tender more then he is bound to pay it is good Omne majus continet in se minus That the tendring of 250. li. in bags without shewing or numbering the same is good tender if the truth be that there was so much vide Winters case if there be any counterfeit money in the same yet if the partie then accept the same he cannot compell the partie to change it or if it be a rent or for non-payment a reentree yet the once acceptance is good and the lessor may not reenter Foliambes Case 43. Eliz. fo 115. IN a writ of Estrepement the Sheriffe may resist them that will make wast or cut downe Trees and if he cannot otherwise he may Imprison them and may make warrants to others and he may take Posse comitatus for his aide A writ of Estrepement lyeth in an Action of wast as well before judgement as after Olands Case 44. Eliz. Banco regis fo 116. A Feme Copy holder Durante viduitate sowes the Land and taketh Husband the Lord shall have the Corne for although her estate was incertaine yet it was determined by her owne act so if Lessee at will sowe the Land and determine the will but if Baron and Feme are Lessees during the coverture and the Baron sowe the Land and they are after Divorsed Causa praecontractus the Baron shall have the Emblements because this is the Act of the Court. Pynnells Case 44. Eliz. fo 117. com banco PYnnell brought an Action of Debt upon an Obligation against Cole of 16. l. for payment of 8. l. 10. s. on the 11. of Nov. 1600. The Defendant pleaded that at the instance of the Plaintiffe before the sayd day he paid him 5. l 10. s. and it was resolved by all the Court that the payment of a lesser summe in satisfaction of a greater summe cannot be satisfaction for all so that by no possibility a meaner summe may satisfie the Plaintiffe of a greater but the Gift of an Horse Cowe Robe c. in satisfaction is good But in this case it was resolved That the payment of a parcell and acceptance thereof before the day in satisfaction of all is a good satisfaction in respect of the circumstance of time for paradventure parcell of that before the day may be more beneficiall unto him then the whose summe of money at the day and the value of satisfaction is not materiall for if I be bound to pay you 10. l. at Westminster and you request me to pay 5. l. at Yorke and you will accept the same in full satisfaction of the 10. l. this is a good satisfaction in respect of the place but in this case the Plaintiffe had judgement for the insufficient pleading for he did not pleade that he had paid 5. l. 10 s in full satisfaction as by Law he ought but pleaded the payment of part generally and the Plaintiffe accepted the same in full satisfaction and alwayes the manner of the tender and of the payment shall be directed by him that maketh the tender and payment and not by him that accepteth it Edriches Case 1. Jacobi com banco fo 118. A Rent charge is granted to B. for the life of C. the Grantor leaseth for life to D. the remainder in Fee to E. C. and D. dyes B. distraines E. for all arreares this is good by the Statute of 32. H. 8. cap. 37. Whelpdales Case 2. Jacobi com banco fo 119. IN Debt brought against one joint Obligor the Defendant pleads Non est factum adjudged for the Plaintiffe 1. Resolved he may pleade in abatement of the Writ but not Non est factum for every one is obliged in the intirety therefore if Debt be brought against both and one is outlawed the other who appeares shall be charged with all 2. If a Deede be avoidable by plea he shall not pleade Non est factum 3. If a Deede be made voyd by Statute he shall not pleade Non est factum but shall avoide it by plea but if a deede by matter Ex post facto become not his deede he may pleade Non est factum as if one deliver a deede to deliver over to I. S. who refuseth c. Longs Case 2. Jacobi banco regis fo 120. EXception to the Inditement of Murder the Inditement was taken Infra libertatem villae de C. and C. where the Torte is done is not said to be within the Liberty Response that to Inditements certainty to a certaine intent in generall sufficeth and not to every particular intent for that is Nimia subtilitas and it shall be intended that the Ville of C. is within the liberty of C. the Indictment is Quod dedit vulnus super anteriorem partem corporis subter mamillam where it should be Mammillam Resolved that false Latine shall not quash an Indictment if the word be sensible and these two words are good Latine also this is superfluous for Super anteriorem partem corporis is sufficient and shall be intended the Trunke betwixt the Neck and Thighs 3. Vulnus where it should be Plaga over-ruled because Synonima 4. Le depthe is not shewed it was said that it did penetrate all his body whereby it appeareth that it was mortall 5. It is said that the wound did penetrate his body and not the Bullet this is significant enough 6. Percussit wanteth and for this cause the Indictment was quashed for in all cases of death this ought to be except in case of poysoning and for this last error the Outlary was reversed and H. D. was discharged Saffins Case 3. Jacob. fo 123. com banco A Man maketh a Lease for yeares to commence after the end or determination of a former Lease In esse The first Lease endeth the second Lessee doth not enter but he in reversion entereth and maketh a Feoffement and levyeth a fine with Proclamations and five yeares passe without entry or claime of the second Lessee If this fine be a Bar was the Question and it was resolved to be a Bar for the Statute of 4. H. 7. c. 24. speakes of interest and a Lease for yeares is an interest within the Statute so oâ— tenant by Elegit c. De Libellis famosis 3. Jac. fo 125. A Libell may be made as well against a private man as against a Magistrate Non refert whither the Libell be true or whither the party be of good fame or ill fame for it inciteth all the same Family Kindred or Society to revenge and so tendeth by consequence to the effusion of blood It was resolved in the Starre-Chamber 44. Eliz. Hallywoods Case that if any finde a Libell and would preserve himselfe out of danger if it be against a private man the finder may eyther burne it or presently deliver it to a Magistrate but if it concerne a Magistrate or publick person then he ought to give it to a Magistrate A Libell may be as well by words Verbis aut cantilenis as Writings and by Pictures
dyes after R. enters and dyes 18. Eliz. the executor of T. enters and assignes to J. S. the Successor of the Rector enters and Leases to B. who upon ouster brought an Ej. Firmae Resolved for the Plaintiffe and that the Lease to T. is voyd Argued for T. that his demise was good and a difference taken betwixt terminum annorum and tempus annorum as in this case of the demise to T. during so many yeares of the fourescore yeares c. not of the terme of fourescore yeares if a Lease be made for 21. yeares and after another Lease to commence from the end and expiration of the said terme of yeares and after the first Lease is surrendered the second terme shall commence presently not so if it were from the end of the said 21. yeares Resolved that the demises to R. and W. are voyd because the terme that El. had was sub modo if she should so long live which is determined by her death ergo no residue can remaine to R. and W. and so 't was adjudged between Greene and Edwards and the Court agreed the diversity betwixt the demises to R. and W. and the demise to T. 't was argued that the demise to T. was voyd 1. Because that the Lessor had not power for to contract for the land during the fourescore yeares for he had but a possibility to have the land againe during the fourescore yeares viz. if El. dyed which possibility cannot be demised but the Court delivered no opinion to this poynt 2. That the Lease to T. was voyd for the incertainty how many yeares should be behinde at the death of El. a termor grants to B. so many yeares as shall be behinde tempore mortis suae 't is voyd Locrofts case adjudged a man possessed of a terme of 90. yeares upon marriage of his Sonne demised the land to his Sonne for 70. yeares to commence after his death the Lessor dyes the lease was adjudged good because here he demised the land for 70. yeares which is certaine in which this differs from 7. E. 6. which diversity was agreed by the whole Court 3. That 't was voyd because he dyed in the life of El. so that the incertainty cannot be reduced to a certainty in his life time and so cannot rest in the executors a lease to one for so many yeares as his Executors shall name is voyd Note a diversity betwixt a covenant and agreement which is perfect and certaine though it takes effect in possession upon a future matter precedent and a covenant and agreement incertaine which is to be reduced to a certainty by matter ex post facto for in the first case the estate is bound presently in the other not which was agreed by the Court. 4. It was moved if T. had been in life the demise could not rest in him T. dyed before R. or W. and R. survived El. and by the expresse condition precedent R. could not take except El. dyed within the terme and W. could not take except R. dyed within the terme and this is as much as to say that if R. dyes before El. and T. cannot take except W. dye in the life of El. and R. survived El. So that both precedent contingencies faile viz. the death of R. and W. in the life of El. and though the demise to R. and W. are voyd yet the limitation precedent viz. the death of R. and W. in the life of El. to the demise to T. is not voyd for his interest may depend upon both the contingencies for so was the intention of the parties and this was affirmed by the whole Court by Popham Chiefe Justice The Lease to T. was voyd for another cause for it cannot commence upon a contingent which depends upon another contingent as here the demise to T. depends upon the contingent annexed to the demise made to W. and the demise to W. depends upon a contingency annexed to the demise to R. Digges Case 42. Eliz. fo 173. C. Digges was seised of the land in question and other lands in fee and by Indenture 6. Maij. 10. of the Queene covenanted in consideration of marriage betwixt him and his wife and for the advancement of T. their Sonne and for two hundred pounds paid to him before marriage that he and his heires would stand seised to the use of himselfe for life and after to T. in taile and after to the use of himselfe in taile with a proviso for the considerations aforesaid c. that it should be lawfull for him at any time during his life with consent of certaine persons by Indenture to be Inrolled in any of the Kings Courts to revoke any of the uses or estates and for to limit new uses 6. Maij. 12. of the Queene C. by consent c. by Indenture inrolled in the Chancery revoked the uses and estates aforesaid in part of the land and limitted the use of it to him and his heires after 20. Sept. 13. of the Queene by Indenture with consent c. inrolled in Banck M. 13. 14. of the Queene declared that for the payment of his debts that from the time of the inrollment of this Deed in Chancery all the uses in the first Indenture should be voyd and that the land should be to the use of himselfe in fee after C. 26. Octob. 14. of the Queene by Indenture covenanted for to levie a Fine of all his land part of which should be to the use of himselfe and his wife and his heires which Fine was levied the same terme after the Indenture dated 20. Sept. was inrolled in Chancery after C. enters and makes his claime and whether C. dyed seised in fee of the land mentioned in the Deed of Revocation of 20. Sept. was the question Adjudged 1. that C. D. might revoke part at one time part at another till he hath revoked all but he can revoke the same part but once except that he hath a new power c. to uses newly limitted for these words at any time amount to from time to time c. 2 That where the revocation is to be by Deed Indented to be inrolled this is as much as to say as by Deed Indented and inrolled and till inrollment no revocation shall be for otherwise perchance none shall be inrolled 3. That 't was no perfect revocation by the Indenture of 20. Sept. till the Deed were inrolled in the Chancery for though that the proviso of revocation in the first Indenture shall be satisfied with an inrollment in any of the Kings Courts yet for that the Indenture of revocation it selfe limits the revocation to take effect after the inrollment in Chancery it ought to be so 4. That the Fine levied before the inrollment in Chancery which was before the revocation hath extinct the power see Albaines case before adjudged and Popham Chiefe Justice said that without question such a power might be released for 't is not meerely collaterall but savours and tastes of
the husband had and to the remainder A. tenant in taile the remainder to B. the remainder to C. the remainder to D. A. makes a Feoffement the feoffee suffers a recovery B. is vouched and he vouches the common vouchee A. is not bound but B. and all the remainders are for though the remainders are discontinued and cannot be remitted till the taile be recontinued yet in a common recovery which is the common assurance he which comes in as vouchee shall be in judgement of Law in privity of the estate which he ever had though the precedent estate upon which the estate of the vouchee depends be discontinued so here the husband shall be said in of the taile and 't is the stronger because the estate of the wife was put to a right so that the husband came in as sole tenant in taile and not joyntly with his wife because she is not vouchee and he cannot be in of another estate because once he had a taile but had they had a joynt estate to them and the heires of their two bodies he being onely vouched it might be doubted whether the taile should be barred because the wife had a joynt inheritance with him 8. of the Queene Dyer Knivetons case A Praecipe is brought against tenant for life and the remainder in taile they vouch over it shall not binde the taile for the remainder is not tenant to the Praecipe and the land is recovered against the tenant for life onely and recompence shall not goe to the remainder and the remainder was never seised by force of the taile and so 't was adjudged in Leach and Coles case 41. of the Queene Heydons case 26. of the Queene fo 7. THe Gardians and Cannons Regular of the late Colledge of O. seised of the Mannor of O. granted a Coppihold to Father and Sonne for their lives c. and after they leased it to H. for fourescore yeares rendring the ancient Rent and after surrendred their Colledge Resolved that the lease to H. was voyd the Coppi-hold for life continuing by the Statute of 31. H. 8. For Coppihold is an estate for life and the Statute saith of which any estate or interest for life c. at the making of such grant had continuance reade the Booke at large where you have admirable rules for true interpretation of all Statutes Resolved when a Parliament alters the service tenure interest of the land c. in prejudice of the Lord custome or tenant the generall words shall not extend to Coppi-holds as the Statute of W. 2. de donis conditionalibus doth not extend to them for if the Statute should alter the estate this should also alter the tenure for the donee ought to hold of the donor and to doe such services without speciall reservation as his donor did to the Lord and the intent of the act was not to extend to such base estates which were taken then but tenants at will and the Statute saith Voluntas donatoris observetur in carta c. So that which shall be intailed ought to be such an hereditament which may be given by Charter and great part of the land within the Realme being granted by Coppy it would be inconvenient that Coppi-holds should be intailed yet neither Fine nor Recovery should barre them so that the owner cannot without making a forfeiture by assent of the Lord and a new grant dispose of it for payment of debts advancement of his wife or younger issues wherefore the Statute doth not extend to them by Manwood Ch' Baron which the Court agreed But 't was objected that the Custome and the Statute cooperating might make a taile as if by a custome a remainder had been limitted over and injoyed and plaints in nature of a Formedon in discender brought and the land recovered by it so neither the custome without the Statute nor the Statute without the custome can make a taile And Littleton saith that if a custome hath been that lands c. have been granted c. or in taile c. paulo post that a Formedon in discender lyes of all tenements which Writ was not at common law Manwood answered if the Statute doth not extend to them without question the custome cannot for before the Statute all estates of inheritance were fee simple and no custome can commence after the Statute for this being made 13. E. 1. is made within time of memory and Littleton is to be intended of a fee simple conditionall for he knew well that no custome could commence after the Statute of W. 2. as appeares in his booke 2. ca. 10. and 34. H. 6. and a Formedon in discender in speciall cases lay at the common Law And by the Court another Act made at the same time which gives an Elegit extends not to Coppiholds for the reason aforesaid but other Statutes made at the same time extend to them as ca ' 3. which gives a Cui in vita receite and ca ' 4. which gives to the particular tenant a Quod ei deforceat Resolved that though 't was not found that the said rents were the usuall rents accustomed to be reserved within 20. yeares before yet because 't was found that the accustomed rent was reserved and a custome goes to all times before it shall be so intended without shewing the contrary and judgement was enterd for the Queene The common Law is founded upon the perfection of reason and not according to any private and sudden conceite or opinion Borastons Case 29. of the Queene fo 19. B. Devised land for eight yeares and after to his executors to performe his will till H. his youngest Sonne come to the age of 21. yeares and when H. comes to 21. yeares then that he shall have to him and his heires H. dyed at the age of 9. yeares Objected that till H. attaines to 21. yeares the land descends to the heire and for that he never attained to 21. yeares this remaines in the heire and the intent appeares by the words that he should not have till he come to 21. yeares and this ought to precede the commencement of the remainder and if land were leased till H. comes to 21. yeares H. then being of 9. yeares 't is no absolute lease for 12. yeares for if H dye before 21. the lease shall be determined which the Court agreed 'T was also said that when the particular estate which should support the remainder may determine before the remainder can commence there the remainder doth not vest presently but depends in contingency If one make a Lease to A. for life and after the death of B. the remainder to another in Fee this remainder depends upon contingency for if A. dye before B. the remainder is voyd A Lease is made to A. for life the remainder to B. for life and if B. dye before A. the remainder to C. for life this is a good remainder upon contingency If A. survive B. which case is all one with
the common Case which is many times agreed on in our Books a lease is made to one for life the remainder to the right Heires of I. S. this remainder is good upon contingency viz. If the Lessee for life survive I. S. otherwise not and by the same reason if a man have issue a Son of 9 yeares of age maketh a Lease untill the Sonne shall accomplish his full age the remainder to another in Fee as in this case nothing vesteth in him in remainder presently Quod fuit concessum per tot Cur. vide Chudleyes Case Libr. 10. Answered that in Wills the intent of the devisor is to be considered for when the devisor in his life by apt words by good advise might have made his Will sufficient in Law there though he makes it in disordered manner and in barbarous and unapt words the Law will order those words which want order according to his intent as in Wellock and Hamonds Case Coppy-holder in Borough English devises to his Eldest Son paying 40. shillings within c. to every of his other Sonnes c. surrenders according and dyes the Eldest Son did not pay within c. the youngest enters and adjudged lawfull and resolved First That he had a fee for the recompence and consideration though it be not to the value makes a fee in construction of a will Secondly That though paying in a Will makes a condition yet here 't is a limittation otherwise it would discend upon the Eldest Son who is to take advantage of it and then it should be at his pleasure for to pay or not and therefore it shall be as if he had devised to the Eldest Quousque he failes in payment So here the devisor hath computed what profits of his Land during the nonage of his Son will suffice for payment of his Debts c. and that he did not intend that the tearme of the Executors should end by death of H. for so his Debts should remaine unsatisfied and his Will unperformed and therefore the Law sayth it shall be construed that the Executors shall have till H. should have come to 21 yeares of age and therefore the Executors have a terme for twelve yeares which the Court agreed And though when and then are Adverbes of time yet when they referre to a thing which must of necessity happen they make no contingency and t is certaine that H. did accomplish or might have accomplished the age of 21 yeares and here if the tearme should be ended by death the remainder should be voyd and the Court agreed that in Wilis and grants the remainder ought to vest in possession Eo instanti the particular estate ends but here the Terme did not end c. Walkers Case 29. Eliz. in Banco regis WAlker Leased certaine Lands to Harries for yeares the Lessee assigned all his interest to another Walker brought an action of Debt against Harries for Rent arreare after the assignement and if the action be maintainable or not was the Question and upon great deliberation and conference with others it was adjudged per Wray chiefe Justice Sir Thomas Gawdy and Tot. Cur. that the Action did lye and was maintainable in the argument whereof many things were resolved If a man Lease a stock of Cattle or other goods rendering a Rent at severall dayes he shall not have an Action of Debt untill all the dayes be expired Likewise if a man make an obligation or other contract to pay severall summes of money at severall dayes he shall not have an action of Debt untill all the dayes be expired for these are personall contracts and not reall but in case of a Lease for yeares which is a reall contract the Lessor shall have an action of Debt after every day By the Court Debt doth well lye in this case against the Lessee there are three privities 1. In respect of the estate onely 2. Of contract onely 3. Of estate and contract together The first betweene the Grantee of the reversion or Lord by escheate and the Lessee so betwixt the Lessor and the Assignee of the Lessee the second betwixt the Lessor and the Lessee as here for notwithstanding the assignement and the privity of estate removed by the act of the Lessee himselfe the privity of contract remaines First because the Lessee himselfe cannot prevent the Lessor of his remedy but when the Lessor grants his reversion against his owne grant he shall not have remedy because the Rent is incident to the reversion Secondly the Lessee might grant it to a poore man not able to manure the Land or for malice will suffer it to lye fresh so the Lessor shall be without remedy if Debt should not lye against the first Lessee Thirdly there is privity of contract and estate together as betwixt the Lessor and the Lessee If a Tenant in Dower or Tenant by curtesy assigne over their estate yet the privity of the action remaineth betweene the Heire and them and he shall have an action of wast against them for wast done after the assignement but if the Heire grant over his reversion then the privity of the action is destroyed and the Grantee may not have any Action of wast but onely against the assignee for betweene them is a privity of Estate and betweene the Grantee and the Tenant in Dower c is no privity at all If a lessor enter for condition broken or if a lessee surrender to the lessor yet the lessor may have an action of Debt for arrerages due before the condition broken or the surrender and this is in respect of the contract betweene the lessor and the lessee 36. of the Queene Vngle and Glovers Case adjudged the lessee assignes his interest the lessor bargaines c. the reversion the bargainee shall not have Debt against the lessee but agreed that the lessor himselfe might 37. Eliz. in Banco regis Int. Overton et Siddall Two points were resolved First if an Executor of a Lessee for yeares assigne over his interest that an Action of Debt doth not lye against him for Rent due after the Assignement If a Lessee for yeares assigne over his interest and dye the Executor shall not be charged for rent due after his death for by the death of the Lessee the personall privity of the contract as to the Action of Debt in both these cases were determined 40. of the Queene Brome and Hores Case A. Lessee of three acres rendring Rent assignes one to B. the Lessor suffers a recovery to the use of C. in fee who brought Debt against the first Lessee adjudged it lyes for the Lessee assigned his interest but for part for the privity of Estate remaines because he assigned but part 41. of the Queene Marrow and Turpins Case in Debt against two administrators upon a Lease made to their Testator the Defendants plead that before the tren areare the one of them had assigned all his interest to I. S. of which the Plaintiffe had notice
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
the Donor was in possession and used them and fraud is alwayes apparelled with trust and trust is the cover of fraud Sixthly it was contained in the deed that it was honesty truely and bona fide Et clausulae inconsuetae semper juducunt suspitionem and it was resolved although it was a due debt to Twyne and a good consideration of the deed yet it was not within the proviso of the said Act of 13. Eliz. By which it is provided that the said Act doth not extend to any estate or interest in Lands c. goods and chattells made upon good consideration and Bona fide for although it be upon good and true consideration yet it is not Bona fide for no deed shall be deemed to be made Bona fide within the said proviso that is accompanied with any trust for the proviso saith upon good consideration and Bona fide so as good consideration doth not serve if it be not also Bona fide Therefore good Reader if any deed be made to thee in satisfaction of any debt by one that is indebted unto others also First let it be in publick manner before Neighbours Secondly valued-by good men to a true value Thirdly take them out of the possession of the Donor presently for continuance of possession in the Donor is a marke of trust There are two considerations Viz. Consideration of blood or nature and valuable consideration And if one that is indebted to five severall persons every one 20. l. in consideration of naturall affection doth give all his goods unto his Sonne or Cosen The intention of the Statute was that the consideration in this case should be valuable for equity requires that this deed that defeates others shall be made of as high a consideration as the things are that are so defeated thereby for it is to be presumed that the Father if he had not beene indebted unto others would not dispossesse himselfe of all his goods and subject himselfe to his Cradle And therefore it shall be intended that it was to defeate his Creditors And if a consideration of nature or blood should be a good consideration within this proviso the Statute would serve for little or nothing and no creditor should be sure of his Debt A feoffment made solely in consideration of nature or blood shall not take away the use raysed upon valuable consideration but it shall take away a use raised in consideration of nature for both considerations are in Equali jure and of the same nature Many men marvaile the reason that so many acts and Statutes are dayly made this Verse answereth Queritur ut crèscunt tot magna volumina legis In promptu causa crescit in orbe dolus And because fraud abounds in these dayes more then in former times it was resolved that all Statutes made against fraud shall be liberally expounded for to suppresse the fraud and according to this see severall resolutions in the Booke at large It was resolved that no purchasor may avoyd a precedent conveyance made by fraud but he that is a purchasor for money or other valuable consideration paid for consideration of blood is a good consideration but not such a consideration as is intended by the Statute 27. El. ca 4. for valuable consideration is onely good consideration by the same act Anderson chiefe Justice of the common banck said That a man who is of small capacity and not able to governe his Lands that discends unto him and being disposed to ryot and disorder by the mediation of his friends by open Act conveyes his Lands to them upon trust and confidence that he shall take the profits for his maintainance and that he shall have no power to wast or consume them And after he being seduced by deceitfull and covetous persons bargained for small summes his Lands of great value this bargaine although it were for money was holden to be out of this Statute for this act was made against all fraud and deceit and shall not ayd any purchasor that commeth not to the Lands for good considerations lawfully without fraud or deceit And in this case Twyne was convicted of fraud and he and all the others of a ryot Resolutions P. 44. of the Queene upon the Statutes of Fines fo 84. A. Tenant for life the remainder to B. in taile the remainder to B. and his heires B. levies a Fine hath issue and dyes before all the Proclamations passed the issue then beyond the Sea the Proclamations are made the issue retournes and upon the land claimes the remainder Resolved that the estate which passed was not determined by the death of tenant in taile so if tenant in taile of a rent Advowson Tythes Common c. grants by Deed and dyes for if the issue brings a Formedon for the rent he makes the grant voidable if he distraines or claimes it upon the land he by this determines his election And there is no diversity betwixt tenant in taile of a rent c. and tenant in taile of a reversion or a remainder upon an estate for life though in the first case the issue may have a Formedon presently after the death of tenant in taile Holden by Popham and divers other Justices that the Statute of 32. H. 8. hath inforced the case that the estate which passes by the Fine of tenant in taile shall not be determined by his death for by this 't is provided that Fines levied of any lands c. intailed immediatly after the Fine ingrossed and Proclamations made shall be a barre if the Fine cannot be a barre without continuance the Statute hath provided that the estate shall continue for it provides for all necessary incidents to the perfection and consummation of it Every Fine shall be intended with Proclamations for 't is most beneficiall for the conusee and all Fines being the generall assurance of land are levied according Resolved that though by the death of tenant in taile a right of the estate taile descends to the issue for that the tenant in taile dyed before all the Proclamations passed yet when they are passed without claime this right is barred by the Statute of 32. H. 8. Resolved by all the Judges and Barons but three that the issue in this case being heire and privy cannot by any claime save the right of the taile which is descended to him but that after the Proclamations he shall be barred for 't is provided that every Fine after the ingrossing of it and Proclamation had and made shall be a finall end and conclude as well privies as strangers And if no saving had been all strangers had been barred also and all the exceptions extend onely to Strangers but the issue is privy To the objection if by the equity of the Statutes the issue cannot claime c. to what purpose are the Proclamations with such solemnities Answered 32. H. 8. being an Act of explanaiton of 4. H. 7. as to the Fine by tenant in taile shall
nor body were lyable to Execution in Debt or damages recovered but Execution was to be done by Fieri facias or Levari facias of his Goods and Chattells and profits growing upon his Land but in debt brought against one as heire his Land was liable to Execution because the Plaintiffe had no other remedy for the goods belong to the Executors but the body goods and Lands of the K. Debtor or accomptant were ever liable to Execution but such Levari facias or Fieri facias ought to have beene sued within the yeare or otherwise he was chased to his Writ of Debt and now by Westm 2. c. 45. he may have a Scire facias and by the 18º Chapter of that Statute an Elegiâ— is given of the moity of the Land which was the first Act that subjected Land to Execution for Debt or Recognizance and by the Statute of 13. E. 1. de Mercatoribus 27. E. 3. c. 9. 23. H. 8. c. 6. In Statute Merchant and Statute Staple all the Lands of the Conusor at the day of acknowledgement shall be extended into whose hands soever they shall after come But in all Actions Vi armis where a Capias lyeth in Processe there after judgement a capias ad satisfaciendum lyeth the K. shall have a Capias pro fine and in such cases the Law the preserver of peace subjecteth the body to Imprisonment and by Marlebridge c. 23. West 2. c. 11. a Capias was given in an accompt the proces before being a distresse infinite and by 25. E. 3. c. 17. the same proces given in Debt as in account for before this Act the body was not liable to Execution for Debt as aforesaid 2. If Land of the heire be seised in Execution upon a recognizance of his auncestor he shall not have contribution against a purchasor of his Auncestor although he come in without consideration and although the Heire be not charged as Heire but partly as Terretenant but one purchasor shall have contribution against another purchasor and one Heire against another Heire because they are in Aequali jure and therefore the Writ here which issued against the Heires without naming the purchasor is good although he be charged as Terretenant The Heire shall have an Audita quaerela as well as the Conusor himselfe before Execution sued and a Supersedeas but a Stranger shall not If diverse acknowledge a recognizance the charge doth not survive and the Land of one shall not be put in Execution but all their Lands equally so if two are bound to warranty both or their Heires and the survivor and the Heire of the other shall be jointly vouched and the Land of both shall be rendered in value But if Baron and Feme and the Heires of the Feme are bound to warranty and the Feme dye the Land of the Baron may be solely taken in Execution because there are no Moities betweene Baron and Feme So that when Land shall be charged by any Lien the charge ought to be equall but in a Lien personall otherwise it is as if two are bound in an Obligation there the charge shall survive But a Purchasor Bona fide before any Action brought shall not be subject to any charge And three Errors were moved in the record 1. The Scire facias was Haerediterrarum c. which is improper for he is not Heire to the Land but to his auncestor 2. The Writ is Scire facias haeredi terrarum c. and the Retorne is Scire fecit W. H. militi haeredi praedicti M. and every Retorne must answer the point of the Writ 3. The judgement is generall against Sir W. H. where it ought to be speciall for otherwise his owne Land shall be liable where by the Law the Land onely which came to him by his Father ought to be charged and he is charged as Terrtenant as aforesaid but these poynts were not resolved by the Court. Nota the new Writ of Error after entry of the first was not brought Quod coram vobis residet because the Record is not removed out of the keeping of him who had the custody thereof before A Perfect Table of the Principall matters contained in every Case in this Booke WHAT words doe make a generall warranty and to whom the custody of evidences doth belong Page 1 Tenant for life commeth in as Vouchee in a common recovery it is a forfeiture Page 1 2 23. H. 8. Extends not to suppresse good uses the conveyance good and the bad use void any man may give Lands to Charitable uses Page 2 Touching the Exposition of the Kings grants and how the words Ex speciali gratia mero motu c. therein shall be construed Page 3 A common Recovery by Tenant in taile binds them in remainder and reversion and all Leases and charges granted by them ib. A feoffement by Tenant for life destroyeth a contingent remainder Page 4 Conusee of Tenant for life and him in remainder in taile renders a rent to Tenant for life it is good during his life ib. Tenant for life and he in remainder in taile infeoffe I. S. it is no discontinuance or forfeiture otherwise if without deede Page 5 Perpetuities are against Law but the Parliament or Law may make an estate as to one and good to another Page 5 6 Tenant in taile suffers a recovery and dyes before Execution it may be sued against the issuâ— and when a man may enter or claime the Law will not put things in him till entry or claime Page 7 A man may be in by discent and yet not have his â—…ge ib. A future power of revocation may be released Page 8 When any thing Executory is created by consent of all it may be voided Page 8 A feoffement by feoffees devesteth all future uses contingent Page 9 27. H. 8. Transferreth the possession to uses onely In esse ib. When a remainder ought to vest ib. 27. H. 8. Of uses shall not be taken by equity ib. A diversity when Tenant for life infeoffeth the reversioner mediate and when imediate there it is no forfeiture ib. A disseissor may make admittances but not voluntary grants Page 11 A difference when a confirmation is made to one that is in upon an expresse condition and when not there the estate is absolute ib. Every fee simple may be charged one way or other Page 12 A difference betweene Terminus annorum Tempus annorum Page 13 A Termor grants to B. so many yeares as shall be behind Tempore mortis suae it is void otherwise if for a certeine number of yeares ib. A lease cannot comence upon a double contingency Page 14 He who hath a power of revocation may doe it part at one time and part at another time till he hath revoked all Page 15 By the same conveyance the old uses may be revoked and new raised Page 16 Vpon what conveyances uses may be raised upon a generall consideration Page 16 17 An Action of
and accepted the Rent by the hands of the assignee due after the assignement and before that this rent now demanded was due the Plaintiffe demurred and adjudged against him because the privity of the contract was determined by the death of the Lessee and therefore after the assignement made by the administrator Debt doth not lye for rent due after the assignement Also it was said that if a Lessee assigne over his terme the Lessor may charge the Lessee or his Assignee at his Election And if the Lessor accept the rent of the assignee he hath determined his Election and shall not have an action after against the Lessee for rent due after the assignement no more then a Lord having received the Rent of the Feoffee shall avow upon the Feoffor afterwards Butler and Bakers Case 33. and 34. of the Queene fo 25. W. B. and his Wife seised of the mannor of H. by an Estate made to them during coverture for the joynture of the Wife in taile holden In Capite and W. seised of Land in F. both which amount to a third part of all his Lands and also of the Mannor of T. In capite which amounts to two parts W. devises T. to his Wife upon condition that shee should take no former joynture and dyed the Wife in pays refused H. the question was whither the Will were good for the intire Mannor of T. or but for part by the Statutes of 32. and 34. H 8. Resolved that at common Law if a gift be to a Husband and Wife in taile c. the Husband dyes the Wife cannot devest the free hold by any verball Waiver or disagreement in pays as if she say before entry that shee will never agree to it shee may enter when shee pleases so if shee saith reciting her estate that shee assents c. to the said estate yet afterwards shee may waive it in a Court of record but if shee enters into the Land and takes the profits though shee saith nothing t is a good agreement in Law for the Law more respects acts without words then words without acts and a freehold shall not be so easily devested to the intent that the Tenant to the Praecipe should be the better knowne But as an act in Pays may amount to an agreement so it may amount to a disagreement but this is alwayes of one and the same thing if the Tenant by deed infeoffe the Lord and a stranger and maketh livery to the Lord if the Lord dissagree ' by word t is worth nothing and if he enters generally and takes the profits t is an agreement but if he distraines for his Seigniory t is a dissagreement yet in some cases a claime by words shall direct the entry to be an agreement to one Estate and a disagreement to another c. See the Booke at large but a man may devest the property of goods and Chattells or an obligation sealed to him by disagreement In pays Resolved that though the estate was created by way of use which use before the Statute might have beene waived in Pays yet now the Statute hath so incorporated the use and possession of the Land that it cannot be waived In pays more then an Estate created by feoffment c. yet t was here resolved That the refusall In pays to have H. and the entry and agreement to T. was a good agreement to the one and disagreement to the other And this by 27. H. 8. ca ' 10. If any Woman hath Lands c. assured after Marriage c. after the death of the Husband She may refuse her joynture and take her Dower c. And upon these words the Court agreed That a Woman might refuse her Joynture In pays and be indowed by consent or Writ The great doubt was if by this refusall of H. by operation of Law it doth discend immediatly to the Heire after the death of the Devisor for to satisfie the Statute which saith The King shall take for his third part such Mannors c. as shall discend c. immediatly after the death of the devisor Resolved First Upon the reason of the common Law the refusall shall not have such relation that the devise shall be good for the intire Mannor of T. for a relation is a fiction of Law to make a nullity of a thing Ab initio to one certaine intent which in truth had being and that Propter necessitatem ut res magis valeat quam pereat 11. E. 3. The Law will make a nullity Ab initio that the Wife shall have dower but not as to a collaterall intent as if the reversion were granted of the Lands which the Husband and Wife held in taile and the Wife for to have Dower dissagrees yet the grant is good for shee may be endowed though the grant stand and Relatio est fictio juris et intenta ad unum And though relations aide acts in Law as Dower yet t will never aide the acts of the party to avoyd them by relation as a man infeoffes an Infant or Feme covert and after gives c. or devises the Land or any thing out of it the Infant or Husband disagrees this shall have relation betwixt the parties that the Infant or Husband shall not be charged in damages but shall not make the voyd devise c. good A Lease for life the remainder to the King the King grants his remainder the deed is in-rolled it shall have relation to make this passe Ab initio to the King not to make the voyd pattent good And as relations extend onely to the same thing and the same intent so also to the same parties not for to prejudice a Stranger feoffement of a Mannor and a long time after livery the Tenants attourne this shall have relation to make the services passe Ab initio or otherwise they could never passe nor be parcell of the Mannor but not for to charge the Tenants for the arrerages in the meane time So here the refusall shall relate as to the mannor of H. onely not to T. and to the wife onely but not to prejudice the Heire upon whom part of the Mannor of T. discended to make the devise good for the third part which was voide at the time of the death For Omne testamentum morte consummatum est and as it was at the death so it shall remaine Resolved that after the Statute of 27. H. 8. and before the Statute of 32 H. 8. the Mannor of T. was not devisable and therefore when the devisor hath not pursued the Authority which the Acts of 32. 34. H. 8. gives t was voide for part The first branch he hath not pursued which saith That all c. having a sole estate in fee simple in any Mannors c. shall have full and free liberty c. to dispose by his last will in writing as much of c. as shall amount to the cleere yearely value of two parts in three to
be divided For he had not the Mannor of H. for his Wife had it joyntly with him See many excellent Cases in the Booke at large adjudged upon this word Having in the Statutes the Initium of a Will ought to be full and perfect which is the writing and therefore if the devisor command one to write his Will and he devises white Acre to A. and his Heires and black Acre to B. and his Heires and dyes before the devise to B. is written yet the devise to A. is good But if he devises to A. c. upon condition and he writes the devise and the Testator dyes before the Writing of the condition t is voyd for in the one case the devises are severall and the one is perfect in the other Case t is maimed and imperfect for the intire devise was not fully put in writing so t was resolved in the Case at Barre that neither the commencement nor the end of the Will was full or perfect for at the time of writing of it and at the death of the devisor he had no power in respect of the joynt estate in H. to dispose all the Mannor of T. which amounts to the value of two parts of all Also upon the first Branch he ought to have a sole estate and here his Wife is joyntly seised with him and shee cannot disagree during coverture The Statute gives liberty to him for to devise two parts by will but this is to be intended of such Land which he might convey by act executed but here by reason of the undivided estate of the Wife he cannot dispose it but during coverture Also the third part of cleere yearly value is saved to the King and the intent of the Statute was that the King shall have the equall benefit at least for his third part as the devisee hath for two parts but here the devisee had two parts absolutely and the King but a possibility Viz. If the Wife would disagree which is at her pleasure and this Statute hath been constru'd that equality should be observed A man which held three Mannors of three Lords could not devise two of them but two parts of every one upon these words Cleere yearly value 't was said that of Inheritances which are not of any yearly value some are devisable some not as Bona et catalla felonum fugit or utlagat Fines amerciaments within such a Mannor or Towne these cannot be devised nor left to discend but a Leete Waife or Stray or other hereditament appendant or appurtenant to a Mannor passe by devise of the Mannor with th' appurtenances as incidents and the Statute had no intent for to dismember these things which by lawfull prescription had beene united But if a hundred with goods of Fellons Outlaws Fines Amerciaments returne of Writts and such other casuall hereditaments within the same hundred have beene accustomably demised for a yearely rent they may be devised within the purview of the said Act. 'T was said upon the words of the Statute which says that he may devise a rent common c. Out of two parts that a devise of a rent of the full value out of all is voyd but out of two parts 't is good And 't was observed that upon 32. H. 8. a devile of all his land had beene good for two parts as adjudged in Vntons Case for Land is severable but a rent is a thing intire and 34. H. 8. onely gives authority for to devise it The second branch which speakes of division cannot be satisfied for during his life he himselfe could not Set it out and after his death it survives to the Wife The third and fourth branch is not satisfied in this word immediatly for till disagreement without question the Mannor of H. survived to the Wife and if an Office had beene found before disagreement without doubt the Queene should have a third part of the Mannor of T. and the devise being voyd at the death of the devisor the third part lawfully vested in the Heire by discent it cannot be made good and devested by a subsequent disagreement Littleton discent to the Heire of Tenant by the courtesy of a disseissoresse doth not take away entry for the Heire comes not in immediatly 't was agreed if a man devises two acres holden by Knights service and a reversion upon a Lease for life discends to the heire this is no immediate discent within the Statute but the third part of the two ought to discend see many excellent Cases of devises adjudged upon the Statute Another good Case of relations Jennings and Braggs Case a disseisee makes an Indenture purporting a Lease for yeares and delivers it to a stranger out of the Land as an Escroule and commands him for to enter and deliver this as his deed to the Lessee who doth it and adjudged a good Lease and this diversity agreed First When the person at the first delivery hath not ability to make the contract and before the second delivery hath 't is voyd as an Infant and a Fème covert otherwise when at first delivery the person hath ability but cannot perfect it till an impediment removed which is done before the second delivery there 't is good as at Barre Resolved secondly that to some intent the second delivery shall have relation to the former by fiction of Law Vt res magis valeat quam pereat as if a Feme sole deliver a Lease as an escroule and after takes Husband or dyes yet by the second delivery 't is a good deed Ab initio and to some intent Vt res magis valeat c. it shall not relate yet in truth the second delivery hath all its force by the first and is but an execution and consummation of the former as at Barre for if it should relate to the first delivery then it would avoyd the lease for it should be made by one who was out of possession fictio legis inique operatur alicui damnum vel injuriam Thirdly 't was resolved that as to collaterall acts that there shall be no relation Omninò as if the Obligee release before the second delivery such release is voyd Ratcliffes case 34. of the Queene fo 37. A. Feme sole devises Socage land to the sonne of her daughter in taile the remainder to two Sisters of the devisee and to the heires of their two bodies by equall portions to be divided the remainder in fee to the Mother of the daughters and dyes the sonne dyes without issue Martha one of the daughters dwelling in her Mothers house daughter of the devisor within the age of 16. and above 14. departed at the second houre in the night with the consent of the husband of her Mother in whose house she was 8. miles and there married E. R. the issue was whether E.R. the Mother had the custody of the said M. at the time of the contract and marriage aforesaid for if she had then the
which was not warranted by 32. H. 8. upon which Sir G. B entered Resolved that the lease for three lives though without warranty was within 11. H. 7. which saith discontinue alien release or confirme with warranty for the intent of the Statute was to prohibit not onely every barre but every manner of discontinuance which puts the heire to his reall action and because a release or confirmation is no discontinuance without warranty the warranty referres to them to make them equivalent to an estate which passeth by livery Note the title of the Act Discontinuance of right or estate also in the Act 't is said If no such discontinuance warranty nor recovery had been so that discontinuance stands in equall degree with warranty Resolved that if the issue had granted his remainder in fee onely and not barred his taile he might have entered by the words of the Act for the forfeiture which saith Every person to whom the interest c. title or inheritance after the decease of the woman should appertaine may enter and enjoy c. As if no such discontinuance had been made and if no such had been the land should discend to the issue Resolved that in this case Sir G. B. shall enter for if no discontinuance had been he should injoy it against Anthony the issue and all the heires of his body though the Fine be levied in the life of the auncestor for 32. H. 8. says In any wise intailed to the person so levying the Fine or to any of his auncestors and though it worke part by conveyance part by conclusion yet ' the taile being extinct by the Fine Sir G. B. in remainder shall enter The same Law in this case though the Fine were without Proclamations for the issue against his Fine cannot enter but the entry of the conusee is lawfull Anderson said where 't was invented to make an evasion out of this Act that a woman should accept a Fine come ceo c. and render for a thousand yeares pretending this not within the words discontinue alien release with warranty c. that this was an alienation within the intent of the Act or otherwise the Statute should serve for nothing and so it hath been resolved Rigewaies Case 36. El. in Banco regis fol. 52. IT was resolved pro tot Cur. although the prisoner in execution escape out of view yet if fresh suite be made and he be taken againe in recenti insecutione he shall be in execution otherwise at the turning of a corner or by entring into a house or other meanes the prisoner may be out of view And although he fly into another Countie yet because the escape was of his own wrong whereof he may not take advantage the Sheriffe upon fresh suite may take him there and he shall be in execution But if the Plaintiffe bring his action against the Sheriffe upon the escape before that the Sheriffe take him or if the Sheriffe doe not make fresh suite yet in both these cases the Sheriffe may take him and keepe him in his custody untill he make agreement with him or he may have an action of the case for his wrongfull escape And although the defendant be taken upon a cap ad satisfaciendum and escape yet if the Writ be not returned and filed the Plaintiffe may have a new cap ad satisfaciendum against him and take him againe and he shall not take advantage of his owne wrong But if the Plaintiffe will he may charge the Sheriffe with the escape if he did not take him againe in fresh suite before the action brought and when the prisoner escapes of his owne wrong and be taken againe he shall never have an audita querela against the Sheriffe But it is otherwise if he escape with the consent of the Gaoler then he may not take him againe and if he doe then he may have an audita querela Resolved that the barre was insufficient for the plaintiffe counted of an escape in London and the defendant justifies the retaking in Devonshire so that the escape at London was not answered but the plaintiffe not denying the fresh suite but by Protestation relying upon this that he was out of view 't was adjudged against him but if he had demurred upon the barre he should have had judgement Resolved that after Demurrer there shall not be a Repleader for the parties by mutuall consent have put themselves upon the judgement of the Court and therefore without their consent they cannot repleade and so severall times adjudged Lincolne Colledge case 37. 38. of the Queene fo 59. HUsband seised to him and to his wife for life and to the heires of the body of the husband dyed the issue in the life of the wife then tenant of the freehold for so the pleading was which shall be intended by disseisin for no surrender or forfeiture was alledged 4. H. 8. Suffered a recovery with single voucher by agreement that the recoverors should infeoffe L c. to divers uses and that the wife should release to them with warranty which was done according 11. H. 8. The wife dyed after the issue dyed after his issue in the third degree entered the question was whether the collaterall warranty should binde the recovery did not come in question for by the pleading it shall be intended that he was seised by other title then by the taile so the single voucher not materiall Resolved that though the first branch of the Statute of 11. H. 7. says that the warranty shall be voyd yet the clause following and that it shall be lawfull c. to enter being annexed to the first expounds the generality of it and though he to whom the interest c. after the death of the wife appertaines may avoyde it by entry yet 't is in force against all others and so the Judges have expounded other Statutes 8. H. 6. All Outlawries shall be voyd except a Capias be awarded against the party in the County where c. yet this ought to be avoyded by error The Statute of 1. of the Queene ordaines that all grants c. by a Bishop in other manner then c. shall be utterly voyd but 32. 33. of the Queene betwixt Sale and the Bishop of C. and L. a grant of a next avoydance of a Church not warranted c. was not voydable against the Bishop himselfe but onely against his Successors And with this resolution agrees 27. H. 8. upon the same Statute of 11. H. 7. Resolved that this warranty was out of the intent of the Act which onely restraines warranty which prejudices the heire in taile or those in remainder but when the warranty c. of the wife is but for to perfect and corroborate the estate assured by the issue himselfe c. 't is not restrained by the Act for it shall be intended to the benefit of the heire which is the reason that a common recovery is not restrained by W. 2.
not be taken by any strained construction against the letter for then 't is requisite to have a new Act of explanation upon the explanation sic in infinitum By 4. H. 7. every one hath liberty to pursue a Fine according to the said Act viz. with proclamations c. or without as at common Law and therefore the Act of 32. H. 8. of necessitie prescribes that Proclamations shall be made according to 4. H. 7. to distinguish it from a Fine at common Law and not to inable the issue for to make claime for this should be against the expresse intent of the Act in the preamble and purview Also it should be very inconvenient if when such Fine is levied for a valuable consideration advancement of his issues or payment of his debts and he dyes before Proclamations that all should be avoyded by the claime of the heire when the conusee could not have better assurance by Recovery for that he was not tenant to the Praecipe See the Booke at large in what case the issue in taile may averre seisin in a Stranger quod partes Finis nihil habuerunt what not Objected 1. 't is provided by the Statute de donis c. that as to the issue Finis ipso jure sit nullus 2. That the Statute of 27. E. 1. extends not to the heires in taile as 8. H. 4. is for the issue is not bound by any Record which inures by way of Estoppell 3. 27. E. 1. speakes De finibus ritè levatis and when there wants seisin which is the essence of a Fine 't is not ritè levatus 46. E. 3. that 't is a good plea. Answered the Statute de donis c. was made 13. E. 1. and the Statute of Fines 27. in which the issue is not excepted therefore he is bound and according there is a good opinion 8. H. 4. To the second though the issue was not barred of his right before 4. H. 7. yet he was estopped to say Quod partes Finis nihil habuerunt To the third Finis ritè levatus is intended in due forme of Law which it may be though it be onely by way of conclusion for the same Act ousts the parties from such averment and 46. E. 3. is to be intended of a collaterall auncestor from whom the heire doth not claime the Land and then the averment is good In Conisbies case 't was resolved upon a Fine levied to tenant in taile in remainder by tenant for life and a grant and render of a rent that this was not within the Statutes of 4. H. 7. or 32. H. 8. for the Fine was not of the land it selfe which was intailed but of the rent newly created out of the land And in the Lord Zouches case 't was resolved that 4. H. 7. and 32. H. 8. doe extend to Fines levied by conclusion and shall binde though partes c. nihil habuerunt as if tenant in taile makes a Feoffement or be disseised and levies a Fine for the Statute says All Fines of any lands c. in any wise intailed to the person so levying or to any of his auncestors and in 4. H. 7. the exception Quod partes c. is saved to all persons not party nor privy to the said Fine and the issue in taile is privy for he claimes as heire by discent and if such Fine shall barre where the tenant in taile had nothing though the issue enter after the death of the auncestor before all the Proclamations passe a fortiori here when tenant in taile at the time was seised of an estate though 't were in reversion See Archers case where a Fine shall barre the issue where the Father had onely a possibility at the time of the Fine levied Purslowes case 32. of the Queene tenant in taile levies a Fine Term. P. T. and dyed in August next his daughter being heire to the taile and her husband brought a Formedon and pending the plea the Proclamations passed and 't was agreed by the Court that the tenant shall plead the Fine and the Proclamations which passed pending the Writ shall barre the demandant yet there the issue did all that might be done for the conveyance is the Fine and the Proclamations are but a short repetition of the Fine out of this foure things are to be observed 1. Though after the Fine a right descends to the issue yet after Proclamations the right is barred 2. Though he pursues a Formedon yet after Proclamations he is barred ergo in the principall case he is barred notwithstanding his entry or claime in pays 3. When tenant in taile levies a Fine and dyes before Proclamations the issue is not within any of the savings for then the bringing of a Formedon should avoyd the barre 4. The Proclamations serve for no purpose but to distinguish the Fine from a Fine at the common Law Trin. 4. of the Queene Bendlowes tenant in taile disseised the discontinuee and levied a Fine and tooke an estate by render the discontinuee enters and claimes before all the proclamations passed and avoides the estate after the proclamations passe tenant in taile continues his possession and dyes within the yeare after the entry and claime Resolved that the issue was not Remitted but barred by 32. H. 8. Though the estate was avoyded before all the Proclamations passed Resolved though the issue be beyond the Sea yet because he is privy c. he is bound as if he he were within age covert or non compos Which was agreed by all the Justices Ergo the claime of the issue is not materiall and if Infancy c. should avoyde the Fine no man should be assured of land conveyed THE FOURTH BOOK Vernons Case 14. 15. of the Queene fo 1. IN Dower the tenant shews that the husband made a Feoffement of other Land to the use of himselfe for life and after to the use of the demandant for life c. and averres that the said estate was for her Joynture c. and that the demandant hath entered c. and agreed to the estate the demandant shews that the estate was upon condition for to performe the will of the husband and that divers things were to be performed in it judgement if the tenant shall be admitted c. Resolved that at Common Law a right or title to a Freehold cannot be barred by acceptance of a collaterall satisfaction or recompence As if a disseisor of the Mannor of P. gives to the disseisee the Mannor of S. in satisfaction of all his right c. And therefore 't is said in our Bookes that an accord with satisfaction is a good plea in a personall action where damages are to be recovered not in a reall and therefore no barre in Dower but Dower ad ostium Ecclesiae or ex assensu patris concludes her if she enters after c. for the Law allowes them c. to be Dowers in Law Before 27. most lands were in use
and because wives were not dowable of the use estates were made by the Feoffees to the husband and his wife before or after the marriage for life c. for a competent provision for the wife then 27. transferred the possession to the use and if further provision had not been the wives should have their dowers and joyntures also and therefore those branches were made in the same Statute of 27. Resolved that the Feoffement to the use of himselfe for life the remainder to his wife for life for the joynture of the wife is within 27. for though that five estates onely are expressed 1. To the husband and wife and the heires of the husband 2. c. to the heires of their two bodies 3. Of the body of one of them 4. For their lives 5. To the husband and wife for life of the wife yet many other estates are within the Act for these are put for example not to exclude others But resolved that no estate is a joynture except it takes beginning presently after the death of the husband for so are all the examples and therefore to himselfe for life the remainder to B. for life the remainder to his wife c. is not within the Statute c. And therefore though the wife enter and takes the profits she shall have Dower An estate to one and his wife and the heires males of their two bodies adjudged a good joynture yet none of the five estates mentioned an estate made to a woman for life before marriage adjudged a good joynture Resolved though the estate here were upon condition and though Dower in place of which the joynture comes were absolute yet because an estate for life upon condition is an estate for life 't is within the words and the intent of the Act if the wife accept it c. Resolved that a wife cannot waive a joynture made before the coverture as she may a joynture made after and this by the Proviso if any woman hath lands c. assured after marriage for her life c. after death of the husband she hath liberty to refuse c. and therefore the intent of the Statute was that she should not refuse a joynture made before and land conveyed for part of her joynture or in satisfaction of part of her Dower is no barre of any part for the incertainty for the Statute says for the joynture of the wifes and not for part of the joynture Resolved that though the estate of the wife be upon an expresse condition for to performe the will which imports a consideration of making the estate yet it may be averred for joynture for the one consideration well stands with the other and though it be not expressed in the Deed yet it may be averred and the case is the stronger because the averment is given by the words of the Act. And a Fee simple to the wife in satisfaction of her Dower is a joynture within the equity of 27. for the reasons aforesaid as also because 't is within the expresse words for terme of life or otherwise for all estates as beneficiall or more are within by this word otherwise in joynture after judgement was given against the demandant A devise to a wife for life in taile c. for her joynture is a good joynture within 27. as 't was resolved in Leake and Randalls case Otherwise where a man devises to his wife for life c. generally this cannot be averred to be for joynture and therefore no barre of Dower 1. Because a devise imports a consideration in it selfe and shall be taken as a benevolence 2. All the will for land by 32. 34. H. 8. ought to be in writing and no averrement ought to be taken out of the will which cannot be collected by the words within an estate before marriage is within the equity of the Statute so an estate by devise which takes effect after the marriage dissolved is within 27. Bevills Case 27. 28. of the Queene fo 8. TEnant by Homage Fealty and Escuage and suite to Court twice a yeare the Lord was seised of the Fealty onely by the hands of the tenant Resolved that seisin of Fealty was a seisin of all the said services for when the tenant doth fealty he takes a corporall oath that he shall be faithfull and true to the Lord and shall beare him faith of the tenements which he claimes to hold of him and that he will lawfully doe the customes and services c. And though Homage be more honourable and the most humble service that a Freeholder can doe to his Lord yet Fealty is the more sacred service for this is done upon oath not the other And the words shall be faithfull and true are also parcell of Homage and Seisin of any part of any service is a Seisin of the whole and the Law for this reason so respects these services that no distresse for them shall be excessive and though distresse be so often that the tenant cannot manure his land he shall not have an Assise as for rent or other profits Resolved that seisin of a superior service is a seisin of all inferior services incident to it as a seisin of escuage of homage and fealty homage of fealty rent of fealty where the Seigniory is by fealty and rent Resolved that doing of homage is a seisin of all services inferior and superior because he takes upon himselfe to doe all services Resolved that seisin of rent or suite or of other annuall service is seisin of escuage homage fealty ward releife heriot service service for to cover the hall of the chiefe house of the Mannor for to impale the Parke of the Lord or such casuall services which perchance will not fall in sixty yeares but seisin of one annuall service is not seisin of another annuall service as rent of suite nor of worke dayes for 't is the folly of the Lord that he attained not seisin and it should be mischeivous to the tenant for perhaps in ancient time the worke dayes are discharged which now cannot be shewne Note Reader all this is to be intended of a seisin in Law for seisin of fealty here is no actuall seisin of homage nor of suite nor fealty of rent but seisin of any part of a service is an actuall seisin of all to have an Assise And as to make a vowry seisin in Law suffices but for an Assise actuall seisin is requisite so in a Writ of right of Land See the Booke at large and there where ancient seisin to an estate altered or changed from one person to another shall be sufficient where not Resolved that seisin in Law was sufficient to make an avowry within the letter and the intent of the Statute of 32. H. 8. for the intent was to limit a time within which seisin ought to be had not to exclude any seisin which was a lawfull seisin by the common Law which appeares by the Preamble Also the
former acts of limitation as W. 1. ca ' 38. W. 2. ca ' 2. doe not exclude a seisin sufficient at common Law And the Statute saith Actuall possession or seisin which Seisin is eyther actuall or in Law Resolved that the act doth not extend to such a rent or service which by common possibility cannot happen within sixty yeares as homage fealty for the tenant may live beyond or to cover the Hall or to goe in Warre so of a Formedon in Discender for tenant in taile may live sixty yeares after discontinuance and though In facto he dyes and the issue doth not pursue his Formedon yet he may have it at any time and the seisin of the donee was not traversable so of homage and other casuall services though the Lord might have had seisin So if the Lord release to the tenant so long as I. S. hath heires of his body though sixty yeares passe yet he may distraine for Impotentia excusat legem and there may be a tenure by homage c. and yet never done as if the Land be conveyed to a Maior c. or other Corporation aggregate of many they hold by fealty yet they cannot doe it A Writ of Escheate Cessavit Rescous are not within the Act for in them the seisin is not traversable but the tenure and in the Escheate and Cessavit they demand the Land and can lay no seisin and the Act extends onely to those Writs where the demandant or his Ancestors might have had seisin So Note Land shall escheate though there be no seisin of the services within the time of limitation for the Seigniory remaines though seisin wants so if the tenant cesse and the Land be not overt and sufficient to his distresse the Lord shall have a Cessavit though he wants seisin of the services Resolved if nothing be arreare and the Lord distraines the tenant may make rescous or if he be so often distrained that he cannot manure his Land he may have an Assise De souent distres but for such tortious distresse where nothing is arreare the tenant shall not have Trespasse Vi armis against the Lord for this is prohibited by the Statute of Marleb ca ' 3. See the Booke at large in what case an incroachment of more rent by the Lord then he ought to have shall be avoyded in what not Resolved that though a man hath beene out of possession of Land by sixty yeares yet if his entry be not taken away he may enter and bring any possessory action of his owne possession for the first clause doth not barre any right but prohibits that none shall have a Writ of right c. of the possession of his ancestors c. but onely of a seisin within sixty yeares the first and second clause extend onely to seisin auncestrell the third to an action of his owne possession not to entry the fourth to avowry the fifth to a Formedon c. Note Reader out of this that when the tenant hath done homage and fealty which the Lord may inforce him to doe this shall be a seisin of all other services as to avowry though the Lord nor those by whom he claimes had seisin within sixty yeares Actions of Slaunder The Lord Cromwells Case 20º of the Queene fo 12. THe Lord Cromwell brought an Action De Scandalis magnatum against D. Viccar Tam pro domina regina quam pro seipso upon the Statute of 2. R. 2. ca ' 5. The Defendant said to the Plaintiffe It is no marvell though you like not of me for you like of those that maintaine sedition against the Queenes proceedings the Defendant justifies specially that he being Viccar of N. the Plaintiffe procured I. T. and I. H. for to preach there who in their Sermons inveyed against the Booke of common prayer and affirmed it to be superstitious upon which the Viccar inhibited them for they had not license nor authority to preach yet they proceeded by the incouragement of the Plaintiffe the Plaintiffe said to the Defendant Thou art a false Varlet I like not of thee to whom the Defendant said It is no marvaile though you like not of me for you like of those innuendo the aforesaid I. T. and I. H. that maintaine sedition Innuendo seditiosam illam doctrinam against the Queenes proceedings Resolved in this case that the Statute aforesaid concerning the King the Judges Ex officio ought to take notice of it as they ought of all Statutes that concerne him Resolved that the justification is good for in case of slaunder the sence of the words is to be taken which may appeare by the occasion of speech Sensus verborum ex causa dicendi accipiendus est et sermones semper accipiendi sunt secundum subjectam materiam And here the sence of the words appeares and his meaning in speaking them and that he did not intend any publique or violent sedition as the word of it selfe imports and God defend that the words of one by a strict and grammaticall construction should be taken contrary to the manifest intent as in an Action for calling the Plaintiffe murderer 't is a good justification that the Plaintiffe confessing that he had killed diverse Haires with Engines the Defendant said Thou art a Murderer and the Defendant shall not be put to a generall issue when he confesses the words and shewes that they are not actionable as in maintainance the Defendant may justifie lawfull mainteinance whereupon the Plaintiffe replyed that the Defendant dixit c. Verba praedict de iniuria sua propria absque tali causa upon this they were at issue and after agreed Cutler and Dixons Case 27. and 28. of the Queene fo 14. IF one exhibite certaine Articles to a Justice of peace against one declaring divers great abuses and misdemeanours c. to the intent to bind him to the good behaviour In this case the party accused shall not have any action upon the case for it is in pursuite of ordinary justice and if such actions were permitted none would complayne for feare of infinite vexation Sir Richard Buckley and Woods Case 33. and 34. of the Queene fo 14. WOod exhibited a Bill in the Starrechamber against Sir R. B. and charged him with divers matters examinable there and with other matters not determinable there as that he was a maintainer of Pyrates and Murtherers and a procurer of Pyracies upon which Sir R. B. brought this action c. Resolved that no action lyes for matter examinable there though 't was meerely false because that 't was in course of justice Resolved that an action lyes for these words not examinable there for 't is not done in course of Justice and great inconvenience would follow if matters may be inserted in Bills exhibited in so high and honourable a Court in Slaunder of the parties and they cannot answer there for their purgation nor have their action for purging themselves of the crimes and recover damages for
limitation of any estate Resolved that when the Lord admits Cestuy que use for life the reversion is in him that surrendered not in the Lord for he is but an instrument Resolved that a man may surrender to the use of his Wife though that Cestuy que use is in by him that surrendered because the Husband did not doe this immediatly to the Wife but by a second meanes Viz. By surrender to the Lord and by admittance of the Lord. Resolved that when B. surrendered out of Court and before that 't was presented in Court he dyes yet after being presented according to the custome 't is good otherwise if it had not beene presented according to custome so if the Tenants in whose hands c. dyes yet if it be proved 't is good enough so Queintons Case before if Cestuy que use c. dyes before admittance his Heires shall be admitted Downe and Hopkins Case 36. of the Queene fo 29. REsolved that where the custome of a Mannor was to grant Coppies for one two or three lives that a grant to a Woman during her viduity is within the custome for 't is an estate for life but every grant for life is not Durante viduitate issue was whether the custome was that the Wife of a Copy-holder after the death of the Husband should have for life and 't was given in evidence that she should have during her viduity and adjudged that the evidence did not maintaine such custome for 't is a lesse estate then for life But in the principall Case 't is a greater estate which is warranted by the custome and therefore a lesse is within it according to Graveners Case before 'T was said that a Lord may retaine a Steward by word to hold Courts c. as a Bayliffe and this retainer shall serve till he be discharged Harris and Jayes Case 41. of the Queene fo 30. REsolved that a Lord may retaine one to be Steward of his Mannor and to hold Courts by word as in the Case before Resolved that where a Copy-hold escheates by attainder of felony of a Copy-holder of the Queene that the Steward may grant it over Ex officio without speciall warrant for the custome warrants the Steward to grant it and this shall binde the Queene and her Heires c. But yet his duty is before to informe the Lord Treasurer Chancellor or Barons of the Exchequer or any of them for his better direction Resolved that the Auditor or Receiver of the Queene hath no power to retaine a Steward to hold courts c. But it behooves that the Steward who makes such voluntary grants upon escheats or forfeitures to be good to have Letters Pattents of the Stewardship of the same Mannor And 't was said that 't was adjudged in the Lady Holcrofts Case that where one was retained generally by word to be Steward of a Mannor and to hold Courts that he may take surrenders of customary tenants out of Court Shaw and Thompsons Case 33. of the Queene fo 30. REsolved that a Woman shall not be indowed of Copy-hold without speciall custome and that when a Woman is to be indowed by custome she shall have all incidents to Dower and shall recover damages by the Statute of Merton because her Husband dyed seised and therefore the recovery of damage of 50. l. in the Court of the Mannor was allowed though this exceeded 40 s Resolved that no Action of Debt lyes for these damages at common Law for upon such judgement no error or false judgement lyes but the remedy is in the Court of the Mannor or Chancery Fenner Justice said That he had seene a Record 36. H. 8. where the Lord by Petition to him had for certaine errors in the proceeding reversed such a judgement and upon this the Defendant maintained an Audita quaerela to be restored to the damages recovered against him See 14. H. 4. cited before in Brownes Case And 7. E 4. 29. Hoe and Taylors Case 37. of the Queene fo 30. REsolved that Underwood growing upon parcell of the Mannor may by custome be granted by Copy of Court roll and 't is a thing of perpetuity to which a custome may extend for after every cutting the underwood growes Ex stipitibus So 't was resolved that Herbage or any profit of any parcell of the Mannor may by custome be granted by Copy and 't was said that a faire appendant to the Mannor of C. in S. is granted by Copy and this explaines the reason of the first pillar in Murrels Case Frenches Case 18. 19. of the Queene fo 31. REsolved if the Lord Lease for yeares life or make any other estate by deed or without deed of Copy-hold Land forfeited escheated c. to him that this Land can never be granted againe by Copy for the custome is destroyed for during these estates the Land was not demised nor demisable by Coppy So if the Lord make a feoffement and enter for condition broken but if the Lord keepe it in his hands a long time or leases it at will he his heires or assignes may regrant it So if the interruption be tortious as by disseisin and discent false verdict or erroneous judgement for Non valet impedimentum quod de jure non sortitur effectum quod contra legem fit pro infecto habetur But if it be extended upon a Statute or recognizance acknowledged by the Lord or if the Wife of the Lord hath this Land assigned to her in Dower though these impediments are by act in Law yet for that the interruptions are lawfull the Land cannot be after granted by Copy If a Copy-holder accept a Lease for yeares of the Lord of his Copy-hold 't is destroyed for ever If a Copy-holder take a Lease for yeares of the Mannor his Copy-hold hath not continuance Hides Case adjudged 17. of the Queene But there 't was resolved that such Lessee might regrant the Copy to whom he would for the Land was alwayes demised or demisable If a Coppy-hold be surrendered to the Lessee his Executors or assignes may regrant it If a Copy-hold escheate to the Lord his alienee by fine feoffement c. may regrant it Foiston and Crachroodes Case 29. and 30 of the Queene fo 31. ADjudged that where a Copy-holder in pleading alledges Quod infra Man praed talis habetur nec non a toto tempore cujus c. habebatur consuetudo Viz. quod quilibet tenentes praedictorum tenement vocat C. have used to have common in such a place parcell of the Mannor and that he is a Copy-holder of the said Tenement that this custome as well for the matter as the forme was good for the Copy-holder cannot prescribe in his owne name for the exility and basenes of his estate and if he had claimed common in the soile of another he ought to prescribe in the name of the Lord Viz. That the Lord and all his ancestors and all those whose estate c. have
judgement and this error assigned for that R. the plaintiffe was an Infant and was admitted by his Gardian and no Record made of it as 't is used in Banco but onely recited in the Count J. R. per A. B. gardianum suum ad hoc per curiam specialiter admissum queritur Which was disallowed by all the Justices upon search and view of many presidents which make a Law in this Court yet some presidents were as in Banco Note Reader according to the opinion of Wray 't was resolved in Londons case that if a man takes a lease by Indenture of his own land this is an Estoppell but during the terme and then both parts of the Indenture belong to the lessor Wardens and Commonalty of Sadlers case 30. of the Queene fo 54. BY Mandamus 't was found before B. Mâ—yor of London Escheator of the City and thâ— inquisition was returned in Chancery that T. C. held of the King c. and dyed seised without heire the Wardens c. shewed their right that R. M. was seised in fee and devised to them in fee and that they were seised till by C. disseised and shew the custome of London that a Citizen and Freeman may devise in Mortmaine and averred that R. M. was c. Tempore mortis and upon this great question was whither a Monstrans de droit lyes or it ought to be by Petition See the Case at large for this Learning Bereblock and Redes Case was cited to be adjudg'd if A. be bound in a recognizance Statute c. and after a recovery in Debt is had against him and he dyes his Executors ought first to pay the Debt upon the Recovery though it be puny to the Statute c. for though both be Records yet the judgement in the Court upon judiciall and ordinary proceeding is more notorious and conspicuous and of more high and eminent degree then a Statute c. taken in private by the consent of Parties Forse and Hemblings Case 37. Eliz. in com Banc fo 60. ALice Allen seised of certaine Messuages in Fee maketh her will in Writing and thereby demiseth that if James Amynd doth survive her that then she doth demise and bequeatheth the same messuage to him and his Heires And afterwards the said Alice did Intermarry with the said James and during her coverture she said often the said James should never have the said Messuage by her said Will Alice dyed without issue and James survived and the Question was whither the Will was countermanded by the said Marriage or not and if not whither by the words of revocation after the Marriage was a Countermand and it was adjudged upon great deliberation that the taking of a Husband and the coverture at the time of her death was a countermand of the Will For the making of a Will is but an inception thereof and it doth not take any effect untill the death of the Devisor For Omne testamentum morte consummatum est voluntas est ambulatoria usque extremum vitae exitum And it should be against the nature of a Will to be so absolute that he that made the same being of sane memory may not countermand the same And therefore the taking of her Husband being her owne proper act doth amount to a countermand in Law Also 't was said that after Marriage all the will of the Wife in judgement of Law is subject to the will of her Husband and a Feme Covert hath no Will and therefore the Countermand after Marriage was of no force Quod fuit concessum per tot Cur. Harlakendens Case 31. El. In banco regis fo 62. THe Earle of Oxford leased to A. B. and C. except the Trees for 21. yeares C. assigned to D. the Earle sells the Trees to A. B. and D. they leased to E. and after sell the Trees the Vendee cuts them the Lessee brings Trespasse When a man maketh a Lease for life or yeares the Lessee hath but onely a speciall interest or property in the Trees being Timber as things annexed to the Land but if the Lessee or another severs them the property and interest of the Lessee is determined and the Lessor may take them as things which were parcell of his Inheritance It was also resolved that this clause without impeachment of wast doth not give to the Tenant for life any greater interest in the Trees then he had by the demise of the Land but onely that it will serve that he shall not be impeached in any action of Wast or to recover damages or the place wasted * This is adjudged otherwise by all the Judges of England in Lewes Bowles Case in the 11. Report It was also resolved that if an House fall by tempest or other act of God the Lessee for life or yeares hath a speciall interest to take Timber to reedifie the same if he will But if the Lessee suffer the House to fall or take it downe the Lessor may take his Timber as parcell of his Inheritance and the interest of the Lessee is determined and he may have wast and treble damages Resolved that the Lessee by the grant had an absolute property in the Trees so that by the Lease of the Land they did not passe and he hath not equall ownership in both and it should be a prejudice to him if they should be joyned to the Land for then he could not cut during the terme without wast and after he shall not have them and the Lessor shall not have them against his owne act And here A. B. and D. were Tenants in common of the Land and joyntenants of the Trees and so their interest of severall qualities and therefore cannot be a union betwixt them but upon a feoffement if the Feoffor accept the Trees they are in property divided though In facto they remaine annexed to the Land for it is not felony to cut them c. and if the Feoffor grants them to the Feoffee they are reunited in property as well as De facto and the Heire shall have them not the Executors for the feoffee hath an absolute ownership in both and it is more benefit to him that they are reunited It was resolved That if Tymber Trees be blowne downe with the winde the Lessor shall have them for they are parcell of his inheritance and not the Tenants for life or yeares but if they be Dotards without any Timber in them the Tenant shall have them It was adjudged that wast may be committed in glasse in the Windowes for it is parcell of the house and discends as parcell of the inheritance to the Heire and the Executors shall not have them although the Lessee put the glasse in the Windowes at his owne cost and if he take them away he shall be punished in wast And 42. Eliz. in com Banco It was resolved that Wainscote whither it be annexed to the house by the Lessor or the Lessee is parcell of the House and there
construed shall or might be leavyed and so 't was holden of a Lease or limittation of a use otherwise he which is to leavy the Summe by deferring to doe it may exclude the reversioner for ever see the Booke at large Resolved when the heire or reversioner c. enters and expulses him to whom the Land is limitted he hath election to recover the Mesne profits in an action or reentry and retainer till he leavyes the inteir Summe and the other shall not have advantage of his owne wrong and if a stranger had entered and occupied the Devisee ought to have taken notice at his perill for Vigilantibus non c. and none is bound to give notice but here the Heire himselfe concealed the will and the Devisee had no remedy for the Mesne profits after the death of the heire Resolved that a Gardian shall not ouste Tenant for life nor yeares of the Tenement Resolved that admitting the Gardian shall ouste Tenant for yeares yet he shall not hold over because his terme is certaine in the commencement continuance and end otherwise of Tenant by Elegit Statute c. they shall hold over because the terme is uncertaine Southcots Case 43. Eliz. in banco regis fo 83. IF A. doe deliver goods to B. for to keepe the goods be purloyned away yet B. shall be charged in a Writ of detinue For to keepe and to keepe safely is all one but if B. doe take them to keepe as his owne goods he shall not be charged with them And if A. doe pledge or Guage goods unto B. in this Case B. shall not answer for them if they be purloyned for he had some property in them and not a custody onely but a ferryman a common Inkeeper or a Carrier which taketh hyre they ought to keepe the goods safely and they shall not be discharged if they be stollen or purloyned But a Factor or a Servant although he have wages doing his indeavour shall not be charged Luttreles Case 43. Eliz. in banco regis fo 86. IF a man have estovers eyther by grant or prescription to his house although he alter the Rooms and Chambers in his House it seemeth that the alteration of the qualities so as it be not of the house it selfe and without making new Chimnyes by which no prejudice accrewes to the owners of the Wood is not any destruction of the prescription and though he make new Chimnyes or make a new addition to his old house he shall not loose his prescription thereby but he may imploy or spend any of his new estovers in the Chimnyes or in that part newly added It was also resolved that if a House or Milne doe fal or be taken downe by the act of the owner or by wrong of another yet for that the perdurable part which includes all doth remaine which is the Land whereupon the Fabrick is built he may reedifie the same againe without any Losse of his apendant or apurtenant but it ought to be upon the same place which was the Foundation of the old House for as it did support and in judgement of Law included the ancient house when it was standing so it supports and includes the new house so as it is in a manner a continuance of the ancient house Diverse Tenants doe hold of another as of his Mannor by fealty and suite to the Lords Milne the Lord doth alien his Milne with the suite of his Tenants and after the vendor dyeth and his Sonne entereth and buildeth a new Milne upon the other part of his demeane he shall have the suite to his owne Milne which the Vendee had before for the suite belongeth to him that hath the Mannor for no man may have suite to his milne by reason of a Tenure If it be not of Corne growing upon the Lands within the Seigniory or Mannor and the Lord may erect a new Milne within any part of the Mannor and the Tenure is due to the same and not to any particular Milne Druries Case 43. Eliz. Error in Banco Regis fo 84. A Countesse being a Widdow retaineth three Chaplaines he who is last reteined is not capable of a dispensation for the Statue of 21. H. 8. c. 13. is executed by reteining of two and the reteining of the third shall not devest the capacity which was in the first two but if the reteiner had beene at one time he who is first promoted shall be first preferred because in Aequali jure c. 2. Resolved if the two first die the third is not capable of dispensation without a new reteiner because he was reteined at the common Law and not according to the Statute Quod ab initio non valet c. As if the Sonne and Heire of a Baron reteineth a Chaplaine and giveth him Letters under his Seale and after the Father dyeth And it was said that the said Act shall be taken strictly as if a Baron be made Gardian of the 5. parts he shall reteine no more Chaplains then before and if a Baron retaine two Chaplaines who are promoted he cannot discharge them and reteine others during their lives Slades Case 44. Eliz. fo 92. IT was resolved that every contract executory imports in it selfe an assumpsit For when one doth agree to pay money or to deliver any thing by that he doth assume and promise to pay or to deliver the things and therefore when he selleth any goods to another and agreeth to deliver them at a day to come and the other in consideration thereof agreeth to pay so much money at such a day in this case both parties may have an Action of Debt or Action upon the case upon the assumpsit for the mutuall executory agreement of both parties import in themselves as well a reciprocall Action upon the Case as an action of debt and a recovery or barr in an action of debt is a good Barre in an action upon the Case brought upon the same contract and so likewise in an Action upon the Case a recovery or Barre in the same is a good plea in an Action of Debt upon the same contract The Defendant in an Action of the Case upon the assumpsit may not wage his Law as he may doe in an action of Debt If a Summe of money be promised in Marriage to be paid at severall dayes an Action upon the assumpsit lyeth for non payment of the first although no Action of Debt lyeth untill all the dayes be past Multitudo errantium non parit errori patrocinium and if the Debtor of the King sueth by Quo minus in the Exchequor the defendant shall not have his Law for the benefit of the King Adams and Lamberts Case 44. and 45. Eliz. in banco Regis in Ejectione firmae fo 104. UPon consideration of the Statute of 1 E. 6. cap. 14. it was resolved 1. That if one demise to any of his Kindred to superstitious uses although he limit them to pay certaine Summes of
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
such a Feast if you make a Feoffement to another of this Mannor before the same Feast you have forfeited the obligation although that you purchase the Land againe before the said Feast because that you were once disabled to make the feoffement If a man Lease a Mannor for yeares and the Lessee covenanteth to uphold the Houses and to leave the same Mannor in as good an estate as he found it and during the terme the Lessee maketh wast in Houses and cutting of Tymber c. the Lessor may have a Writ of Covenant before the end of the Tearme for cutting the Timber for it was impossible that the Covenant should be performed after for the Timber but otherwise of the Houses Fitz Na. br fo 145 K. It was also resolved that if a man seised of Lands in Fee covenant to infeoffee I. S. upon request and after he maketh a feoffement of the same to a Stranger in this Case I. S. may have an Action of Covenant without request Laughters Case 37. Eliz. fo 21. Banco regis WHere a condition of an obligation consisteth upon two parts in the disjunctive and both possible at the time of the obligation made and after one of them becomes impossible by the Act of God the obligor is not bound to performe the other part for the condition is made for the benefite of the obligor and shall be taken most beneficiall for him and he had an Election eyther to performe the one or the other for the saving of his Obligation but now Impotentia excusat legem Hallings Case 38. Eliz. Com. banco fo 22. ONe Covenanteth to make an estate in Fee at the costs of the Covenantee the Covenantor is to doe the first Act Idest to Notifie what assurance he will make that the Covenantee may know what summe to tender Mathewsons Case 39 Eliz. fo 23. Com. banco SEverall persons make severall Covenants in one Indenture or Writing the Seale of one of them is broken away that shall not avoyd the Covenant of the rest but onely the Covenant of him whose Seale is so debrused or defaced Vide Piggots Case in the 11th Report because severall Covenants otherwise if joynt Lambes case 41. Eliz. fo 23. com banco A. Is bound unto B. to give unto B. such a release c. before the 22. day of October next as by the Judge of the Prerogative Court is thought fit In this Case A. must procure the Judge to doe it or devise it for the Judge is a stranger to the condition and the condition is for the benefite of the Obligor and he hath taken upon him to performe the same at his perill but it is otherwise if the Obligee or his Councell should devise it Broughtons case 43. Eliz. fo 24. Banco regis IN an Action of Debt by Broughton Plaintiffe against Pretty upon an Obligation with condition where the Plaintiffe was bound in an obligation of 200. l. for the Defendant for the payment of 100. l. to C. if therefore the Defendant should save and keepe harmlesse the said Broughton from all Suites quarrells and Demands touching the said Obligation c. that then the Obligation to be void c. at the day of payment of the 100. l. the Plaintiffe commeth to the place where the 100 l. ought to be paid and perceiving there not any person present to pay the 100. l. for the Defendant Broughton to save the penalty of the Obligation paid the money to C. and brought his Action upon the Counter-bond and it was adjudged that the Plaintiffe should recover for the payment of the 100. l. is damage and harme And it is not necessary whither the Plaintiff was arrested or sued c. Terror of suite so as he dare not goe about his businesse is Damnification although he be not arrested Deane Chapter de Winsors Case 44. Eliz. fo 24. Banco regis A Man Leased a House by Indenture for yeares the Lessee Covenants and grants for him and his Executors with the Lessor to repaire the house at all times necessary the Lessee Assignes over and the Assignee suffereth the house to decay the Lessor brought an Action of Covenant against the Assignee and it was adjudged per Popham and all the Court that the Action lyeth although the Lessee had not Covenanted for his Assignes because in respect thereof the rent is the lesse which is for the benefite of the Assignee Qui sentit commodum sentire debet onus If a man grant one Estovers to repaire his house this is appurtenant to the house Fitz H. nat br 181.28 H. 8.28 Sir Thomas Palmers Case 43. El. fo 24. banco regis SIr Thomas Palmer seised in Fee of a great Wood. Did bargaine and sell to one Cornford and his Assignes 600. cords of Wood to be taken by Assignement of Sir Thomas Cornford assignes his interest to one Basset and afterward Sir Thomas sells to one Maynard such quantity of Wood as will make 4000. cords at Election of the Vendee and afterwards Sir Thomas assignes to Basset 600. cords of Wood to be taken by him who doth fall the same and Maynard did take them away and converted them c. an Action upon the case was brought by Basset and iudgement was given for him for Corneford had an interest which he might assigne over and not a thing in action or a possibility for it was resolved if Sir Thomas did not assigne them to Cornford upon request Cornford might take them without assignment for the Grantor cannot by his owne act or default eyther subvert or derogate from his owne grant Therefore it ensueth that Cornford had an interest that he might assigne over If A. have a house and Land and reasonable estovers in the Woods of another by view and livery of the Bayliffe c. if A. take estovers without view or livery c. he is a trespassor although he take lesse then he ought to have by livery But if A. demand his estovers and the Owner or his Bayliffe will not deliver to him he may have an Assize 2. If the Assignement were voyd yet the Defendant cannot take Trees cut by another but out of the residue of the Wood. The Earle of Rutlands case 2. Ja. fo 25. banco regis EDward Earle of Rutland seised of the Mannor of Eykering by Indenure dated 10. March Anno. 21. El. for augmentation of the joynture of Issabell his Countesse did Covenant with Sir Gilb. Gerrard and Thomas Houlcroft his Brother that before the end of Trinity terme then next following he would assure by fine or other conveyance the said Mannor to the said Sir Gilb. Gerrard and Thomas in Fee which syne or other conveyance should be to the use of the said Earle and Issabell his Wife and the Heires of the said Earle which Indenture was acknowledged and inrolled in the Chancery the 28. of the same Moneth of March by another Indenture betweene the said Earle on the one part and the Lord Burleigh on the other
his warrant to bring the party before himselfe and it is good and sufficient in Law for it is most like that he hath the best knowledge of the matter and therefore most fit to doe Justice in that matter upon refusall to finde surety the Constable may commit him without a new warrant Gooches case 32. El. in banco le roy fol. 60. WRay chiefe Justice said that if A. make a fraudulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and continueth in possession and is reputed as owner B entereth in communication with A. for the purchase and by accident B. hath notice of this fraudulent conveyance Notwithstanding he concludes with A. and takes his assurance In this case B. shall avoide the said fraudulent conveyance by the said Act notwithstanding the notice for the Act by expresse words hath made the fraudulent conveyance voyde as to the purchasor And for as much as that is within the expresse provision of the Statute it ought to be taken and expounded in suppression of fraud Resolved that fraud may be given in Evidence because the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret in arbore cava opaca And according to this opinion it was resolved Per tot ' Cur ' in communi banco Pasche 3o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and after offred to sell the same to one Standen and before the assurance by Bullock Standen had notice thereof and notwithstanding proceeded and tooke the assurance from Bullock Standen avoyded the former assurance of fraud by the said act for the notice of the purchasor cannot make that good which an Act of Parliament hath made voyde as to him And it is true Quod non decipitur qui scit se decipi But in this case the purchasor is not deceived for the fraudulent conveyance whereof he had notice is made voyde as to him by the Statute and therefore he knew it could not hurt him Sparries case 33. Eliz. in Scaccar fol. 61. IN action of Trover and convertion the defendant pleads that there is another action depending in the Kings Bench for the same Trover and good for in actions which comprehend no certeinty as assize or trespas this is no plea before a Count because thereby it is made certeine and then it is a good plea and not before but in this action and debt and detinue it is a good plea at the first because they are certeine that an action is depending in an inferiour Court is no plea. Cases of By-Lawes Chamberlaine de Londons case 32. El. in Banco le roy fol. 66. THe Inhabitants of a village without any custome may make Ordinances or By-Lawes for reparation of the Church or of high-wayes or any such thing which is for the publicke weale generally and in this case the consent of the greater part shall binde all without any custome vide 44. E. 3.19 But if it be for their owne private profit for that Towne as for their well ordering of their common of pasture or such like then without custome they cannot make by-Lawes And if it be a custome yet the greater part shall not binde all if it be not warranted by the custome for as custome hath created them so they ought to be warranted by the custome 8. E. 2. tit ass As pontage murage Tolle and such like as appeareth in 13. H. 4.14 In which cases the summes for reparations of the Bridge walls c. ought to be so reasonable that the Subject may have more benefit thereby then charge Clerks case 38. Eliz in communi banco fol. 64. KIng Edward 6. did incorporate the Towne of St. Albones and granted them to make Lawes and Ordinances c. The Tearme was kept there and the Major c. by assent of the plaintiffe assessed every Inhabitant for the charges in erecting of the Courts there and if any did refuse to pay c. to be imprisoned c. the plaintiffe being Burges refused to pay c. and the Major justified c and it was adjudged no plea c. For this Ordinance is against Magna Charta ca. 29. Nullus liber homo imprisonetur which act hath been confirmed divers times viz. thirty times and the assent of the plaintiffe cannot alter the Law in this case But it was resolved that the Major c. might inflict reasonable penaltie but not imprisonment which penaltie ought to be Levied by Distresse for which offence an action of Debt lyeth and the plaintiffe in this case had judgement Jeffrays case Michaelis 31 32. en Bank le Roy. fol. 66. WIlliam Jeffray Gent. brought a prohibition against Abraham Kenshley and Thomas Forster Churchwardens of Haylesham in Com' Sussex for that they sued him in Court Christian before Doctor Drury for certaine money imposed upon him without his assent for repaire of the Church That the Church-wardens with the assent of the greatest part of the Parishioners juxta quantitatem qualitatem possessionum reddit ' infra dict' parochiam existent Determined and agreed to make a taxation for repaire of the said Church and that notice of such assembly was given in the Church at which day the Church-wardens and greater part of the Parish which were there assembled made a taxation viz. every occupier of Land for every acre 4. d. c. Geffray dwelt in another Parish and declared that the Parishioners of every Parish ought to repaire their Church and not the Church of another Parish Cooke of councell with the defendant demurred in Law and after many arguments a Writ of consultation was granted And it was resolved that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae Britton who writ in 5. E. 1. And in the Statute of Circumspecte agatis but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda It was also resolved that although Geffray did dwell in another Parish yet for that he had Lands in the said Parish in his proper possession he is in the Law Parochianus de Haylesham But it was resolved that where there was a Farmor of the same Lands the Lessor that receiveth the rent shall not be charged but the Inhabitant is the Parishioner and the receipte of the rent doth not make the Lessor a Parishioner Diverse of the civill Lawyers certified the Court that the Church Wardens and a greater part of the Parishioners upon a generall warning assembled may make a Taxation by their Law and the same shall not charge the Land but the Person in respect of the Land for equality and indifferency and this was the first leading case that was adjudg'd reported in Our Bookes touching these matters and many causes after were adjudged thus and now it is generally received for Law The Lord Cheneys Case 33. Eliz.
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.
none will buy their Wardships 5. After Tender and refusall if the heire be made Knight and marry he shall not forfeite the double value because he is out of Ward but immediatly the Lord shall have a Writte de valore maritagij This was the last Case that Sir John Popham chiefe Justice of England c. ever Argued Sir George Cursons case 7. Jac. Cur. Wardor fol. 75. SIr W. L. seised of a reversion expectant upon taile made to his sonne of land in Capite Covenants to stand seised to the use of his neece the sonne dyeth the King shall not have primier seisin 1. Resol It was Collusion apparent within the Statute of Marlebr cap. 6. to infeoffe the heire apparent and if he infeoffe others upon Collusion averrable but no averrement shall be where the remainder or reversion is left in a stranger or upon a Devise 2. Or otherwise to dispose in the Statute of 32. H. 8. have relation to wills onely for before the Statute every man might dispose of his lands by act executed 3. The Clause in the said Statute which saveth primier seisin to the King hath relation onely to acts executed for the King shall have without that primier seisin of the third part not devised but without that he shall not have it of any part conveyed by act executed 4. If the grandfather convey land to the sonne living the father this is out of the Statute otherwise if the father be dead and so a gift to a Collaterall Kinsman who is not heire apparent is out of the Statute for none will by intendment disinherit his heire to defeate the King of the Wardship or primer seisin and so is the experience of the Court of Wards Bullens case 5. Jacobi Com. Banco fol. 77. THe Lord may have a certeine summe pro certo letae for it shall be intended it was granted at the first by purchase of the Leete for the ease of the Tenants and in consideration of the Lords claiming of it at his owne costs every Eyre The issue was if the plaintiffe was a chiefe pledge and by speciall verdict he was found a Resiant and certified by the chiefe pledges to be a chiefe pledge and was amerced for his default It seemeth he was not Sed materia praedicta consopita fuit in arbitrio See 30. E. 3.23 of franke pledges Lord Abergavenies case Com. Banco fol. 78. A Judgement in an action of Debt is had against a joyntenant for life who afterwards releaseth to his companion all the right c. yet that moytie is liable to the Judgement and so it is of a rent charge during the life of the Releasor Sir Edward Phyttons case Com. Banco fol. 79. EXecutors may take benefit of the Kings generall pardon by which is enacted that all Subjects of the King their heires Successors Executors and Administrators shall be acquitted and discharged of all offences contempts c. and that shall be expounded most beneficially for the Subject And further doth give and grant all goods Chattells Debts c. forfeited And prohibiteth any Clerke to make out any Writte c. Provided that every Clerke may make forth cap. ut at the suite of the plaintiffe against persons outlawed to the intent to compell them to answer and that the partie shall sue forth a scir fac before the pardon in that behalfe shall be allowed which is as much to say having regard onely to the plaintiffe But in regard of the King it is an absolute pardon and grant of his goods and he is a person inabled against the King but not against the partie plaintiffe And every person by himselfe or his Atturney may plead this act for discharge Executors shall have restitution upon the Statute 21. H. 8. Also Administrators shall have a Writt of error upon the Statute 27. El as was adjudged in the Lord Mordants case 36. El. And yet these Statutes speake onely of the partie and not of the Executors or Administrators because no Writt can be against Executors they may plead it without Processe The End of the Sixth Booke THE SEAVENTH BOOK Postnati Calvins case 6. Jacobi Banco Regis fol. 1. R C. By his gardian bringeth an assize the defendants say the plaintiffe ought not to be answered Quia est alienigena natus 5o. Novembris Anno Domini Regis Angliae c. tertio apud E. infra regnum Scotiae ac infra ligeanciam Domini Regis Regni sui S. ac extra ligeanciam Regni sui Angl. c. the plaintiffe demurreth The Case was Adjourned into the Exchequer Chamber and was argued by two Justices every day and by the Chancellour and resolved by the Chancellour and all the Justices except Walmesley and Foster that the plaintiffe ought to be answered For these six demonstrative Conclusions drawne from the Law of Nature the Law of the Land Reasons of State and Authorities of Records and Booke Cases 1 Every one that is an Alien by birth may be or might have been an Enemy by accident but C. could never be an Enemy by any accident whatsoever ergo no Alien by birth 2. Whosoever are borne under one naturall ligeance due by the Law 〈◊〉 nature to one Soveraigne are naturall borne Subjects But C. was borne under one c. ergo a naturall borne Subject 3. Whosoever is borne within the Kings protection is no Alien But C. was borne under c ergo he is no Alien 4. Every stranger borne must at his birth be either amicus or inimicus but C. at his birth could neither be amicus nor inimicus because he was subditus ergo no stranger borne 5. Whatsoever is due by the Law of man may be altered but naturall legeance of the Subject to the Soveraigne cannot be altered ergo not due by mans Law Lastly whosoever at his birth cannot be an alien to the King of E. cannot be an alien to any of his Subjects of E. but C. at his birth could be no alien to the King of E. Ergo he cannot be an alien to any of the Subjects of E. the Maior and Minor both be Propositiones perspicuè verae and although Alienigena dicitur ab aliena gente yet that is all one as Alienae ligeantiae and arguments drawne from Etymologie are feeble for Saepenemero ubi proprietas verborum attenditur sensus veritatis amittitur yet when they agree with Law Judges may use them for Ornament and dâ—verse inconveniences would follow if the Plea against the Plaintiffe should be allowed For first it maketh legeance locall wereupon should follow first that legeance which is universall should be confined within locall limits 2. That the Subject should not be bound to serve the King in Peace or in Warre out of those bounds 3. It should illegitimate many which were borne in Gascayne Guyan Normandy c. and diverse others of his Majesties Dominions whilst the same were in actuall obedience And lastly this strange and new devised Plea inclineth too much to
if it appeare to the Court that an action is not maintainable without the doing of it there the doing of it must be averred as if an Abbot sole grants an annuity to J. S. Pro Consilio c. in action brought against the successor he must averre that he had given Counsell c. to the use of the House otherwise if against the grantor Englefields case 34. Eliz. in Scaccario fol. 11. SIr F. E. covenanted to stand seised to the use of himselfe for life the remainder to his Nephew Proviso that it shall be voyde upon tender of a Ring by him after he was attainted of Treason and all his inheritances forfeited by Statute the Queene leaseth to the defendant for forty yeares by Statute it was inacted that every one who had a patent of land of a person attainted shall exhibit it into the Exchequer within two yeares to be Inrolled one authorized by Letters patents in the name of the Queene tenders the Ring in the life of Sir Fr. the Queene bringeth Intrusion 1. Resol When the Q. tenant pur auter vie leaseth for yeares this is good without recitall of her estate for it is lesse then her estate as if she grant Totum statum suum for there is no torte and she is not deceived 2. That this condition is given to the Q. but object 1. That it was inseparable from Sir Fr. for his intent was the substance of it and his intent cannot be transferred over 2. Naturall affection is made the Judge whether the Nephew deserve that the use shall be revoked and in so much that naturall affection cannot be transferred no more can this condition which was created by naturall affection and naturall affection determineth the estate 3. Although the benefit of this collaterall condition be given to the Q. the performance is not As to the first and second It was answered that the condition is onely the substance and all the residue is but a flourish and that is not an inseparable condition for any one may tender a Ring as well as he As to the third The performance is given to the Q. as incident to the Condition 4. It was objected that the estate of Sir Fr. was not subject to the condition because he was not possessed by limitation of use and by 27. H. 8. but he was seised of his auncient inheritance ergo the lease shall not be avoyded in the life of Sir Fr. It was answered that Sir Fr. was seised by limitation of use and that the lease shall be avoyded 5. It was objected that the Q. having made this lease being seised pur auter vie by her owne act she shall not defeate it after It was answered that the Q. shall avoyde it for her grant shall not inure to two intents 1. to make the lease c. 2. to suspend the condition and when the Q had two rights she shall not loose both without speciall words 6. It was objected that this tender ought to be found by office because matter in paijs and if it be false the party hath no remedy because the certificat is not traversable It was answered that Certificats which informe the Q. of her title are traversable but Certificats which are in nature of Trialls are not also by the Tender the uses are determined and by the attainder and the act of 33. H. 8. the land is vested in the Q. 7. It was objected that the conveyance was voyd because it was not inrolled within two yeares as the Statute requires and so Sir Fr. was seised in fee and the lease unavoydable It was answered that it was tendred in the Exchequer to be inrolled within two yeares which is all the Statute requireth the forfeiture was established by a speciall act 35. Eliz. The Case of Swannes 34. Eliz. fol. 15. A Game of Swannes in a common River are seised into the Queenes hands upon office found I. Y. pleads that Abbas c. gavisi fuerunt totoproficuo omnium cignorum in aestuaria praedict indificantium and makes her selfe title to them prayeth an ouster Le manie All White Swannes in a common River who have gained their naturall liberty may be seised for the King because they are Volatilia regalia but a Subject may have them in his owne River and if they escape into a common River he may take them againe upon fresh persuite Cignets shall be divided betweene the owners of the Swannes equally but upon the Thames the owner of the Land shall have the third by the custome whosoever hath a Swan-marke must have it by grant of the King or prescription and he may grant it over and he ought to have freehold of five Marks per annum by the Statute of 22. E. 4. c. 6. A man may prescribe to have Wyld Swannes but not as here but that the Abbot c. have used to take of them to their owne use and therefore adjudged against I. Y. A Swanne may be an estray and so cannot any other fowle Sir Thomas Cecils Case 40. Eliz. in Scaccario fol. 18. SIr T. C. entered into an obligation to the Queene to performe Covenants and shewed in the Exchequer-Chamber matter of equity to discharge him of the said Debt according to the Statute of 33. H. 8. c. 39. 1. Resol that Branch of the Statute which giveth liberty to the Subject to plead matter in equity in barre of Debt due unto the King extendeth to Debts due at the common Law as well as by this Statute because this Statute gives more speedy remedy for them and so within the purview thereof and so the other proviso of equall charging of Lands Subject to Deb. t s of the King is generall 2. The Court of Exchequer-Chamber in this case may decree upon English bill although that Processe be in the Exchequer at the common Law because to that purpose they are as one Court 3. An obligation to performe Covenants after Breach of them is within the Statute The Lord Andersons Case 41. Eliz. in Scaccar fo 21. TEnant in taile is bound by recognizance to I. S. who is attainted Tenant in taile dyes his issue aliens Bona fide the King shall not extend these Lands by the Statute 33. H. 8. c. 39. 1. Before that Statuâ—e the King could not extend Lands in the hands of the issue in taile for the Debt of his auncestor because he was bound by W. 2. De Donis 2. By that Statute Lands are extendable in the hands of the issue in taile for Debt due to the King by judgement recognizance obligation or other specialty and other cases are out of the Statute 3. The Alienee Bona fide is not within the Statute because favoured as a purchasor and he is a stranger to the Debt and comes in upon good consideration and benefit is given against the issue in taile which was not before 4. Debts due to a Subject and forfeited to the King are not within the Statute for they are not due originally
to the King by any of the said foure wayes mentioned in the Act. Butts Case 42. Eliz. in com banco fo 23. A. Seised of black acre in fee and of white acre for yeares grants a rent charge to B. for life with distresse in both B. distreines and avowes in white acre and good 1. Resol white acre is charged during the terme and life of B. 2. All the rent issueth out of black acre for as an estate of freehold it cannot issue out of white acre nor as freehold out of black acre and a chattell out of white acre because intire it cannot be construed to be two rents contrary to the intent of the parties and therefore an acceptance of a Lease of white acre doth not suspend it and in an assize black acre onely shall be put in view 3. Although the rent issueth onely out of black acre yet white acre is charged with a distresse If a rent be granted out of three acres with clause of distresse in one this is a rent seck for all yet the grantee shall distreine in the third acre for it so if a rent be granted to two with clause of distresse to one of them but a rent may be seck and charge at severall times and therefore if a rent be granted in fee with distresse for life it is a rent charge for life and seck after but if the Clause of distresse be for yeares it is a rent seck for all because the freehold is seck The avowry was insufficient 1. Because he said the rent issued out of white acre where it issued out of black acre and although the Plaintiffe had disclosed the truth in his plea in barre this doth not salve the matter in substance vitious in the avowry 2. He deriveth the rent but of white acre Virtute cujus he was seised for life which is repugnant to have a freehold out of a Chattell and so judgement given against him for insufficient pleading Cases of Quare Impedit Halls Case 31. Eliz. fo 25. A Quare impedit against the Bishop and incumbent without naming the Patron the writ shall abate 1. It is not reason the Patron shall loose his Patronage without being named in case where he may be named as here 2. The incumbent at the common Law could not pleade to the Patronage and therefore it is no reason that he who cannot pleade be named and he who can omitted but now the incumbent may pleade to the patronage by the Statute of 25. E. 3. cap. 7. which inableth the possessor to counterpleade the title of the King and by equity against a common person in the one case after induction in the other after institution But in case where the Patronage shall not be recovered or that the Patron cannot be named as in the Kings Case a Quare impedit shall be against the incumbent sole or against him and the ordinary so if a Bishop disturbe and die it shall be against the incumbent sole if a Patron be named and die if the writ shall not abate he shall be out of possession and if it shall abate the torte shall not be punished but if the Patron be put out of possession he hath remedy by writ of right and if it shall abate the Plaintiffe is without remedy therefore the writ shall stand Sir Hugh Portmans Case 40. Eliz. fol. 27. IF the Plaintiffe in a Quare impedit after appearance be non-suite or discontinue or be made a Knight pending the writ this is peremptory because it is his owne act otherwise if the writ abate for default of forme or by misnosmer for this may be the default of the Clerke Baskervills Case 27. Eliz. fo 28. TItle devolveth to the King to present by lapse the Patron presents one who dyeth the King hath lost the presentation for he having the first presentation he shall not have the second otherwise the King may suffer Strangers to present one after another and take his turne when he pleaseth and by that meanes the Patron shall be in a manner disinherited and the Statute of Praerogativa Regis nullum tempus occurit Regi is to be intended when the King hath a permanent Title and not transitory when time is the substance of his Title Maunds Case 43. Eliz. fo 28. IN case of a reentry for non-payment of rent or when any summe Nomine penae is to be forfeite in both the cases demand ought to be made precisely on the day a convenient time before the setting of the Sunne in the one case in respect of a condition and in the other in respect of the penalty but in case of a distresse he that hath the rent may demand the same at what time pleaseth him for no Losse or penalty insueth thereupon but onely a remedy to come by his rent and if demand be made any time after the day and before the distresse it sufficeth Discontinuance of Processe c. by the Death of the Queene Trin. 〈◊〉 Jacobi fol. 29. UPon a generall resummons the originall and the issue are revived and not the meane processed or Voucher nor Garnishment but all the Processe is revived upon a speciall resummons but not in ayde prayer or if a Verdict be given and the King dieth before the day in banck because there summons lyeth not therefore he shall not have resummons but in case of Verdict he for whom it is given may have his judgement upon Scire facias But now by the Statute of 1. E. 6. an action suite bill or plaint shall not be discontinued if they are returned otherwise if not because the Statute saith Depending If one deliver an appeale to the Sheriffe within the yeare and the King dyeth for necessity the Plaintiffe shall have a Certiorari and reattachment so if a formedon be brought within a yeare against the pernor of the profits offices of Sheriffes not being of inheritance or by Charter are determined by the death of the King Suites depending in inferiour Courts are out of the Statute if the King dye after information preferred by him all the proceeding is lost but the information shall stand 1. Because this is a record for the King which shall not abate 2. Because informations upon certeine Statutes are to be preferred within certeine time but if the King bring an originall and dye this is lost if one plead to an Indictment and the King dye he shall plead De novo but if he be convicted judgement may be given in the time of another King by the said Statute and noâ—… Case of a Fine levyed by the King tenant in taile fo 32 Michaelmas 2. Jacobi A Fine levyed by the King tenant in taile by gift of his auncestor who was a subject barreth the taile 1. It is reason that as the King is bound by the Statute of W. 2. De donis that he should have benefit of the Acts of 4. H. 7. 32. H. 8. 2. A generall Statute bindeth the King of Lands discended
defeasible Title the other shall distraine for the moity of the Seigniory and the Act of the Coparcener shall not prejudice her There are foure manner of Avowries 1. Upon his very Tenant 2. Upon his very Tenant by the manner where the Tenant had but a particular estate 3. Upon his Tenant by the manner when the Lord had but a particular estate 4 Upon the matter in the Land as within his fee but the Lord hath liberty to Avow according to the Common Law Thoroughgoods Case 9. Jacobi fol. 136. TEnant in fee infeoffeth one by Deed indented and delivereth it upon the Land in the name of seisin this is good and hath a double operation at one instant Viz. to deliver the Writing as a Deed and to deliver seisin of the Land according to the Deede 1. Resolved this is his Deed although he doth not say so but delivers it in the name of seisin for delivery is good without any words if one deliver a Deed to one as an escrow to be his Deed upon performance of conditions this is his Deed presently otherwise if he deliver it to a stranger so words are good without actuall delivery as if he saith take it like to a livery within view If the Obligee deliver the Obligation to the Obligor to redeliver the Obligor may retaine it for the words to redeliver are void 2. Delivery of the deede upon the Land amounteth not to livery and seisin but it doth if delivered in the name of seisin so of any other thing or if he saith I deliver you seisin without delivering any thing this is good also Beaumonts Case 10. Jacobi fol. 138. I. B. and E. his Wife Tenants in speciall Taile the remainder to the Heires of the Baron I. B. levies a Fine to K. E. 6. who grants to the Earle of H. in fee I. B. dyeth E. enters the Earle of H. confirmes her estate to have to her and the Heires of the body of I. B. E. dyeth seised having issue F. B. who accepts a fine Sur conusans de droit tantum with Proclamations and dyes having issue Sir H. and I. Sir H. in Ward to the K. after full age and before livery Covenanteth to stand seised to the use of himselfe and his heires Males of his body and dyes having issue onely a Daughter in Ward whether shee or I. B. shall have the Land c. 1. Resolved that E. had an estate taile and the Statute of 4. H. 7. c. 24. which inableth the Baron to barre the issue saveth the right of the Feme if shee enter or c. and one may have an estate taile which cannot discend as if the Sonne in the life of the Father levyeth a fine the Father remaineth Tenant in taile still although it cannot discend and E. here hath an estate taile so long as shee liveth or the Heires in taile remaine 2. The Confirmation is void for he who did confirme had but a possibility which passeth not by the confirmation and if he had a reversion in fee yet it should be void 1. Because the taile which the Feme had was confirmed which cannot descend 2. The confirmation doth not add a descendible quallity where he who should have it is disabled to receive by discent 3. This would in effect repeale 4. H. 7. 32. H. 8. two of the principall Pillars of the Law 4. 5. If Tenant in Dower grants her estate there is a discendible quality in the Heire to bring wast against Tenant in Dower and although the Heire confirme her estate for life and after shee assigneth it to I. S. who committeth wast yet the action of wast is maintainable against her Pari ratione in the Case at Barre in regard the confirmation doth not inlarge the estate of E. it cannot add unto it a discendible quallity 6. There are but three manner of Confirmations Viz. Perficiens Crescens aut diminuens and the Confirmation in this Case is none of them and if E. had no power to levy a fine or suffer recovery the reason is because she cannot barre that which was barred before by her Husband but this point was not now in Question The End of the Ninth Booke THE TENTH BOOK The Case of Suttons Hospitall Baxter Plaintiffe Sutton and Law Defendants in Trespasse in the Kings Bench and adjourned into the Exchequer Chamber and judgemet given against the Plaintiffe 1. Obj. BY the Parliament 7. Jacobi the Hospitall was Founded at H. in Essex Ergo the incorporation made after by the Kings Letters Patents is void and the Charterhouse is not given by the said Statute because S. purchased it after 2. Sutton who had License to Found an Hospitall before the Foundation dyed 3. The K. cannot name the House and Lands of S. to be an Hospitall because in Alieno solo 4. Every Corporation ought to have a place certaine but here the License is to found an Hospitall at or in the Charterhouse Ergo before that S. had made it certaine there was no incorporation also the place of Corporation ought to be certaine by Meates and Bounds and a place knowne will not serve 5. The King intended to make an incorporation presently which cannot be before that S. name a Master 6. Governors cannot be untill there be poore in the Hospitall Ergo S. calleth it in his Will his intended Hospitall 7. The Foundation cannot be without the words Fundo erigo c. and before such Foundation a Stranger cannot give Lands unto it 8. The Master was named at will where he ought to be for life and have freehold in the Lands also the Hospitall must be Founded before a Master be named 9. The bargaine and sale made by S. is void 1. Because the Money paid by the Governours in their private capacity shall not inure to them in their politick capacity 2. The Habendum is to them upon trust which cannot be in a Corporation 3. Because as before no Hospitall was Founded 10. The King cannot make Governours of a thing not in Esse To the first it was answered that the Letters Patents recite the preamble of the Act whereby and in many parts of the Act it appeareth that the incorporation was to be In futuro when it shall be erected and the Statute doth not give any Lands unto it but power to give without License of alienation and mortmaine and it appeareth by the Letters Patents that the erection precedes the License 2. The License is to him his Heires Executors c. at any time hereafter and the words of incorporation are in the present and so the incorporation precedeth the execution of this License 3. Although the King gave the name yet S. devised it and assented to it and the K. did it at his Suite 4. The K. makes an Hospitall of all the premises so that it is certaine and as to that which was said that a place uncertaine cannot be an Hospitall It was answered that a Mannor may be which is
or some such inconvenience but a Copy of a record is good evidence if a release be made to Tenant for life this inureth to the reversioner yet he cannot pleade it without shewing a Fortiori here because the Lessee may contract with the Lessor to suffer him to have the deed to shew but Strangers who claime not the thing granted nor interest out of it need not to shew the deed otherwise if he claimes the thing granted or interest out of it Ergo the second grantee of a rent charge must shew the first grant but he who claimes as Gardian or meerly by the Law without privity or power of providing the deed need not to shew it But Tenant by the courtesie must shew it because the deed was in his power living the Wife otherwise of Tenant by Statute c. 3. The not shewing of the deed is matter of substance therefore judgement shall be given against the Plaintiffe in the Writ of Error although it was not shewed as Cause of Demurrer And judgement was affirmed Nota when a plea amounts to a generall issue if the Plaintiffe demurre specially upon 27. Eliz. and the Defendant joyne judgement shall be given for the Plaintiffe Edward Seymors Case 10. Jacobi fol. 95. THe Lord Cheyny Tenant in taile the remainder in taile to I. C. the reversion to the Lord C. bargaines and sells and levyes a fine to the bargainee with warranty to him and his Heires the bargainee nfeoffeth the Lord S. who infeoffeth E. S. I. C. dyes having issue T. the Lord C. dyeth without issue Edward Lord S. leaseth to the Plaintiffe the Defendant by the command of T. ejected him and judgement was given for the Defendant and affirmed in Error 1. Resolved the bargainee had an estate discendible during the life of the bargainor whereof his Wife shall have Dower and also the reversion in fee expectant upon the remainder in taile 2. The fine after bargaine and sale is not discontinuance of the remainder for this operates upon the estate passed by bargaine and sale and corroborateth that and maketh it determinable onely upon the death of the bargainor without issue otherwise if the fine had preceded the bargaine and sale 3. It was Objected that the feoffement of the bargainee displaceth the remainder so that the warranty which discends upon him barreth him But resolv that the warranty doth not bind him 1. Because it was annexed to an estate determinable by the death of Tenant in taile without issue and to the reversion in fee granted by bargaine and sale and fine and not to the remainder in taile and the Conisee by his owne Act cannot make it to extend any further therefore the estate taile being determined the warranty ceaseth 2. A warranty barreth not an estate which is not displaced at the time of the warranty annexed as if the Father maketh a feoffement of Land out of which his Sonne hath a rent with warranty this binds not the Sonne as to the rent 3. The feoffement was lawfull because he had fee therefore he cannot make discontinuance 4. A warranty cannot enlarge an estate the remainder in taile to I. C. was not discontinued for the feoffor was not then seised by force of the taile 5. A collaterall warranty may be given in evidence if it be not pleaded for although it giveth not a right yet it barreth anothers right and the rather in an Ejectione firmae and other personall actions because in them it cannot be pleaded by way of barre Note there are some Titles to which a warranty extendeth not as in case of Mortgage Mortmaine consent to a Ravishor for in these cases no Action lyeth in which Voucher or Rebutter can be neither shall a discent take away an entry Bewfages Case 10 Jacobi Common Pleas. fol. 99. THe Sheriffe upon a Fieri facias executed did take an Obligation of the Defendant to pay the money in Court at the returne of the Writ and this was adjudged good notwithstanding the Statute of 23. H. 6. Before this Statute the Sheriffe could not let any person to baile which was taken Ad respondend as may appeare Fitz. Na. br 25. a b. and in 34. Eliz. in Debt by Dawson Sheriffe of B. against Burnam upon an Obligation the Defendant pleaded the Statute 23. H. 6. and shewed that one K. recovered Debt and damages against him and pursued one Writ of Fieri facias against him directed to the Sheriffe of B. and that he made the Obligation to the Plaintiffe for the Execution and that the Obligation was void by the Statute whereupon the Plaintiffe demurred and it was resolved First that the Obligation was not within the Statute because that the Statute extended onely to such Obligations which any who is in their ward did make unto him Secondly that the same Obligation was not void at the Common Law whereupon the Plaintiffe had judgment and another judgement 28 El. Inter Burwey Kett upon an Obligation taken by the Sheriffe Pro solutione pecuniae debitae dominae reginae upon extent out of the Exchequer Now it is said in the later clause of the Act that if any of the Sheriffs or other Officers or Ministers aforesaid take any Obligation in other forme by colour of their Offices that it should be void c. There are two manner of formes Viz. Forma verbalis forma legalis for Verbalis stands upon the Letters and Sillables of the Act Forma legalis is Forma essentialis and stands upon the substance of the thing to be done and upon the sence of the Statute Quia notitia ramorum hujus Statuti non in sermonum folijs sed in rationis radice posita est and according to this distinction this Branch of this Statute is to be expounded and therefore in 37. H. 6. 1. If the Sheriffe take a single Obligation of one in his ward that was bailable this was void for this Obligation wants essentiall forme prescribed by the Statute for the condition prescribes the fault which is part of the substance And there Moyle said that if the Sheriffe let one to Baile or Mainprise that is excepted in the Statute and not mainpernable and take a simple Obligation that the same is void Quod alij Justiciarij concesserunt for by the exception it appeareth that it was not the intention of the Statute that such should be let to Baile and therefore the Obligation is taken in another sence then the Statute intends And it seemeth to me that as well in the same Case of 37. H. 6. as in the principall Case of Dive and Manningham plow 67. the Obligation which hath the condition to save the Sheriffe harmelesse when the Sheriffe against the Law letteth one to Baile who is not Baileable is against the Law and void by the Common Law And with this accordeth William Wishams Case 15. Eliz. Dyer 324. in 7. E. 4. One was in custody of the Sheriffe by force of a Capias upon an
Execution thereupon by Elegit Page 152 153 How long the Conisee shall hold the Land Page 153 Concerning Deeds inrolled and levying of fines of Land the Common Law preferred before the Statute Law the excellency and antiquity of Records Page 154 155 Rent must be demanded at the place limitted although out of the Land before advantage of a condition taken Page 155 Vpon a Lease by the Q it must be paid at the Exchequer ib. By vertue of a Fieri facias the Sheriffe may sell a Lease but the beginning and ending must be expressed Page 156 If the first benefice be of 8. l. per annum upon acceptance of another with cure the Patron must take notice upon 21. H. 8. c. 13. Page 157 Touching Corporations and their Elections and Ordinances ib. The effect of institution and also of induction and of Letters of dispensation Page 158 Touching Covenants and warranties in Law and when broken Page 159 Touching Strangers occupying Lands without notice of the Devisee Page 160 Goods delivered to one to keep or carry and they are purloyned Page 160 161 Estovers appendant to a house by grant or prescription and when destroyed and of suite to the Lords Milne Page 161 162 Touching reteining of Chaplaines by a Countesse within 21. H. 8. c. 13. Page 162 Of Contracts executory and Actions of the case upon Assumpsit and wager of Law Page 163 An ample and exact explanation of 1. E. 6. c. 14. of Chanteries Page 164 165 Touching reteining Chaplaines and dispensations Page 166 167 That the Lessee shall not alien without License and where a condition may be apportioned Page 167 Concerning Exchanges and what the word Excambium imports and of the warranty thereunto annexed and the nature of it Page 168 Arts done by a man Non compos mentis some binde himselfe and some others and how many sorts of them Page 169 THE FIFTH BOOKE A Lease to begin from henceforth and delivered after when it beginneth Page 171 What power the Bishop hath to make Leases by the private act of 1. Eliz. ib. A Lease of a Faire rendring rent is void by 1. Eliz. Page 172 What rent shall be said to be the true and ancient rent ib. Joint words taken severally in six respects Page 173 A Lease to A. during the life of B. and C. how long it lasteth ib. Therein is a difference betweene a limittation and condition Page 174 An Administrator hath judgement and dyes who shall sue execution thereupon ib. By what act an estate at will is determined ib. By exception of Wood the soile is excepted ib. Acceptance of a new Lease is a surrender of the first Page 175 If the Lessee of Lands may dig for Coles ib. A Lease to A. for his life and the life of B. and C. when it endeth ib. No Action of wast for permissive wast Page 176 Where there is a confidence an Action of the Case for negligence ib. Leases made to the Q. by Colledges Deanes c. are restrained by 13. Eliz Page 177 When a Covenant extends to a thing In esse of the demise it shall bind the Assignee otherwise when to a thing not in essence Page 178 If the thing to be done be meerly collaterall the assignee shall not be charged Page 178 Concessi or demisi import a Covenant Page 179 If any Covenantor breake the Covenant all the Covenantees must joine otherwise when severall interests passe Page 180 A diversity betweene a power and an authority ib. The Covenantee himselfe cannot devise the assurance ib. The Counsell must be given to the Purchasor Page 181 An Indenture void without a manuall act of indenting ib. Where a Condition or Covenant once broken may be salved after Page 181 A condition of two parts and both possible and one becometh impossible Page 182 An estate to be made at the costs of the Covenantee the Covenantor must doe the first act i. give notice what assurance he will have ib. The Seale of one Covenantor is broken it is void against him onely Page 182 183 A. is bound to give such a release as by the Judge of c A. must procure him Page 183 Terror of Suite is a damification upon a Counterbond ib. An action for reparations lyeth against the assignee Page 184 What interest is assignable over Page 185 Where an Indenture precedent to declare uses is only directory Page 186 Where an averment may be against a matter in writing Page 187 Cases of Executors Where a release by an Infant Executor is a barre Page 188 An Executor may release before probate but not have an action ib. A judgement for Debt shall be paid before a Statute Page 188 189 Administration during minority ceaseth at 17. yeares of age Page 189 Such an administration may not sell goods but for necessity ib. Where an administration is void and where voidable ib. Where an Executor of his owne wrong may retaine goods Page 190 An action against an Executor or by him where it must be in the Debet and where in the Detinet tantum ib. What retorne the Sheriffe must make upon a Devastavit Page 191 Administrator brings Debt barred because Executor ib. What act maketh a man Executor of his owne wrong ib. Constructions of the Statutes of Jeofails c. Amendment of Records Fines c. In Trespasse the nature of the Fishes must be shewed Page 192 Where a Debt against Baron Feme must be in the Debet Page 193 An ejectment of Lands out of A. B. and C. tried by a visne out of A. onely it is insufficient ib. 23. Jurors are returned and 12. appeare and find for the Plaintiffe it is good ib. Variance betweene the Writ and Count is not aided by 18. Eliz. ib. Five parts of a fine and where the Conisor may assigne Error Page 194 A common recovery not like other assurances more favoured Page 195 A pannell is annexed to the Venire facias without returne not good ib. A difference where a man is misnamed in the Venire and where in the pannell Page 196 Issue joined upon a point not materiall aided by the Statute ib. An amendment good after the transcript removed Page 196 197 Error in the Originall matter of Substance Page 197 A writ of Covenant upon a fine dated after the returne is there amendable but not in other actions ib. A common recovery taken by intendment Page 197 198 Cases of Pardons When a Writ shall be said to be depending Page 198 VVhere an Amerciament is pardoned the Statutes of Jeofailes extend to VVALES Page 199 Debts to the Q are excepted but not Originally due to the Subject ib. VVhere the K. may pardon corporall punishment Page 200 The K. may pardon the Suite in the Court Christian but not costs ib. An Office of intitling but not of Instruction may be under the great Seale Page 201 VVhere the rents are severall and where joint and where the Patentee of part may take advantage of a condition Page 202 A
lyeth against Executors for the Testators Debt Page 352 VVhere a man may wage his Law Page 353 VVhat words shall be adjudged a good consideration Page 354 VVhat Offices grantable for yeares and by what Acts Offices may be forfeited and where the King may seise without Scire facias Page 355 356 Copy-hold estates are within 4. H. 7. of fines Page 356 Disseissor of Copy-hold levyes a fine what time the Lord hath ib. VVho may enter without command to avoid a fine Page 356 357 A plea by an administratrix of fully administred must be certeine Page 358 VVhere an Allegation generally of Covin is good ib. A commoner Copy-holder may have an Action of the Case for the losse of his Common so he may distreine damage feasant ib. A Baron of Scotland shall be tried by Commons of England Page 359 See the diverse Resolutions of difficulties arising upon the Indictment of the Lord Sanchar and others Page 359 360 Cases in the Court of Wards The Kings release doth not extinguish a service inseparable Page 361 VVhen the Land moveth from a Subject and the Tenure is changed the new Tenure shall be as neere the ancient as may be ib. VVhere the particular estate is out of 32. H. 8. no wardship accrueth to the King by advancement of him in remainder otherwise of a reversion for he is Tenant Page 362 VVhat words are sufficient to create an estate taile Page 363 The Kings possibility shall not devest a VVardship vested Page 364 The reviving of an ancient Tenure preferred before the reservation of a new ib. By death of the father before livery sued after tender The King looseth primer seisin but no meane rates Page 365 Of a fruitlesse reversion a wardship but not primer seisin ib. Where the saving in 32. H. 8. giveth ward and primer seisin Page 366 A Mensnalty cannot be suspended in part and in esse for part by the act of the party but it may by Act of Law or a third person ib. There are foure manner of Avowries Page 367 What Act is a good delivery of a Deed or of seisin of Land ib. One may have an estate taile which cannot discend Page 368 Three manner of Confirmations Page 369 THE TENTH BOOKE WHat things requisite to the Founding of an Hospitall see at large Page 371 An estate taile barred by recovery in value without recompence Page 374 A Feme Covert shall not loose her Land by any conclusion without examination upon a Writ in Court ib. Tenant for life suffers a recovery and he in remainder in taile is vouched the reversion in fee is barred Page 375 The devise of a terme to one for life the remainder to another for life is good as an Executory devise Page 376 The first Devisee cannot barre him who hath the Executory devise ib. Assent to the first devise is an assent for all ib. Such an executory devise not grantable over ib. but it may be extinguished by release to the first Devisee ib. Qui destruit medium destruit finem Page 377 If a Recusant grant the next avoidance before conviction it is void by 3. Jacobi for he is disabled from the beginning of the Session c. Page 378 Covin shall not be presumed if it be not averred ib. A private Act shall be taken as it is Pleaded ib. What grants of Offices by a Bishop are void by 1. Eliz. except for twenty one yeares or three lives and what Circumstances requisite Page 380 Praerogativa Regis c. 15. excepts Knights fees and advowsons and indowments all other appendants now passe by grants and so doe they in Case of Restitution Page 381 A Corporation aggregate may make a surrender in Law not in Deed Page 382 The Jurisdiction of the Marshalsea and the reasons thereof Page 382 383 About 4. E. 3. the Court of Kings Bench became resident Page 383 A good diversity where the Court hath Jurisdiction but proceed In verso ordine and where they have not Jurisdiction there all they doe is Coram non judice and void Page 383 384 Diverse abstruse points resolved some at the common Law and severall upon the Statutes of 32. 34 H. 8. of wills Page 385 386 VVhat Colour is and where it must be given Page 388 VVhere a privy interest although he claime but part must shew the first Deed except he claim meerly by Law Page 388 389 VVhere a man may have a freehold discendible Page 390 A warranty barres no estate which is not displaced at the time of c. ib. A warranty cannot inlarge an estate where it may be given in evidence Page 391 VVhat Obligations made to Sheriffes are within the Statute of 23. H. 6. Page 391 Forma verbalis Forma legalis or Essentialis Page 392 393 The time of granting a Tales and when it is well granted Page 396 397 The proper place of a reservation is after limitation of the estate Page 397 Increase of services is betweene very Lord and very Tenant Page 398 VVhen Lands shall be said to be concealed from the K. 398 399 A man shall have costs in all cases where hee recover dammages Page 400 Where a man shall recover damages and costs also ib. Where to the writ of Inquiry and to the verdict and judgement ib. Where insufficient verdict may be supplyed by a writ of Inquiry and where it cannot a good difference Page 401 A difference between auncient Corporations and new in matter of Misnosmer Apices Juris non sunt Jura Page 401 402 Which is the legall time of payment of Rent Page 402 If payment be in the morning and the lessor dye at noone this is satisfactory against the heire but not against the King ib. Where the lessee shall hold rent free for a quarter Page 402 Where Damages may be assessed intirely and where not Page 403 404 What words passe under the name of Latine Page 404 Where by death of one of the Plaintiffes after summons and severance the writ abateth divers good diversities Page 404 405 A Qu. impedit praesentare ad medietatem Ecclesiae where good ib. Cases upon the Commissions of Sewers Where the Commissioners may subvert a Cawsey and where not Page 406 If a wall be subverted by a sodaine inundation the Commissioners may taxe all equally who have damage thereby ib. Otherwise if it come by neglect of him who ought to doe it ib. If the Commissioners have power to make a new River and a generall taxe so much upon every Towne for doing thereof Page 407 What is a good revocation of old uses and limitation of new Page 409 THE ELEVENTH BOOK A Difference between a disability absolute and temporary or personall Page 411 The grant of the office of Auditor to two is good Page 412 What offices grantable in reversion ib. Where the Jurors may assesse damages severally Page 413 Where one shall have an attaint that is a stranger to the issue ib. Where a writ of Enquiry shall issue Page 414 The plaintiffe shall have judgement de melioribus damnis ib. The conclusion of a plea is not traversable Page 415 In every issue there must be an affirmative and a negative ib. The Impropriation sufficient in the life of the Incumbent ib. VVhere the witnesses are not punishable for perjury Page 416 Perpetuall unity a discharge and what requisite thereunto ib. VVhat prescription for tithes of houses is good ib. A customary Mannor may be holden of another Mannor Page 417 VVhat variance in the name of a Corporation doth vitiate Page 418 VVhat devise of socage by tenant is Capite is good Page 419 An Ejectione firmae of tithes without shewing their kinds not good ib. If a deed be rased the obligor may plead Non est factum Page 420 A diversity where it is rased by the obligee himselfe and where by another ib. VVhere Clergy allowable at the Common law and where at this day copious and excellent matter Page 421 VVhere an Errour lyeth not before the finall Judgement Page 423 A fine by the Stewart of a Mannor where it is well assessed Page 425 VVhere the Lord may destreine for it without prescription ib. VVhere an action shall abate in part and where for the whole Page 426 Notwithstanding the exception trees remaine parcell of the Inheritance ib. A thing in possession cannot be parcell of a reversion upon an estate for life Page 427 None may be prohibited by the common law to use any trade Page 428 An ordinance by a Corporation against law is void ib. How an Ejectione firmae must be brought Page 429 Although the dammages are not well assessed yet the Plaintiffe may have judgement ib. Much variety of Learning touching Recusancy and upon the severall Statutes concerning them Page 429 430 Master and Fellowes of a Colledge restrained to grant by 13. Eliz. what statutes doe binde the King Page 432 Some grants to the King void and some voidable Page 433 VVhere acceptance of Rent doth barre and where not Page 434 Tenant in taile after possibility of c. hath a greater estate in quality then tenant for life not in quantity Page 434 435 VVhat priviledges belong to his estate Page 435 A lease without impeachment of wast what passeth thereby ib. A monopoly is against law and hath three incidents against the weale publique Page 436 What fees belong to the office of Master of the Ordnance Page 427 In the Kings Case the law maketh a privity to be accomptable ib. For what causes a Citizen may be disfranchised Page 438 The 3. Book fol. 9. Dowties Case A Difference where the first certainty is false in a grant and where the first is true and the second false Page 439 Where lands are in the Q. by 33. H. 8. c. 20. without seisure ib. Fol. 11. Sir William Harberts Case What remedy for debts at the common law and when the body and lands became liable thereunto Page 440 44â— In all actions vi et armis the body was subject unto Imprisonment and so for debt at the Kings suite Page 441 The heirs of the conâ—isâ—ser shall not have contribution against a purchasor ib. Changes reall doe not survive but personall doe Page 442 Three Errours there moved but not resolved ib. FINIS
from an auncestor a Subject but not where it discends from an auncestor who was King except in speciall cases 3. The issues of the King at the time of the levying of the fine are subjects therefore within the Statute and it seemd to them that there ought to be Letters Patents to give power to the Conisee to enter into the Land Nevills Case 2. Jacobi fo 33. THe dignity of an Earle intailed is forfeitable for treason 1. Resolved this is within the Statute of W. 2. De donis and experience is to give dignities in taile with remainders over also this was an office anciently and offices may be intailed 2. A dignity may be forfeited at the common Law by a condition in Law for the Office of Earle was Ad consulendum Regem tempore pacis defendendum Regem tempore belli therefore he forfeits it when he takes Councell and Armes against him 3. If it were not forfeited by the common Law yet it is by 26. H. 8. cap. 13. by this word Hereditament and the words use or possession which are added are to shew that every Hereditament shall be forfeited at the common Law Donee in taile had Potestatem alienandi post prolem suscitatam but if hee reteine the Land himselfe he hath no absolute fee for none shall inherit but the heire Per formam doni so it is now in case of annuity and other things out of the Statute Penall Statutes 2. Ja. fo 36. WHen a Statute is made by Parliament the King cannot give the penalty benefit or dispensation of the same to any Subject but the King may make a Non obstante to dispense with any perticular person that he shall not incurre the penalty of a Stature and the King after a forfeiture or penalty of a Statute by judgement and recovery may grant the same to any of his Subjects by way of reward and all the Judges of England subscribed to this the 8. Day of November 1604. Lillingstons Case 5. Jacobi fo 38. TEnant in fee grants a rent charge proviso that the person of the grantor shall not be charged the grantee acknowledgeth a recognizance according to 23. H. 8. and after releaseth to the grantor the conisee sueth an extent and brings debt against the grantor Terretenant 1. Resolved the rent is extendable for notwithstanding the release it is In esse as to the Conisee and cannot be discharged by the act of the Conisor also the extent relateth to the judgement at which time it was extendable See the Lord Aburgavenies Case in the sixth Report 2. Debt lyeth not so long as the extent indureth for so long the rent hath continuance although that by the release the freehold be determined if a rent charge be granted for life with proviso as above-said if the rent be determined debt lyeth against the grantor because he had no other remedy Bedels Case 5. Jacobi fo 40. R. B. Covenants in consideration of paternall love c. to stand seised to the use of himselfe for life the remainder to his Wife for life the remainder over 1. Resolv although the consideration in the deed runneth not to the Wife yet another consideration may be averred which stands with the Deed. The limittation of an use to the Wife importeth a consideration in it selfe so if it be to any of his blood but if he Covenant in consideration of a 100. l. to stand seised to the use of his Sonne nothing passeth untill inrollment Quia expressum facit cessare tacitum Beresfords Case 5. Jacobi fo 41. AN use is limitted to A B. and of the heires Males of the said A. lawfully begotten this is fee taile notwithstanding the words of the Body be wanting and that lawfully begotten are implied for no heire shall inherit who is not lawfully begotten Resolved that to create an inheritance the word Heires is necessary but the words De corpore are not necessary to make an estate taile if there be words which Tantamount and here the sence according to the intent of the Donor is of or by the said A. lawfully begotten A gift to a man haeredibus de se exeuntibus or Haeredibus suis de prima uxore sua are estates taile Kenns Case 4. Jacobi fo 42. C. K. had issue by E. S. M. K. and they are divorced and the Marriage sentenced void C. K. marrieth F. they have issue E. K. C. dyeth E. K. is found by office to be Heire M. and W. her Baron preferre a bill in the Court of wards to traverse the Office to which the Committees of the wardship answer one of the Committees dyeth M. and W. sue a Bill of Reviver and M. having issue E. dyeth E. her issue and R. her Baron bring a new Bill of Reviver 1. Resolved so long as the sentence stands in force the issue of the first feme is a Bastard because the spirituall Judge hath jurisdiction thereof and our Law giveth faith unto it Sentence of divorse may be repealed after the death of the parties but no divorse can be after their dearh for that will Bastardise the issue and the Court of the King hath triall of it originally not being hindered by any Sentence 2. The Plaintiffe shall not have a traverse without an office found for her for the King being sure of wardship shall not be ousted by one before that he be sure to have benefit by him and 2. E. 6. cap 8. doth not extend to give a traverse without office but if by two offices two are found Heires whereof one is within age by that Statute the other may traverse immediatly 3. A bill of reviver upon a bill of reviver shall not be suffered for the infinitnesse no more then a Writ by Journeys accompts By all the last bill was absurd which prayeth that the first bill be revived because M. was dead but it ought to be that her Heire may traverse The End of the Seaventh Booke THE EIGHTH BOOK The Princes Case 3. Jacobi in Chancery fo 1. THE Queene 37. Eliz. grants three Mannors parcell of the Duchee of C. to H. L. and G. M. the King at the supplication of the Prince brings a Scire facias against the said H. L. and S.H. to make Livery to the Prince by force of the Statute of 11. E. 3. H. L. pleads Null tielum recorde S. H. pleads the Patents with a Non obstante 32. H. 8. whereby these Mannors were made parcell of c. and the Act of Confirmation 43. Eliz. As to the plea of H. L. the Atturney sheweth an Inspeximus and demurreth upon the plea of the other two who joyne and as Amici curiae repeate part of the Statute of 1. H. 7. touching the Duchie H. L. demurreth 1. Resolv the Charter of creation of the Prince Duke of C. 11. E. 3. is an Act of Parliament for such a limittation to the first-begotten Son is void without Statute for if Grandfather King the Father Duke and Sonne be if
the King dyes the Father is King and the Son Duke by the said Statute against the rules of Law 2. The Lands cannot be so annexed to the Duchie that they cannot be severed without Statute 3. The estate is limitted to cease when the King hath no first begotten Son and to revive when he hath which cannot be without Statute 4. It should be absurd that six being then created Earles that their creation should be firme and the Creation of the Prince void 5. In the Charter there is De communi consilio Praelatorum c. and in the end Per ipsum Regem totum concilium in Parliamento such an Act as beginneth Rex Statuit and alwayes reputed for a Statute shall not be drawne in question but if it be Rex ex assensu the Commons or Lords omitting the other part it is voide 2. The said Charter having the force of a Statute is good without aid of any other Statute and although the King in his Scire facias recite another Act for thâ—s surplus the writ shall not abate 3. The Prince had the Dukedome in Fee for it is an inheritance because 21. E. 3. 41. the Princesse was indowed and it is no estate taile because it is not limitted of what body it shall come but onely that they shall be Heires to the black Prince 4. Against a generall Statute Nul tiel recorde shall not be pleaded for although it be lost yet the Judges ought to take notice of it and this is such an one which concernes the Prince and the Statute of confirmations doth not extend unto it 1. Because this hath a speciall relation to certeine defects as Misnosiner c. 2. Patents are made good onely against the King saving the right of others therefore the Princes right is saved In a Scire facias the King or Prince may reply but the most formall way is for the Attourney to replie as here he did No Sonne of the King but his first begotten shall be Duke of C. although he be Heire apparent to the Crowne Calyes Case 26. Eliz. Banco regis fo 32. 1. REsolved that to maintaine an action against an Inkeeper for goods lost c. it ought to be a common June 2. He ought to be a Passenger therefore a Neighbour shall not 3. An inholder shall not answer for any thing but that which is Infra hospitium therefore if a Passenger require that his Horse be put to grasse the inholder shall not answer if he be stollen otherwise if he require it not 4. There ought to be a default in the Inholder or his Servants therefore if a Guest bring one with him who stealeth the goods the Inholder shall not be charged otherwise if the Hostler appoint one with him in his Chamber who doth it But an inholder shall not be charged if he require the Guest to put his goods in a Chamber and he leaves them in the Court but it is no excuse to the Inholder that he delivered the Key of the Chamber to the Guest or that no goods were delivered to him 5. The Hostler shall answer for Charters if they be stollen but not if a Guest be beaten and all this appeares by the Writ and the words of it Paynes Case 29. Eliz. com banco fo 34. A Feme Tenant in taile taketh Baron and hath issue who is heard to cry and dyeth the Feme dyeth without issue the Husband shall be Tenant by the courtesie for although the state of the Feme be determined yet it is Tacite implied in the guift that every Husband of a Feme inheritable to the said estate shall have the Land for his life after the death of the Feme if he be intitled to be Tenant by the courtesie If a Feme be delivered of a Monster this doth not intitle the Husband to be Tenant by the curtesie otherwise it is if the issue had humane shape but is blemished if a Feme be ripped and the issue taken out of her Wombe the Baron shall not be Tenant by the curtesie otherwise it is if the issue which they had dyes and Lands discends after A man shall not be Tenant by the courtesie but where his issue may inherit as heire to the Feme therefore he shall not be of a possession in Law because there he makes title from the auncester of the Feme and not from the Feme Barretry 30. Eliz. fol. 36. A common Barretor is a common maintainer of Suites or quarrells in Courts or in the Countrey As first in disturbance of the peace Secondly in taking and keeping of possession with force or deceite Thirdly by false calumniation and sowing of Quarrells but to indite him of it it ought not to be that he hath done so twice or thrice but that he is a common doer of them Grieslies Case 30. Eliz. com banco fo 38. BY the custome one is chosen in a Leete to be Constable who refuseth and departeth out of the Court the Steward imposeth a Fine of 5. l. upon him for which the Bailiffes of the Lord distreine and he brings a replevin 1. Resolved every Judge of record may assesse a reasonable fine upon any man who makes contempt or disturbance to the Court but a Judge who is not of record cannot 2. This fine heeds not to be afferred because the Statute of Mag. Ch. speakes of Amerciaments and not of Fines for a fine is imposed by the Court and an Amerciament by the Jury therefore the Judgement in an Amerciament is generall Quod sit in misericordia and after upon estreits directed to the Coroners they are afferred and the Statute is that a Noble man shall be Amerced by his Peers which is not used at this day because it is reduced to a certeinty Viz. A Duke to 10. l. and others to 5. l. but an Amerciament of an Officer of the Court or he who hath execution of Writs shall be afferred by the Court so of any who is Judge as Suitors If a Juror appeare and is adjourned to a day of which he makes default this shall be inquired by his Companions for he shall be fined to the value of his Land per annum which the Court cannot know 3. A distresse may be taken for a fine without custome or for an Amerciament which is lesse Whittinghams Case 45. Eliz. fo 42. IT was resolved that if there be Lord and Tenant an Infant and the Infant make a feoffement in fee and execute the same by livery of seisin by his owne hands and after dye without heires in this case the Lord shall not have the benefit of the escheate and the Feoffement is unavoidable There be three manner of privities Viz. privity in blood 2. Privity in estate 3. Privity in Law Privities in blood as heires in blood privity in estate as joyntenants Baron and Feme Donor and Donee Lessor and Lessee c. privities in Law as Lord by escheate Lord of a Villaine c. If a Lessee for life
in the Kings Bench betweene Frampton and Frampton Tr 2. Jacobi Quia non refert an quis intentionem suam declaret verbis an rebus ipsis vel factis and when he limits new uses he signifieth his purpose to determine the uses before The End of the Tenth Booke THE ELEAVENTH BOOK The Lord de la Wares Case 39. Eliz. in Parliament fol. 1. THOMAS la Ware great Grandfather of the now Lord in 3. H. 8. was summoned to the Parliament by Writ and by 3. E. 6. it was enacted that William the Father of the now Lord Thomas shall be disabled to claime any dignity during his life notwithstanding W. was called to Parliament by Q. Elizabeth and sat as Puisne Lord and dyed and Thomas now Lord sued in Parliament to the Q. to be restored to the place of his Great-Grandfather that is betwixt the Lord Barkly and the Lord Willoughby of Eresby and resolved that he should be restored for his Fathers disability was not absolute by attainder but onely temporary and personall during his life and the acceptance of the new Dignity shall not hurt the Petitioner the Father being then disabled and an Esquire onely so that when the old and new Dignity descend together the old shall be preferred which resolutions by the Judges was well approved of by the Lords Committees and after confirmed by the Queene Auditor Curles Case 7. Jacobi fol. 2. QUeene Elizabeth grants Officium unius Auditorum Curiae Wardorum to W. T. and W. C. for life eorum diutius viventi the K. grants it in reversion to I. C. I. T. I. C. dyeth the K. grants it in reversion to R. P. W. T. dyeth 1. Resolved the grant of the Office Vnjus auditorum c. is good to two and the survivor of them for 32. H. 8. c. 46. maketh the two Auditors one Officer and the word Vnjus is not numerative but denoteth the unity of the Office 2. In such a grant the words eorum diutius viventi are not void for otherwise by the death of one of them the interest of both would be ended but now the survivor remaines auditor and another shall be added to him and till another is added to him his voice in Court is suspended because by the Statute there must be two so if the K. grant by a Patent to one and by another to another this is good and untill the second is added the first hath no voice in Court 3. The Nomination of Auditors ought to be under the Great Seale 4. This Office cannot be granted in reversion 1. Because it is judiciall and one cannot be Judge in futuro and perhaps he was sufficient at the time of the grant but not when it takes effect 2. Although it be in part judiciall and in part ministeriall yet it is intire and although ministeriall Offices may be granted in futuro yet this cannot because it is inseparably judiciall also for the K. cannot grant the judiciall part to one or two and the ministeriall to others 3. If the grant be good as to the ministeriall part yet it shall not take effect now because one of the ancient Officers is living and if he should exercise the ministeriall part with the survivor there would be three Offices 5. He who surviveth remaines Auditor yet had no voice in Court untill the King add another to him 6. The grant to P. is void 1. Because in reversion 2. Because it reciteth a void grant to I. C. and I. T. as good and so the K. is deceived in his grant Sir John Heydons Case 10. Jacobi fol. 5. SIr J. H. brings trespasse against F. C. T. C. I. C. F. C. appeareth against whom the Plaintiffe declareth with Simul cum c. who pleads Non culp so doth T. C. which issues were tried severally and the issue betweene the Plaintiffe and F. C. was first tried and damages assessed to 200. l. and the other against T. C. 50. l. I. C. appeares and confesseth the Action a Writ of inquiry of damages is awarded but none issued judgement for the Plaintiffe and affirmed in Error 1. Resolved in trespasse against diverse who plead Non cul or severall Pleas which are found in all for the Plaintiffe damages shall not be assessed severally although one did more wrong then another because the trespasse is intire and the Act of one is the Act of all but if they be found guilty at severall times they may and if the Plaintiffe confesse the trespasse to be at severall times the Writ shall abate 2. If two trespassors pleade severally both shall be bound with the damages taxed by the first Jury and the other shall have an attaint although he be a Stranger to the issue because he is privy to the charge if one of them after appearance make default a Writ of inquiry shall be awarded to save a discontinuance but none shall issue because he shall be contributory to the damages taxed by the Jury who tryed the other issue and the other shall not be charged in damages assessed upon a Writ whereupon he can have no attaint but if the other issue be found against the Plaintiffe then it shall issue 3. Although there was a discontinuance against I. C. because in the common place where the Action was brought there is no continuance after a Writ of inquiry otherwise it is in the Kings Bench yet it is aided by the Statute of 32. H. 8. c. 30. 4. If two Juries give a Verdict at one time the Plaintiffe shall have judgement De melioribus damnis if he will but fiat nisi unica executio in trespasse against diverse who plead severall pleas triable by the same Jury if the Jury sever the damages all is vitious Priddle and Nappers Case 10. Jacobi fol. 8. THe Plaintiffe in a prohibition declareth that the Prior of M. was seised of 22. acres and of a rectory time out of mind c. untill the dissolution c. and so for all that time held them discharged of Tithes and conveys the said 22. acres from the King to himselfe and that the Defendant Proprietarius rectoriae praedict sued the Plaintiffe for Tithes the Defendant traverseth the prescription of discharge the Jury found that the Prior time out of c. was seised of the said 22. acres and of the advowson of the Rectory and did appropriate it by License 20. H. 8. the Incumbent then being living who dyeth and that the Prior held it united to the dissolution judgement for the Plaintiffe 1. Resolved although that every Church parochiall is supposed to be presentative yet the Plaintiffe may plead that the Prior c. time out of c. were Rectors of it for this amounts to so much that it was impropriated but he needs not shew how because before time of memory but the conclusion of the prescription of unity Viz. Ratione cujus he was discharged of tithes was not good for Land is not discharged of Tithes by unity
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