here is not deceived for when he reciteth here that M. had for life and grants for life this inureth as by Law it may that is as a grant in reversion 3. In this case the grant to the Earle shall commence after the determination of the estate of M. and if the King grants Land to one and his Heires Habendum to him and his Assignes it is good and the Habendum shall be rejected for the honour of the King See the Lord Chandos case in the sixth Booke and when a Charter of the King may be taken to two intents good in many cases it shall be taken to such intent as is most beneficiall for the King but if it may be taken to one intent good and to another void then for the honour of the King and benefit of the Subject then it shall be taken so that it may take effect Beechers Case 6. Jacobi fo 58. B. Plaintiffe in Debt Se retraxit by attourney and by the judgement is not amerced he brings eror 1. Resolved a Retraxit ought to be in proper person for at the common Law every one who appeared ought to come in proper person and make his attorney after by license of the Court but if it be without writ he cannot without a writ of Attornato faciendo In cases where one may make an attourney but for contempt is bound to appeare in person if he appeare by attourney this is not error because the court may dispens with the contempt otherwise where he cannot appeare by Law by attorney as here for if he appeare by attourny this is error 2. B. ought to be amerced if upon a Nonsuite a Fortiori upon a Retraxit and although it is for his advantage yet he may assigne it for error because the judgement is not perfect and because it is for the advantage of the King and it shall not be amended because the act of the Court. 3. Where one disclaimes he shall not have a Writ of error because he hath confessed that he had no right otherwise it is upon a Retraxit for this is but a barre of the action à fortiori here where it wat void done by an attourney
disseissed at the common ley and dyed and the Feme before entry dyed this is a discontinuance to the Sonne because he cannot enter as Heire to both but if the Feme enter the discontinuance is purged 2. The estate which the Feme had jointly with her Baron is within the purviewe of the Statute of 32. H. 8. c. 28. That no fine levyed by the Baron sole of Lands of the Feme shall hurt her and within the Statute of West 2. c. 3. 3. The entry of the Sonne is lawfull although he claimes not as heire to the Feme as the Statute speakes but as heire to both because he is within these words or to such as have right by the death of such Wife and this is to be intended of discontinuances made by the Baron and not of a rightfull barre of the issue for they cannot avoide it and the Statute is that they may enter which they cannot doe where they are barred and if the Feme enter within 5. yeares as shee may after a Fine levyed by the Baron this doth not take away the future barre of the issue and if shee enter not within 5. yeares shee also is barred Baron tenant in taile the remainder to the Feme in taile makes a feoffement the Feme may enter after his death by this Statute but if the Baron suffer a recovery she shall not enter in the Case at barre the son may have a Formedon at the common Law and where before this Statute a Cuj in vita or Sur cuj in vita did lye entry is given by this Statute and not otherwise The Lord Staffords Case 7. Jacobi fo 73. THe Queene revertioner upon an estate taile grants the revertion to T. T. in taile upon condition is to have Praedictam reversionem in fee the condition is performed the Lord Stafford Tenant in taile levyeth a fine his issue is barred 1. Resolved that a condition of accruer may be annexed to a thing which lyeth in grant and to an estate taile as if Lessee for life be the remainder for life with condition of accruer to the first this is good and yet no Merger of estate 4. things are requisit to an accruer 1. A particular estate as the Foundation Ergo a Lease at will shall not be 2. The estate ought to continue in the Grantee untill accruer therefore if the Grantee alien and repurchase the condition is Tolled but Quaere if the Tenant alien upon condition which is broken if the fee shall accrew but grantee may grant part of his estate as if Lessee for life make a Lease for yeares he may performe the condition after so may Tenant in speciall taile after he is become tenant in taile after possibility c. so may the surviving jointenant and the heire of Tenant in taile An instant is sufficient to support an accruer as if the condition be if the Lessee be ousted Eo instante that the ouster is the fee accrueth but if Lessee for yeares accept a confirmation for life the condition is gone but it is not necessary that the estate of the grantor or Lessor continue because by his owne act he shall not defeate his grant 3. It ought to vest at the time of the condition performed or never and for that rather that it shall not vest at this time by performance of the condition the fee without office or other ceremony shall be devested out of the King 4. It is necessary that the particular estate and the condition be in one deede or two deeds delivered at the same time for in Law they are but one grant and by the condition performed he had fee from the delivery Resolved Praedict reversionem signifies the reversion which the Queene had Viz. That which depends upon both the estates taile and so was the intent also shee granted Omnia praemissa which maketh it cleere Resolved also that these words Will and Declare doe amount to a grant and are so used in Patents of Liberties and things to take effect in Futuro Tenant in taile the remainder in taile the remainder to the King Tenant in taile suffers a recovery this doth not barre the remainder in taile because the issue in raile is not barred and therefore the revertions and remainders in taile are preserved by the Statute of 34. H. 8. c. 20. Lastly Resolved if the reversion in fee had remained in the Crowne that the fine levyed by Ed Lord Stafford the Father had not barred the Lord that now is Notlyes Case 31. Eliz. com banco Wiat Wields Case 7. Jacobi 78. W. W. seised of Land to which he had common appurtenant aliens 5. acres to one who in replevin counts that he and those whose estate he had in the said 5. acres have had common there c. and good 1. Resolved although by purchase of part of the Land in which c. the common appurtenant is destroyed in all yet it is not so by alienation of part of the Land to which but all remaines without damage to the Tenant of the Land 2. That the pleading of it was sufficient Vinyors Case 7. Jacobi fo 80. ONe was bound to stand to the award of W. R. and revokes the submission the Obligee brings Debt 1. Resolved the Countermand is good for an authority Countermandable by the Law cannot by any way be made irrevocable 2. Although that the Plaintiffe doth not show that the Defendant had given notice to the arbitrator yet it is good because this is implied for without notice the revocation is void 3. The Obligation by the Countermand is forfeited because he doth not stand to c. when he Countermands it 2. By his owne act he had made the condition impossible Ergo the Obligation is single if one bindes himselfe to give License to carry Wood c. for a certaine time if he give it and disturbe him the Obligation is forfeited Sir Richard Pexhalls Case 7. Jacobi fo 83. SIr R. P. seised of Lands part whereof is houlden in Capite deviseth 100. Sheepe 10. Bullocks and 10. l. quarterly to one with clause of distresse and that the Grantee shall hold his Courts for his life for rent arreare for 2. yeares the grantee avoweth 1. Resolved a devise of rent out of all is good and taketh effect out of two parts and as to the third is void 2 The grantee shall have an estate for life in rent and so he shall if it be granted by Deede also by the Intent of the Devisor it appeares that the Grantee shall hold Courts and have 10. l. per annum for his wages and quarterly here had relation to rent onely because the word Et disjoyneth it from Sheep and Bullocks and judgement given for the Avowant Buckmers Case 7. Jac. fo 86. T. B. gave a House in Gavellkinde to M. his Eldest Daughter in taile the remainder of one Moity to J. a second Daughter in taile the remainder of the other Moity to K. a third Daughter in
them and after Judgement was given for the Plaintiffs Whistlers Case 10. Jacobi fol. 62. Vpon a speciall Verdict BEfore the Statute of Praerogativa Regis cap. 15. by the grant of the King of a Mannor all appendants without naming them passe and the Statute excepteth Knights Fees Advowsons and Indowments but all other appendants now passe without naming them and so doe Advowsons passe in case of restitution for the Statute speaketh of Grants and in Grants also without expresse mention by the words Adeo plené integré c. See other good matter there touching this Subject The Church Wardens Case of Saint Saviours in Southwark fol. 66. QUeene Elizabeth leased the rectory to the Church-Wardens of St S. for 21. yeares and after leased to them for 50. yeares in consideration of the payment of 20. l. and surrender of the Letters Patents by the Church-Wardens Modo habentes ad presens possidentes and the speciall Verdict found that they paid the 20. l. and that they delivered the Charter in Court to be cancell'd and that they paid the Fees but that no Vacat was made yet the grant is good for it appeares that the intent was not to make a surrender in deed because he saith Modo possidentes but a surrender in Law by acceptance of the second Letters Patents and although a Corporation cannot make a surrender in deed yet they may make a surrender in Law 2. Although an actuall surrender is requisit they have done all which belongs to them by delivery of the Chartar and payment of the fees and the Cancelling belongs to the Court. 3. Although it was recited that 20. l. was paid yet it needs not to be found for it is but in the personalty and is affirmed by the King to be paid and is also executed See Barwicks Case 5. Report 93. The Case of the Marshalsea 10. Jacobi fol. 68. In false Imprisonment AN Action upon the Case upon an assumpsit is brought in the Marshalsea whereas no party was of the Kings House the Plaintiffe recovered the Defendants arrested the Plaintiffe by a precept in the nature of a Capias ad satisfaciendum and he brings false Imprisonment and judgement given against the Defendants 1. Resolved the Steward and Marshall at the Common Law hath two Authorities One generall as Vicegerents of the Chiefe Justice in his absence within the Verge Another as Judges of the Marshalsea This last was limitted to Debt and Covenant where both are of the House and to trespasse Vi armis where one is but not if it concerne Land and because they have the generall authority at will and the other for life they draw many cases to the Marshalsea which ought to be in other Courts Their Jurisdiction by Fleta Lib. 2. cap. 2. Infra metas hospitij continentes 12. Leucas in circuitu And the Statute of 13. R. 2. c. 3. limits the 12. miles to be accounted about the Kings Tonnell 2. The reasons wherefore this speciall authority was given them were 1. Because the Suite there is by Bill by reason of their Priviledge which cannot be elsewhere 2. In respect of the necessity of attendance of the Kings Servants 3. If Strangers shall be suffered to sue there one Carman would sue another Carman there In aula Regis which were undecent but the generall authority vanished by the Act of 28. E. 1. c. 5. which Ordained that the Chancellour and Justices of the King should follow him therefore in Praesentia Majoris cessat c. and about 4. E. 3. the Court of K. Bench became Resident 3. The Statute of Articuli super Chartas is as much as an explanation of the great Charter and the Charter of the Forrest and not introductory of a new Law and the third Chapter of that act explaines the Jurisdiction of the Marshalsea as before and if he hold plea otherwise a prohibition lyeth and the party shall have an Action upon the Case as a consequent upon the Statute 4. That part of the Statute which giveth them Jurisdiction in trespasse shall be intended trespasse Vi armis 5. This action lyeth against the Defendants because the Court had not Jurisdiction and so have not done it by command of the Judge otherwise if the Court had Jurisdiction but proceedeth Inverso ordine or erroneously as if a Capias be awarded against an Earle c. one who is Indicted before Justices of the Peace cannot approve 1. Because he cannot assigne a Coroner 2. Because it is out of their Commission if a Court Leete be holden at another day then it ought to be the proceeding is Coram non judice otherwise it is of a Court Baron 6. R. 2. Action upon the Statute Plac. ultimo in the point that judgement in the Marshalsea when none of the parties is of the K. house may be avoided by plea without any Writ of Error which proveth that it is void Leonard Loveis Case 11. Jacobi fol. 78. In ejectione firmae for 8. acres c. L. L. seised of diverse Mannors in socage and in chivalry In Capite maketh a feoffement to diverse uses in an Indenture precedent whereby he limits to himselfe for life without impeachment of wast and to the use of his Lessees and devisees the remainder to his second Sonne in taile c. the reversion to himselfe with power of revocation after he purchaseth 8. acres in socage and revoketh as to certaine Mannors holden in socage and deviseth them and the 8. acres to his Eldest Sonne and the heires Males of his body for 500. yeares provided that if he alien otherwise then for yeares determinable upon the deaths of three persons or lesse number rendring the old rent or die without issue Male then to his second Sonne in taile with proviso to make Leases according to 32. H. 8. onely L.L. dyeth the Eldest Sonne enters into the 8. acres and dyeth leaving one Daughter who Marrieth R.D. who enters into the 8. acres c. second Sonne dyeth having L. L. who enters upon R. D. and leaseth to the Plaintiffe who enters upon whom the Defendant enters and ejecteth c. and if the entry of L L. the Lessor was congeable or not was the Question and it was adjudged that his entry was not lawfull and judgement was given against the Plaintiffe in this Case diverse points resolved some at the common Law and some upon 32 and 34. H. 8. of Wills 1. Resolv if a man seised of three acres of equall value one holden in Capite and giveth that and one of the other to his younger Sonne in taile he cannot devise any part of the third Acre because he had executed his power and if he purchase other Land in socage he can devise but two parts of that by reason of his reversion in Capite expectant upon the estate taile Object that the K. was once satisfied of the wardship by the Statute in respect of the Acre holden and the reversion thereupon shall not hinder the
but of payment of them notwithstanding the mistaking of the conclusion doth not vitiate the Count when the cause to have a prohibition is good 2. The plea of the Defendant to have a prohibition is not good because he traverseth the conclusion Viz. The prescription of discharge where he ought to traverse the prescription of unity for the conclusion is not traversable and because it is matter in Law 3. The issue is not well joyned 1. The matter of discharge is by reason of discharge by the Statute and the issue is by discharge at the common Law 2. In every issue there must be an affirmative and a negative but here is no affirmative for the conclusion is no affirmative but an inference 4. The impropriation is sufficient although the License were generall and the incumbent living for it shall be construed in such a speciall sence that it may take effect and the License is alwayes generall for the incumbent may dye or resigne before the impropriation 5. Admitting the impropriation void it had not beene made good by 35. Eliz. c. 3. for this settles in the K. all possessions of Abbeys with qualification notwithstanding any defect in any surrender c. which intitleth the K. and this defect is not within this qualification but if the impropriation had been good by reputation and so used this had beene given by the Statutes of 27. 31. H. 8. 6. If the Jury found matter to barre the Plaintiffe this is not to be regarded because an attaint lyeth not nor the Witnesses punished for perjury that matter not being materiall to the issue 7. Resolved that perpetuall unity untill the dissolution is by the Statute Prima facie a discharge of payment of Tithes except that the Fermors have paid Tithes and such an unity ought to be Justa aequalis that is fee in one and other Perpetua libera but if the Abbey were founded within time of memory he cannot at all and here it appeareth that the impropriation was made in 20. H. 8. so that it appeareth to the Court that before that the 20. acres were charged with Tythes for of common right all Lands ought to pay Tithes therefore the Chiefe Justice concluded that the said 20. acres as this Case is were chargeable with Tythes but in regard the information is good and the plea Pro consultatione habenda altogether insufficient and the Verdict impertinent to the issue they would not grant a consultation Doctor Grants Case 11. Jacobi Communi Banco fol. 15. In a prohibition 1. REsolved it is a good prescription that every Inhabitant in a Parish have paid 2. s. in the pound of the value of their houses per annum in Lieu of Tithes because it may have a lawfull comencement for it may be that this was so time out of mind for the Lands whereupon the Houses were built as a Modus decimandi 2. That the Parson may sue for it in the Court Christian for that it is in the nature of Tithes and every ancient City and Borough had for the most part such a custome for their Houses for the maintainance of their Parson and obvensions include oblations rents or other revennues and after a consultation was granted Sir Henry Nevills Case 11. Jacobi fol. 17. IT was resolved that a customary Mannor may be holden of another Mannor and there may be Lord Mesne and Tenant of it and such a customary Lord may hold Courts and grant Coppies and such a Mannor shall passe by surrender and admittance and fines shall be paid upon alienation or discent and if it be forfeited the Lord shall have the services as anexed to the Mannor so if Tenant at will c. admit Copy-holders reserving rent this shall goe with the Mannor after the will determined and so note a difference betweene reservations at the common Law and by the custome of the Mannor And it was said that the Mannor of Aylesham in Norfolke is holden by Copy and others in diverse other places And judgement was affirmed in Error Doctor Ayrayes Case 11. Jacobi fol. 18. 14. E 3. the K. Lycensed R. de E. to Found in Oxford a Hall sub nomine aulae Scholarium Reginae de Oxonio in the exemplification 8. Jac. it was Sub nomine aulae Reginae de Oxonio they present to the Church by the name of praeposit Coll. Reginae in Vniversitat Oxonio sociâ—r Schollar ejusdem the incumbent deviseth the Rectory and they by the name of praeposit Socior Scholar Aulae vel Collegij reginae in Vniversitate Oxonii confirme the demise and notwithstanding these variances it was adjudged that as well the confirmation as the presentation was good and the sole doubtfull variance is that it was Aulae Reginae where it ought to be Aulae Scholarium Reginae but good for the true name of the Colledge is so for the word Scholarium is not necessary but once and if it be taken in construction to come after Aulae the provost will be the sole Corporation by the name of praeposit Aulae Scholar reginae Ergo it doth precede in good construction Also the Founder named it so and so it hath beene alwayes taken and if there be a small variance this is not to the purpose if it be so described that another cannot be meant as a gift Omnibusfilijs I.S. or filiae I.S. when there is but one or if Richerus Abbot of W. grant by the name of Richardus Nil facit error nominis cum de corpore constat and this was the ancient and constant Opinion in Case of Corporations See the Case of the Major and Burgesses of Lin in the tenth Booke Henry Harpurs Case 12. Jacobi fol. 23. IN ejectione firme upon a Lease to J. W. in unam capellam and Land in W. in the Parish of B. and Tithes without shewing the certainty of them the Visne was from B. the Case was Sir H. B. seized of G. of the value of 30 l. per annum and of N. of the annuall value of 18 l. in capite covenanted to stand seized to the use of him and his Wife in taile with remainders in taile the reversion to himselfe and after purchaseth Lands in Socage and deviseth them to be sould by his Executors the matter in Law resolved but no judgement given because diverse exceptions taken c. 1. Resol That if tenant of the King in capite conveyes his Land to one of the uses c. and after purchase Socage he may devise all the Socage 2. A seck revertion upon an estate taile shall hinder the devise of Socage Land for a third part 3. Although the reversion in fee continue in him yet he may devise two parts of the Socage and all if he had granted the reversion over 4. Although he had exercised his power in making a Joynture of more then two parts yet if the reversion in fee had not hindred he might have devised all the Socage purchased after howsoever the
4. In this Case by grant of the reversion generally or of the Tenements the Trees passe for the inheritance of all the Land passeth and thereby the Trees annexed to it the disseisee by his entry shall have the Corne upon the ground as well as the Grasse by relation of continuance of possession but this relation is not of effect to have a trespasse against any but the first disseisor for in fictione juris semper aequitas existit and the emblements shall be recovered in damages 5. In the Case at Barr by exception of the Trees power is reserved to the lessor or his servants to enter and show the Trees to the Vendee Cuicunque aliquis quid concedit concedere videtur id c. 6. The plea in Barr is insufficient for he showeth that there was another joyntenant for life not named in the Writ and demands Judgement if action which is an unapt conclusion 2. The Plea is double one to the Writ another to the Action 3. He pleads the entry of the lessees for life which is surplusage 4. Hee averreth not that the Trees which were sold were nor Dotards which are excluded out of the exception but that they de jure pertinebant to R. L. which is not formall but upon all the matter there appeared sufficient cause to give Judgement against the Plaintiffe and therefore by the rule of the Court Quaerens nil capiat per billam The Case of the Taylors of Cloaths c. of Ipswich 12. Jacobi fol. 53. THe Taylors of I. make an Ordinance that none shall exercise the Trade in I. if he have not been an Apprentice for seven yeares and if hee doe not appeare before them to be approved upon forfeiture of five Marks and for breach of it bring debt the Defendant pleads that he was reteined by A. P. to be a domestick Servant and that he made Garments by his command 1. Resol At the Common Law none may be prohibited to exercise any Trade although he hath never been an Apprentice and be ignorant but if he misdoe any thing an action of the Case lyeth 2. This Ordinance for so much as is not prohibited by the Statute of 5. Eliz. is against Law for after seven yeares Apprentiship he may exercise his Trade without allowance of any 3. The Statute of 5. Eliz. doth not prohibite the private exercise of any Trade in a Family therefore this is out of the said Ordinance 4. The Statute of 19. H. 7. cap. 7. doth not corroborate any Ordinance against Law if it be allowed but the allowance dischargeth the penalty of 40 l. for putting in use any ordinances which are against the Prerogative of the King or the common profit of the people and Judgement was given Quod querentes nil caperent per billam Edward Savells Case 12. Jacobi fol. 55. AN Ejectione firmae lyeth not of a Close but it must be of a certaine number of Acres and the nature of them must be shewed A Writ shall not abate for want of order Viz. Of a House before Land c. and judgement was stayed Benthams Case 12. Jacobi fol. 56. IF damages or costs are omitted or not well assessed by the Jury if the Plaintiffe release them he may have his judgement and it shall not for that be reversed Insufficient assessement of damages and no assessing is all one Doctor Fosters Case concerning Recusants 12. Jacobi fol. 56. AN Information was preferred against a Recusant by an Informer Tam pro domino rege quam pro seipso before the recusant was convicted for 220. l. that is 20. l. a Moneth for a 11. Moneths absence from the Church c. And judgement given against the Defendant 1. Resolved that he may be convicted to satisfie the Statute of 23. Eliz. in this same Suite and convicted shall be taken for attainted for he shall forfeit nothing before judgement 2. The Branch of distribution in the Act of 23. Eliz. extendeth as well to the clause of penalty for recusancy as to that of hearing or saying Masses for it is all one to say shall forfeite and shall forfeite to the King 2. Diverse acts of Parliament give the penalty to the King and yet after make a distribution thereof to another who will sue as 3. H. 6. cap. 3. 3. H. 7.3 3. He against whom judgement is given upon demurrer or default or otherwise is convicted within the Statute for he is attainted which implieth it for it is so found by the Judges so by the Statute of 8. H. 6. treble damages are given where a disseisin is found to be with force this extends to a judgement by Nihil dicit or default 4. The Statute of 28. Eliz. doth not take away the Statute of 23. which giveth liberty to the informer c. for 1. It is made for more speedy execution of it 2. It doth not alter the suite of the party but of the King and leaveth the Informer as he was before 3. The Act of 28. giveth not the penalty to any new person for it was given to the K. by 23. Eliz. 4. The Statute of 28. extends onely to Indictments and toucheth not informations 5. The Defendant is not within 28. Eliz. if he be not convicted at the suite of the K. Ergo this is left as before 6. Because the Statute is in the affirmative and they may stand together but the Statute of 28. alters the Statute of 23 in this that it confineth Suites against Recusants in the K. Bench or Assizes c. which clause extends as well to the suite of the informer as of the Queene and the Statute of 35. Eliz. and 3. Jacobi inlarge the Jurisdiction as to Suites of the K. and touch not the suite of the party 5. The Statute of 35. taketh not away the Action popular given by 23. for it was made to give more speedy remedy and not to take it away a feme Covert is within the Statute of 23. and 1. Eliz. but before the Statute 35. Eliz. if a Feme Covert had been indicted of recusancy the forfeiture should not have been levyed of the goods of the Husband because he was not party thereunto otherwise in an Information or Debt brought by the informer and in that that the Statute of 35. is that the K. shall recover all the paines c. in such sort c. this alters the remedy onely as to the Queene for now shee may proceede by action as for recovery of any other Debt by the Common Law in such manner as 1. H. 7. c. 1. giveth a Formedon against Parnor of the profits c. also 35. Eliz. is in the affirmative and although it giveth the penalty of 20. l. by the Moneth yet it taketh not away 1. Eliz. which giveth 12. d. for every Sonday and Holy day and where this Statute saith that the conviction shall be in the K. B. or at the Assizes yet the Justices of Peace and others authorized by 23. may take
devise of Land purchased after 2. The statute doth not regard this seck reversion but inheritances of annuall value Resp To the first that this reversion shall hinder the devise by the words of the Statute for he had a reversion of Lands holden but although the Statute saith that he may alien two parts by act executed or will if he alien to one of the three uses by act executed he may devise the reversion for the Statute is to be intended of an intire Alienation and where the Statute saith in reversion or remainder it is to be intended that the devisor be seised of such a remainder which drawes wardship To the second it was answered that things which of their nature are seck are out of the Statute but not things which of their nature are of annuall value but are not of value in respect of some Lease or gift Absque abliquo inde reddendo and therefore seck reversions are devisable by the said Statutes but if they be not yet they shall hinder the devises of other Lands To make one able to devise by those Statutes the time of Having Holding and disposing must concurre and therefore if a grant to the second Sonne here had beene in fee although with power of revocation the devise had been good because he had no Lands In Capite at the time of the devise if the Father conveyeth his Land to the use of his younger Sonne the eldest being within age after the death of his Father he shall be in ward although nothing discend A true Child and not in reputation is within the Statute and if the Sonne purchase Land Bona fide of his Father this is out of the Statute because it is not for his advancement If Tenant in socage devise and after purchase Land in Chivalry the devise is void for a third part but if Tenant in Chivalry and socage devise all and after aliens the Land holden this is good To make division that the King shall have a third part holden the Lands shall be taken according to their value at the time of the death of the Devisor The time of provision that a third part must discend needs not concurre with the time of alienation but it is sufficient that he had it at the time of his death The estate to any of the three purposes ought to continue to the time of death and the Tenure must till after death to make it within the Statute and the estate also of Lands holden ought to continue after death therefore if Tenant in taile in Capite devise socage Land and dye without issue this is good so privity must continue after death therefore if he who made the conveyance be attainted this is out of the Statute The uses to the second Sonne are in contingency and not executed by 27. H. 8. by the power to make Leases and devise reserved to the feoffor and therefore the fee is in the feoffor in the meane time so that having disposed of it and being seised of it he cannot devise the Land purchased after It was Objected that the Statute saith lawfully executed in his life but here no use was to be executed in the second Sonne untill after his death It was Answered that after his death the uses were derived out of the feoffement and so are as it were executed in his life It was holden by the Chiefe Justice that the remainder to the second Sonne is contingent in regard no alienation is found to be made by the Eldest and if there had been then it would be repugnant that after alienation the Land should remaine to the second Sonne and so Quacunq via data the remainder as this Case is cannot vest in him but this point was not resolved by the Court. 2. The revocation is good although the Indenture precedeth the feoffement and that the uses are in contingency and that the revocation is but in part and the Chiefe Justice held that the Eldest Sonne had but a terme determinable and the second an estate taile But in this the Kings Bench and Common pleas differ in Opinion and that if Lands be devised to one and the Heires of his body for 500. yeares the Executors shall have it and not the Heire and the devisee may alien it for it cannot be intailed and so in Peacocks Case 28. Eliz. Banco Regis was it resolved Doctor Leyfields Case 8. Jacobi fol. 88. in Trespasse IN Trespasse for Corne taken at O. C. the Defendant pleads that Q. Eliz. granted the Rectory of O. C. to C. P. without shewing the Letters Patents who demised to G. P. for 8. yeares if the said C. P. so long live and that he as servant of G. P. tooke the Corne and avers the life of C. the Plaintiffe demurreth because the plea amounteth to the generall issue and it was adjudged in the K. Bench that the barre was insufficient because the Defendant shewed not the Letters Patents and Error was brought in the Exchequer-Chamber because the plea amounts to the generall issue because the Defendant gave no colour wherein judgement ought not to be given against the Defendant but onely to answer over 2. Because he is not bound to shew the Letters Patents It was answered that colour shall not be given for colour shall not be given where the plea goeth to the barre of the right for it would be in vaine to give colour of right and to barre him if he had right as if a collaterall warranty fine Statute be pleaded or if he claimes by a waife otherwise where he pleads a discent for this doth not barre the right but the possession he who claimes by sale in a Market overt shall not give colour if he pleads generally but if he pleads that I. S. was possessed as of his owne goods and sold them in a Market overt or waived them there he shall give colour because he confesseth no interest in the Plaintiffe 2. If the Defendant claimes by the Plaintiffe he shall not give colour 3. If the plea be to the Writ or action of the Writ no colour shall be given 4. Colour shall not be given in case of Tithes for to whomsoever the Lands belong the Tithes belong to the Parson 1. Colour ought to be a doubt to the Laygents 2. It must have continuance 3. It must be such a colour that if it be effectuall will maintaine the Action 4. It ought to be given by the first conveyance 2. Resolved Lessee for yeares of Lessee for life of the K. must shew the Letters Patents for he who is privy in estate or interest or who justifieth in right of a Party or privy although he claime but part must shew the first deed and the reason that deeds are shewed to the Court is that the Judges and Jury that which respectively to them belongs shall judge of the sufficiency thereof therefore a deed shall not be suffered to be given in evidence by Witnesses or Copy except it be burned