use created before the Statute and a use created afterwards for in the first Case they ought to enter and if they be disabled by any Act as in the Case between Gascoign and the Earl of Kent it shall never rise but in the later Case the whole authority and confidence is by the Statute taken out of the Feoffee and the contingent use shall rise without aid of the Feoffees by the operation of the Law for there the Land is bound to the Vses and charged with them As upon a Iudgment in a Warrantia Chartae the Land of the Defendant is bounden pro loco tempore and according to the Common experience in Conveyances for payment of the Kings Debts as in the Case between Proctor and Dennis The Debtor of the King makes a Feoffment in Fee unto the use of himself and his Heirs until he makes default of such a payment to the Queen at such a day and upon default to the use of the Queen and her Heirs Cowper There needs no Entry of the Feoffees and he put the difference put before by Harris betwixt a Vse created before and a Vse created after the Statute and now the Feoffees have not any power to revive or to stand seised to such Vses but are only as Instruments to convey the Vses For the Vse is created upon the Livery and is transferred by the Statute if the person to whom the Vse is limited be capable of it at the time of the limitation but if not the Law preserves it until and it cannot be by any means prevented and he cited the Case 30 H. 8. Br. Feoffments to Vses 50 and there is a great difference betwixt a Vse limited before and after the Statute For now after the Statute the Feoffees by reason of their seisin cannot be vouched for they have not such a Seisin whereof they may make a Feoffment and he put the Case between Cheny and Oxenbridge Cheny leased to Oxenbridge for 50 years and afterwards enfeoffed Oxenbridge to the use of Cheny himself and his Wife for their lives with divers remainders over And it was adjudged in the Court of Wards That by the Feoffment the Term is not extinct and he put the Case of the Lord Pagett adjudged in the Kings Bench. A Feoffment was made to the use of the Feoffee for life the Remainder to him whom the Feoffor should name at his death in Fee and the Feoffor and Feoffees for good Consideration levy a Fine to a Stranger and afterwards the Feoffor nameth and dieth The party named by the Feoffor shall have the Land notwithstanding the Fine c. Beamount the contingent use is here utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Statute of 27 H. 8. of Vses That the motives of that Act did not favour Vses but it was their meaning utterly to root them out And if contingent Vses which are not nor can be executed by the Statute should stand in force the mischief should be that no Purchasor should be secure of his Purchase but should be in danger of a new born Vse not known before And he grounded his further Argument upon the reason of Manwood and Dyer Where a Man makes a Feoffment in Fee to the Vse of himself and his Wife which shall be and afterwards he and his Feoffees and those in Remainder make a Feoffment to divers other new Feoffees and to new Vses and afterwards he takes another Wife and dieth The said Iustices were of Opinion That by the said Feoffment the contingent Vses were destroyed For when the Estates which the Feoffees take is taken away which was the root and foundation of the Vses and the branch and fruit of the said Tree it necessarily followeth that they also be taken away and also because the Feoffees by their Livery are barred for to enter for to re-continue the Estate would continue these Vses they also are gone and extinguished Yelverton I conceive that notwithstanding the Feoffment that the Vse shall rise in his due time according to the limitation of it c. CCCXXXIX The Serjeant's Case Mich. 32 Eliz. In the Common Pleas. TEnant in tail and he in the Remainder in Fee joyn in a Grant of a Rent-charge in Fee to the issue of Tenant in tail a year before the Statute of 27 Eliz. of fraudulent Conveyances and afterwards the Tenant in tail and he in the Remainder sell the Land and afterwards a Praecipe is brought against Tenant in tail who voucheth him in the Remainder who voucheth the Common Vouchee and so a Recovery is had and seisin accordingly The issue in tail dieth without issue Tenant in tail dieth the Vncle distraineth for the Rent Glanvil Serjeant argued That this grant of the Rent is altogether the grant of the Tenant in tail and that nothing passed from him in the Remainder and that it doth enure as one entire Grant and not as several Grants As where Tenant for life and he in the Reversion joyn in a Lease it is one entire Lease and the Lease of them both and they shall both joyn in an Action of Waste But admit that here are several Grants yet the Estate out of which the Rent was granted continuing the Rent shall continue also And now the Recoveror comes in the Post and in the affirmation of the Estate of Tenant in tail and the Remainder is utterly defeated and destroyed by the Recovery and the Rent always issueth out of the particular Estate and he cited Littl. 125. If a Rent-Charge be issuing out of Land and the Tenant of the Land leaseth the same for life and afterwards the Rent is granted over now he who hath the Freehold ought to attorn scil the Tenant for life for a Rent-Charge lieth always upon the possession and if Tenant for life granteth a Rent-Charge and afterwards makes a Feoffment in Fee the Rent shall continue until the possession be recontinued c. Harris Serjeant contrary This Grant is the Grant of them both scil of the Tenant as long he hath issue of his Body and afterwards it is the grant of him in the Remainder Where a Man derives his Interest from two the one being a particular Tenant the other a Recoveror or a Remainder in Fee the Donee takes of each of them that which he may lawfully give and no more and the particular Estate being then ended the Donee shall be then accompted in by him in the Reversion c. See 2 E. 4. 1. And he vouched the Case of the Lord Mountjoy The Lord Mountjoy took to Wife a Woman Enheretrix she had issue and so he was intituled to be Tenant by the Curtesie and acknowledged a Statute and afterwards he and his Wife levyed a Fine and died Now the Conusee shall hold the Land discharged of the Statute for after the death of the Husband the Conusee is in by the Wife only and so paramount the charge Also he said That this Grant of
years or for life with the ancient Rent reserved is sufficient and is a good and immediate descent of the third part And this word here immmediatè to be construed ratione temporis is a frivolous Construction for the wore Descent implys that For there cannot be an expectant and future descent For descent is clearly immediate without mean time But here in this case the word immediate is to be taken in both senses et re et tempore For by the Relation of the Waiver it is as if no Ioynture had been made and the Heir is to have the profits of the Land from the death of his Ancestor And so the descent of Hinton immediatè et re et tempore And that the same time hath had such reasonable Construction is now to see The Statute of 18 H. 6 Cap. 1. is That the Chancellor shall make Patents to bear date the same day that the Warrant was made and not before It hath been taken That if the Patents bear date after the Warrant entred they are good Which see 19 Eliz. Plow Com. 492. in Ludford and Gretton's Case The Statute of Acton Burnel is That if the Extendors extend the Land too high statim respondeant illi qui fecerunt extent This word of time statim shall not be construed that the Extendors shall pay presently but that they shall pay without delay i.e. at the day limited in the Statute See 2 H. 4. 17 18. It hath been Objected That it is a great inconvenience that the King for his third part should attend the pleasure of the Wife the time of her Election and therefore the Will shall be void But the same is no inconvenience for the Ioynture never was actually in the Wife to her prejudice until she entred into the Land c. And now by the Waiver the Ioynture is avoided ab initio to all intents as if it never had been made So as the King shall be answered of the entire profits after the time of the death of the Husband and may seize the whole Land presently without staying the Election of the Wife or taking notice of her Ioynture And so are the words of the Diem clausit Extremum Tibi praecipimus quod omnia Terras Tenementa of which c. et ea salvò Custodias donec aliud tibi praeceperimus And that may be before any Office found And those who have any Interest in the Land or otherwise may shew the same upon the Traverse of the Office or in the Court of Wards and have allowance of it And so there is not any prejudice to the King No more than when Tenant in Knight-service Deviseth all his Lands There Division is to be made and the King hath not any prejudice by it In the true Construction of this Statute it is very necessary to consider the intention and meaning of both Statutes And it is certain That the said Statutes were made for the benefit of the Subjects to enable them to dispose of their Lands for the preferment of their Wives advancement of their Children and payment of their Debts whereof they were restrained by the Statute of 27 H. 8. of Uses The Savings in the said Statute are for the benefit of the King and the Lords So as Provision is made not only for the benefit of the Subjects but also for the profit of the King and other Lords The disability of the subjects to dispose of their Lands to the intents aforesaid appears in the Preface of the Statute of 32 H. 8. And the favour and grace of the said King towards his Subjects to supply the necessity of Subjects appeareth by the Prefaces of both Statutes The later Statute is an Explanation of the former in divers Points The first Statute to persons Having Mannors c. Ex vi termini includes Tenants in tail Ioynt-Tenants Enfants Idiots Feme-Coverts but the same is explained by the later Act to be of Feesimple only and of sole Estates and to persons of sound memory not of Coverture And so If the Kings Tenant Deviseth all his Land the same is good for two parts of it so if he Devise all which he hath in Feesimple and leaveth the third part to descend in tail This Statute shall be taken strict against the Heir For the whole Scope and Intent of the Parliament was to bind the Heirs and to enable their Fathers to dispose so as the third part be saved to the King and the Lords And that is manifest For the Estates made by Collusion are preserved and by an express Clause in the Statute kept in force against the Heir but void as to the Lords As to certain Readers Cases which have been put to prove That these Statutes ought to have a strict Construction I conceive Nihil operatur A Man seised of one Acre by Disseisin and of two Acres by good Title all holden in chief by Knight-service Deviseth the two Acres which he hath by good Title and dieth so as the Acre which he hath by Disseisin descends to the Heir being within age the King seiseth the third Acre is devested by Eigne Title the Devise of the other two Acres is good against the Heir for it is within the express words of the Statute Having a sole Estate in Fee-simple And yet by another Branch of 34 H. 8. the King for his time shall have recompence out of the other two Acres and he agreed the Law to be so but the same doth not conclude our Case A Man seised of two Acres in Socage and of one Acre holden by Knight-service in Chief of equal value is disseised of the Acre holden in Chief and Deviseth the other two Acres in Fee the same is a good devise for it is within the first branch expresly Having a sole Estate in Feesimple and not having any Lands holden by Knight-service for during the disseisin he hath not the Land whereof he was disseised and therefore the devise is good for the benefit of the Devisee and the Lord is not at any Mischief For the Disseisee notwithstanding the Disseisin remains Tenant of the Lord as to the Avowry and the Lord shall have the Wardship of such Heir and may enter upon the Disseisor and so have a third part And that Case was put out of Gilbert's Reading A Man seised in Fee of two Mannors of equal value holden by Knights-service in Capite and a third Mannor of the same value is conveyed to him by Deed of Bargain and Sale acknowledged and before Enrollment he deviseth the two first Mannors to J.S. in Fee and dieth and afterwards the Indenture is enrolled yet the devise is not good for the said two Mannors by any Relation of the Bargain and Sale enrolled That Case may well be agreed to be Law For the Estate doth not vest in the Vendee before Enrollment and so the Estate was not perfectly in the Devisor at the time of the Will For although that the Enrollment shall relate
the Land descends to her and her Sister as unto one moyety of the Land the Lease is determined but not as to the other moyety Whiddon Iustice Where a Devise is for the benefit of a stranger there the Heir shall take by the Devise and not by descent As if a Lease be made for years the remainder to the Heir there the Heir shall take the Land by the Devise Catline She hath it be Descent and not by the Devise But if he deviseth the Land to the Heir in tail with this That he shall pay a certain sum of Mony unto another there the Heir shall take by the Devise for the benefit which may accrue to the stranger and not by descent for otherwise the Will should not be performed But where the Estate of the Heir is altered by the Will nor any benefit doth accrue unto another after that the Lands come to the hands of the Heir in that case he shall have the Land by descent And so here in this case for as much as the Devise is That the Daughter shall enter they both being but one Heir to their Father shall have the Land by descent and the words of the Will That he shall enter into the moiety shall be void as if the Devise had been to the Heir for life there the same is void because the Fee-simple which descendeth to her doth drown the particular estate for life And therefore in the principal case here the Vncle shall have but the moyety of the moyety which is so devised and the other Sister shall have the other moyety of the Land and as to that moyety which is devised to the Wife for years the same shall enure according to the Common Law that the Vncle shall have the moyety of that and the other Sister the other moyety LIV. Mich. 15 Eliz. In the Common Pleas. THis Case was moved to the Court by Lovelace Serjeant A Man Covenants with another to make and execute an estate of such Lands as should descend to him from his Father and Grandfather by a certain day the same Lands to be of the clear yearly value of 40 Marks And the Question which he moved to the Iustices was That if the party had more Lands which came to him from his Grandfather and Father than did amount to the yearly value of 40 Marks If he was to make assurance of all the Lands or of so much thereof only as amounted to the value of 40 Marks And Manwood Iustice conceived That he should make assurance of Lands only which were of the value of 40 Marks per annum For the words such which do not go so largely as if he had said All my Lands which shall descend or to me be descended for then the yearly value were but a demonstration and all his Lands ought to be assured But here the Intent of the Indenture cannot be taken otherwise than to have but an Assurance of so much Land as if he had said Of such Lands and Tenements as were my Grandfathers and Fathers amounting to 40 Marks by the year for there by those words he shall have but 40 Marks by the year Lovelace It hath been taken That where the Queen made a Lease of all her Lands in such a Town amounting to the yearly value of 40 l. that that valuation is not a demonstration and shall not abridge the Grant precedent to have all in the Town which should be of the value of 40 l. but her Grant shall be taken and construed according to the words precedent Manwood The Common case of assurance upon a settlement of Marriage is That he shall stand seised of so much of his Land as shall be of the clear yearly value of 40 Marks If the marriage take effect The Question hath been If they to whom the assurance is made may enter into any part of the Land at their election and take that which is the best Land to the value of 40 Marks per annum and hold the same in severalty or if they shall be only Tenants in Common with the other And also it hath been a Question Whether they may choose one Acre in one place and another Acre in another place and so through the whole Land where they please because the Grant shall be taken strong against him that granteth But I conceive that it should be a hard case to make such Election of Acres But it was said by some Serjeant at the Bar That if a Man granteth to another to take 20 Trees in his Lands that the Grantee may cut down one Tree in one place and another in another place Manwood agreed that Case but of the other Case the Court doubted of it The principal case was adjourned LV. Vernon and Vernons Case Mich. 15 Eliz. In the Common Pleas. NOte That in the Case of Dower between Vernon and Vernon and the Argument of it the Plaintiff would have been Nonsuit Dyer Iustice said It should be an ill President if a Nonsuit should be after Demurrer And therefore he said That for his part he would not agree that any Nonsuit should be upon it but he said he would be advised and take better Consideration of it If the Nonsuit should be awarded or not And afterwards at another day Manwood and Dyer took a difference where the Nonsuit is the same Term and where in another Term and said It is like unto the Case where a Man would Wage his Law and is present ready to do it that there the Plaintiff cannot be Nonsuit because it is in the same Term but he shall be barred But in another Term afterwards he might be Nonsuit if the Defendant take day over to wage his Law until another Term and so they said it should be in this case LVI Sir Peter Philpots Case Mich. 15 Eliz. In the Common Pleas. THis Case was moved by Meade Serjeant to the Iustices of the Court of Common Pleas viz. That Sir Peter Philpot Knight seised in Fee of divers Mannors and Lands suffered a Recovery and made a Feoffment thereof unto divers persons To the use of himself for life the remainder to his right Heirs And after the Statute of 32 H. 8. of Wills He devised all his said Mannors and Land to his Wife for life and it was expressed in his Will That he could not devise all his Lands by reason of the Statute of 32 H. 8. that his Will was That his Wife should have so much which might be devised by the Laws of the Land And there was another Clause in the said Will That his Feoffees should stand seised of the same Mannors and Lands after the death of his Wife To the use of one Hurlock and others for years for the payment of his Debts and for the raising of Portions for the preferment of his Daughters in Marriage And further by his said Will he willed That if the Law would not bear it That Hurlock and the others should have the Interest Then he
Also the words Of the Mannor of Fremmington and Hundred are put amongst others which are Mannors in truth By which he conceived That the Devisor did not intend to pass but one Mannor and no other Herediatments by this Mannor of Fremmington There is a Rule in Law That in the Construction of a Will a thing implyed shall not control a thing expressed But here If by implication the Rent shall pass then the Mannor of Camfield is not passed which was the intent of the Testator to pass and that by express words See 16 Eliz. Dyer 330. Clatches Case No Implication of any Estate in remainder can serve when a special Guift and Limitation is made by the Devisor himself See also 16 Eliz. Dyer 333. Chapman's Case But in our Case here there are not sufficient words to warrant any Implication for neither in truth nor in common reputation was it taken for a Mannor 27 H. 6. 2. Green-Acre may pass by the name of a Mannor although it be but one Acre of Land because it is known by the name of a Mannor See acc 22 H. 6. 39. And see Where before the Statute of Uses A Man had recoverors to his use and he willeth by his Will That his Feoffees sell his Lands they might sell And he said That if a Man seised of a Mannor parcel in Demesne and parcel in Service and he granteth the Demesnes to one and his Heirs and afterwards deviseth his Mannor peradventure the Services shall pass but this Rent hath not any resemblance to a Mannor Gawdy This Rent shall pass by the name aforesaid Favourable Construction is always given in Wills according to the meaning of the Devisor and no part of his Will shall be holden void if by any means it may take effect Then it here appeareth that his intent was That upon these words something should pass to the Devisee concerning the Mannor of Fremmington for otherwise the words Of the Mannor of Fremmington are void and frivolous which shall not be in a Will if any reasonable Construction may be made For it is found expresly by the Iury That neither at the time of the Will made nor at the time of the death of the Testator the Devisor had any thing in the said Mannor of Fremmington but the said Rent of 130 l. per annum And it may well be taken That the Devisor being ignorant what thing a Mannor is thought that this Rent was a Mannor because that she had Rents and Services out of the said Mannor For in Construction of a Will the words shall serve the intent And therefore if a Man Deviseth That his Lands shall be sold for the payment of his Debts his Executors shall sell them for the intent of the Devisor names the sellers sufficiently And See Plowden 20 Eliz. 524. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Assigns in Fee whereas then there was no Feoffees to use the same was holden a good devise of the Land to A. But the Iustices conceived That the Devisor was ignorant of the operation of the Statute in that case and therefore his ignorance was supplyed See Br. Devises 48. 29 H. 8. A. had Feoffees to his use and afterwards after the Statute of 27 H. 8. and 32 H. 8. he willed That his Feoffees should make an Estate to B. and his Heirs It was holden by Baldwin Shelley and Mountague Iustices That it was a good Devise And see 26 H. 6. Fitz. tit Feoffments Faits 12. A Carue of Land may pass by the name of a Mannor therefore a fortiori a Rent for Rents and Services have more affinity and more resemble a Mannor than a Carue of Land. And it cannot be intended that the meaning of the Testator was to grant the Mannor it self in which he had not any thing especially by his Will for Covin Collusion or indirect dealing cannot be presumed in a Will. Also The Marchioness for 4 years together before her death had the Rent and Services of the said Mannor and she well knew that she her self had not any thing in the said Mannor but the said Rent and Services and therefore it shall be intended that the same was her Mannor of Fremmington A. seised of a Capital Messuage and great Demesnes lying to it Leased the same for years rendring Rent and afterwards devised to another all her Farm in such a place And it was Ruled in that Case That by that Devise the Rent and the Reversion passed See the Case between Wrottesley and Adams Plow 19. 1 Eliz. by Anthony Brown and Dyer Periam Iustice conceived That this Rent might be divided well enough But by Anderson It is but a Rent-Seck Periam It is distrainable of Common right Anderson doubted of it But all the Iustices agreed That the Rent might be divided but there should not be two Tenures The Lord Mountjoy being advised that this Rent did not pass but descended to the Heir being the full third part of the Lands entred into the Residue and made a Lease of the Mannor of Camfield unto the Plaintiff upon which the Ejectione firmae is brought And afterwards the Plaintiff seeing the Opinion of the Court to be against him and for the Devise of the Rent for the reasons aforesaid Discontinued his Suit c. CCXIX. Williams and Drew's Case Mich. 29 Eliz. In the Common Pleas. THe Widow of Williams who was Speaker of the Parliament brought Dower against Williams and Drew upon the Grande Cape Williams made default And now came Drew and surmised to the Court That he is not Tenant of the Land But further he saith That the Husband of the Demandant Leased the said Lands to him for 50 years and that this Action is brought by Covin to make him lose his Term and prayed to be received And the Opinion of the whole Court was That although he was party to the Writ yet he should be received and that by the Statute of Gloucester for he is in equal mischief And the Court was also clear of Opinion That upon the default of Williams the Demandant should not have Iudgment for a moyety for that the Cause of the receipt trenched to the whole And by all the Iustices but Rhodes If Iudgment had been given upon the deault of both i. e. Williams and Drew yet the Term of Drew should stand but Drew should be put out of possession and put to his Action And Anderson conceived That the Resceit upon that Statute did not lie unless that Covin be alledged betwixt the Demandant and the Tenant to make him to lose his Term and that Covin is traversable Which all the other Iustices denyed for the Covin ought to be averred but ought not to be traversed And also they all but Anderson were clear of Opinion That in this Case of Receipt the party shall not plead upon his Receipt as upon the Statute of Westminster but he shall be received
sue in what Court he will in any of the Kings Courts of Record And in this Case the Queen is quodam modo a party For she is to have the moyety And so this cause is not meerly betwixt party and party c. CCLXXXV Willoughby's Case Trin. 30 Eliz. In the Kings Bench. 2 Len. 117. WIlliam Willoughby and two other were Endicted That where the Parson of the Church of D. and all his predecessors have used to have Common in such a place The said Defendants Willoughby and others had enclosed the same and that enclosure was upon their own Land. It was moved That upon this matter they ought not to have been endicted but the party grieved was put to his Action As where a presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Marden 29 Eliz. upon the stopping of a High-Way upon his own Land and if it were upon other Land it were not material for it is but an Impeachment to take Common which cannot be Vi et armis c. Also this Endictment is Recorded and Certified as found before Iustices of Assize and Gaol-Delivery and they cannot take such presentment And although the Iustices of Assize and Gaol-Delivery were in rei veritate also Iustices of Peace yet the Endictment being recorded and certified to be taken before them in quality of Iustices of Peace shall not help it for the Court shall not respect any Authority but that which appears upon the Record And for these Causes the parties were discharged CCLXXXVI Gates and Hollywell's Case Pasch 30 Eliz. In the Kings Bench. A Man having Issue two Sons devised That his eldest Son with his Executors should take the profits of the Lands until his younger Son should come to the age of 22 years and then the younger Son should have the Lands to him and his Heirs of his body It was the clear Opinion of all the Iustices That the eldest Son should have a Feesimple in the Lands until the younger Son came to the said age of 22 years CCLXXXVII Cony and Beveridge's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 146. IN Debt upon an Obligation the Case was That the Plaintiff Leased to the Defendant certain Lands in the County of Cambridge rendring rent And afterwards the Defendant became bounden to the Plaintiff in an Obligation for the payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton To which the Defendant pleaded payment of the Rent without shewing the place of payment and upon that they were at Issue And it was found by Nisi prius in the County of Northampton for the Plaintiff It was moved in Arrest of Iudgment That the Issue is mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge and there the Issue ought to be tryed See 44 E. 3. 42. And it was the Opinion of Anderson Chief Iustice That no Iudgment should be given for the Plaintiff for the Cause aforesaid But Rhodes and Windam Iustices were of a contrary Opinion For it doth not appear That the Issue is mis-tryed because that no place of payment is pleaded and it may be for any thing that is shewed That the Rent was not paid in the County of Northampton CCLXXXVIII The Blacksmith's Case Mich. 30 Eliz. In the Common Pleas. A Blacksmith of South Mimmes in the County of Middlesex took an Obligation of another Blacksmith of the same Town upon Condition that he should not exercise the Trade or Art of a Blacksmith within the same Town nor within a certain precinct of the same And upon that Obligation the Obligee brought an Action of Debt in the Common Pleas depending which Suit the Obligor complained to the Iustices of Peace of the County against the Obligee upon which the matter being found against him by Examination the Iustices committed the Obligee to Prison and now upon the whole matter Puckering Serjeant prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex and hat it And Fleetwood Recorder of London being at the Bar the Court openly admonished him of that matter For by the Law Iustices of Peace have not Conusans of such Offences nor can entermeddle with them for their power is limited by the Commission and the Statutes And the Recorder relyed much upon the Opinion of Hull in 2 H. 5. 5. But it was said by the Court Although that this Court be a high Court to punish such Offences appearing before them of Record yet it doth not follow That the Iustices of Peace may also do so But as to the Obligation it self the Court was clear of Opinion That the same was void and against the Law. CCLXXXIX Russell and Broker's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 209. IN Trespass for cutting down of 4 Oaks The Defendant pleaded That the place where c. And that he is seised of a Messuage in D. and that he and all those whose Estate he hath c. habere Consueverant rationabile estoverium suum for fuel ad Libitum suum Capiendum in boscis subboscis arboribus ibidem crescentibus and that in Quolibet tempore anni unless in Fawning time The Plaintiff by Replication said That the place where is in the Forrest of D. c. And that the Defendant and all those whose Estate c. habere Consueverunt rationabile estoverium suum de Boscis c. per Liberationem Forestarii aut ejus Deputati prout Boscus pati potuit non ad exigentiam petentis And upon that Replication the Defendant demurred in Law. And it was the clear Opinion of the Court That Iudgment should be given against the Plaintiff For if he would have ousted the Defendant of his Prescription by the Law of the Forrest he ought to have shewed the Law of the Forrest in such Case Lex forestae talis est For the Law of the Forrest is not the Common Law of the Land and we are not bounden to take notice of it but it ought to be pleaded Or else the Plaintiff ought to have traversed the Prescription of the Defendant For here are two Prescriptions one pleaded by the Defendant by way of Bar The other set forth by the Plaintiff in his Replication without any traverse of that which is set forth in the Bar which cannot be good But if the Plaintiff had shewed in his Replication Lex forestae talis est then the Prescription of the Defendant had been answered without any more for none can prescribe against a Statute Exception was taken to the Bar because the Defendant hath justified the cutting down of Oaks without alledging That there was not any Vnderwoods But that Exception was not allowed for he hath his Choice ad libitum suum Another Exception was taken
Lease cont of Lands proper to the Dean only B. 176. Debt For foreign Mony may be demanded either by Foreign or English Names A. 41. Upon a Recognizance in nature of a Statute A. 52. B. 14. Upon a void Award is good if the Defendant do not shew that part that makes it void A. 72 73. For a nomine poenae A. 110. For a pain set in a Court Leet A. 203 204 217 218. Upon the words Covenant and Grant lieth A. 208. Where it lies before the last day of payment A. 208. For the surplusage of an Account A. 219. Lies by an Administrator against an Executor for Arrearages of an Annuity A. 224 225. Lies upon a Recognizance made before the Mayor of London A. 284. If Debt lies by the Grantee of a Rent reserved by a Lease to which Grant the Lessee attorned A. 315. Under 40 s. in the Kings Bench for Costs in a Hundred Court A. 316. Against an Heir shall be in the Debet Detinet B. 11. Debt lies upon a Judgment or Recognizance although the Plaintiff have Judgment upon a Scire Facias B. 14. For Rent lies although in the Declaration it be alledged that he entred before the commencement of his Lease B. 98. Lies for the Grantee of Post-Fines and for a Nomine poenae by the Heir B. 179. cont A. 249 250. This Action lies not but where a certain sum is agreed on C. 161. Against Baron and Feme for a Debt of the Feme must be in the Debet Detinet C. 206. For Corn in the Detinâ—t and the Plaintiff shall recover the value of the Corn C. 260. Deed. Where the Habend ' may controul the Premisses A. 11 281 318. B. 105. What is a good delivery thereof what not A. 140 152. If a primo deliberat ' or non est factum may be pleaded of a Deed enrolled A. 183 184 C. 175 176. Where in the Premisses of the Deed two things are granted Habend ' the one for years what Estate the Grantee hath A. 281 282. Raisure of a Deed does not avoid it if it be in a part not prejudicial to the party who would avoid it A. 282. Indenture between A. of one part and B. and C. his Wife and their Children A. 287 288. Must be pleaded sealed and delivered or by words tantamount A. 310. In Indentures the intention of the parties may be argued Deeds Poll shall be taken strongest against the Grantor A. 318. B. 47 192. None can take by Indenture but those who are party to it A. 287 288. B. 1. C. 34. The effect and meaning of them regarded where the words are doubtful B. 17 219 151. Where a Deed may have quasi two deliveries B. 192. A Deed once perfectly executed as by enrolment c. cannot pass any thing by Livery C. 16 125. Actual indenting and both parties Seals mentioned to be put makes an Indenture C. 16. Where a Deed in the Premisses leaseth Lands to one Habendum to his Executors and Assigns for 40 years what Estate the Lessee hath C. 32 33 34. The date of a Deed not material C. 100. Demand See Request The King need not demand a Rent to avoid a Lease A. 12. B. 134. C. 125. A Legacy not payable without demand A. 17. Rent payable at Michaelmas or within the space of 12 days prox post aliquod festorum vel dierum when it is demandable A. 142. The difference of demand in a Writ De advocatione duarum partium Ecclesiae duabus partibus Advoc Ecclesiae A. 169. What is demandable in a Writ of Entry A. 169 170. Whether demand at one day for Rent due several days before be good A. 190 191 305. Whether a sum in gross must be demanded as Rent A. 269. The manner to make a demand of a Rent A. 305. He who demands Rent as Attorny need not tell his name nor shew his authority C. 224. Demurrer To Evidence in Ejectione Firme A. 269. All matters well pleaded are confessed by Demurrer C. 200. Upon Demurrer to a Challenge there neeeds no Serjeants hands C. 222. Departure What is what is not A. 32. Count of a Lease without Deed no Departure by Replication to say the Lease was made by Deed A. 156 204. C. 203. Ejec vers 5. One pleads to the Issue the others plead specially no Departure for the Plaintiff to deduce a Title to himself and say that he was seised until by the 4 disseised B. 199. First to make a Title by Common Law and reply a Custom to uphold it is a Departure C. 40. Devastavit What Sheriff may retorn it and what Sheriff is estopped to retorn it B. 67. C. 2. If Executors release a forfeited Bond of 100 l. and receive only 50 l. the whole is Assets C. 53. It is a personal Tort and the Executors of the Executors shall not be chargeable with the first Executors Devastavit C. 241. Devise See Legacy That Executors shall sell Lands who sell by Fine A. 31. C. 119. If such Executors may â—ell by parcels A. 34 60 260. The construction of an Habendum in a Devise A. 57 58. What shall be a Devise in tail for life or in see A. 57 58. B. 69. C. 55. That his Son and an Executor shall take the profits until another comes of Age gives the Son see A. 101. C. 55. To the discretion of the Devisee A. 156 224 283. B. 69. That Executors shall sell a Reversion who sell by Parol yet good and the Devisee is in by the Will A. 148. C. 119. To three Sons and if any die the Survivor to be his Heir how adjudged A. 166 258 259. C. 262. All my Lands and Tenements if it passeth a Reversion after a Lease for life A. 180 181. If by the Stat. of Wills an Estate pur auter vy may be devised A. 252. A Use may be raised by Devise and the Consideration is presumed by Law A. 254 257. If the Devisee die in the life of the Devisor the Heir of the Devisee shall take nothing A. 254. Of Capite Land and Soccage A 267. B. 41 42. C. 267. Vide the Statutes 32 34 H. 8. To A. if she do not Marry Remainder in tail A. 283. That if my Son A. die without Issue that then my Sons in Law shall sell how adj A. having a Son who dies without Issue A. 285 286. Feoffment to the Uses in his Will which deviseth that his Feoffees shall be seised to Uses a good Devise A. 313. That Lessee for years shall hold after the Devisors death for 30 years accounting the Remainder of the first Term how adj B. 33 34. Devise to A. may be helped by Averment B 35. C. 79. To the Father and his eldest Issue Male B. 35. Things individual cannot be devised within the Statute of Wills If part be Soccage and part Capite B. 41 42. That his Lands shall be sold for payment of his Debts the Executor shall sell 43 220. Devise that his
Whereupon Vaughan asked him Wherefore he paid the Rent To whom the Lord Windsor answered That he paid the same during the lives of the Feoffees but after their deaths he paid nothing but notwithstanding that payment that the Feesimple remained in him and that his Counsel advised him to pay the Rent to the Heirs of Lewknor who was the Wife of the said Vaughan And Catline said That if a Fine be levied upon a Release in a Scire facias against the Conusor he shall not plead that the Conusor had not any thing in the Land at time of the Fine levied And he said further That if a Disseisor be and the Disseisee levieth a Fine upon a Release that thereby his Right is gone And Note That as to the principal Case Southcote was of Opinion That the Fee was not gained by the Fine levied by a stranger to him who had the Vse before the Statute of 27 H. 8. and that if no Feesimple was in the Lord Windsor at the time of the Lease made by him that the Lease could not be good nor the Action maintainable And because the Court was divided in Opinions in both Points Catline commanded the Iury to find a Special Verdict LXII Mich. Eliz. In the Kings Bench. NOte That it was said by the whole Court That if a Man delivereth Mony to another Man to buy Cattel or to Merchandise with although that the Mony be sealed up in a Bag yet the property of the Mony is to the Bailee and the Bailor cannot have an Action for the Mony but only an Accompt against the Bailee although that he never buyeth the Cattel or other things for the Auditors upon the Accompt shall allow him the sum and such other allowances as they shall think fit And that a stranger takes away the Mony after the death of the Bailee or in his life-time the Bailor shall not have an Action against the stranger but the Executors of the Bailee or the Bailee himself during his life And yet if the Bailee dieth no Action of Accompt lieth against his Executors because the Testator had the property of the Monies And therefore if he who takes the Mony from the Bailee promiseth the Bailor to pay him the like sum of Mony as the Bailee had received of him in his life and as should be truly proved by the Bailor there upon that Promise an Action upon the Case doth not lie against him who took away the Mony as Catline said In an Action upon the Case brought by the Master of the Rolls and another who supposed that they delivered 100 l. to one Moore and that he is dead and that the Mony came unto the hands of the Defendant and that thereupon he promised to pay the like sum which might be proved that Moore had of the Plaintiffs It was holden That the Action upon the Case did not lie Southcote Iustice said That although the property of the Mony be changed as before and that no Accompt lieth against a stranger Yet when he hath the Mony and for that cause promiseth to pay it as before it is reason that an Action upon the Case should lie upon his promise although the Law will not charge him nor the Executors upon an Accompt LXIII The Lord Cromwells Case Mich. 15 Eliz. Dyer 321 322. 2 Roll. 560 561. JEffery recited That a Replevin was brought by Franklin The Defendants made Conusans as Bailiffs of the Lord Cromwell because that the said Lord was seised of the Mannor of North-Elmes and that the Custom of the said Mannor is That the Homagers have used to make By-Laws when necessity shall be within the same Mannor and upon a pain and forfeiture and that the Lord of the Mannor for the time being might distrain in the Land of any for the Forfeiture And further saith That in Anno 6 of Ed. the 6th the Homage then whereof Franklin the Plaintiff was one made By-Law That none should put his Sheep to feed in the Pasture or Lands of the Lord upon a pain c. And that the said Franklin in the 13th year of the Reign of the Lady the Queen that now is had put his Sheep into the Pasture and Lands of the Lord to feed and for that they avow the taking in the right of the Lord Cromwell for not payment of the said Forfeiture And Jefferies of Council with the Plaintiff said That the Avowry nor the Conusans were not good For the Custom is as they themselves have shewed That the By-Law shall be made when necessity requireth and without necessity a By-Law cannot be And it is not alledged here That there was a necessity at the time of this By-Law made and then if there be no necessity they cannot make the By-Law Also it is not alledged that there were any Sheep there And when a Custom is pleaded it shall be pleaded stricti juris And at the Common Law you may see divers Cases That when a Man is to have one thing for the cause of another that he must alledge the thing for which he must have it As in 9 H. 6. Where an Abbot had granted to one That he should have Common wheresoever the Cattel of the Abbot should go there if the Commoner will justifie or make Avowry for his Common he must aver that the Beasts of the Abbot went then in such a place Field or Pasture for if they did not go there at the time that he justifieth or avoweth his Iustification or Avowry shall not be good And there it was said by Babbington Chief Iustice That if a Man grants Common whensoever his Cattel shall go in such a Pasture If the Grantor doth never put his Cattel into the Pasture the Grantee shall not have Common there and therefore he must say That he put his Beasts into the Pasture And in 15 H. 7. in the Case of an Annuity granted until he be promoted to a Benefice in a Writ of Annuity brought he must say That he is not promoted c. And if an Obligation be made to you to you my Lord for Mony when J.S. shall return from Rome you shall not have an Action upon the Bond for not payment of the Mony without alledging that J.S. is retorned See 33 H. 6. Hillary 's Case And before the Statute of Quia Emptores terrarum If a Man had made a Feoffment to hold by Fealty and the Guarding of his Castle In an Avowry for the Castle Guard that there was then War and so cause of necessity for in time of Peace he shall not be bound to Guard it And so it appeareth 34 H. 8. Where a Feoffment was made before the Statute to hold by Fealty and every year to marry a poor Maiden within the Mannor if he doth avow for not marriage he ought to alledge that there was a poor Maid that year within the Mannor So if the Tenure be to repair a Bridge that is for the Common wealth and he and all others
shall be taken in Iudgment of Law That the Executors have Assets to the value of the whole 100 l. And although the Executors were compelled by the Award to make the release yet it was their own act to submit themselves to the Arbitrament LXXVIII Mich. 15 Eliz. In the Court of Wards NOte It was Ruled by Kellaway and Wilbraham in the Court of Wards That where the Kings Tenant of Lands holden by Knight service in Capite made a Feoffment of the same Land to the use of himself for life and after to the use of his younger Son in tail the remainder to the right Heirs of the Feoffor and died the eldest Son within age That the Queen should have the Wardship of his body and of the third part of the Land and when the eldest cometh at full age the younger shall sue Livery and pay Primer Seisin according to the rate of the value of the whole Land viz. of the third part as in possession and of the two parts as a Reversion For the remainder to the right Heirs of the Feoffor is in truth a Reversion For the Feesimple was never out of him because there was not any Consideration as to that nor any use expressed And also because that Livery shall not be by parcels the younger Son shall not be suffered to sue Livery of the third part presently and respite the residue as to the two parts in Reversion until the Reversion fall but shall sue Livery presently as well of the two parts in reversion as of the third part in possession And if the eldest Son had been of full age at the time of the death of his Father the younger Son should pay Primer Seisin as to the third part of the full value of it for one year as in possession and as to the two other parts the moyety of the value of a year as a Reversion And at that time Breers Case was vouched which was Oliver Breers Tenant in Chief by Knights Service made a Feoffment in Fee to the use of himself for life and after to the use of A. his Son and Heir for life and after to the use of the first begotten Son of A. in tail and after to the use of the second Son of A. c. and for default of such Issue to the right Heirs of the Feoffor Oliver died the said A. his Son being of full age It was ruled by the said Council of the said Court of Wards That he should pay for his Primer Seisin a third part of the Land in possession and two parts as a Reversion LXXIX Mich. 15 Eliz. In the Common Pleas. Post 56. THe Case was A Man was seised of a Pasture in which was two great Groves and a Wood known by the name of a Wood And also in the same Pasture were certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it should and might be lawful to the Lessee to cut down and carry away the same at all times during the Term. Harper Iustice The Hedge-Rowes did not pass by these words Hedge-Rowes sparsim Dyer The Hedge-Rowes shall pass for the Grant is general All Woods Mounson contrary For the words of the Grant may be supplyed by other words It was moved further If by these words the Lessee may cut them oftner than once And by Harper Manwood and Mounson He can cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if the word tunc had not been alledged for it is a word of restraint The Case which was argued in the Chancery 27 H. 8. where I was present was such The Prior of St. John of Jerusalem Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that did extend to the Successors for the word Being is in the present Tense And yet it was holden by Fitzherbert That it should be taken in the future Tense and so extend to the Successors Otherwise if the words had been Nunc Being LXXX Mich. 15 Eliz. In the Common Pleas. A Man seised of Lands in Fee devised 1 Len. 101. That his Wife should take the profits of his Lands until Mary his Daughter and Heir came to the age of 16 years And if the said Mary died That J.S. should be her Heir Manwood The Daughter after she hath attained the age of 16 years shall have the Land in tail For Devises ought to be construed according to the intent of the Devisor so far forth as any certainty with reason may be collected but no intent shall be taken against all reason and certainty It is certain That the Daughter shall not have the Land in Fee for that shall descend to her without any Devise And these words If she dieth cannot be intended a Condition for it is certain she shall die But if the words had been That after the death of Mary J.S. should be his Heir in such case Mary had had but an Estate for life for there it is limited what Estate she should have And when it is said J.S. shall be his Heir it shall be meant his Collateral Heir so as the Estate tail remains in the Daughter Mounson and Harper to the contrary and that she shall have but for life And by Mounson If Mary had been a stranger to the Devise she should take nothing And this Case was put by Barham Serjeant A Man deviseth 100 l. to his youngest Daughter 100 l. to his middle Daughter and another 100 l. to his eldest Daughter and that all these sums shall be levied of the profits of his Lands It was holden by the better Opinion of the Court in this Case That the youngest Daughter should be first paid and then the middle and then the eldest Daughter and that was said to be Coniers Case LXXXI Mich. 15 Eliz. In the Common Pleas. THe Case was The King granted to the Bishop of Salisbury That he should have Catalla felonum fugitivor ' and Fines and Amercements of all Tenants and Resiants within the Mannor of D. which Mannor the Bishop Leased for years and that the Lessee should have all profits and hereditaments within the same Mannor Manwood Iustice conceived That the Lessee should have the Post Fines For all things have a being somewhere although they be not visible As Rents Fines have their being in the Lands out of which they are issuing and that is in the Son of a Fine levied of the Land within the Mannor which is due by Land of him who ought to pay the Fine And this Fine is due be reason of the
the Mannor descended to Sir John Clifton who granted a Copy-hold to Hempston The Executors of Sir William Cordell distrain for the Rent And it was agreed by the whole Court That the Copyholder should hold his Copy-hold charged Vide inde 10 Eliz. Dyer 270. Windham It hath been adjudged That the Wife of the Lord shall not be endowed against the Copyholder which Periam granted and shewed a reason thereof For the Title of Dower is not consummated before the death of the Husband so as the Title of the Copyholder was compleated before the Title of Dower But the Title of the Grantee of the Rent is consummated before the Dower Fenner conceived That the Executors could not distrain upon the Possession of the Copyholder and he argued That this Case is not within the Statute of 32 H. 8. For by the Preface of the said Statute he conceived That the Statute extended but to those Cases for which by the Common Law no remedy was provided but in this Case the Executors by the Common Law might have had an Action of Debt Ergo. But Periam and Windham held the contrary For this Statute intends a further remedy for that mischief viz. not only an Action of Debt but also Dissress and Avowry See the words of the Statute viz. distrain for the Arrearages c. Vpon the Lands c. which were charged with the payment of such Rents and chargeable to the distress of the Testator so long as the said Lands continue remain and be in the seisin or possession of the said Tenant in Demesne who ought immediately to have paid the said Rent so being behind to the said Testator or in the seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner and form as their Testator might or ought to have done in his life time It was moved by Fenner That here the Land charged doth not continue in the seisin or possession of the Tenant And here Sir J. Clifton was issue in tail and therefore he doth not claim only by the Father but per formam Doni and therefore he is not lyable Ergo nor his Heir Shuttleworth contrary Sir J. Clifton was chargeable and he claims only from them who immediately ought to have paid the Rent And the Copyholder claims by purchase from Sir J. Clifton so he claims from Sir William Clifton the Tenant although he doth not claim immediately For if the Tenant ought to have paid it and he dieth and the Land descendeth to his Heir and the Heir maketh a Feoffment the Feoffee shall be charged within this Statute although he doth not claim immediately So where Land discharged descends from the Tenant who ought to have paid it and so from Heir to Heir The Statute of 1 R. 2. is That all Grants c. shall be good against the Donor c. his Heirs c. claiming the same only as Heirs to Cestuy que Use Yet if Cestuy que Use grants a Rent-charge and his Feoffees are disseised the Grant shall be good against the Disseisor and yet he doth not claim only by Cestuy que Use And although Sir J. Clifton be Tenant in tail and so claims per formam Doni yet forasmuch as the Estate tail comes under the Estate of him who grants the Rent he shall be subject to the charge And this Statute extends not only to him who claims by the Tenant but also to the Heir of him c. And by Windham and Rhodes The Copyholder doth not claim only by the Lord but he claims in also by the Custom but the Custom is not any part of his Title but only appoints the manner how he shall hold The possession here is continued in Sir J. Clifton for the possession of his Copyholder is his possession so as if the Copyholder be ousted Sir J. Clifton shall have an Assise And so the strict words of the Statute are observed for the seisin and possession continue in Sir J. Clifton who claims only by Sir William Clifton who was the Tenant in Demesne who ought to pay the Rent But Fenner said to that That the seisin and possession intended in the Statute was the very actual possession i. e. pedis dispositio and such a possession in which a distress might be taken and that could not be taken in a Freehold without actual possession LXXXVIII Owen and Sadlers Case Hill. 18 Eliz. In the Common Pleas. 10 Co. 96. A Lease was made to A. for life the remainder to B. in tail the remainder to the right Heirs of B. who bargains and sells all his Estate or levies a Fine with Proclamations of it to D. A. commits Waste It was holden by the Court That D. shall not punish him in an Action of Waste for nothing passeth to him but during the life of the Grantor scil as to the remainder in tail in respect of which Estate the Action of Waste is only maintainable for although that the Feesimple passeth to the Grantee or Conusee yet in respect of that an Action of Waste is not maintainable until the Estate tail be spent LXXXIX Mich. 18 Eliz. In the Common Pleas. THe King seised of a Mannor 2 Cro. 53 123. Yel 90 91. 1 Cro. 240. 2 Roll. 371. Hob. Rep. 242. to which an Advowson is appendant A stranger presents and his Clerk is in by 6 months The King grants the Mannor with all Advowsons appendant to it to B. The Incumbent dieth In this case It was holden by the Court That the Grantee might present For the Advowson was always appendant and the Inheritance of the same passed to the Grantee for it was not made disappendant by the Vsurpation But the Patentee shall not have a Quare Impedit of the first disturbance for that presentment did not pass unto him being a thing in Action without mention of it in his Grant And if the Plaintiff brings a Quare Impedit of the second Avoydance he shall make his Title by the presentment of the King not making mention of the Vsurpation Yet if the Bishop present by Lapse in the case of a common person he ought to make mention of it XC Mich. 18 Eliz. In the Kings Bench. IN an Ejectione firmae upon an Evidence the Case was this The Bishop of Rochester 4 E. 6. Leased to B. for years rendring Rent and afterwards granted the Reversion to C. for 99 years rendring the ancient Rent Habendum from the day of the Lease without impeachment of Waste which Grant was confirmed by the Dean and Chapter but B. did not attorn And in default of Attornment It was holden by the whole Court That the Lease was void For it was made by way of grant of the Reversion and to pass as a Reversion But by Catline If the Bishop had granted the Reversion and also demised the Land for 99 years It should pass as a Lease to begin first after the
Parliament 35 H. 8. it was Enacted That the said Lady should hold part of her Inheritance and dispose of the same as a Feme sole and that the Marquess should have the Residue and that he might Lease the same by himself without his Wife for 21 years or less rendring the ancient Rent being Land which had been usually demised c. The Marquess Leased for 21 years and afterwards durante Termino praedict Leased the same Land to another for 21 years to begin after the determination of the first Lease It was moved in this Case That this last Lease was void and that for 3 Causes 1. Because the Marquess had but an Estate for life and then it could not be intended that the Statute did enable one who had but such an Estate determinable to make such a Lease which peradventure might not commence in his life-time 2. The Letter of the Statute is 21 years or under and the word Under strongly expounded the meaning of the Statute to be not to extend to such an Estate For here upon the matter is a Lease for 40 years 3. Because the Land demised is the Inheritance of the Wife And in this Case it was said That in the Case of one Heydon such a private Act was strictly construed which was That it was Enacted That all Copies for 3 Lives granted by the Lord Admiral of the Lands of his Wife should be good The Admiral granted Leases in Reversion for 3 Lives And it was holden That that Grant was not warranted by the Statute Dyer said The words are general Omnes dimissiones and therefore not to be restrained unto special Leases scil to Leases in possession Manwood said A Feme Covert by duresse joyns in a Lease with her Husband the same shall bind her CXI The Queen and Sir John Constables Case Hill. 20 Eliz. In the Kings Bench. 5 Co. Constables Case A Quo Warranto was brought by the Queen against Sir John Constable who claimed certain Wreck in the County of York The Defendant pleaded That Edward Duke of Buck. was seised of such a Mannor to which he had Wreck appendant and that he was de alta proditione debito modo attinctus and that found before the Escheator And shewed further That the said Mannor descended to Queen Mary who granted the same to the Earl of Westmerland who granted the same to the Defendant Vpon which It was demurred And Exception was taken to the Plea because the Attainder is not fully and certainly pleaded It was argued by Plowden That the Attainder was certainly pleaded scil debito modo attinctus And it is shewed That the Wreck is appendant to the Mannor and then if the Defendant hath the Mannor he hath the Wreck also and if he hath the Mannor it is not material as to the Queen how he hath it for the Queen doth not claim the same but impeacheth the Defendant for using there such a Liberty But if the Heir of the said Duke had demanded the Mannor there against him the Attainder ought to have been pleaded certainly And it was said by him That the Interest of the Queen in the Sea extends unto the midst of the Sea betwixt England and Spain But the Queen hath the whole Iurisdiction of the Sea between England and France because she is Queen of England France c. And so it is of Ireland CXII Hill. 20 Eliz. In the Common Pleas. TEnant for life made a Feoffment of White-Acre of which he was seised for life and made a Letter of Attorny to deliver Livery and Seisin secundum formam Chartae before Livery the Tenant purchased the Fee and afterwards Livery was made It was resolved by the Court in this Case That all passed But if the Feoffment had been of all his Lands in D. and the Letter of Attorny accordingly and before Livery made the Feoffee had many Lands there If he purchased one Acre after the Livery should not extend to that Acre because the Authority was satisfied by the other Acre CXIII Banks and Thwaits Case Mich. 21 Eliz. In the Kings Bench. IN an Action upon the Case the Case was That A. had pawned an Indenture of Lease for years of a Messuage and Lands to Banks Thwaits intending to purchase the same required Banks to deliver him the said Lease and he would give Banks 10 l. whether he bought it or no at what time he would request the 10 l. Post 200. And Banks delivered the same to Thwaits accordingly Post 200. And afterwards brought an Action upon the Case and declared upon the whole matter and concluded Licet saepius requisitus c. without alledging a request express in certain and the day and place of it It was said by Cook That here the monies did not grow due before Request nor is payable before Request and therefore a Request ought to be made in facto And so he said It was ruled in this Court in an Action upon the Case betwixt Palmer and Burroughs and he said that the Mony was not due by the Promise but by the Request And it was the Opinion of the whole Court That although it be a duty Yet it is not a duty payable before Request And the Request makes a Title to the Action But if A. selleth to B. a Horse for 10 l. there is a Contract and a Request in facto need not be layed And the Opinion of the Court was also That upon this matter the Plaintiff could not have an Action of Debt for there is not any Contract for the thing is not sold but it is a Collateral promise grounded upon the delivery And by Clench Here the Request is traversable And afterwards Iudgment was given against the Plaintiff And it was said It was so ruled in Alderman Pullisons Case in the Exchequer Post 201. CXIV Segar and Boyntons Case Mich. 21 Eliz. In the Common Pleas. 2 Len. 156. IN Trespass the Case was this King Henry the 8th Anno 27 of his Reign gave the Mannor of D. to Sir Edward Boynton Knight and to the Heirs Males of his body Sir Edward Boynton had Issue Andrew his eldest Son and C. the Defendant his younger Son and died Andrew Boynton Covenanted by Indenture with the Lord Seymore that the said Andrew Boynton would assure the said Mannor to the use of himself for life the Remainder to the said Lord and his Heirs The said Lord Seymore in recompence thereof should assure other Lands to the use of himself for life the remainder to the use of the said Andrew Boynton in tail who 37 H. 8. levyed a Fine of the said Mannor without proclamations to two strangers to the uses according to the said Agreement and before any Assurance made by the said Lord The said Lord was Attainted of Treason and all his Lands were forfeited to the King And afterwards the said Andrew Boynton made a Suggestion to Queen Mary of the whole matter and upon his humble Petition the said
devise Lands of which she was seised of an Estate of Inheritance in Fee simple according to the Custom to her Husband And also Surrender the same in the presence of the Steward and 6 other of the Tenants And it was further found That one J.S. was seised of the Copy-hold Lands wherein the Trespass was And that he had Issue 2 Daughters and died seised of the said Lands And that after his Decease his two Daughters entred into the said Lands and afterwards they both took Husbands And that afterwards one of the said Daughters made a Will in writing and by her said Will in the presence of the Steward and six of the Tenants she Devised her part of the said Copy-hold Lands to her Husband and his Heirs and at the next Court surrendred the said Copy-hold Lands in the presence of the Steward and six other of the Tenants to the uses in her Will expressed and shortly after she died and that after her death her Husband was admitted to the said part of her Lands who continued the possession thereof And the Husband of the other Daughter and his Wife entred upon him Vpon whom he re-entred And the Husband brought Trespass This Case was argued at the Bar by Rhodes And he said That the Custom was not good neither for the Devise nor for the Surrender First for the incertainty of the Estate what Estate she might Devise for that is not expressed in the Custom but generally that she might Devise her Copyhold Lands of Inheritance without expressing for what Estate And secondly the Custom is not good for that it is against reason that the Wife should surrender to the use of her Husband And that a Custom to devise is not good where it is incertain he vouched many Cases As 13 E. 3. tit Dum fuit infra aetatem 3. The Tenant said That the Lands lay in the County of Dorset where the Custom is That an Enfant might make a Grant or a Feoffment when he could number 12 d. and because it is incertain when he could do it It was holden to be a void Custom So 19 E. 2. tit Gard. 127. In a Ravishment of Ward It was alledged that the Custom was That when an Enfant could measure an Ell of Cloath or number 12 d. that he should be out of Ward And it was holden to be a void Custom for the incertainty Also he said That in the principal Case the Custom was void for that it was against reason that the Wife should surrender to her Husband for every Surrender is a Gift and a Woman cannot give unto her Husband for the Wife hath not any disposing Will but the Will of her Husband only And therefore the Case is in 21 E. 3. That if the Husband be seised of Lands in the right of his Wife and he maketh a Feoffment in Fee of the Lands and the Wife being upon the Lands doth disagree and saith She will not depart with the Land during her life yet the Feoffment is a good Feoffment and shall bind the Wife during the life of the Husband And see 3 E. 3. Br. tit Devise 43. That a Feme Covert cannot Devise to her Husband for that should be the Act of the Husband to convey the Lands to himself And whereas the Case in 29 E. 3. was Objected against him where the Case was That a Woman being seised of Land deviseable took a Husband and had Issue by him and the Wife Devised her Lands to her Husband for his life and died and a Writ of Waste was afterwards brought against him And it was there holden That the Writ did lie He said That that Case did make rather for him than against him for that Case proves that the Husband did not take the Land by vertue of the Devise in his own right but that he held the Lands having Issue by the Wife as Tenant by the Courtesie and so under another Title and therefore it appeareth that the Writ of Waste was there brought against him as Tenant by the Courtesie Also he said That the Devise was void by the Statute of 34 H. 8. Cap. 5. where it is Enacted That Wills and Testaments made of any Lands Tenements c. by Women Coverts shall not be good or effectual in the Law and he said That that Statute did extend to Copyhold Lands But as to that all the Iustices did agree That Copyhold Lands were not within the words of that Statute But Anderson said That the Equity of that Act did extend to Copyholds And further Anderson said That the Prescription or Custom in the principal Case was not good for it is layed to be That Quaelibet Foemina Viro Co-operta poterit and it ought to be potest and by the Custom have used to Devise to the Husband And a Prescription must be in a thing done and not in posse Also he said That the Custom if it were good is not well pursued For the Custom is that she may Devise and Surrender in the presence of the Steward and six Tenants and that must be intended to be done all at one time for the words of a Custom are to be performed if it may be but in the principal case the Devise is laid to be at one time and the Surrender at another time and so it is not in pursuance of the Custom But to that it was not answered But then it was said Admit that the Custom to devise and the Devise were not good yet the Action did not lie against the Defendant because that the Husband was admitted and his Entry into the Land was countenanced by a lawful Ceremony and also he was Tenant in Common with the other Husband by such Entry It was adjourned CXXIII Rosse's Case Mich. 26 Eliz. In the Kings Bench. IN Trespass brought by Rosse for breaking of his Close and beating of his Servant and carrying away of his Goods Post 94. Vpon Not guilty pleaded the Iury found this special matter scil That Sir Thomas Bromley Chancellor of England was seised of the Land where c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish by whose Commandment the Defendant entred It was moved That that Tenancy in Common betwixt the Plaintiff and him in whose right the Defendant justified could not be given in Evidence and so it could not be found by Verdict but it ought to have been pleaded at the beginning But the whole Court were clear of another Opinion and that the same might be given in Evidence well enough It was further moved against the Verdict That the same did not extend to all the points in the Declaration but only to the breaking of the Close without enquiry of the battery c. And for that cause it was clearly holden by the Court That the Verdict was void And a Venire facias de novo was awarded CXXIV Absolon and Andertons Case Mich. 25 26 Eliz. Rot. 479. In the Kings
hath not any estate in the later Acre for the cause aforesaid Afterwards It was moved What thing passed to the second Son by that Devise And the Lord Anderson conceived That the words in the Will Usually Occupied with it did amount to as much as Land let with it and then the 60 Acres were not let with it and therefore did not pass Windham Iustice held the contrary and he said Although they do not pass by the words Occupied with it yet it shall pass to the Son by the name of Jacks or the Lands appertaining to Jacks To which Anderson mutata opinione afterwards agreed CLXXXIV Wroth and the Countess of Sussex Case Pasch 28 Eliz. In the Kings Bench. Co. 6. Rep. 33. 1 Len. 35. 4 Len. 61. THe Case was this In Anno 4 5 of King Philip and Queen Mary A private Act of Parliament was made by which it was Enacted That the Mannor of Burnham was assured to the Countess of Sussex for her Ioynture with a Proviso in the Act That it should be lawful for the Earl of Sussex to may a Lease or Leases for 21 years and afterwards a year before the first Lease was ended he made another Lease for 21 years and this second Lease was to begin and take effect from the end of the first Lease And if this second Lease were a good Lease within the intent and meaning of the Act was the Question Popham the Queens Attorny General said That it was not 1. Because it was a Lease to begin at a day to come And 2. Because it was made before the first Lease was ended But he said It may be Objected That the Act saith Lease or Leases It is not the sense of the Act that he might make Leases in the Reversion but the sense and meaning of the Makers of the Act was That he might make Leases in possession and not Leases in futuro for if it should be so then he might make a Lease for 21 years to begin after his death which should be a great prejudice to the Countess and against the meaning of the Act which was made for her advantage The Lord Treasurer and Sir Walter Mildmay Knight have a Commission from the Queen to make Leases of the Queens Lands for 21 years because the Queen would not be troubled It was holden That by virtue of that Commission they could not make any Leases but Leases in possession only But all other Leases which did exceed the Term of 21 years and in Reversion were to pass by the hands of the Queen and her Attorny General and not by them only by virtue of their said Commission And if I grant to one power before the Statute to make Leases of my Land for 21 years he cannot make any Lease but only Leases in possession and he cannot Lease upon Lease for by the same reason that he might make one Lease to begin in futuro by the same reason he might make 20 several Leases to begin in futuro and so frustrate the Intent of the Act. It was Marshall's Case upon the Statute of 1 Eliz. of Leases to be made by Bishops The Bishop of Canturbury made a Lease to him for one and twenty years and afterwards he made a Lease unto another for 21 years to begin at the end of the first Lease And it was holden That the second Lease was void But in the great Case which was in the Exchequer-Chamber upon this Point There the second Lease was in possession and to begin presently and to run on with the other Lease and therefore it was adjudged to be good because the Land was charged with more than 21 years in the whole And if the Earl had done so here it had been a good Lease Wray Iustice said That if the second Lease had been made but two or three years before the expiration of the first Lease that then it had been utterly void but being made but 2 or 3 days or months before the expiration of the first Lease he doubted If it should be void or not The Statute of 32 H. 8. makes Leases for 21 years to be good from the day of the date thereof And a Lease was made to begin at a day to come And yet it was holden by two of the Iustices in the Court of Common Pleas That it was a good Lease And by two other Iustices of the same Court it was holden the Lease was not good And Clench Iustice said That there was no difference If it be by one Deed or by two Deeds And therefore he held That if the Earl had made a Lease for 21 years and within a year another the same had been void if it were by one Deed or two Deeds for that he did exceed his authority And he said In the principal Case If there had not been a Proviso he could not have made a Lease and therefore the Proviso which gave a power to make a Lease for 21 years should be taken strictly There was a Case of the Lord Marquess of c. that it should be lawful for him to make Leases for 21 years by a Statute And he made another Lease to begin after the end or expiration of the first Lease and it was doubted Whether it were a good Lease or not because he had not made any Lease before But if both were made by force of the Statute all held That the second Lease was void At another day the Case was argued by Daniel for the Lease in Reversion to begin at a day to come And he said That in a Statute the words alone are not to be considered but also the meaning of the parties and they are not to be severed Also he said That a Statute-Law is to be expounded by the Common-Law And by the Common-Law If one giveth power unto another to make Leases of his Lands he might make Leases in Reversion because an Authority is to be taken most beneficially for them for whose cause it was given So that if a Man grant an authority to another to make Estates of his Lands by those general words he may make Leases for years or for life Gifts in tail Feoffments or any Estates whatsoever If one gives a Commission to another to make Leases for one and twenty years of his Lands he may make a Lease in Reversion and so it was holden in the Dutchy in the Case between Alcock and Hicks Also he said That this Lease was a good Lease by the Statute-Law For the Statute of Rich. 3. gives authority to Cestuy que Use that he may make Estates in Reversion The Statute of 27 H. 8. which gives authority to the Chief Officer of the Court of Surveyors to make Leases if it had stayed there he might have made Leases in Reversion Therefore the Statute goes further and saith Proviso That he shall not make a Lease in Reversion See 19 Eliz. Dyer 357. The Statute of 35 H. 8. of Leases to be made by the Husbands
of the Lands of their Wives By the general words of the Statute they might have made Leases in Reversion And therefore the Case there was That where the Husband had made a Lease of his Wives Lands for 21 years and afterwards he made another Lease for 21 years to begin after the Lease in esse It was conceived That such a Lease was good because in the Act there was no restraint of Leases in Reversion as there is in the Statute of 32 H. 8. In all Cases of Statutes which are with Provisoes the Law upon them shall be taken generally but in such Particulars only as are restrained by the Proviso and here in this Case the Proviso went to the Ancient Rent to be reserved and that the Countess should have remedy for the said Rent and therefore it shall be construed at large as unto all other points which are not restrained by the Proviso As if the Wife be within age and she and her Husband joyn in a Lease yet such a Lease shall be good by the Statute of 32 H. 8. because the Law is general and doth not restrain these imperfections expresly So if a Feoffment in Fee be made with warranty Proviso That he shall not vouch yet that restraint goes to the Voucher only and he is at large to Rebutt or to have a Warrantia Chartae A Lease is made for life Proviso That he shall not do voluntary Waste he is at large to do any other Waste Otherwise it would be if there were no Proviso and there a Proviso makes the precedent words to be expounded more liberally The Stat. of 33 H. 8. Cap. 39. of Surveyors which giveth authority to the Chief Officer to set or let for 21 years he might have made a Lease for 21 years if by the Proviso he had not been restrained and yet the words are put singularly But the words of this Act upon which the Case in Question doth arise are Lease or Leases and therefore it shall be expounded most liberally for the party Again he argued That as to the intent of the Statute that this Lease was within the meaning of it for the meaning is to be collected out of the words and shall not be drawn to any private construction or intent against the words which should be here if this Lease should be avoided For by such construction and exposition the Earl his Heirs Executors c. should be prejudiced and the Countess only should be benefited Also by this Act remedy is given to the Countess against such Lessees that she should have the Rent by Debt or Distress as if she had been party or privy therefore it is reason via versa that the Lessees have remedy against her for their Leases Also he said That the same remedy should be for them against the Countess as they had against the Earl himself if he had been alive and therefore they should have such remedy against the Countess as they had against the Earl. And further he said That the Statute is to be expounded according to the words where such an Exposition is not rigorous nor mischievous And private Laws are to be expounded by the letter and strictly as the Deed of the party shall be As 14 E 4. 1. Br. Parliament 61. A Particular Act was made That the Chancellor calling unto him one Iustice might award a Subpena between A. and B. and end the matter betwixt them And there by all the Iustices except Littleton He shall not award a general Subpena but a special Subpena making mention of the Act for he shall pursue the particular Act strictly But an Act which is for the common profit shall be expounded largely Also a Statute shall not be expounded largely or by Equity to overthrow an Estate As the Statute which gives That if the Woman doth consent to the Ravisher that the next Heir shall enter If the Daughter entreth and after a Son is born he shall not put out the Daughter because the Statute shall not be drawn to a private intent to the overthrow of the Estate before lawfully vested in the Daughter And so in the principal Case the Statute shall not be drawn to a private intent for the benefit of the Countess to overthrow the Lease for years And it is not like to the Case which hath been put That if he maketh a Lease for 20 years and so for 20 years that the same is not good by the Statute For I will agree That that is a Lease for 40 years Egerton Sollicitor contrary First as to the word Demise or Dimission it is nothing else but the letting of the Land and so Lease comes from Laiser a French word and such a Lease it self for he hath not left the Land. As if I say to you I Let you my Lands for 21 years When shall you have my Land Not at a day to come but presently If I sell you Land and Covenant that it is discharged of another Lease for 21 years and there is a Lease to Commence after the Lease for 21 years I have broken my Covenant If I be bounden to make you a Lease for 21 years and I say to you I make you a Lease to begin 200 years hence I have forfeited my Bond. If the Custom of the Mannor be that Dominus pro tempore may make a Lease for 21 years may he make a Lease to begin at a day to come Truly no if there be not a special Custom so to do If I give authority to my Steward to make Leases of my Lands for 21 years he cannot make a Lease to begin 100 years after As to the Case of the Dutchy there the Commission was That he might make Leases according to his discretion therefore there he might make what Lease he pleaseth As to the Statute which enableth Cestuy que Use of 1 R. 3. that Case is not like to our Case for that Act is All Feoffments Estates c. therefore he might make such Leases without doubt And if I devise That my Executors shall make Leases of my Lands for 21 years they cannot make Leases to begin at a day to come and if they do not make the Leases within convenient time the Heir shall enter and avoid their authority And Statute-Law shall have such an Exposition as that the precise time ought to be observed As the Statute of 14 E. 3. Rastal Voucher 8. If the Tenant voucheth to warranty a dead Man and the Demandants will aver That the Vouchee is dead or that there is no such their Averment shall be received without more delay Vpon this Statute the Case was 21 E. 3. Whereone was vouched to warranty and the Summoneas ad Warrantizandum issued and then came the Demandant and would have averred That the Vouchee was dead And the Tenant said That he ought to have averred that upon the voucher to warranty and that now he had surceased his time And the Demandant said That the Statute did
the Plaintiff who said That the Extent by computation of time according to the value to which it was extended is not yet satisfied The Verdict hath found that the Extent continued until 22 Eliz. hut doth not say that it was then expired and ended And I conceive also that this Extent doth not evict the Interest of Sir Thomas Cotton or turn it into a possibility The extent is Quousque leventur denarii but yet a Limitation of time is in Law understood although by a Casualty such time may be abridged or extended Which see 15 H. 7. 16. by Fairfax Where a Man is bounden by Statute to pay 40 l. and the Conusee sueth Execution upon it and the Land extended is rated at 10 l. per annum now it shall be intended by a common intent that in 4 years the party may be satisfied and therefore after the 4 years the Conusor shall have a Scire facias so upon the matter it is a Lease for 4 years So 7 H. 7. 12. by Keble to the same purpose And 15 E. 4. 5. by Brian for the Law shall not intend a casualty without alledging of it for the same shall not be by imagination And therefore If the Conusor will have the Land within the Term he ought to alledge That the Conusee hath levied the duty by an extraordinary Casualty and shew it specially And so where the Conusor sueth a Scire facias and the Conusee will hold the Land over he ought expresly to surmise some extraordinary occasion wherefore he could not levy the duty upon the Land within the Term Which see by Brian 15 E. 4. 5. and 44 E. 3. The Conusee of a Statute after extent maketh a Lease for 3 years yet it may be that the duty shall be levied within one year but if it be so then a Scire facias shall issue forth against the Conusee and not against the Lessee for the Law intends that the whole estate of the Conusee is not granted but that he hath a Reversion in him but if he hath granted his whole estate then a Scire facias shall issue forth the Grantee So here although that this extent in our Case would continue by computation of time for some of the years of the Term granted to Sir Thomas Cotton yet it is intended that the extent did run out and was determined before the expiration of Sir Thomas Cotton's Term so as notwithstanding that Sir Thomas Cotton hath an Interest left in him which he may grant It will be Objected How can it be said an Estate for years when as he might hold over the years As to that such an Interest may be put off in divers Cases As 15 H. 7. A Man grants to another the third Avoidance of such a Church and dieth seised his Wife is endowed of the Church she shall have the third Avoidance and the Grantee shall have the 4th Avoidance and so per talem intervenientem occasionem the benefit shall be delayed and so here in our case And then the estate by Extent being prima facie certain so as it cannot by intendment surmount the Term of Sir Tho. Cotton as it appeareth upon the Extent the estate shall be taken to continue according to the extent of the years and then a certain Interest doth remain in Sir Thomas Cotton which he may grant over which is not a possibility but rather a Reversion So and to such purpose is the Case of 7 H. 5. 3 4. If the eldest Son entreth after the death of his Father and afterwards his Mother recovereth Dower that shall take away the possessio fratris but if the Son maketh a Lease for life and the Wife recovereth Dower against the Lessee there shall be possessio fratris for the Reversion doth remain in the Lessor notwithstanding the eviction of the estate for life And 7 H. 6. 2. there it is holden by Goddard and Strange That where the Term of the Wife was extended upon the Statute of the Husband who died the Wife shall have the residue of the Term and avoid the extent as to her Term which proves that all the Term is not drawn to the Conusee by the Extent but that an Interest doth remain in the Lessee notwithstanding that And see by Seton 29 Ass 64. If Lessee for life Leaseth to him in the Reversion for life yet he hath a Reversion in him And 31 Ass 6. A. is bound by Statute to B. and his Land extended by force of it C. recovers against B. in Debt and the Land extended by him upon the Statute 1 Roll. 887. is now extented by Elegit A. grants his Estate to the Conusee it is no surrender which proves that B. hath an Interest And so in our Case an Interest doth remain in Sir Thomas Cotton notwithstanding the Extent A. makes a Lease for years to begin at a day to come and before the day A. is disseised The Lessee notwithstanding this Disseisin may grant his Interest for he never was in possession and therefore it cannot be turned into a Right As to the second point If Robert Cotton may enter within the time of the Extent without a Scire facias and that rests upon this point If this Lease shall be subject to the Extent I conceive clearly that it shall not It hath been said That our Lease is not good But I conceive it without question that our Lease is good enough For it is made by the Husband and Wife and the Wife after the death of her Husband by Acceptance of the Rent might affirm the Lease But the Statute is the act of the Husband alone therefore the Conusee of the Fine shall not avoid the Lease for it is but voidable So the King grants Lands durante beneplacito and afterwards grants the Reversion over the Patentee shall not avoid the Estate But if this Lease had been made by the Husband only it had been void and then the Conusee of the Fine should avoid it as it was lately adjudged in Harvy and Thomas 's Case And I conceive That if Tenant in tail acknowledgeth a Statute and afterwards makes a Lease according to the Statute of 32 H. 8. and dieth the Lessee shall not hold the Land subject to the Statute for then the Rent should not be paid to the Issue in tail during the Statute which is against the Stat. of 32 H. 8. And see also 8 Eliz. Dyer 252. The Chaplain of a Donative Chappel Leased for 99 years which was confirmed by the Patron who was Tenant in tail of the Patronage which was appendant to a Mannor whereof he was seised in tail and afterwards he had Issue and died The Statute of Chauntries cometh after the death of the Incumbent the King shall avoid this Lease And in our Case after the Coverture the Conusee is in by the Wife and then he shall avoid the Statute extended upon it And if so then there needeth not any Scire facias as the
of the said Lands A. brought an Action of Covenant The Defendant pleaded That before the day of payment the Plaintiff put the said B. out of his Farm It was moved by Godfrey That the same is no plea For this is a Collateral sum and not for Rent issuing out of the Land Also the Defendant is a stranger to the Contract for the Farm. But the Opinion of the whole Court was clear to the contrary For the Defendant hath Covenanted That the Lessee shall pay for the said Farm and Occupation 40 l. so as it is as a Conditional Covenant and here is Quid pro quo and here the Consideration upon which the Covenant is conceived scil the Farm and the Occupation of it is taken away by the Act of the Plaintiff himself and therefore the plea is good and the Action will not lie CCVII. The Archbishop of York and Morton's Case Pasch 29 Eliz. In the Common Pleas. THe Archbishop of York recovered in an Assise of Novel Disseisio against one Morton before the Iustices of Assise 1 Len. 55. upon which Iudgment Morton brought a Writ of Error retornable before the Iustices of the Common Pleas And after many Motions at the Bar it was adjudged That a Writ of Error upon such Iudgment doth not lie in the said Court. Which see 8 Eliz. Dyer 250. See also N. B. 22. e. That upon Erroneous Iudgment given in the King Bench in Ireland Error shall be in the Kings Bench in England 15 E. 3. Error 72. And Fenner who was of Counsel with the Archbishop demanded of the Court How and in what manner the Record shall be sent back to the Iustices of Assise so as the said Archbishop might have Execution To which the Court answered That the surest way is to have a Certiorari out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by a Mittimus to the Iustices of Assise But Fenner made a doubt to take such Course for such remanding Then Anderson Chief Iustice said Sue Execution out of the said Record for in as much as the Record came before us by Writ of Error it shall also be removed and sent back by Writ And so it was done CCVIII The Queen and Hurleston's Case Hill. 29 Eliz. In the Kings Bench. 2 Len. 194. THe Queen brought a Scire facias against Hurleston to Repeal a Patent made to him of the Constableship of Chester and Iudgment was given for the Queen And now Hurleston brought a Writ of Error against the Queen in the Kings Bench. And it was moved by Gawdy Serjeant That the Writ did not lie for the manner for that he ought first to have sued to the Queen by Petition See 22 E. 3. 3. 23 E. 3. Fitz. Error 9. If the King recover by an Erronious Iudgment a Writ of Error cannot be granted upon such a Recovery sine gratia Regis speciali And he said That in Chester they have Courts of Common Pleas Kings Bench Exchequer and Chancery And that if Iudgment Erronious be given in the Chancery at Westminster It cannot be reversed but by Parliament and so it is of an Erronious Iudgment given in the Chancery at Chester Also he said They have a Custom in London That within one month they may reverse their own Iudgment See 23 Eliz. Dyer 376. Erronious Iudgment given in the 5 Ports cannot be reversed in the King Bench but it is reversable in the Court of the Guardian of the 5 Ports Clench Here both the parties claim by the Queen therefore there needeth no Petition for valeat quantum valere poterit it is no prejudice to the Queen Cook There needs no Petition here for the Attorny General hath subscribed our Writ of Error Egerton Sollicitor General It was the Case of Eliz. Mordant who was to reverse a Fine levied during her Nonage and the proceedings were stayed because she had not sued to the Qeen by Petition See the Case of 24 E. 3. 35. the Case of William de Ingularby who sued to reverse a Iudgment given against him in a Writ of Conspiracy in the Eyre of Derby and there it was said by Thorp Iustice That he must first sue to the King by Petition Wray An Outlawry may be reversed by bringing a Writ of Error without suing Petition to the King. CCIX. Beckwith's Case Hill. 29 Eliz. In the Common Pleas. 5 Co. 19. ROger Beckwich by Indenture Tripartite between him of the first part William Vavasour Frances Slingsby and Elizabeth Sister of Roger of the second part George Harvey and Frances Wife of the said George the said Frances being another of the Sisters of the said Roger of the third part Covenant with the aforesaid William Vavasour and Frances Vavasour his Daughter and with the aforesaid George and Frances cum quolibet qualibet eorum That the said Roger at the sealing and delivery of the said Indenture was lawfully and solely seised of the Rectory of Aldingfleet in the County of York discharged of all Incumbrances Francis Vavasour took to Wife Frances Slingsby And Note That by the same Indenture Roger Beckwith Conveyed the said Rectory to the said Francis Vavasour Francis Slingsby and Frances his Wife brought an Action of Covenant against the said Roger Beckwith and assigned the Breach in this That the said Roger was not seised of the said Rectory And Note That the Plaintiff declared of an Indenture bearing date at the Castle of York And upon the breach of the Covenant they were at Issue which was found for the Plaintiff and damages assessed and Iudgment given for the Plaintiff And Note That the Venire facias was de Vicineto Castri de York And upon that Iudgment a Writ of Error was brought in the Exchequer upon the new Statute and Error was assigned because all the Covenanters ought to have joyned in the Action of Covenant notwithstanding those words cum quolibet cum qualibet which words do not make the Covenant to be several And for that cause the Iudgment was Reversed Another Error was assigned because the Issue is not well and duly tryed For the Issue is upon the seisin of the Rectory of Aldingfleet in which case the Venire facias ought to have been de Vicineto de Aldingfleet And of that Opinion was Manwood and Anderson Iustices CCX Young and Ashburnsham's Case Hill. 29 Eliz. In the Common Pleas. IN an Action of Debt brought by the Administrators of Young against Ashburnham The Defendant pleaded Nihil debet And the Enquest was taken by default And upon the Evidence given for the Plaintiff the Case appeared to be this That the said Young was an Innholder in a great Town in the County of Sussex where the Sessions used to be holden And that the Defendant was a Gentleman of Quality in the Country there And he in going to the Sessions used to lodge in the house of the said Young and there took his lodging
shall plead That he had not bought modo forma For if he hath bought of A.B. or J.S. the same is not material nor traversable Which Case Cook denyed to be Law. And he also conceived That the Information upon the Quo Warranto is not sufficient For by the same the Defendant is charged to hold a Court and it is not shewed what Court For it may be a Court of Pipowders Turn c. See 10 E. 4. 15 16. acc Shute Iustice The Quo Warranto contains two things in it self 1. A Claim And 2. An usurpation and here the Defendant hath answered but to the Vsurpation but saith nothing to the Claim And it hath been holden in this Court heretofore That he ought to answer to both And he said That it hath been holden in a Reading upon the Statute of Quo Warranto which is supposed to be the Reading of Iustice Frowick That a Quo Warranto doth not lie upon such Liberties which do not lie in Claim as Felons goods c. which lieth only in point of Charter CCXXXVI Venable's Case Mich. 29 Eliz. In the Kings Bench. THe Case was 1 Inst 351. a. Hughs Queries 13. A Lease was made to A. and B. for their lives the remainder to Tho. Venables in tail who 3 Eliz. was attainted of Felony 23 Eliz. there was a General Pardon Tho. Venables 24 Eliz. levied a Fine and suffered a Recovery to the use of Harris Serjeant Office is found Harris traversed the Office and thereupon was a Demurrer It was argued by Leake That Traverse did not lie in this Case 4 H. 7. 7 Where the King is entituled by double matter of Record the party shall not be admitted to his Traverse nor to his Monstrans de Droit but is put to his Petition Which see 3 E. 4. 23. in the Case of the Earl of Northumberland Where Tenant of the King is Attainted of Treason and the same is found by Office. See also 11 H. 4. in the Case of the Duke of Norfolk And the same is not helped by the Statute of 2 E. 6. Cap. 8. for the words are Untruly found by Office but here the Office is true By this Attainder Tho. Venables is utterly disabled to do any Act For by Bracton a Person attainted forisfacit Patriam Regnum Haereditatem suam 13 E. 4. One was attainted of Felony And before Office found the King granted over his Lands Also he is not helped by the General Pardon For before the General Pardon he had a special Pardon therefore the General Pardon nihil operatur as to him But by the Iustices the forfeiture doth remain until the General Pardon Harris to the contrary And he put the Case of Sir James Ormond 4 H. 7. 7. Where the King is entituled by matter of Record and the subject confesseth the title of the King and avoids it by as high matter as that is for the King Traverse in that case lieth and if the King be entituled by double matter of Record if the party avoids one of the said Records by another Record he shall be admitted to his Traverse And so here we have the Pardon which is a Record and that shall avoid the Record for the King And here the Pardon hath purged the forfeiture in respect of the Offence And he said That Tenant in tail being attainted of Felony shall not lose his Lands but the profits only for he hath his Interest by the Will of the Donor and it is a Confidence reposed in him and as Walsingham's Case is he cannot grant over his Estate And see in Wroth's Case Annuity granted pro Consilio impendendo cannot be granted over or forfeited for there is a Confidence See Empson's Case Dyer 2. and 29 Ass 60. If the Issue in tail be Outlawed of Felony in the life of his Father and gets his Pardon in the life of his Father after the death of his Father he may enter But by Thorp If the Issue in tail gets his Pardon after the death of his Father then the King shall have the profits of the Lands during the life of the Issue And the Case of Cardinal Pool was debated in the Parliament 27 Eliz. That he being Dean of Exeter was seised of Lands in the right of his Church and was attainted of Treason It was holden he should forfeit the profits of such Lands But admit That by this Attainder the Land be forfeited yet the party hath the Freehold until Office found See Nicholls Case Plow Com. And also the Case of the Dutchy in Plow Com. acc And here the Pardon hath dispensed with the forfeiture A Tenant of the King aliens in Mortmain before Office found the King pardons it it is good The Lord Poynings conveyed all his Lands to Sir Adrian Poynings who was an Alien and after made a Denizen and the King pardoned and released to him all his right in the said Lands without any words of grant and adjudged the same did bind the King And he said he had a good president 14 H. 7. Where a General Pardon before seisure into the hands of the King was allowed good contrary after a seisure without words of Grant. See Br. 29 H. 8. Br. Charter of Pardon 52. If a Man be attainted of Felony and the King pardons him all Felonies executiones eorundem and Outlawries c. and releases all forfeitures of Lands and Tenements and of Goods and Chattels the same will not serve but for life of Lands if no Office be found but it will not serve for the goods without words of restitution and grant for the King is entituled to them by the Outlawry without office But the King is not entituled to Land until Office be found See Ibid. 33 H. 8. 71. The Heir intrudes and before Office found the King pardons now the Heir is discharged as well of the Issues and profits as of the Intrusion it self But a Pardon given after the Office found is available for the Offence but not for the Issues and profits And he cited the Case of Cole in Plowden where a Pardon was granted mean between the stroak and the death See 35 H. 6. 1. 16 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case 11 Eliz. Dyer 284 285. Egerton Sollicitor contrary This Traverse is not good for he who traverseth hath not made title to himself as he ought upon which the Queen may take Issue for it is in the Election of the Queen to maintain her own title or to traverse the title of the party At the Common Law no Traverse lay but where Livery might be sued but that is helped by the Statute of 34 E. 3. but where the King is entituled by double matter of Record as in our Case he is no Traverse was allowed until 2 E. 6. Cap. 8. And in such Case two things are requisite 1. That the Office be untruly found 2. That the party who is to be admitted to his Traverse have just title or Interest
Land during his life And he conceived That this Estate of Tho. Venables was in the King without Office not to grant for he is restrained by the Statute of 18 H. 8. but it is in him so before Office that he who hath right ought to sue to the King by Petition if he will have the same Yet he conceived That before the said Statute of 18 H. 6. the King might grant it before Office as it appeareth by Thirning 13 H. 4. 278. which was before the Statute So if the Kings Tenant makes a Lease for years the remainder over to another in Fee who dyeth without Heir the said remainder is in the King without Office because a common person in such case cannot enter but a Claim is sufficient and therefore it shall be in the King without Office. As to the Pardon He conceived That it did not extend to this Estate For the same is a Freehold therefore not within the Pardon As if the Kings Tenant be attainted of Felony and the King pardons him all Offences and all which he may pardon these words will not go or extend to Freehold but only to personal matters and such punishments and pains which do concern Chattels But it may be Objected That in this Pardon title of Quare Impedit and Re-entries for Conditions are excepted and therefore if they had not been excepted they had been released by the Pardon And therefore this Pardon doth extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of King Ed. 4. and such Inheritances and Freeholds were not taken to be within such Pardons And such Exceptions began 5 Eliz. And he said he had been of Counsel in such Cases where it had been taken That such Pardons did not extend to Freeholds As an Abbot was disseised and during the Disseisin the Abby was dissolved the King made such a Pardon the same did not transfer the Kings right And in this Case there are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that this Pardon doth extend to Freeholds And see the said Act of Pardon There the Queen gave and granted all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures and Sums of Mony which word Forfeiture shall be intended personal forfeiture and not otherwise for it is coupled with things of such nature And as to the Traverse he conceived That it did not lie in this Case For the Office is not untrue in substance although it be void in Circumstances And also the King here is entituled by double matter of Record i. e. the Attainder and the Office. And he said That the Statutes of 34 36 E. 3. which gave Traverse are to be meant of Offices found virtute Officii and not virtute Brevis for then Escheators were very troublesome And 2 E. 6. doth not give traverse but where the Office is untruly found As if the Kings Tenant be disseised and the Disseisor be Attainted The Queen seiseth the Land Now the Disseisee hath no remedy by traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for that the Office is true But if I be the Kings Tenant and seised of Lands accordingly and it is found that J.S. was seised of my Land and attainted c. whereas in truth he had not any thing in my Land there Traverse lieth For the Office is false And so our Case for the Traverse is at the Common Law. And it is true that Venables was seised c. Cook to the contrary And he conceived That by the Attainder the Queen had gained but a Chattel And that notwithstanding this Forfeiture If Venables had been in possession a Praecipe should be brought against him And whereas it hath been said by Mr. Attorny That the Writs set down in the Register are the best Expositors of our Law the same is not so For the Register saith That Waste lieth notwithstanding a mean Remainder which is not now Law but it hath been clearly ruled to the contrary See acc 50 E. 3. The Register therefore and the Writs are subject to the Iudgments of our Law. And the Writ of Diem clausit extremum is not to the contrary For I confess that in such case Hob. Rep. 342. the Land shall be seised into the Kings hands but the King shall have but a Chattel in it It hath been argued He may grant therefore he may forfeit Nego Consequentiam For a Man seised in the right of his Wife may grant but not forfeit Gardian in Socage may grant but not forfeit The Husband may grant a Term for years which he hath in the right of his Wife but he cannot forfeit it A Woman enheritrix taketh Husband and afterwards is attainted of Felony the King pardons him they have Issue the Woman dieth the Husband shall be Tenant by the Curtesie which proveth that the King hath no Freehold by this Attainder Before the Statute of West 2. Tenant in tail post prolem suscitatam might forfeit the Land but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested yea a Fine levied ipso jure est nullus although as to the possession it be a discontinuance And that is the reason wherefore Tenant in tail shall not be seised to another's use See Stamford 190. b. The Husband seised in the right of his Wife is attainted of Felony the King shall have the Issues of the Land of the Wife during the life of the Husband c. So if Tenant in tail be Attainted of Felony that is but a Chattel in the Lands of the Wife and also in the Lands of the Tenant in tail and if the possessions of a Bishop be seised into the Kings hands for a Contempt In such case the King hath possession and not only the profits The same Law of Lands of Tenant in tail or for life being attainted of Felony So seisure for alienation without Licence or of the possessions of Poor Aliens See Br. Reseisure 10. So where the seisure is for Idiocy And he conceived That nothing is in the King without Office. And as to the Case of 13 H. 4. 6. I confess it For all that time many and amongst them Lawyers and Iustices were attainted by Parliament And so was Sir John Salisbury whose Case it was and their Lands by Act of Parliament given expresly to the King and therefore I grant that their Lands were in the King without Office. Tenant in Fee of a Common Lord is attainted of Felony his Lands remain in him during his life till the entry of the Lord and where the King is Lord until Office be found but in the case of a Common person after the death of the person attainted it is in the Lord before Entry and in the Case of the King before Office for the Mischief of Abeyance And see the Lord Lovell's
Case 18 Eliz. Plow Com. 485 486. Where it is holden That upon Attainder of Treason by Act of Parliament the Lands were not in the King without Office in the life of the person attainted upon the words of the Act shall forfeit See Stamford 54 55. acc 3. He conceived That this Interest which came to the King by this Attainder was but a Chattel and then it is released by the Pardon And so he conceived If it be a Freehold For the words of the General Pardon are large and liberal Pardon and Release all manner of Treasons c. And all other things causes c. and here forfeitures are pardoned And also this word Things is a transcendent c. And although it be a general word yet by the direction of the General Pardon it ought to be beneficially expounded and extended as if all things had been especially set down Also the words are Pardon them and their Heirs therefore the same extends to Inheritances for any Offence not excepted for there is the word Heirs And the third branch doth concern only Chattels and that is by the word Grant where the former is by the words Release and Acquit See Br. Charter of Pardon 71. 33 H. 8. Tenant of the King dieth seised the Heir intrudes Office is found in that case by Pardons of all Intrusions the Offence is pardoned but not the Issues and Profits But by the Pardon aforesaid all is pardoned And here in our Case the Office is void For the Statute makes all Precepts Conditions void c. being awarded upon such Forfeitures See also in the second Branch Vexed and inquieted in Body Good Lands c. And see also amongst the Exceptions That persons standing endicted of wilful Murder and forfeiture of Goods Lands Tenements grown by any Offence committed by such person By which he conceived That if that Exception had not been the Land of such a person if he had been attainted upon such Indictment should be forfeited As to the Traverse he conceived That in as much as the Office is true our plea is a Monstrans de Droit although it concludes with a Traverse We vary from the Office in number of persons and in the day of the Feoffment and every Circumstance in the Kings Case is to be traversed and our plea in substance doth confess and avoid the Office. Although the King here be entituled by double matter of Record i. e. the Attainder and the Office yet one of the said Records is discharged by another Record i. e. the Pardon and then there is but one Record remaining scil the Office and therefore our Traverse doth lie And he conceived That at the Common Law there was a Traverse as where it was found by Office That the Lessee of the King had done Waste or cessed for two years and there it is said That the Lessee and Tenant in an Action brought against them may traverse the Office Therefore traverse was at the Common Law where the King was entituled by single matter of Record So upon an Office finding an Alienation without Licence Traverse was by the Common Law. See Traverse in such Case in the Case of William de Herlington 43 Ass 28. See Br. Traverse 54. Petition is by the Common Law and Traverse by the Statute Frowick in his Reading See Stamf. Prerogat 60. That Traverse in the Case of Goods was at the Common Law but Traverse for Lands found by Office by 34 E. 3. Cap. 14. therefore the remedy was by Petition See now Cook 4. Part the Sadler's Case 55 56. Traverse was at the Common Law concerning Freehold and Inheritance but that was in special Cases when by the Office the Land is not in the Kings hands nor the King by that is in possession but only by the Office and entituled to the Action and cannot make seisure without suit there in a Scire facias brought by the King in the nature of such an Action to which he is entituled the party may appear unto the Scire facias and traverse the Office by the Common-Law CCXXXVII Mich. 27 Eliz. In the Kings Bench. A Writ was awarded out of the Court of Admiralty against Sir Tho. Bacon and Sir Tho. Heydon to shew cause wherefore Whereas the Earl of Lincoln late High Admiral of England had granted to them by Patent to be Vice Admirals in the Counties of Norfolk and Suffolk the said Letters Patents ought not to be repealed and annulled And so the said Writ was in the nature of a Scire facias It was moved by Cook That although the Admiral had but an Estate for life yet the Patent did continue in force after his death As the Iustices here of the Common Pleas although they have their places but for life may grant Offices which shall be in force after their death And because the same matter is determinable at the Common Law he prayed a Prohibition For in the Admiralty they would judge according to the Civil Law The Court gave day to the other side to shew cause why the Prohibition should not be awarded CCXXXVIII Mich. 29 Eliz. In the Kings Bench. 1 Len. 302. Ante 150. Post 230. ACcompt was brought by Harris against Baker and damages were given by the Iury It was moved to the Court That damages ought not to be given by way of damages but the damages of the Plaintiff shall be considered of by way of Arrearges But see the Case Hill. 29 Eliz. in C. B. betwixt Collet and Andrews And yet 10 H. 6. 18. in Accompt the Plaintiff Counted to his damage but did not recover damages 2 H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall given Quoddam incrementum to the Arrearages Cook said That it had been adjudged That the Plaintiff should recover Damages in an Accompt ratione Implicationis non Detentionis CCXXXIX Long 's Case Mich. 29 Eliz. In the Kings Bench. NOte It was holden in this Case If a Feoffment in Fee be made of a Mannor to which an Advowson is appendant and Livery is made in the Demesnes but no Attornment that in such case the Advowson shall pass but none of the Services CCXL Barns Case Mich. 29 Eliz. In the Common Pleas. BArns brought an Action of Trespass for taking of his sack of Corn The Defendants justified in the behalf of the Town of Lawson in the County of Cornwell because That King Phil. and Queen Mary granted to them of the said Town a Market to be holden within the said Town and that the Plaintiff came to the said Town with a sack of Corn and the Vendor would not pay Toll for which cause they took the said sack of Corn. And Iudgment was given for the Defendant Vpon which Error was brought and assigned for Error because that the Defendant pleads the Letters Patents with the date of the place year and day without saying Magno sigillo Angliae sigillat For it was holden that
hic in Curia prolat is but form And afterwards the Iudgment was reversed for default of the said matter Magno sigillo Angliae sigillat And by Anderson Iustice Patents are good without Inrollment and that was adjudged in Hungate's Case CCXLI. Mich. 29 Eliz. In the Exchequer Chamber DEbt brought upon an Obligation Post 266. The Defendant pleaded payment apud Lockington in the Parish of Killmerston And the Venire facias was awarded de Lockington And that was assigned for Error in the Exchequer Chamber upon a Iudgment given in the Kings Bench That the Venire ought to be de Killmerston See 6 H. 7. 3. 11 H. 7. 23 24. 9 E. 4. 3. Trespass for Entry in the Mannor of D. in S. the Visne shall come de Vicineto de S. and not from the Mannor Contrary if it be for the entry into the Mannor of D. only for there it shall be de Vicineto Manerii Cook said There was a Case very late adjudged in the Kings Bench A Lease was pleaded to be made at Ramridge End in Luton and that he himself was of Opinion That the Venire ought to have been of Ramridge End and not of Luton But the Court Over-Ruled the same against him It was said in the principal Case That Lockington shall be intended a Town as this Case is For a Parish may contain many Towns. And afterwards the Iudgment was affirmed CCXLII. Mich. 29 Eliz. In the Common Pleas. IN Trespass for breaking his Close The Defendant pleaded That heretofore he himself brought an Ejectione Firmae against the now Plaintiff of the same Land in which the Trespass is supposed to be done and had Iudgment to recover c. and demanded Iudgment if against c. It was moved That the Bar was not good 1 Len. 313. because that the Defendant had not averred his title And the Recovery in one Action of Trespass is no Bar in another c. Quod Curia concessit But as to the matter the Court was clear That the Bar was good And by Periam Who ever pleaded it it was well pleaded For as by Recovery in an Assise the Freehold is bound so by Recovery in an Ejectione firmae the possession is bound And by Anderson A Recovery in one Ejectione Firmae is a Bar in another Especially as Periam said if the party relyeth upon the Estoppel And afterwards Iudgment was given That the Plaintiff should be barred CCXLIII Peter's Case Mich. 29 Eliz. In the Common Pleas. WIlliam Peters being Plaintiff in an Action of Debt in the Common Pleas came to London this Term to prosecute his Action And afterwards he was committed to the Marshalsey by the Lord Hunsdon Chamberlain of the Queens houshold and one of her Privy Council And now an Habeas Corpus issued out to the Keeper of the Marshalsey to have the body of the said Peters in Court And at the day the Keeper retorned the said Writ That the said Peters was committed to the said Prison by the said Lord and shewed the Warrant for it there to remain and to Answer before the Lords of her Majesties Council to such matters c. Causa vero detentionis mihi omnino incognita est The Court examined the said Peters upon his Oath If he came to London to prosecute his said Cause Who answered That he did And the Court also examined the said Keeper If he had acquainted the said Lord with the said Writ Who said That he had so done but he shewed him not any Cause Wherefore by the Award of the Court Peters was discharged of his Imprisonment CCXLIV Hill. 29 Eliz. In the Common Pleass SErjeant Fenner demanded the Opinion of the Court in this Case A. Devised Lands to his Wife for life 1 Co. 155. and afterwards to B. his Son and his Heirs when he should come to the age of 24 years and if his Wife died before his said Son should attain his said age of 24 years that then J.S. should have the said Land until the said age of the said Son A. died J.S. died the Wife died the Son being within the age of 24 years If the Executors of J.S. should have the Land after the death of J.S. until the said age of the Son was the Question Anderson and Periam conceived That he should not For this Interest limited to J.S. by the Will was but a possibility which was never vested in him and therefore could not by any means come to his Executor Rhodes and Windham doubted of it Fenner put the Case in 12 E. 2. Fitz. Condition 9. Where Land is mortgaged to J.S. upon payment of Mony to J.S. such a day or his Heirs and before the said day J.S. by his Will deviseth That if the Mortgagor pay the Mony that then A. B. should have them That this Devise of this possibility is good Quod omnes Justiciarii negaverunt And Windham put the Case between Weldon and Elkington Plow Com. 20 Eliz. 519. Where Lessee for years devised his Term to his Wife for so many years of the said Term as she should live And if she died within the Term that then his Son Francis should have the Residue of the Term not encurred Francis died Intestate the Wife died within the Term The Administrator of Francis had the residue of the Term and yet nothing was in Francis the Intestate but a Possibility A Lease was made to one Hayward his Wife and one of his Children Habendum to Hayward for 99 years if he should so long live and if he die within the said Term that then his said Wife should have the said Term for so many years which should be to come at the time of the death of her Husband And if she died also before the said Term That then the Child party to the Devise should have it for so many years of the said Term as should not be expired at the time of the death of the Wife And the Case of Cicill was vouched 8 Eliz. Dyer 253. A Lease was made to William Cicill pro termino 41 annorum si tam diu vixerit Et si obierit infra praedictum terminum extunc Uxor praedicti William Cicill habebit tenebit omnia singula praemissa pro residuo termini praed incompleto si tam diu vixerit Et si the said Eliz. obierit infra praedict terminum tunc William Cicill filius c. And it was holden by Catlyn and Dyer That these remainders were void For the Term is determinable upon the death of William Cicill the Father and the Residue of the said Term cannot remain And by Anderson The remainders of the Term limited ut supra are void For every remainder ought to be certain but here is no certainty for it may be that the first possessor of the Term may live longer or die sooner so as he in the remainder doth not know what thing he shall have And so also conceived Rhodes Iustice And he put the Case between
Eliz. Leon. 166. Lib. 1. was this Term adjudged upon the Devise That the Survivour shall be each others Heir It was holden That all the surviving Brothers are Ioynt-Tenants and although this word Survivour be in the singular number yet in sense upon the whole matter it shall be taken and construed as for the plural number Survivour shall be each others Heir i. e each Survivour i.e. every Survivour i.e. All the Survivours and then in this case The Plaintiff and the Defendant being Ioynt-Tenants cannot maintain an Action of Trespass one against the other CCCLIII Mich. 32 Eliz. In the Common Pleas. BY the Statute of 32 H. 8. cap. 37. The Executors of a Grantee of a Rent-Charge may distrain for the Arrearages of the said Rent in the life of the Testator so long as the Land charged doth continue in the seisin or possession of the Tenant in Demesne who ought immediately to have paid the said Rent or in the seisin of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner as the Testator might or ought to have done in his life-time It was now moved If A. grant a Rent-charge to B. the Rent is behind B. dieth A. enfeoffeth C. in Fee who divers years after enfeoffeth D. who divers years after enfeoffeth E. It was holden in this Case by Walmesley Periam and Windham Iustices That E. should be chargeable with the Arrearages to the Executors Anderson Chief Iustice held the contrary But they all agreed That the Lord by Escheat Tenant in Dower or by the Curtesie should not be chargeable for they did not claim by the Party only but also by the Law. CCCLIV. Leverett and Townsend's Case Trin. 32 Eliz. In the Kings Bench. IN an Action upon the Case for disturbing him of hs Common 3 Cro. 198. 2 Len. 184. The Plaintiff declared That he was seised in Fee of a Messuage and certain Lands And that he and all those whose Estate he hath have Common of Pasture in 16 Acres of Lands called D. from the time that the Corn is reaped until it be sowen again And also Common of Pasture in Land called R. omni tempore anni as appendant to the said Messuage and Land and that the Defendant had plowed the said Lands and so disturbed him of his Common It was moved in stay of Iudgment That it appeareth here that the Plaintiff was seised in Fee and so he ought to have an Assise and not an Action upon the Case But the Exception was disallowed by the Court. Vide inde Ante 13. 2 H. 4. 11. 8 Eliz. Dyer 250. 11 R. 2. Tit. Action upon the Case 36. CCCLV. The Chamberlain of London's Case Mich. 33 Eliz. In the Kings Bench. THE Chamberlain of London brought an Action of Debt in the Mayors Court in Guild-hall 5 Co. grounded upon an Act of Common Council See C. 5 Part The matter was removed into the Kings Bench by Corpus cum causa Fleetwood Recorder of London prayed a Procedendo It was Objected That they of London could not make Ordinances to bind the Subjects as an Act of Parliament To which It was said by Fleetwood That the Custom of the City is That the Mayor and Aldermen and four persons chosen out of each Ward by the Communalty may make Ordinances which they call Acts of Common Council and they shall bind every Citizen and Free-man and all their Customs are confirmed by Act of Parliament and by Magna Charta which hath been confirmed 52 times and also by the Statute of 7 R. 2. For that King seised their Liberties and drove them to pay for the Redemption of them 100000 Marks and then the said King confirmed them unto them for ever and therefore this Ordinance being made according to our Custom ought not to be impeached As in Case of matters of the Forrest If one be punished for offending against an Ordinance made for the governing of the Affairs of the Forrest you cannot remove the matter before you So is the Law called Lex Idumaea concerning Rivers and Fishing in which are divers Ordinances That none shall kill Salmons at certain Seasons of the year and so of other Fishes If one be punished by force of such Law he shall not be relieved here for the Law of the Land hath always allowed such particular Customs And see F. B. If two Merchants put their Stocks together and so Traffick together and the one dieth The Survivor shall not have the whole Stock as the Common Law is but the Executor of him that dieth shall have an Accompt against the other and that is per Legem mercatoriam Cook to the same intent This Act of Common Council is good and according to the Law that is of Common Right There are divers Statutes made for the true making of Cloth and to take away the abuses and deceit in the making of it and this Act of Common Council is for the well executing of the said Statutes and I conceive there is a difference in making of Laws by a Corporation A Corporation may make an Act for the better executing of any Law established at the Common Law but new Laws they cannot make As those of a Town who have used to have Common in certain Lands they cannot make a By-Law That such a one in such a Town shall not have Common there but that none shall use his Common but at such a time such a By-Law made is good See 15 H. 7. 21 H. 7. 40. See 8 E. 2. tit Assise 413. A Town had Common of Turbary in a Marsh and divers of the Inhabitants of the Town had made Trenches in the said Marsh and some had not a full Foot of Land in the Town and such persons by their Trenches which they had made there used to carry Turffs out of the said Marsh by Boats and sell them unto the value of 20 Marks per annum to their great private profit and to the great grievance of the others For which cause It was provided by common assent of the Freeholders of the Lord of the said Town That all the Trenches in the said Marsh should be stopped so as from thenceforth no Turffs be carried in Boats by the Trenches And there it was holden That if the greater part of the Commoners assent the same shall bind the others who have not assented for ubi major pars ibi totum And then if such Towns may make Laws a fortiori The City of London Secondly This Law is good by Custom for they have used to make such Acts and Ordinances time out of mind c. and these Customs are confirmed by Act of Parliament and also they may appoint a penalty for to what purpose otherwise should they make an Act Oderunt peccare mali formidine poenae Also this Action is maintainable for an Amercement in a Court Baron an Action of Debt lieth Gawdy Iustice 44 E. 3. 19.
where shall be good where not p. 147 Of intrusion where there is no Record to prove it if the error lieth upon it p. 147 Issues joyned A not joyning in it is helped by the Statute of Jeofails not a mis-joyning in it p. 66 Upon a Plea which is tryed in a foreign County and found for the Plaintiff in what Court the Judgment shall be p. 137 Jure Patronatus Where the awarding of it is necessary where not p. 98 Jurors Where upon pain of Attaint they are to take notice of a transient thing done in another County p. 77 K. KING Not bound to take notice of a Condition made by a common person p. 126 Cannot take an interest in Land without matter of Record p. 155 L. LAchess In pleading where it shall turn to the prejudice of the Parties p. 63 Leases For certain years habendum to his Executors if good and what interest passeth and to whom it passeth p. 32 Power to make Leases not to extend to Leases to be made in reversion p. 132 Where Leases are void by the Statute of 31 H. 8. of Monasteries p. 164 Made by Dean and Chapter where void by the misrecital of their name of Corporation p. 220 Livery Of Lands in Ward not to be sued by parcels p. 25 M. MAintenance Where a Grant made shall be said to be for maintenance within the Statute of 32 H. 8. p. 79 Misnosmer Where shall not prejudice a Devise p. 19 N. NOnsuit If after a Demurrer p. 28 O. OBligation By what words good by what not p. 19 Where the word Quemlibet in an Obligation shall make it joynt and not several p. 206 Taken by one Blacksmith of another Blacksmith that he shall not exercise his Trade in such a Town void p. 207 To be good although not made after the usual form p. 223 May be assigned to the King without Deed enrolled p. 234 Office Trove Personal things are in the King without Office found p. 145 Where an Estate shall be setled in the King without Office found where not p. 186 187 188 Outlawry Where a Man is to annul an Outlawry his person shall not be disabled by another Outlawry p. 232 P. PArtition The Writ was Quare teneant Quatuor mille acras where it ought to be 4 Mille acrarum yet good p. 94 Where it is not necessary to shew and settle forth the Estate particularly in the Writ p. 231 Petition Where an Entry is not lawful upon the King without suing a Petition p. 15 Plenarty Returned by the Bishop where not good p. 138 Pleadings and Pleas Where not good for incertainty p. 8 A Conveyance cannot be pleaded unless it be sealed p. 94 Of Non Damnificatus generally where good p. 118 In a Writ of Right upon a Custom to hold a Court of the Plea must be shewed before whom the Plea is to be holden by the Customs p. 148 Of Letters Patents and not saying Sigillo Angliae sigillat not good p. 193 Of the general Issue in Wast viz. Null wast fait where dangerous p. 203 Of Outlawry in the Plaintiff after Imparlance in Trover and Conversion good p. 215 Praemunire Where the not prosecuting of it by the Attorny-General shall take away the suit of the Informer p. 139 Prescription Of every Inhabitant to have Common if good p. 202 Of what good and where and of what not p. 202 To have Estovers at liberty in cutting down Wood in a Forest unless in Fawning-time where good p. 218 Priviledge Of the Exchequer not granted to him who pays First-fruits and Tenths p. 258 Possibility Not allowed to the Kings servants in the Exchequer who is sued in B.R. p. 22 Not grantable or demiseable p. 157 Prohibition Not grantable upon a suggestion that Tythe had been paid to the Vicar c. and time out c. p. 203 Proviso Where a Condition where a Covenant where a Limitation p. 225 Q. QVo Warranto Of Liberty Plea in it what good what not p. 73 184 R. REcital The not recital of the names of the Occupiers of a Lease of Lands do not avoid the Demise thereof p. 235 Records A Deed acknowledged to the King and delivered to the Barons of the Exchequer is a Record though not mentioned p. 146 Of a Fine remaining with the Custos Brevium amended and made according to the Record made and remaining with the Chyrographers p. 183 Recusants Where Lands conveyed by a Recusant shall be subject to the Statute of 23 Eliz. concerning Recusants and the penalties thereof p. 148 Release To a Tenant at sufferance where not good p. 152 By the Feoffees of Cestuy que use to his Lessee for years how it shall enure p. 196 Receit By a Termor for years to save his Term Remitter p. 2 10 93 Rents Where upon a Fine levied of the Land the Rent passeth without Attornment p. 103 Payment of it upon an extent of it and of the reversion saves the danger of a Condition supposed to be broken p. 113 Where apportioned where not p. 125 126 Granted by Fine varyeth from the Indenture yet shall pass p. 136 Suspended yet grantable p. 154 Where it passeth by the name of a Mannor p 168 Reserved to be paid at two Feasts and not said by what portions the Lessee hath the liberty to pay it in what portions he pleaseth p 235 Repleader After Issue joyned where granted p. 90 Request Licet saepius requisitus good and where it must be special p. 73 206 S. SAle By an Enfant Executor of goods where binds him p. 144 Scire Facias Where it lyeth upon an Extent supposed to be satisfied p. 155 Where upon an Alienation of an Advowson without Licence by matter of Record not by matter of Fact p. 175 Statute Merchant and Staple Acknowledged when void by the death of the party p. 157 Surrender Of a Copyhold to uses p. 4 Cannot be of a Lease for years to begin at a day to come p. 95 Tenant for life remainder in Fee of a Copyhold he in the remainder may surrender in the life of the Tenant for life if there be no Custom to the contrary p. 259 T. TAil p. 87 Tender Of Rent how and where to be made p. 4 Tenancy In Common where must be pretended and not given in evidence p. 94 Traverse Where good where not p. 97 Trespass Quare clausum fregit not maintainable by him that hath but the Ear-grass after the first mowing p. 213 Tryal If Tythes lie in such a Parish or in such a Parish tryable at the Common Law p. 128 V. VAlue Of Lands what value shall be intended p. 114 Venire facias Where the place must be mentioned in it p. 171 172 Where from the place where from the Mannor p. 193 Upon every Original must contain the issue in it p. 269 Verdict Not good because too general p. 64 Not Good because it doth not extend to all the points of the Declaration p. 95 Given and found after a Supersedeas
141. Upon a Statute Merchant for that it had but one half of the Seal good A. 228 229. Lies to discharge the Land if the Conusor taken by Capias be let at large by the Conusee his consent A. 230 231. B. 96. To avoid Execution upon a Recognizance for that the Debt is attached in London A. 297. Upon a voluntary Escape by the Sheriff it lies B. 119. By one Bail to be relieved for that the other Bail was taken by a Capias and discharged by the then Plaintiff C. 260. For one in Execution at the Suit of an Administrator durante minori aetate for that the Infant is come to Age C. 278. Averment A Demurrer need not to be averred A. 24. Inducement to an Action need not to be precisely averred A. 123 124. A consideration to make a Bargain and Sale may be averred though not mentioned in the Deed A. 170. Where against a Record return of a Sheriff Deed enrolled A. 183 184. None against a Bishops Certificate A. 205 206. Where necessary to aver the continuance of the particular Estate A. 139 255 66 281. B. 50 94 95. Where want of such Averment is aided by Intendment A. 281. C. 42 43. Devise to A. may be averred to be any one of that Name B. 35. Where he who pleads must aver all things to make good his Plea or the other party must shew it C. 40 to 43. Ancient Demesne For what Goods only they are priviledged from Toll A. 232. B. 191. Fine levied thereof avoidable by a Writ of Deceit A. 290. Pleading thereof A. 333. B. 190 191. Authority Shall be strictly pursued if not coupled with an Interest A. 74 285 286 288 289 bis Where Authority is reserved by Statute or Deed to make Leases If Leases in Reversion may be made C. 134. B. Bailiff SHeriffs Bailiffs shall not be prejudiced by the mis-return or not return of the Sheriff A. 144. What power a Bailiff of a Mannor hath B. 46. Bail. Discharged upon the Principal his Offer to render himself A. 58. No Scire facias lies against them until a perfect Judgment be against the Principal B. 1 2. Cannot be charged by any Custom without a Scire facias B. 29 30 87. If to a Scire facias against them they may plead Error in Fact in the first Judgment B. 101. A Lord shall find Bail ad solvendum debitum upon an Action removed out of London B. 173 174. Bail upon a Writ of Error is not to render the Body being then in Execution but to pay the Debt C. 113. Baron and Feme To what intent the Husband is the Femes Assignee A. 3. Where they shall joyn in Trespass A. 105. The Wife served with a Sub-poena the charges to be given to her Stat. 5 Eliz. cap. 9. A. 122 123. They are at Exigent no Supersedeas shall be received for the Baron without the Feme A. 138 139. The Baron cannot recover things in Action due to the Wife but must first take Administration A. 216. Leases made by the Baron of the Femes Land the Lease is void after their deaths A. 247. What Conveyance of the Wife of Lands given by the Baron is within the intent of the Statute 11 H. 7. A. 261 262. C. 78. They being Tenants in Tail joyntly the Baron suffers a Recovery this binds not the moiety of the Feme A. 270. If an Exchange by them of the Wives Land bind the Feme A. 285. Trover by the Feme and Conversion by the Baron and Feme Action must be against them both A. 312. Payment to the Feme is no good Bar A. 320. What act of the Baron is a breach of the Condition annexed to the Femes Estates B. 35 48. What value the Parapharnalia of a Viscounts Wife in Jewels is B. 166. Devise that she shall take the profits until the Son come of Age her second Husband surviving her shall not take the profits B. 221. C. 78. cont If an Interest be devised C. 9. Lands given to the use of the Wife for life remainder to the Heirs of Baron and Feme the Remainder is executed for a moiety C. 4. The Feme cannot give Licence to one to do a Trespass in the Husbands Land C. 267. By Agreement of the Baron to a Desseisin to the use of Baron and Feme the Free-hold vests in them both but the Feme is no Disseisor C. 272. Bargain and Sale. By Parol of Houses good and the manner thereof A. 18. There must be a Consideration for the doing thereof but it is not traversable A. 170. Of Trees Habend Succidend infra 20 annos If the Bargaince may cut them after 20 years A. 275. This Conveyance works by the Statute of Uses B. 122. C. 16. Of Trees during life of the Lessor the Lessee must cut all at one time in one Close and cannot leave off and begin again C. 7. Give grant agree confirm covenant all work by Bargain and Sale and by the Statute of Uses as well as the words Bargain and Sale C. 16. Bar. Where non damnificatus is a good Bar e contra A. 71 72. Must be good to a common intent and must be confest avoided or traversed or conclude the Defendant by Estoppel A. 77. By an Obligation in Bar of Assumpsit how to be pleaded A. 154. Non Dimisit and what advantage may be taken thereupon A. 192 206 207. To an Action brought by a Sheriff against a Prisoner for escaping Bar that since the escape the Plaintiff had acknowledged satisfaction A. 237. Non Concessit per liâ—eras paten A. 183. Plene Administr before notice where good A. 312. Ejectione Firme a good Bar in Trespass against the same party A. 313. C. 194. Judgment in Trespass a good Bar in Appeal A. 319. Good to common Intent A. 321. What is a good Bar for a time though it destroy not the Action for ever A. 331. Where Non concessit or that riens passa per le fait must be pleaded B. 13. If in Slander for calling one Forsworn it be a good Bar to say the Plaintiff did not depose B. 98. No good Bar to a Contract that a Stranger became bound for the Mony B. 110. To an Action quod Waren fregit no Bar to say it is the Defendants Free-hold for it may be so and that the Plaintiff hath Warren there too B. 202. If a good Bar in Assumpsit that the Plaintiff discharged the Defendant B. 203 204 214. The like in Covenant C. 69. A Stranger is bound that Lessee for years shall pay his Rent for his Farm It is a good Bar that the Lessor entred C. 159. Bastardy The manner of pleading and taking Issue therein A. 335. By pleading of the Bastardy specially how Bastard it shall be tryed per Pais C. 11. Or if the Bastard be not party to the Writ C. 11. Bishop Where he shall be tryed per Pares A. 5. What Lease shall bind the Successor A. 234 235. Is no Clerk
rebuild B. 189. For saving harmless the Defendant must shew how he saved harmless B. 198. Difference where one is to do an act to a Stranger who refuses to accept it and where it is to be done to the Plaintiff who refuseth B. 222. If the words Yielding and Paying make a Condition C. 58. Provided that the Lessee shall not Grant the Land who devised the same to his Executor C. 67. To procure a Grant of the next Avoidandce so as the Plaintiff may present what is a breach C. 151. Upon a Condition to pay Corn the Obligor not bound to seek the Obligee if no place be appointed C. 260 261. Confirmation If one Chapter where there are two may confirm a Lease A. 234. What acceptance and by whom of Rent confirms the Lease of the Tenant A. 243. Tenant for life and he in remainder in Fee joyn in a Feoffment this is the Confirmation of him in remainder C. 10. Abbot and Covent Lease to J.S. at Will and after by Deed for life C. 15. Of a Dean and Chapter of a Bishops Lease in what time it must be made C. 17. Consideration in Assumpsit Assumpsit in cosideration the Defendant will prove such a thing c. when the proof is to be A. 93 94. Past and executed and yet continuing good to make a promise A. 102. B. 111. 224 225. That the Plaintiff will perform an Award the Defendant would perform it also good A. 102. To forbear a Suit in Chancery if good A. 114. B. 105. Of forbearance to sue the Execution of an Infant not good if the Debt were not due A. 114. B. 105. To stay a Suit in Court Christian good A. 118. In consideration of Goods delivered promised to pay the Debt due for them for if no sale no debt A. 157. If there be two if both must be found A. 173 300. B. 71 72. In consideration of the doing of an illegal Act A. 180. C. 208 236. To forbear a Suit ought to shew in what Court the Suit depended A. 180. In consideration of the Plaintiffs promise A. 180. B. 154. What is a good Consideration to make an Assumpsit A. 192 275 276 397. B. 29 30 C. 105 129. Not to execute a Fieri Facias upon Goods good though the Goods were not liable to the Execution A. 220 221. In Consideration the Obligor would pay the Mony the Obligee promised to deliver up his Bond quaere A. 238. Against the Wife of an Intestate in Consideration of forbearance not good unless she administers A. 240. In Consideration of the arrears of Rent-charge for life were unpaid good A. 293. If one of two Considerations be good and the other void yet the Action is maintainable A. 296 300. In Consideration the Plaintiff will assign his interest where he hath none at all B. 71. To forbear per Paululum tempus good C. 200. Where though the Consideration be past and executed being done at the Defendants request yet is good B. 111 224 225. C. 164 236. Ought to be matter of benefit to the Defendant C. 88. 129. Void Consideration per Stat. 23 H. 6. 10. being to let a Prisoner escape C. 208. Where there are two Considerations whereof one is void the whole is void C. 108. Copyhold and Copyholder Relieved by the Lord per Petition in a matter of equity A. 2. Where he shall do Fealty and have Aid of his Lord in Trespass c. and shall have an Ejectione Firme A. 4. How a person absent must make his surrender A. 36. If the Custom be to grant them in Fee it warrants a Grant for life A. 56. An Action in nature of a Dum fuit infra aetatem lies where an Infant surrenders A. 95. Where Statutes speak generally of Lands c. given to the King as forfeited Copyhold Lands are not intended A. 98 99. An Heir by descent may Lease or bring Trespass without any admittance A. 100. And also enter A. 174 175. C. 70. In pleading such Lease it need not be averred to be warranted by the Custom but must be challenged on the other part A. 100. An Heir within age not bound to tender his Fine while within age A. 100. Surrender to a Stranger for life remainder to the right Heirs of the Surrenderer the Heir is in by purchase Secus where an Estate is limitted to the Surrenderer himself A. 101. Surrender to the use of his right Heirs cannot vest during the Ancestors life A. 102. Lord sells and Copyholder releases the tenure is extinct A. 102. Release of a Copyholder to a Disseisor nihil operatur A. 102. What is a reasonable matter to excuse the Tenants not appearing at the Lords Court A. 104. To whom and where notice of a Court day must be given A. 104. Copyhold Estates may be entailed A. 174 175. Such Estate forfeited to the Lord and by him sold by Bill A. 191. Copyholder accepts a Lease of his Copyhold from the Lord this determines his customary Estate A. 170. What Steward may take Surrenders our of or in Court A. 227 228 288 289. Trespass lies by the Tenant against the Lord for cutting down Trees not being Timber A. 272. If the Lords agreement to avoid Admittance makes it good A. 289. A Court to admit Copyholders may be held out of the Mannor A. 289. The mis-entry of the day of holding the Court does not hurt the Copies but may be averred against A. 289 290. No Attornment necessary upon selling a Reversion of Copyhold Lands A. 297. If Tenant at will or sufferance may grant Copies B. 45 46 47. What Estates accepted by a Copyholder from the Lord does extinguish the customary Estate B. 72 73 208. Copyholders Estate not liable to a Rent-charge granted by the Lord B. 109. Secus of Demesnes grantable by Copy B. 153. C. 59. What refusal of a Copyholder to do his service pay his Rent or to make Presentments is a forfeiture of his Estate C. 108 109. What false Pleas Feoffments or Forgeries of Deeds is a forfeiture c. C. 108 109. He who disseiseth a Copyholder gains no Estate C. 221. No Escheat for want of an Heir until proclamation in Court C. 221. A Reversioner may surrender if no Custom to the contrary C. 239. Conspiracy If it lies if the Indictment were void A. 279. C. 140 141. Constable See False Imprison Iustification If he may imprison and how A. 327. Needs not dispute the legality of a Justices Warrant B. 84. May set one in Stocks for refusing to Watch C. 208 209. Continual Claim May be made though the Lands come to the hands of the King A. 191. What is a good Claim to avoid a Fine by the Statute of 4 H. 7. B. 53. Continuance Death of one Defendant after the Assises and before the Term cannot be pleaded for that the Defendant hath no day in Court to plead it C. 5. The difference between it and a dies datus silicet upon a dies datus and default thereupon
no judgment can be given C. 14. Where as to part a Plea is pleaded which is tryable by Certificate or otherwise than by Jury if the other which is tryable by Jury be not continued the whole is not discontinued C. 268. Conuzance de Pleas. Not grantable if the Plaintiff be priviledged in the Courts at Westminister C. 149. Copulative Disjunctive Where a Copulative shall be taken as a Disjunctive e converse A. 74 244 251. Where a thing is to be done Copulative both the matters must be averred A. 251 252. Corporation Upon a grant to them of an Acre in a great Field how they must make election A. 30. Must acknowledge Deeds and levy Fines c. by Warrant of Attorny A. 184. Where the names of the Heads of what Corporations must be shewed in pleading A. 306 307. How they must make a Lease by Attorny where they are out of possession B. 97 98. Cannot be Feoffees to Uses B. 122. Leases by them must be made by their true name of Incorporation as to substance A. 159 to 163 215. B. 97 165. C. 220. Corpus cum Causa See Habeas Corpus Covenant To assure Lands the Covenantor is not bound to seal a Deed with Covenants A. 29. To repair upon warning Action lies by Grantee of the Reversion though the House was ruinous before his Title A. 62. That the Premisses should be exonerated De omnibus oneribus c. how broken A. 93. C. 44. That the Lessee shall take Fireboot super dicta premissa extends not to Lands excepted A. 117. To help and assist the Plaintiff in a Suit in the Defendants name and not to abate it the Defendant being a Feme Sole takes Husband yet is the Writ but abateable A. 168 169. Upon the words Dedi Concessi A. 179 278. B. 104. By Lessor to repair the Lessee in his default repairs if the Lessee may retain Rent for it A. 237. What Covenant makes a Condition and shall defeat an Estate A. 246. Upon the words absque impetitione denegatione Covenant lies if the party himself disturb A. 277. For quiet enjoyment from all claiming under the Covenantor the breach must say how he claimed A. 318. Performance of Covenants in the Disjunctive must be especially pleaded A. 311. Where it lies upon a Proviso A. 318. To make an Estate or repair a House how performance must be pleaded B. 38 39 53. To make assurance binds not to release with Warranty B. 130. One Covenants to assure such Lands as shall descend to him the same to be yearly worth 40 l. If all the Lands by descent are to be assured C. 27. That the Lessee shall enjoy without interruption of any If interruption by one who hath no Title be a breach C. 44. Covenant to leave the Houses in as good plight as he found them C. 44. If upon a Covenant to repair a Recovery be had the Lessor can sue no more C. 51. If one be interrupted by a Decree in Chancery that is no breach of a Covenant to enjoy without lawful Eviction C. 71. Who shall do the first act where the Covenant is reciprocal C. 219. B. 211 212. That he hath made no former Assurances but that the Land shall descend raises no Uses C. 7. Count. Where in a Quare Impedit the Writ may be general and the Count special A. 226 227. Where in a Writ of Entry Sur disseisin brought by Tenant in tail A. 231. How to Count where one of two Debtors or Trespassors are Utlawed C. 202. Countermand In what case the Bailor of Goods may Countermand the authority of the Bailee B. 31. Courts and Offices of the Court. The Common Bench cannot write to the Kings Bench for a Record A. 90. If upon pleading a Title be found or confest for the King the Court ex Officio must prosecute for the King A. 194 323. A Court to admit Copyholders may be held out of the Mannor A. 289. In what case the Kings Bench may hold Plea under 40 s. A. 316. What duty due by a Subject to the King gives the Subject priviledge in the Court of Exchequer B. 21. How and by what authority Nisi Prius are tryed out of the Exchequer B. 87. All the Courts except the Common Bench are variable as to the place and must be shewed where they sit B. 102 103. Courtesie of England In what case the Husband be where the Wives Estate is defeasible by condition A. 167 168. By custom of Mannor B. 109. If the Husband shall be Tenant by the Courtesie of the Seigniory of the Wife where he himself was Tenant C. 247. Court Christian Their Sentences there are good until revoked by other Sentence B. 169 to 172 176 177. Cui in vita What is a good Bar therein A. 53. Custom Of free Bench within a Mannor A. 1. That the Lord may seise for conviction of his Tenant of Felony A. 1. Where it shall be taken strictly A 1â—2 B. 109. Of Bristol that a Covenant shall bind by Parol is good A. 2. That a Copyholder may Lease for years ad pasturand non ad colend ' A. 16. What Customs are void being unreasonable A. 217. C. 81 82 226 227. What are good and reasonable A. 217 328. C. 227. That the Lord may take the profits during the Nonage of the Infant Tenant good A. 266. Customs of the Kings Courts are Laws B. 85 86. Custom alledged infra Regnum Angliae if good B. 114 115. A good Custom that Robbers at Sea shall share the Goods though one Ship did but stand by and look on B. 182. D. Damages INcreased by the Court super visum vulnerum A. 139. No costs upon discontinuance by original Stat. 32 H. 8. 15. A. 115. Intire assessed upon one promise to perform an Award of two matters whereof one void how adjudged A. 170 171. An Action upon the Stat. of 8 H. 6. of Forcible entry treble Costs and Damages A. 282. B. 52. If the Jury ought to assess any Damages in Account A. 302. In what Actions Costs by the Statute 32 H. 8. vide tit Stat. B. 9 52. C. 92. In account the Plaintiff hath Damages B. 118. The Plaintiff shall have Costs assessed but by one Jury though several Trials by several Juries B. 177. Grantee of a Reversion shall recover Damages in Covenant but for things done since the Grant C. 51. The first Jury which tries the first Issue may assess Damages for the whole Trespass C. 122. If the Plaintiff in Replevin be non-suited after Avowry for Rent the Court may assess Damages without a Writ of Enquiry C. 213. If joynt Damages be assessed for two Trespasses one of which lieth not the Plaintiff cannot have Judgment C. 213. Where the Court will abridge Damages C. 150. Dean and Chapter hujusmodi An Arch-Deacon Prebend what they are A. 13 205. What places have two Chapters and if Leases confirmed by one be good A. 234 235. The Chapter must be party to a
Debt against the Debtors Executor A. 320. They may have Error of an Utlary in Felony against their Testator A. 325. Good resolutions for their pleading of Statutes Judgments c. A. 328. 329. What Debts must be first paid 328 329. Are liable to account to the King. B. 34. The manner of prosecuting a Devastavit in a forein County against an Executor B. 67. If they plead plene administravit specially by paying Debts upon Bonds they must shew how the Bonds are discharged B. 155. What intermeddling with the deceaseds Estate makes one Executor of his own wrong B. 224. Conditional if he pay all Debts owing to the Testator to the other Executor C. 3. If Executors enter or claim generally it shall be taken to be as Executors and not in any other capacity C. 36. It is said that a promise cannot be good to bind an Executor if he hath not Assets C. 67. Sale of Goods by an Infant Executor is good and binds him C. 143. One Obligor makes the Surety his Executor who pays the Mony generally Quaere C. 197. How he must be sued who being Executor of his own wrong takes Administration C. 197 198. One Executor cannot give the Goods of the Testator to the other for nothing passes by such Gift C. 209. Release of one Executor binds both C. 209. Executor of Executor not chargeable with a Devastavit made by the first Testator C. 241. Exemption A Juror sworn at the Bar notwithstanding he produced his Charter A. 207. Ex gravi querela In London in what case A. 267. Ex parte talis In what case it lieth B. 93. Exposition of Words Dedi Concessi in a Deed A. 29. Where the word Or in a Deed shall be copulative e converso A. 74 244. Of the word eundem in a Grant A. 15. Divisus dividend in an original Writ A. 169. Of Adtunc A. 172. I agree to surrender my Lands spoken by Tenant at will A. 178. Of the word Tenement in Grants A. 188. Of the word Covenant in a Bill of Debt A. 208. Uterque in Indictments A. 241. Quousque A. 244. Suus A. 271. Right A. 271. Factum implies sealing and delivering A. 310. Exponere ad culturam gives no Estate in the Land A. 315. In portum ad portum all one A. 335. Covenant with two quo ibet eorum B 47. In manner aforesaid is a Devise B. 69. By the word Licet may be made a good allegation B. 108. C. 67. A mile is accounted in Law 1000 paces and every pace 5 foot B. 113. Assurance to what Conveyances it doth relâ—te B. 130. Selion of Land is uncertain B. 162. Puer if it relates to both Sexes B. 217 218. Firma C. 12 13. Whether the word Mille may be joyned to a Genitive or Accusative Case C. 94. Tenementum is of an incertain signification C. 102. Of the word until as a Lease until Michaelmas includes the Feast day C. 211 Curtillage quid C. 214. Where a word in the singular number includes the plural C. 262. Immediate C. 273 274. Term of years C. 112. Extent If it be well executed though not retorned A. 280. Executed though not retorned in what case it is a good Execution B. 12 13. Lessee for years may pay the Rent to the Extendor C. 113. Scire facias to remove the Conusee C. 155. If the Conusee can in any case be removed without a Scire facias C. 155 to 158. What kâ—nd of Interest is left in the Conusor during the Extent C. 156 157. If an Extent be avoided by a Prior Statute the puisne Conusee may enter when the other is satisfied C. 239. If a Debt be assigned to the King he shall have all the Conusors Land C. 240. By the Statute of Acton Burnel the Extendors are to take the Lands if they appraise too high and must pay the Debt statim But when that statim means vi C. 274. Extinguishment Of Rent by Entry what act amounts thereto A. 110. Estate for life extinct by a Fee coming to the same person A. 174. A Prescription of non decimand in a spiritual Person is not extinguished by the Lands coming to lay hands A. 248. If a Remainder depending upon an Estate for life escheat the Seigniory is extinct presently A. 255. Where an Action once suspended is extinguished A. 172 320 330 331. Of a Use A. 257 259. A Rent granted in Fee and that it shall be suspended during the nonage of every Heir A. 266. Executor of the Debtee takes to Wife the Debtor how adjudged A. 320. Where personal things once suspended shall be revived B. 84. Lessor mortgages his Reversion to the Lessee in Fee the Term is utterly extinct C. 6. Where a Warrant is suspended and may be revived C. 10 11. A Term for years comes to the Lessor as Executor and he dies the Term is revived C. 210 111. If Unity of possession in the King of Abbey Lands extinguish a Common C. 128. If Devisee of a Term remainder over purchase the Fee the Term is not merged C. 92 93. Condition of re-entry is not suspended by assigning part of the Land for part of the Term C. 221. By destroying a Reversion a Rent depending thereon is extinct C. 261. A Mesnalty extinct by the Lords purchasing the Tenancy C. 261. Extortion Against whom it lies and the several Statutes against it A. 295. C. 268. It must be set sorth in the Judgment whether any Fee or no Fee was due C. 268. F. Faux Imprisonment See Iustification FFaux Imprisonment lies if a Capias be made out of the Courts at Westminster to a County Palatine B. 89. Faux Iudgment Lies upon a Justicies not Error B. 34. Upon a Writ of Right Close prosecuted in nature of an Assise C. 63. Fee-simple Where it may be created without the word B. 27. C. 216. Devise that the elder Son shall take the Profits until the younger come of Age is a Fee conditional in the eldest C. 216. Feoffment Vide Vses Good by the words Bargain and Sell with Livery A. 25. Fine and Amerciament Upon alienation without Licence A. 8. B. 55 56. In what case a Vill shall be amerced for the escape of a Felon A. 107. C. 207. If a Pain upon a Presentment must be afferred A. 203 204 217 242. In what case a Steward may Fine in a Court-Leer A. 217 242. Grantee of Post-Fines if he may distrain for them and sell the distress A. 249 250. The manner of pleading in Trespass where the Defendant-justifies for such Fine A. 249 250. By what words such Fines pass A. 249 250. If a Defendant make several defaults in one Suit he shall be several times amerced B. 4 5. Fine set in a Court for a contempt in not retorning of Cattle in a Replevin B. 174. Debt lies for a Post-Fine by the Kings Grantee B. 179. cont C. 56 234. A Defendant may be several times amerced for several defaults in one Suit B.
Tenant of Freehold Contra in an Assise A. 193. Of Nient comprise in a Recovery A. 184 185. Avowry for Damage Feasant in Copyhold Lands leased to the Avowant The Plaintiff pleads a prior Title to the Mannor in Fee and Ill for he ought to have said he was seised until the avowant entred praetextu of the Lease A. 288. B 80. In what case one may plead Not Guilty in Trespass A. 301. Of a Feoffment by two or a Bond made to two where one is dead A. 322. B. 220. Where one may plead nil debet or the special matter B. 10. To let for Rent of an Eviction by Title B. 10. Where one must plead non concessit or that nothing passed by the Deed B. 13 Where in pleading a place certain must be alledged Vide Lieu County Where to an Information for the King the Defendant cannot plead Not Guilty but must answer specially to the Tort B. 34. Of performance of Conditions to make a good Estate repair a House c. B. 39. Where de injuria sua propria is good Replication with and without a Traverse B. 81 102 103. If a Stranger be bound that the Lessee pay his Rent he may plead entry and expulsion B. 115. Where a Plea must conclude Judgment if Action or If he ought to answer B. 160. That he paid all Debts owing by him to J.S. he ought to shew what Debts C. 3. No pleading of a thing conveyed per nomen c. but by Deed C. 9 10. Plea vicious in Debt upon a Recognizance concluding Judicium si Executio c. C. 58. Of Entry into Religion Resignation and Divorce C. 199. No pleading to the Jurisdiction of the Court after a general Imparlance C. 214 215. One cannot plead an Attachment after Imparlance C. 232. Pledges The King and an Infant need find none B. 4 185 186. Pluralities If an Arch-deaconry make it A. 316. Posse Comitatus Cannot be but out of the Chief Court at Westui C 99. Possession Unity of Possession of 3 purparts of a Mannor does not make the whole liable to a charge granted out of two parts A. 85 86. Unity of Possession of Land and Tithes out of which c. does not extinguish the Tithes A. 248 331 332. Entry of the Brother in one County into the Demesnes of a Mannor extending into two Counties does not make a possessio fratris A. 265. If the possession of a Reversion after a Lease for years make a possessio fratris of Copyhold Lands C. 70. Whether Unity of possession of Lands and Common in the King of Abbey Lands extinguish the Common C. 128. If recovery of Dower against the Brother take away a possessio fratris C. 155 156. What possession makes a possessio fratris C. 273. Power to make Lease by Act of Parliament not pursued C. 72. Premunire Lies not for the party If the Kings Attorny release A. 292. For trying a Freehold without Jurisdiction Ibid. For proceeding in the Admiralty for a matter done upon the Land it must appear in the Libel to be done on the Lands else this Action lies not B. 183. Prerogative See King. That the King shall have a Fine upon alienation of his Tenant in Capite A. 8. The Court ex officio must preserve it A. 63 322. Where the King shall have Primer Seisin A. 65 66. Lands come to the King which are charged with a Rent no distress lies but a Petition of Right A. 191. One cannot cross the King his Title but he must intitle himself A. 202 294. To present a Clerk upon a Lapse vested in the Bishop whose See is after void A. 235. Where the King shall have Primer Seisin and Ward A. 253 284 285. To charge Executors Ad. Computand ' B. 34. The King needs not demand a Rent to entitle himself to a Re-entry A. 12. B. 134. C. 125. May distrain for a Rent-Seek C. 125. May reserve a Rent to a Stranger C. 127. Shall have account against Executors C. 198. The King shall not have his Prerogative to be first satisfied of a Debt which comes to him by Assignment if a Prior Extent be executed C. 239. Upon such Extent the King shall have the whole Land though the Conusee could have but a moiety C. 240. Prescription For Estovers within a Forest A. 2. Cannot be to take all the profits c. but may be to have Fold-course or the like A. 11 142. For Common when the Land is not sowed A. â—3 No Prescription though no memory to the contrary if the commencement be known A. 10â— B. 28. That none shall exercise the Trade of a Baker in a Market Town without the Plaintiffs Licence A. 142 143. Laid in Tenant for life and him in Remainder in tail and yet good A. 177. Where good to have Suitors to a Court and to take Toll c. A. 217 218. Void because unreasonable A. 232 314. C. 41 42 81 82. Good and reasonable A. 232 233 314. C. 41 42. Spiritual Persons may prescribe in non decimando A. 241 248. Though such Prescription be interrupted by the Land coming to Lay-hands yet it is not destroyed A. 248. What words apt to make a Prescription what not A. 273. None against a Statute B. 28. Not a good Prescription That every Inhabitant in a Town shall have Common B. 44 45. C. 200. In pleading a Prescription in a Vill it must be pleaded that the Vill is Antiqua c. B. 98. How to prescribe for a Way with Horses and Carriages C. 13. In pleading it it must be said that the Prescription was once executed not only quod potest c. C. 83. Presentment to a Church Before Induction the King may repeal his Presentation A. 156. B. 164. Presentee of the King by Lapse dies before Induction Videtur that the King may present again A. 156. Grant of the next Presentment made when the Church is void is also void A. 167. The difference between it and a Collation and the definition of them A. 226. If the Bishop die after Lapse devolved to him the King shall Present A. 235. What kind of Interest it is Ibid. If an Archdeaconry become void by the Deacon being made Bishop the King shall present and not the Patron C. 151. The King cannot revoke his Presentment but by express words and reciting the first C. 243. Primer Seisin The Heir shall pay a third part of the profits for Primer Seisin C. 25 54. Principal and Accessary If the Attainder against the Principal be reversed the Accessary is discharged A. 325. Priviledge A person who is priviledged by reason of an Action depending in the Common Bench is priviledged for the Goods of Strangers in his hands so that they cannot be attached A. 169 189. What duty to the King gives a Subject the priviledge to sue in the Exchequer B. 21. If both parties are previledged in the Courts at Westminster allocatur querenti B. 41. One priviledged after Judgment quod computet B.
laid before the Plaintiffs Title adjudged not good A. 104. Where one shall have time to do an Act during his life A. 124 125. Action appearing to be brought before Mony due how adjudged A. 186 187. Bargain and Sale of Trees Habend Succidend infra 20 annos how adjudged A. 275. Solvendum the value of the profits per annum is intended the then present value C. 114. Tithes Cannot be granted without Deed A. 23. B. 73. Are now become Quasi Laicum seodum A. 23 300. Vest in the Owner immediately after set out A. 39. If in trespass the right of Tithes come in question between two Parsous the Spiritual Court hath Jurisdiction A. 59. Who may prescribe in non decimando A 241 248. Release of all demands in the Parishioners Land does not discharge Tithes A. 300. What is a good discharge of payment of Tithes A. 332 330 334. B. 73. By the Civil Law the Parson is to have every tenth Land of Corn B. 70. In what case they shall be paid although the Lands were the Cistertians B. 71. Of what Wood and how Tithes shall be paid B. 79 80. Title Where the Defendant must shew a Title in pleading where not A. 45 46. He who pleads against the Kings Title must shew his own A 202. B 30 31. Toll For what Toll shall be taken A. 218. For what Goods it may be taken of Tenants in Ancient Demesne A. 232 233. Tort. Where a Man shall take benefit of his own wrong doing where not A. 339 331. Traverse Two Traverses in an Intrusion A. 38. Where the place is traversable A. 39. Plea vicious for want of a Traverse A. 44 78 79. Is but matter of form A. 44. Where a Mans intentions are c. A. 50. Where in a Quare Imp. the Appendancy or the Presentation is traversable A. 154. It is not traversable whether Mony were paid upon a Bargain and Sale A. 170. In Quare Imp. absque hoc quod disturbavit aliter seu alio modo A. 230. What matters are traversable in Assumpsits A. 252 253. Where the dying seised and where the descent is traversable A. 310. B. 185. Where a thing is to be done by Covenant upon request the request is traversable B. 5. An inducement to a Traverse ought to be matter traversable B. 32. Where the Defendant justifies in a local thing in another County he must Traverse the County in the Declaration B. 79. Where the Defendant is charged with a malicious Tort and pleads in excuse he must Traverse the malice or default charged on him B. 94 95. Per Executor that he administred about Funerals and Traverse that he administred aliter seu alio modo B 104. Prescription pleaded against Prescription not good without Traverse of the first B. 209 210. Where the Command of a Lord to the Bailiff is traversable B. 215 216. In Replevin Bar That he took the Cattle of his own wrong absque hoc that he took them as Bailiff B. 215. Trespass for driving Sheep per quod they lost their Lambs no Plea to say he took them as distress without a Traverse to the Tortious driving C. 15. If the Defandant may plead another promise and Traverse parcel of the promise in the Count C. 67. Trespass Done by two It is a good Bar that the Plaintiff had Judgment and Execution against one A. 19. C. 122. Bar by a Recovery in an Assise and the pleading thereof A. 24. Lies with Simul cum J.S. vel Cum quodam homine ignoto A. 41. C. 77. Lies against one intrusted to sell Goods in a Shop if he imbezel any to his own use A. 87. 88. Lay before the Plaintiffs Title accrued not good A. 104. Possession is a good Title for the Plaintiff if the Defendant have no better to shew A. 215. Lies for a Copyholder against his Lord for cutting his Trees A. 272. In Ejectione firmae is a good Bar against the same party in Trespass A. 313. C. 194. Trespass in domo New assignment may be made in a House and a Barn B. 184 185. Quare cuniculos cepit B. 201. Grantee of the Herbage cannot have a Trespass Quare clausum fregit C. 213. If Trespass lies for a Greyhound C. 219. For what things ferae naturae the Writ may say suos supposing a property Ibid. Trial. See Visne Quaere If Issue joyned in an Inferior Court tryable out of the Jurisdiction may be sent into the Courts at Westm to be tried there A. 91. It shall not B. 37. Whether Wise or not Wise a Church or not a Church Prior or not Prior within or without a Parish triable at Common Law A. 53 181. B. 170 171. C. 129. Where the Spiritual Court shall try incidents arising upon a matter triable there A. 181 182. Of Ne unque accouple c. non fuit uxor A. 53. Of an Executors refusal how A. 205 206. The Court may judge what day is dies Juridicus by an Almanack A. 242. Where it shall be of Men of two Counties B. 102 103. Temporal Courts try Si fuit uxor Cont. of Ne unques accouple c. B. 170 171. A. 53. Two several Jurors try Issues upon one Action there can be but Costs by one Jury B. 177. In what case refusal to be Executor shall be tryed per Pais and where by the Bishops Certificate B. 180. Trial of matter of Law as to make a sufficient release must not be left to a Jury B. 197. Trial of Ability or Disability of a Parson shall be by the Bishop But if the Parson be dead then by Jury C. 46 47. How an Issue Whether one be a Counsellor in â—eg eruditus be triable by Jury C. 238. Trover Bar by a Sheriffs Baily for executing of a Fieri facias good A. 144. Of Cart-Loads of Hay A. 178. What is a good Bar therein what not A. 178 189 222 223 247 248. B. 13 37. What thing is traversable therein A. 189 247 253. B. 13 94. What Act amounts to a conversion A. 222 223 224. Trover by the Feme and conversion by both The Action must be against both A. 312. What evidence the Defendant therein may give upon Not guilty pleaded B. 220 221. Utlary a good Bar in this Action C. 205. V. Variance BEtween a Suggestion and a Count in Attachment sur Prohibition is Error A. 128. What variance in recital of a Fine wrong shall prejudice C. 136. The like in wrong reciting of former Conveyances Ibid. View In a Writ of Right de Custodia Forestae the Forest must be put in View and of Rent the Land A. 86. Venire Facias De novo for the incertainty of a special Verdict A. 210. De medietate linguae B. 112. Where it shall say Quorum quilibet hab 4 l. in terris c. B. 112 113. Upon a special Writ as Audita Querela must be special C. 260. Verdict Void because a Juror received Mony of a Solicitor A. 18. Where surplusage